May 26, 2020
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_h0761__
HB 761

1
A bill to be entitled
2An act relating to state attorneys; amending s. 27.366,
3F.S.; deleting a provision that requires each state
4attorney to report why a case-qualified defendant did not
5receive the mandatory minimum prison sentence in cases
6involving the possession or use of a weapon; amending s.
7775.082, F.S.; deleting a provision that requires each
8state attorney to report why a case-qualified defendant
9did not receive the mandatory minimum prison sentence in
10cases involving certain specified offenses; repealing s.
11775.08401, F.S., relating to criteria to be used when
12state attorneys decide to pursue habitual felony
13offenders, habitual violent felony offenders, or violent
14career criminals; repealing s. 775.087(5), relating to a
15provision that requires each state attorney to report why
16a case-qualified defendant did not receive the mandatory
17minimum prison sentence in cases involving certain
18specified offenses; amending s. 903.286, F.S.; requiring
19the clerk of the court to withhold sufficient funds to pay
20any unpaid costs of prosecution from the return of a cash
21bond posted on behalf of a criminal defendant by a person
22other than a bail bond agent; amending s. 938.27, F.S.;
23providing that persons whose cases are disposed of under
24any diversionary alternative are liable for payment of the
25costs of prosecution; deleting provisions regarding the
26burden of establishing financial resources of the
27defendant; requiring the clerk of court to separately
28record each assessment and payment of costs of
29prosecution; requiring the clerk to prepare a monthly
30report to the state attorney's office of the recorded
31assessments and payments; amending s. 943.0585, F.S.;
32requiring a person to remit a processing fee to the state
33attorney's office in order to receive a certificate of
34eligibility for expunction of a criminal history record;
35conforming cross-references; amending s. 943.059, F.S.;
36requiring a person to remit a processing fee to the state
37attorney's office in order to receive a certificate of
38eligibility for sealing a criminal history record;
39repealing s. 985.557(4), F.S., relating to direct-file
40policies and guidelines for juveniles; amending s.
41775.0843, F.S.; conforming a cross-reference; providing an
42effective date.
43
44Be It Enacted by the Legislature of the State of Florida:
45
46     Section 1.  Section 27.366, Florida Statutes, is amended to
47read:
48     27.366  Legislative intent and policy in cases meeting
49criteria of s. 775.087(2) and (3); report.-
50     (1)  It is the intent of the Legislature that convicted
51criminal offenders who meet the criteria in s. 775.087(2) and
52(3) be sentenced to the minimum mandatory prison terms provided
53therein herein. It is the intent of the Legislature to establish
54zero tolerance of criminals who use, threaten to use, or avail
55themselves of firearms in order to commit crimes and thereby
56demonstrate their lack of value for human life. It is also the
57intent of the Legislature that prosecutors should appropriately
58exercise their discretion in those cases in which the offenders'
59possession of the firearm is incidental to the commission of a
60crime and not used in furtherance of the crime, used in order to
61commit the crime, or used in preparation to commit the crime.
62For every case in which the offender meets the criteria in this
63act and does not receive the mandatory minimum prison sentence,
64the state attorney must explain the sentencing deviation in
65writing and place such explanation in the case file maintained
66by the state attorney. On a quarterly basis, each state attorney
67shall submit copies of deviation memoranda regarding offenses
68committed on or after the effective date of this act to the
69President of the Florida Prosecuting Attorneys Association, Inc.
70The association must maintain such information and make such
71information available to the public upon request for at least a
7210-year period.
73     (2)  Effective July 1, 2000, each state attorney shall
74annually report to the Speaker of the House of Representatives,
75the President of the Senate, and the Executive Office of the
76Governor regarding the prosecution and sentencing of offenders
77who met the criteria in s. 775.087(2) and (3). The report must
78categorize the defendants by age, gender, race, and ethnicity.
79Cases in which a final disposition has not yet been reached
80shall be reported in a subsequent annual report.
81     Section 2.  Paragraph (d) of subsection (9) of section
82775.082, Florida Statutes, is amended to read:
83     775.082  Penalties; applicability of sentencing structures;
84mandatory minimum sentences for certain reoffenders previously
85released from prison.-
86     (9)
87     (d)1.  It is the intent of the Legislature that offenders
88previously released from prison who meet the criteria in
89paragraph (a) be punished to the fullest extent of the law and
90as provided in this subsection, unless the state attorney
91determines that extenuating circumstances exist which preclude
92the just prosecution of the offender, including whether the
93victim recommends that the offender not be sentenced as provided
94in this subsection.
95     2.  For every case in which the offender meets the criteria
96in paragraph (a) and does not receive the mandatory minimum
97prison sentence, the state attorney must explain the sentencing
98deviation in writing and place such explanation in the case file
99maintained by the state attorney. On an annual basis, each state
100attorney shall submit copies of deviation memoranda regarding
101offenses committed on or after the effective date of this
102subsection, to the president of the Florida Prosecuting
103Attorneys Association, Inc. The association must maintain such
104information, and make such information available to the public
105upon request, for at least a 10-year period.
