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Senate Bill 2284

Senate Bill sb2284

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2284

    By Senators Villalobos, Haridopolos, Crist, Argenziano, Fasano
    and Smith




    38-1952A-04

  1                      A bill to be entitled

  2         An act relating to probation and community

  3         control; amending s. 921.0024, F.S., relating

  4         to the worksheet computation of the Criminal

  5         Punishment Code; increasing the number of

  6         sentence points assessed for a community

  7         sanction violation; amending s. 944.473, F.S.;

  8         providing additional criteria for mandated

  9         participation in a substance abuse program;

10         requiring that substance abuse treatment be

11         considered a basic support service in the

12         release orientation program for certain

13         offenders; creating s. 944.6091, F.S.;

14         requiring the Department of Corrections and the

15         Department of Law Enforcement to develop an

16         interagency notification agreement for

17         identifying felony arrests of former inmates

18         who are not under postrelease supervision;

19         providing legislative intent with respect to

20         the notification method; amending s. 944.705,

21         F.S.; requiring that substance abuse treatment

22         be included as part of the release orientation

23         program for certain inmates; amending s.

24         948.03, F.S., relating to terms and conditions

25         of probation or community control; providing

26         additional requirements for offenders have been

27         incarcerated for controlled substance

28         violations; providing additional requirements

29         for random substance abuse testing; amending s.

30         948.06, F.S.; requiring that the court revoke

31         an offender's probation or community control if

                                  1

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    Florida Senate - 2004                                  SB 2284
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 1         an offender violates probation or community

 2         control by committing an offense; creating s.

 3         948.061, F.S.; requiring the Department of

 4         Corrections to develop a risk assessment and

 5         alert system to monitor certain offenders

 6         placed on probation or community control;

 7         requiring increased supervision of such

 8         offenders under certain circumstances;

 9         requiring that information be provided to the

10         court by the correctional probation officer;

11         creating s. 948.062, F.S.; requiring the

12         inspector general of the Department of

13         Corrections to review the circumstances of

14         certain arrests of offenders on probation or

15         community control; requiring the Office of

16         Program Policy Analysis and Government

17         Accountability to analyze the reviews and

18         report to the President of the Senate and the

19         Speaker of the House of Representatives;

20         providing legislative findings with respect to

21         the necessity for increased supervision of

22         high-risk offenders who violate community

23         supervision; requesting that the Supreme Court

24         amend a Rule of Criminal Procedure to require

25         that certain offenders arrested for a violation

26         of probation or community control be detained

27         while awaiting a hearing on the violation;

28         providing for amendment of the rules to conform

29         to other provisions of the act; providing

30         effective dates.

31  

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    Florida Senate - 2004                                  SB 2284
    38-1952A-04




 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Paragraph (b) of subsection (1) of section

 4  921.0024, Florida Statutes, is amended to read:

 5         921.0024  Criminal Punishment Code; worksheet

 6  computations; scoresheets.--

 7         (1)

 8  

 9                       (b)  WORKSHEET KEY:

10  

11  Legal status points are assessed when any form of legal status

12  existed at the time the offender committed an offense before

13  the court for sentencing. Four (4) sentence points are

14  assessed for an offender's legal status.

15  

16  Community sanction violation points are assessed when a

17  community sanction violation is before the court for

18  sentencing.  Twelve (12) Six (6) sentence points are assessed

19  for each community sanction violation, and each successive

20  community sanction violation; however, if the community

21  sanction violation includes a new felony conviction before the

22  sentencing court, twenty-four (24) twelve (12) community

23  sanction violation points are assessed for such violation, and

24  for each successive community sanction violation involving a

25  new felony conviction. Multiple counts of community sanction

26  violations before the sentencing court shall not be a basis

27  for multiplying the assessment of community sanction violation

28  points.

29  

30  Prior serious felony points: If the offender has a primary

31  offense or any additional offense ranked in level 8, level 9,

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    Florida Senate - 2004                                  SB 2284
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 1  or level 10, and one or more prior serious felonies, a single

 2  assessment of 30 points shall be added. For purposes of this

 3  section, a prior serious felony is an offense in the

 4  offender's prior record that is ranked in level 8, level 9, or

 5  level 10 under s. 921.0022 or s. 921.0023 and for which the

 6  offender is serving a sentence of confinement, supervision, or

 7  other sanction or for which the offender's date of release

 8  from confinement, supervision, or other sanction, whichever is

 9  later, is within 3 years before the date the primary offense

10  or any additional offense was committed.

