November 23, 2020
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       Florida Senate - 2010                                    SB 1546
       
       
       
       By Senator Wise
       
       
       
       
       5-00824A-10                                           20101546__
    1                        A bill to be entitled                      
    2         An act relating to criminal justice; amending s.
    3         112.313, F.S.; providing criminal penalties for
    4         certain violations of standards of conduct for public
    5         officials in addition to existing penalties; amending
    6         s. 287.175, F.S.; conforming a provision relating to
    7         penalties for violations relating to standards of
    8         conduct for public officials to changes made by this
    9         act; creating s. 775.0862, F.S.; defining the term
   10         “under color of law”; providing for reclassification
   11         of offenses committed if the commission of the offense
   12         was furthered or facilitated by a person acting under
   13         color of law; providing an exception; providing for
   14         ranking of reclassified offenses for purposes of the
   15         offense severity ranking chart; amending s. 838.022,
   16         F.S.; defining the term “willfully”; prohibiting a
   17         public servant from willfully depriving one or more
   18         individuals or the government of the right to have the
   19         public servant’s duties performed honestly by
   20         committing specified acts; providing penalties;
   21         amending s. 914.04, F.S.; providing for use of certain
   22         immunized testimony or evidence produced for purposes
   23         of prosecutions for falsification or obstruction of
   24         justice committed while giving such testimony or
   25         producing such evidence; providing that testimony or
   26         production of evidence pursuant to a grand jury
   27         subpoena may be received against a person for all
   28         purposes and without limitation provided that before
   29         testifying or producing such evidence specified
   30         provisions are withdrawn and the witness is advised of
   31         specified rights; providing an effective date.
   32  
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Subsections (2), (4), and (6) of section
   36  112.313, Florida Statutes, are amended to read:
   37         112.313 Standards of conduct for public officers, employees
   38  of agencies, and local government attorneys.—
   39         (2) SOLICITATION OR ACCEPTANCE OF GIFTS.—No public officer,
   40  employee of an agency, local government attorney, or candidate
   41  for nomination or election shall solicit or accept anything of
   42  value to the recipient, including a gift, loan, reward, promise
   43  of future employment, favor, or service, based upon any
   44  understanding that the vote, official action, or judgment of the
   45  public officer, employee, local government attorney, or
   46  candidate would be influenced thereby. In addition to being
   47  subject to penalties under s. 112.317, a person who violates
   48  this subsection commits a misdemeanor of the first degree,
   49  punishable as provided in s. 775.082 or s. 775.083.
   50         (4) UNAUTHORIZED COMPENSATION.—No public officer, employee
   51  of an agency, or local government attorney or his or her spouse
   52  or minor child shall, at any time, accept any compensation,
   53  payment, or thing of value when such public officer, employee,
   54  or local government attorney knows, or, with the exercise of
   55  reasonable care, should know, that it was given to influence a
   56  vote or other action in which the officer, employee, or local
   57  government attorney was expected to participate in his or her
   58  official capacity. In addition to being subject to penalties
   59  under s. 112.317, a person who violates this subsection commits
   60  a misdemeanor of the first degree, punishable as provided in s.
   61  775.082 or s. 775.083.
   62         (6) MISUSE OF PUBLIC POSITION.—No public officer, employee
   63  of an agency, or local government attorney shall corruptly use
   64  or attempt to use his or her official position or any property
   65  or resource which may be within his or her trust, or perform his
   66  or her official duties, to secure a special privilege, benefit,
   67  or exemption for himself, herself, or others. This section shall
   68  not be construed to conflict with s. 104.31. In addition to
   69  being subject to penalties under s. 112.317, a person who
   70  violates this subsection commits a misdemeanor of the first
   71  degree, punishable as provided in s. 775.082 or s. 775.083.
   72         Section 2. Section 287.175, Florida Statutes, is amended to
   73  read:
   74         287.175 Penalties.—A violation of this part or a rule
   75  adopted hereunder, pursuant to applicable constitutional and
   76  statutory procedures, constitutes misuse of public position as
   77  defined in s. 112.313(6), and is punishable as provided in s.
   78  112.313 or s. 112.317. The Chief Financial Officer shall report
   79  incidents of suspected misuse to the Commission on Ethics, and
   80  the commission shall investigate possible violations of this
   81  part or rules adopted hereunder when reported by the Chief
   82  Financial Officer, notwithstanding the provisions of s. 112.324.
   83  Any violation of this part or a rule adopted hereunder shall be
   84  presumed to have been committed with wrongful intent, but such
   85  presumption is rebuttable. Nothing in this section is intended