106     Section 3.  Section 775.08401, Florida Statutes, is
107repealed.
108     Section 4.  Subsection (5) of section 775.087, Florida
109Statutes, is repealed.
110     Section 5.  Subsection (1) of section 903.286, Florida
111Statutes, is amended to read:
112     903.286  Return of cash bond; requirement to withhold
113unpaid fines, fees, court costs; cash bond forms.-
114     (1)  Notwithstanding s. 903.31(2), the clerk of the court
115shall withhold from the return of a cash bond posted on behalf
116of a criminal defendant by a person other than a bail bond agent
117licensed pursuant to chapter 648 sufficient funds to pay any
118unpaid court fees, court costs, costs of prosecution, and
119criminal penalties. If sufficient funds are not available to pay
120all unpaid court fees, court costs, costs of prosecution, and
121criminal penalties, the clerk of the court shall immediately
122obtain payment from the defendant or enroll the defendant in a
123payment plan pursuant to s. 28.246.
124     Section 6.  Section 938.27, Florida Statutes, is amended to
125read:
126     938.27  Judgment for costs on conviction and disposition.-
127     (1)  In all criminal and violation-of-probation or
128community-control cases, convicted persons and persons whose
129cases are disposed of under any diversionary alternative are
130liable for payment of the costs of prosecution, including
131investigative costs incurred by law enforcement agencies, by
132fire departments for arson investigations, and by investigations
133of the Department of Financial Services or the Office of
134Financial Regulation of the Financial Services Commission, if
135requested by such agencies. The court shall include these costs
136in every judgment rendered against the convicted person. For
137purposes of this section, "convicted" means a determination of
138guilt, or of violation of probation or community control, which
139is a result of a plea, trial, or violation proceeding,
140regardless of whether adjudication is withheld.
141     (2)(a)  The court shall impose the costs of prosecution and
142investigation notwithstanding the defendant's present ability to
143pay. The court shall require the defendant to pay the costs
144within a specified period or in specified installments.
145     (b)  The end of such period or the last such installment
146shall not be later than:
147     1.  The end of the period of probation or community
148control, if probation or community control is ordered;
149     2.  Five years after the end of the term of imprisonment
150imposed, if the court does not order probation or community
151control; or
152     3.  Five years after the date of sentencing in any other
153case.
154
155However, in no event shall the obligation to pay any unpaid
156amounts expire if not paid in full within the period specified
157in this paragraph.
158     (c)  If not otherwise provided by the court under this
159section, costs shall be paid immediately.
160     (3)  If a defendant is placed on probation or community
161control, payment of any costs under this section shall be a
162condition of such probation or community control. The court may
163revoke probation or community control if the defendant fails to
164pay these costs.
165     (4)  Any dispute as to the proper amount or type of costs
166shall be resolved by the court by the preponderance of the
167evidence. The burden of demonstrating the amount of costs
168incurred is on the state attorney. The burden of demonstrating
169the financial resources of the defendant and the financial needs
170of the defendant is on the defendant. The burden of
171demonstrating such other matters as the court deems appropriate
172is upon the party designated by the court as justice requires.
173     (5)  Any default in payment of costs may be collected by
174any means authorized by law for enforcement of a judgment.
175     (6)  The clerk of the court shall collect and dispense cost
176payments in any case. The clerk of court shall separately record
177each assessment and the payment of costs of prosecution. Costs
178of prosecution must be assessed with respect to each case number
179before the court. The clerk shall provide a monthly report to
180the state attorney's office of the assessments and payments
181recorded.
182     (7)  Investigative costs that are recovered shall be
183returned to the appropriate investigative agency that incurred
184the expense. Such costs include actual expenses incurred in
185conducting the investigation and prosecution of the criminal
186case; however, costs may also include the salaries of permanent
187employees. Any investigative costs recovered on behalf of a
188state agency must be remitted to the Department of Revenue for
189deposit in the agency operating trust fund, and a report of the
190payment must be sent to the agency, except that any
191investigative costs recovered on behalf of the Department of Law
192Enforcement shall be deposited in the department's Forfeiture
193and Investigative Support Trust Fund under s. 943.362.
194     (8)  Costs for the state attorney shall be set in all cases
195at no less than $50 per case when a misdemeanor or criminal
196traffic offense is charged and no less than $100 per case when a
197felony offense is charged, including a proceeding in which the
198underlying offense is a violation of probation or community
199control. The court may set a higher amount upon a showing of
200sufficient proof of higher costs incurred. Costs recovered on
201behalf of the state attorney under this section shall be
202deposited into the state attorney's grants and donations trust
203fund to be used during the fiscal year in which the funds are
204collected, or in any subsequent fiscal year, for actual expenses
205incurred in investigating and prosecuting criminal cases, which
206may include the salaries of permanent employees, or for any
207other purpose authorized by the Legislature.