11  

12  Prior capital felony points:  If the offender has one or more

13  prior capital felonies in the offender's criminal record,

14  points shall be added to the subtotal sentence points of the

15  offender equal to twice the number of points the offender

16  receives for the primary offense and any additional offense. A

17  prior capital felony in the offender's criminal record is a

18  previous capital felony offense for which the offender has

19  entered a plea of nolo contendere or guilty or has been found

20  guilty; or a felony in another jurisdiction which is a capital

21  felony in that jurisdiction, or would be a capital felony if

22  the offense were committed in this state.

23  

24  Possession of a firearm, semiautomatic firearm, or machine

25  gun:  If the offender is convicted of committing or attempting

26  to commit any felony other than those enumerated in s.

27  775.087(2) while having in his or her possession: a firearm as

28  defined in s. 790.001(6), an additional 18 sentence points are

29  assessed; or if the offender is convicted of committing or

30  attempting to commit any felony other than those enumerated in

31  s. 775.087(3) while having in his or her possession a

                                  4

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    Florida Senate - 2004                                  SB 2284
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 1  semiautomatic firearm as defined in s. 775.087(3) or a machine

 2  gun as defined in s. 790.001(9), an additional 25 sentence

 3  points are assessed.

 4  

 5  Sentencing multipliers:

 6  

 7  Drug trafficking:  If the primary offense is drug trafficking

 8  under s. 893.135, the subtotal sentence points are multiplied,

 9  at the discretion of the court, for a level 7 or level 8

10  offense, by 1.5.  The state attorney may move the sentencing

11  court to reduce or suspend the sentence of a person convicted

12  of a level 7 or level 8 offense, if the offender provides

13  substantial assistance as described in s. 893.135(4).

14  

15  Law enforcement protection:  If the primary offense is a

16  violation of the Law Enforcement Protection Act under s.

17  775.0823(2), the subtotal sentence points are multiplied by

18  2.5.  If the primary offense is a violation of s. 775.0823(3),

19  (4), (5), (6), (7), or (8), the subtotal sentence points are

20  multiplied by 2.0. If the primary offense is a violation of s.

21  784.07(3) or s. 775.0875(1), or of the Law Enforcement

22  Protection Act under s. 775.0823(9) or (10), the subtotal

23  sentence points are multiplied by 1.5.

24  

25  Grand theft of a motor vehicle:  If the primary offense is

26  grand theft of the third degree involving a motor vehicle and

27  in the offender's prior record, there are three or more grand

28  thefts of the third degree involving a motor vehicle, the

29  subtotal sentence points are multiplied by 1.5.

30  

31  

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    Florida Senate - 2004                                  SB 2284
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 1  Offense related to a criminal street gang: If the offender is

 2  convicted of the primary offense and committed that offense

 3  for the purpose of benefiting, promoting, or furthering the

 4  interests of a criminal street gang as prohibited under s.

 5  874.04, the subtotal sentence points are multiplied by 1.5.

 6  

 7  Domestic violence in the presence of a child:  If the offender

 8  is convicted of the primary offense and the primary offense is

 9  a crime of domestic violence, as defined in s. 741.28, which

10  was committed in the presence of a child under 16 years of age

11  who is a family household member as defined in s. 741.28(2)

12  with the victim or perpetrator, the subtotal sentence points

13  are multiplied by 1.5.

14         Section 2.  Subsection (2) of section 944.473, Florida

15  Statutes, is amended to read:

16         944.473  Inmate substance abuse testing program.--

17         (2)  SUBSTANCE ABUSE TREATMENT PROGRAMS.--

18         (a)  An inmate who meets the criteria established by

19  the department shall participate in substance abuse program

20  services when such services are available. A right to

21  substance abuse program services is not stated, intended, or

22  otherwise implied by this chapter.

23         (b)  Upon arrival at a department's reception center

24  for initial processing, each inmate shall be screened and

25  assessed to determine if the inmate meets the department's

26  criteria for mandated participation in a substance-abuse

27  program. Criteria for mandated substance abuse program

28  services shall be based on:

29         1.  The presence of a diagnosed psychoactive substance

30  dependence or use disorder;

31         2.  The severity of the addiction;

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    Florida Senate - 2004                                  SB 2284
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 1         3.  A history of criminal behavior related to substance

 2  abuse;

 3         4.  A recommendation by a sentencing authority for

 4  substance abuse program services;

 5         5.  Unsuccessful participation in community-based

 6  substance abuse services;

 7         6.  Sentencing by a drug court or drug division; and

 8         7.  Previous substantive or technical violations

 9  related to substance abuse while on community supervision; and

10         8.7.  Other classification or program criteria that the

11  department finds will ensure security and optimal program

12  placement.