   86  to deny rights provided to career service employees by s.
   87  110.227.
   88         Section 3. Section 775.0862, Florida Statutes, is created
   89  to read:
   90         775.0862 Acting under color of law to facilitate crime;
   91  reclassification.—
   92         (1) As used in this section, the term “under color of law”
   93  means action based on public authority or position or the
   94  assertion of such authority or position.
   95         (2) The penalty for any felony or misdemeanor shall be
   96  reclassified as provided in this subsection if the commission of
   97  such felony or misdemeanor was furthered or facilitated by a
   98  person acting under color of law:
   99         (a) A misdemeanor of the second degree is reclassified to a
  100  misdemeanor of the first degree.
  101         (b) A misdemeanor of the first degree is reclassified to a
  102  felony of the third degree.
  103         (c) A felony of the third degree is reclassified to a
  104  felony of the second degree.
  105         (d) A felony of the second degree is reclassified to a
  106  felony of the first degree.
  107         (e) A felony of the first degree is reclassified to a life
  108  felony.
  109         (3) This section does not apply to a misdemeanor or felony
  110  that has conduct “under color of law” as an element of the
  111  offense.
  112         (4) For purposes of sentencing under chapter 921, a felony
  113  offense that is reclassified under this section is ranked one
  114  level above the ranking under s. 921.0022 or s. 921.0023 of the
  115  offense committed.
  116         Section 4. Section 838.022, Florida Statutes, is amended to
  117  read:
  118         838.022 Official misconduct.—
  119         (1)(2) For the purposes of this section:
  120         (a) The term “public servant” does not include a candidate
  121  who does not otherwise qualify as a public servant.
  122         (b) The term “willfully” means to act intentionally with
  123  the specific intent to commit an illegal act.
  124         (c)(b) An official record or official document includes
  125  only public records.
  126         (2)(1) It is unlawful for a public servant, with corrupt
  127  intent to obtain a benefit for any person or to cause harm to
  128  another, to:
  129         (a) Falsify, or cause another person to falsify, any
  130  official record or official document;
  131         (b) Conceal, cover up, destroy, mutilate, or alter any
  132  official record or official document or cause another person to
  133  perform such an act; or
  134         (c) Obstruct, delay, or prevent the communication of
  135  information relating to the commission of a felony that directly
  136  involves or affects the public agency or public entity served by
  137  the public servant.
  138         (3) It is unlawful for a public servant to willfully
  139  deprive one or more individuals or the government of the right
  140  to have the public servant’s duties performed honestly by:
  141         (a) Failing to disclose a direct or indirect financial
  142  interest in a public matter within the public servant’s official
  143  duties; or
  144         (b) Failing to disclose a fact or information otherwise
  145  required to be disclosed by law, custom, or statute concerning
  146  an official act.
  147         (4)(3) Any person who violates this section commits a
  148  felony of the third degree, punishable as provided in s.
  149  775.082, s. 775.083, or s. 775.084.
  150         Section 5. Section 914.04, Florida Statutes, is amended to
  151  read:
  152         914.04 Witnesses; person not excused from testifying or
  153  producing evidence in certain prosecutions on ground testimony
  154  might incriminate him or her; use of testimony given or evidence
  155  produced.—
  156         (1) No person who has been duly served with a subpoena or
  157  subpoena duces tecum shall be excused from attending and
  158  testifying or producing any book, paper, or other document
  159  before any court having felony trial jurisdiction, grand jury,
  160  or state attorney upon investigation, proceeding, or trial for a
  161  violation of any of the criminal statutes of this state upon the
  162  ground or for the reason that the testimony or evidence,
  163  documentary or otherwise, required of the person may tend to
  164  convict him or her of a crime or to subject him or her to a
  165  penalty or forfeiture, but no testimony so given or evidence so
  166  produced shall be received against the person upon any criminal
  167  investigation or proceeding. Such testimony or evidence,
  168  however, may be received against the person upon any criminal
  169  investigation or proceeding for perjury, falsification, or
  170  obstruction of justice committed while giving such testimony or
  171  producing such evidence or for any perjury, falsification, or
  172  obstruction of justice subsequently committed.
  173         (2) Notwithstanding subsection (1), testimony or production
  174  of any book, paper, or other document pursuant to a grand jury
  175  subpoena may be received against a person for all purposes and
  176  without limitation provided that prior to testifying or
  177  producing such evidence:
  178         (a) The witness is informed that the provisions of
  179  subsection (1) regarding immunized testimony are withdrawn; and
  180         (b) The witness has been advised of his or her due process
  181  right against self-incrimination pursuant to the Fifth Amendment
  182  to the United States Constitution and s. 9, Art. I of the State
  183  Constitution.
  184         Section 6. This act shall take effect July 1, 2010.

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