208     Section 7.  Paragraph (b) of subsection (1) of section
209943.0585, Florida Statutes, is amended, present paragraphs (c)
210through (h) of subsection (2) of that section are redesignated
211as paragraphs (d) through (i), respectively, a new paragraph (c)
212is added to that subsection, and present paragraph (f) of that
213subsection is amended, to read:
214     943.0585  Court-ordered expunction of criminal history
215records.-The courts of this state have jurisdiction over their
216own procedures, including the maintenance, expunction, and
217correction of judicial records containing criminal history
218information to the extent such procedures are not inconsistent
219with the conditions, responsibilities, and duties established by
220this section. Any court of competent jurisdiction may order a
221criminal justice agency to expunge the criminal history record
222of a minor or an adult who complies with the requirements of
223this section. The court shall not order a criminal justice
224agency to expunge a criminal history record until the person
225seeking to expunge a criminal history record has applied for and
226received a certificate of eligibility for expunction pursuant to
227subsection (2). A criminal history record that relates to a
228violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
229s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
230827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
231893.135, s. 916.1075, a violation enumerated in s. 907.041, or
232any violation specified as a predicate offense for registration
233as a sexual predator pursuant to s. 775.21, without regard to
234whether that offense alone is sufficient to require such
235registration, or for registration as a sexual offender pursuant
236to s. 943.0435, may not be expunged, without regard to whether
237adjudication was withheld, if the defendant was found guilty of
238or pled guilty or nolo contendere to the offense, or if the
239defendant, as a minor, was found to have committed, or pled
240guilty or nolo contendere to committing, the offense as a
241delinquent act. The court may only order expunction of a
242criminal history record pertaining to one arrest or one incident
243of alleged criminal activity, except as provided in this
244section. The court may, at its sole discretion, order the
245expunction of a criminal history record pertaining to more than
246one arrest if the additional arrests directly relate to the
247original arrest. If the court intends to order the expunction of
248records pertaining to such additional arrests, such intent must
249be specified in the order. A criminal justice agency may not
250expunge any record pertaining to such additional arrests if the
251order to expunge does not articulate the intention of the court
252to expunge a record pertaining to more than one arrest. This
253section does not prevent the court from ordering the expunction
254of only a portion of a criminal history record pertaining to one
255arrest or one incident of alleged criminal activity.
256Notwithstanding any law to the contrary, a criminal justice
257agency may comply with laws, court orders, and official requests
258of other jurisdictions relating to expunction, correction, or
259confidential handling of criminal history records or information
260derived therefrom. This section does not confer any right to the
261expunction of any criminal history record, and any request for
262expunction of a criminal history record may be denied at the
263sole discretion of the court.
264     (1)  PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each
265petition to a court to expunge a criminal history record is
266complete only when accompanied by:
267     (b)  The petitioner's sworn statement attesting that the
268petitioner:
269     1.  Has never, prior to the date on which the petition is
270filed, been adjudicated guilty of a criminal offense or
271comparable ordinance violation, or been adjudicated delinquent
272for committing any felony or a misdemeanor specified in s.
273943.051(3)(b).
274     2.  Has not been adjudicated guilty of, or adjudicated
275delinquent for committing, any of the acts stemming from the
276arrest or alleged criminal activity to which the petition
277pertains.
278     3.  Has never secured a prior sealing or expunction of a
279criminal history record under this section, former s. 893.14,
280former s. 901.33, or former s. 943.058, or from any jurisdiction
281outside the state, unless expunction is sought of a criminal
282history record previously sealed for 10 years pursuant to
283paragraph (2)(i)(h) and the record is otherwise eligible for
284expunction.
285     4.  Is eligible for such an expunction to the best of his
286or her knowledge or belief and does not have any other petition
287to expunge or any petition to seal pending before any court.
288
289Any person who knowingly provides false information on such
290sworn statement to the court commits a felony of the third
291degree, punishable as provided in s. 775.082, s. 775.083, or s.
292775.084.
293     (2)  CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to
294petitioning the court to expunge a criminal history record, a
295person seeking to expunge a criminal history record shall apply
296to the department for a certificate of eligibility for
297expunction. The department shall, by rule adopted pursuant to
298chapter 120, establish procedures pertaining to the application
299for and issuance of certificates of eligibility for expunction.