13         (c)  An inmate who has been identified as needing

14  substance abuse treatment pursuant to this section and who has

15  not been provided an opportunity to receive such treatment

16  while incarcerated shall be automatically identified by the

17  department as needing substance abuse treatment as a basic

18  support service in the release orientation program pursuant to

19  s. 944.705.

20         (d)(c)  When selecting contract providers to administer

21  substance abuse treatment programs, the department shall make

22  every effort to consider qualified faith-based service groups

23  on an equal basis with other private organizations.

24         Section 3.  Section 944.6091, Florida Statutes, is

25  created to read:

26         944.6091  Interagency notification agreement;

27  distribution of records to prosecuting authority when a former

28  inmate is arrested.--

29         (1)  By December 1, 2004, the Department of Corrections

30  and the Department of Law Enforcement shall develop an

31  interagency notification agreement to create an electronic

                                  7

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    Florida Senate - 2004                                  SB 2284
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 1  method for quickly identifying, through the Florida Crime

 2  Information Center or any other electronic means, any new

 3  felony arrest of a former inmate released from incarceration

 4  within the Department of Correction when:

 5         (a)  The new felony arrest occurs within 6 months after

 6  the former inmate's expiration of sentence; and

 7         (b)  The former inmate's sentence has expired and the

 8  former inmate has reentered the community without postrelease

 9  supervision.

10  

11  The interagency agreement shall be developed after

12  consultation with prosecutors to identify the most useful

13  records needed, the most effective method of dissemination,

14  and the most useful timeframe for the prosecuting authority to

15  receive the records.

16         (2)  It is the intent of the Legislature that this

17  notification method be used to alert and prompt the Department

18  of Corrections to timely disseminate to the appropriate

19  prosecutor previously compiled corrections records and other

20  pertinent information maintained by the Department of

21  Corrections concerning a reoffending former inmate. It is the

22  intent of the Legislature that this additional information be

23  used to assist prosecutors in appropriately responding to new

24  felonies committed by former inmates recently released from

25  the state prison system.

26         Section 4.  Section 944.705, Florida Statutes, is

27  amended to read:

28         944.705  Release orientation program.--

29         (1)  The department shall provide participation in a

30  standardized release orientation program to every eligible

31  inmate.

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    Florida Senate - 2004                                  SB 2284
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 1         (2)  The release orientation program instruction must

 2  include, but is not limited to:

 3         (a)  Employment skills.

 4         (b)  Money management skills.

 5         (c)  Personal development and planning.

 6         (d)  Special needs.

 7         (e)  Community reentry concerns.

 8         (f)  Community reentry support.

 9         (g)  Any other appropriate instruction to ensure the

10  inmate's successful reentry into the community.

11         (3)  Any inmate who claims to be a victim of domestic

12  violence as defined in s. 741.28 shall receive, as part of the

13  release orientation program, referral to the nearest domestic

14  violence center certified under chapter 39.

15         (4)  Any inmate who demonstrates a history of substance

16  abuse or addiction shall receive as part of the release

17  orientation program referral to the nearest community

18  substance abuse program.

19         (5)(4)  The department shall conduct a needs assessment

20  of every inmate to determine which, if any, basic support

21  services the inmate needs after release. Substance abuse

22  treatment shall be deemed a basic support service for any

23  inmate who has been identified as needing substance abuse

24  treatment pursuant to s. 944.473 and who has not been provided

25  an opportunity to receive such treatment while incarcerated.

26         (6)(5)  The department may contract with public or

27  private entities, including faith-based service groups, for

28  the provision of all or part of the services pursuant to this

29  section.

30         (7)(6)(a)  The department shall notify every inmate, in

31  no less than 18-point type in the inmate's release documents,

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    Florida Senate - 2004                                  SB 2284
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 1  that the inmate may be sentenced pursuant to s. 775.082(9) if

 2  the inmate commits any felony offense described in s.

 3  775.082(9) within 3 years after the inmate's release. This

 4  notice must be prefaced by the word "WARNING" in boldfaced

 5  type.

 6         (b)  Nothing in this section precludes the sentencing

 7  of a person pursuant to s. 775.082(9), nor shall evidence that

 8  the department failed to provide this notice prohibit a person

 9  from being sentenced pursuant to s. 775.082(9).  The state

10  shall not be required to demonstrate that a person received

11  any notice from the department in order for the court to

12  impose a sentence pursuant to s. 775.082(9).

13         Section 5.  Subsection (1) of section 948.03, Florida

14  Statutes, as amended by section 136 of chapter 2003-402, Laws

15  of Florida, is amended to read:

16         948.03  Terms and conditions of probation or community

17  control.--

18         (1)  The court shall determine the terms and conditions

19  of probation or community control.  Conditions specified in

20  paragraphs (a)-(n) (a)-(m) do not require oral pronouncement

21  at the time of sentencing and may be considered standard

22  conditions of probation. Conditions specified in paragraphs

23  (a)-(n) (a)-(m) and (2)(a) do not require oral pronouncement

24  at sentencing and may be considered standard conditions of

25  community control.  These conditions may include among them

26  the following, that the probationer or offender in community

27  control shall:

28         (a)  Report to the probation and parole supervisors as

29  directed.

30         (b)  Permit such supervisors to visit him or her at his

31  or her home or elsewhere.

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    Florida Senate - 2004                                  SB 2284
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 1         (c)  Work faithfully at suitable employment insofar as

 2  may be possible.

 3         (d)  Remain within a specified place.

 4         (e)  Make reparation or restitution to the aggrieved

 5  party for the damage or loss caused by his or her offense in

 6  an amount to be determined by the court.  The court shall make

 7  such reparation or restitution a condition of probation,

 8  unless it determines that clear and compelling reasons exist

 9  to the contrary. If the court does not order restitution, or

10  orders restitution of only a portion of the damages, as

11  provided in s. 775.089, it shall state on the record in detail

12  the reasons therefor.

13         (f)  Effective July 1, 1994, and applicable for

14  offenses committed on or after that date, make payment of the

15  debt due and owing to a county or municipal detention facility

16  under s. 951.032 for medical care, treatment, hospitalization,

17  or transportation received by the felony probationer while in

18  that detention facility. The court, in determining whether to

19  order such repayment and the amount of such repayment, shall

20  consider the amount of the debt, whether there was any fault

21  of the institution for the medical expenses incurred, the

22  financial resources of the felony probationer, the present and

23  potential future financial needs and earning ability of the

24  probationer, and dependents, and other appropriate factors.

25         (g)  Support his or her legal dependents to the best of

26  his or her ability.

27         (h)  Make payment of the debt due and owing to the

28  state under s. 960.17, subject to modification based on change

29  of circumstances.

30         (i)  Pay any application fee assessed under s.

31  27.52(2)(a) and attorney's fees and costs assessed under s.

                                  11

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    Florida Senate - 2004                                  SB 2284
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 1  938.29, subject to modification based on change of

 2  circumstances.

 3         (j)  Not associate with persons engaged in criminal

 4  activities.

 5         (k)1.  Submit to random testing as directed by the

 6  correctional probation officer or the professional staff of

 7  the treatment center where he or she is receiving treatment to

 8  determine the presence or use of alcohol or controlled

 9  substances.

10         2.  If the offense was a controlled substance violation

11  and the period of probation immediately follows a period of

12  incarceration in the state correction system or if the offense

13  was a controlled substance violation and the offender had a

14  previous term of imprisonment for a

15  controlled-substance-related offense, the conditions shall

16  include a requirement that the offender submit, no less than

17  once every 45 days, to random substance abuse testing

18  intermittently throughout the term of supervision, upon the

19  direction of the correctional probation officer as defined in

20  s. 943.10(3).

21         (l)  Be prohibited from possessing, carrying, or owning

22  any firearm unless authorized by the court and consented to by

23  the probation officer.

24         (m)  Be prohibited from using intoxicants to excess or

25  using or possessing a controlled substance or drug any drugs

26  or narcotics unless prescribed by a physician. The probationer

27  or community controllee shall not knowingly visit places where

28  intoxicants, drugs, or other dangerous substances are

29  unlawfully sold, dispensed, or used.

30         (n)  Remain at liberty without violating the law.

31  

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    Florida Senate - 2004                                  SB 2284
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 1         (o)(n)  Attend an HIV/AIDS awareness program consisting

 2  of a class of not less than 2 hours or more than 4 hours in

 3  length, the cost for which shall be paid by the offender, if

 4  such a program is available in the county of the offender's

 5  residence.

 6         (p)(o)  Pay not more than $1 per month during the term

 7  of probation or community control to a nonprofit organization

 8  established for the sole purpose of supplementing the

 9  rehabilitative efforts of the Department of Corrections.

10         Section 6.  Effective July 1, 2004, and applicable to

11  offenses committed on or after that date, section 948.06,

12  Florida Statutes, is amended to read:

13         948.06  Violation of probation or community control;

14  revocation; modification; continuance; failure to pay

15  restitution or cost of supervision.--

16         (1)(a)  Whenever within the period of probation or

17  community control there are reasonable grounds to believe that

18  a probationer or offender in community control has violated

19  his or her probation or community control in a material

20  respect, any law enforcement officer who is aware of the

21  probationary or community control status of the probationer or

22  offender in community control or any parole or probation

23  supervisor may arrest or request any county or municipal law

24  enforcement officer to arrest such probationer or offender

25  without warrant wherever found and forthwith return him or her

26  to the court granting such probation or community control.