300A certificate of eligibility for expunction is valid for 12
301months after the date stamped on the certificate when issued by
302the department. After that time, the petitioner must reapply to
303the department for a new certificate of eligibility. Eligibility
304for a renewed certification of eligibility must be based on the
305status of the applicant and the law in effect at the time of the
306renewal application. The department shall issue a certificate of
307eligibility for expunction to a person who is the subject of a
308criminal history record if that person:
309     (c)  Remits a $75 processing fee to the state attorney's
310office to be deposited into the state attorney's grants and
311donations trust fund unless the fee is waived by the state
312attorney.
313     (g)(f)  Has never secured a prior sealing or expunction of
314a criminal history record under this section, former s. 893.14,
315former s. 901.33, or former s. 943.058, unless expunction is
316sought of a criminal history record previously sealed for 10
317years pursuant to paragraph (i) (h) and the record is otherwise
318eligible for expunction.
319     Section 8.  Present paragraphs (c) through (f) of
320subsection (2) of section 943.059, Florida Statutes, are
321redesignated as paragraphs (d) through (g), respectively, and a
322new paragraph (c) is added to that subsection, to read:
323     943.059  Court-ordered sealing of criminal history
324records.-The courts of this state shall continue to have
325jurisdiction over their own procedures, including the
326maintenance, sealing, and correction of judicial records
327containing criminal history information to the extent such
328procedures are not inconsistent with the conditions,
329responsibilities, and duties established by this section. Any
330court of competent jurisdiction may order a criminal justice
331agency to seal the criminal history record of a minor or an
332adult who complies with the requirements of this section. The
333court shall not order a criminal justice agency to seal a
334criminal history record until the person seeking to seal a
335criminal history record has applied for and received a
336certificate of eligibility for sealing pursuant to subsection
337(2). A criminal history record that relates to a violation of s.
338393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
339800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
340839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
341916.1075, a violation enumerated in s. 907.041, or any violation
342specified as a predicate offense for registration as a sexual
343predator pursuant to s. 775.21, without regard to whether that
344offense alone is sufficient to require such registration, or for
345registration as a sexual offender pursuant to s. 943.0435, may
346not be sealed, without regard to whether adjudication was
347withheld, if the defendant was found guilty of or pled guilty or
348nolo contendere to the offense, or if the defendant, as a minor,
349was found to have committed or pled guilty or nolo contendere to
350committing the offense as a delinquent act. The court may only
351order sealing of a criminal history record pertaining to one
352arrest or one incident of alleged criminal activity, except as
353provided in this section. The court may, at its sole discretion,
354order the sealing of a criminal history record pertaining to
355more than one arrest if the additional arrests directly relate
356to the original arrest. If the court intends to order the
357sealing of records pertaining to such additional arrests, such
358intent must be specified in the order. A criminal justice agency
359may not seal any record pertaining to such additional arrests if
360the order to seal does not articulate the intention of the court
361to seal records pertaining to more than one arrest. This section
362does not prevent the court from ordering the sealing of only a
363portion of a criminal history record pertaining to one arrest or
364one incident of alleged criminal activity. Notwithstanding any
365law to the contrary, a criminal justice agency may comply with
366laws, court orders, and official requests of other jurisdictions
367relating to sealing, correction, or confidential handling of
368criminal history records or information derived therefrom. This
369section does not confer any right to the sealing of any criminal
370history record, and any request for sealing a criminal history
371record may be denied at the sole discretion of the court.
372     (2)  CERTIFICATE OF ELIGIBILITY FOR SEALING.-Prior to
373petitioning the court to seal a criminal history record, a
374person seeking to seal a criminal history record shall apply to
375the department for a certificate of eligibility for sealing. The
376department shall, by rule adopted pursuant to chapter 120,
377establish procedures pertaining to the application for and
378issuance of certificates of eligibility for sealing. A
379certificate of eligibility for sealing is valid for 12 months
380after the date stamped on the certificate when issued by the
381department. After that time, the petitioner must reapply to the
382department for a new certificate of eligibility. Eligibility for
383a renewed certification of eligibility must be based on the
384status of the applicant and the law in effect at the time of the
385renewal application. The department shall issue a certificate of
386eligibility for sealing to a person who is the subject of a
387criminal history record provided that such person:
388     (c)  Remits a $75 processing fee to the state attorney's
389office to be deposited into the state attorney's grants and
390donations trust fund unless the fee is waived by the state
391attorney.
392     Section 9.  Subsection (4) of section 985.557, Florida
393Statutes, is repealed.
394     Section 10.  Subsection (5) of section 775.0843, Florida
395Statutes, is amended to read:
396     775.0843  Policies to be adopted for career criminal
397cases.-
398     (5)  Each career criminal apprehension program shall
399concentrate on the identification and arrest of career criminals
400and the support of subsequent prosecution. The determination of
401which suspected felony offenders shall be the subject of career
402criminal apprehension efforts shall be made in accordance with
403written target selection criteria selected by the individual law
404enforcement agency and state attorney consistent with the
405provisions of this section and s. ss. 775.08401 and 775.0842.
406     Section 11.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.
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