27         (b)  Any committing magistrate may issue a warrant,

28  upon the facts being made known to him or her by affidavit of

29  one having knowledge of such facts, for the arrest of the

30  probationer or offender, returnable forthwith before the court

31  granting such probation or community control.

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 1         (c)  Any parole or probation supervisor, any officer

 2  authorized to serve criminal process, or any peace officer of

 3  this state is authorized to serve and execute such warrant.

 4         (d)  Upon the filing of an affidavit alleging a

 5  violation of probation or community control and following

 6  issuance of a warrant under s. 901.02, the probationary period

 7  is tolled until the court enters a ruling on the violation.

 8  Notwithstanding the tolling of probation as provided in this

 9  subsection, the court shall retain jurisdiction over the

10  offender for any violation of the conditions of probation or

11  community control that is alleged to have occurred during the

12  tolling period. The probation officer is permitted to continue

13  to supervise any offender who remains available to the officer

14  for supervision until the supervision expires pursuant to the

15  order of probation or community control or until the court

16  revokes or terminates the probation or community control,

17  whichever comes first.

18         (2)(a)  The court, upon the probationer or offender

19  being brought before it, shall advise him or her of such

20  charge of violation and, if such charge is admitted to be

21  true, may forthwith revoke, modify, or continue the probation

22  or community control or place the probationer into a community

23  control program.

24         (b)  If probation or community control is revoked, the

25  court shall adjudge the probationer or offender guilty of the

26  offense charged and proven or admitted, unless he or she has

27  previously been adjudged guilty, and impose any sentence which

28  it might have originally imposed before placing the

29  probationer on probation or the offender into community

30  control, except as provided in subsection (4).

31  

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 1         (c)  If such violation of probation or community

 2  control is not admitted by the probationer or offender, the

 3  court may commit him or her or release him or her with or

 4  without bail to await further hearing, or it may dismiss the

 5  charge of probation or community control violation.

 6         (d)  If such charge is not at that time admitted by the

 7  probationer or offender and if it is not dismissed, the court,

 8  as soon as may be practicable, shall give the probationer or

 9  offender an opportunity to be fully heard on his or her behalf

10  in person or by counsel.

11         (e)  After such hearing, the court may revoke, modify,

12  or continue the probation or community control or place the

13  probationer into community control. If such probation or

14  community control is revoked, the court shall adjudge the

15  probationer or offender guilty of the offense charged and

16  proven or admitted, unless he or she has previously been

17  adjudged guilty, and impose any sentence which it might have

18  originally imposed before placing the probationer or offender

19  on probation or into community control, except as provided in

20  subsection (4).

21         (f)  Notwithstanding s. 775.082, when a period of

22  probation or community control has been tolled, upon

23  revocation or modification of the probation or community

24  control, the court may impose a sanction with a term that when

25  combined with the amount of supervision served and tolled,

26  exceeds the term permissible pursuant to s. 775.082 for a term

27  up to the amount of the tolled period supervision.

28         (g)  If the court dismisses an affidavit alleging a

29  violation of probation or community control, the offender's

30  probation or community control shall continue as previously

31  imposed, and the offender shall receive credit for all tolled

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 1  time against his or her term of probation or community

 2  control.

 3         (3)(2)(a)  When any state or local law enforcement

 4  agency investigates or arrests a person for committing, or

 5  attempting, soliciting, or conspiring to commit, a violation

 6  of  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 827.071,

 7  s. 847.0133, s. 847.0135, or s. 847.0145, the law enforcement

 8  agency shall contact the Department of Corrections to verify

 9  whether the person under investigation or under arrest is on

10  probation, community control, parole, conditional release, or

11  control release.

12         (b)  If the law enforcement agency finds that the

13  person under investigation or under arrest is on probation,

14  community control, parole, conditional release, or control

15  release, the law enforcement agency shall immediately notify

16  the person's probation officer or release supervisor of the

17  investigation or the arrest.

18         (4)  For any probationer or person on community control

19  who:

20         (a)  Is placed on probation or community control for an

21  offense committed on or after July 1, 2004;

22         (b)  Is found in violation of the probation or

23  community control as a result of the commission of a new

24  criminal offense; and

25         (c)  Has been previously convicted of or had

26  adjudication withheld for a forcible felony defined in s.

27  776.08 or is currently on probation or community control for

28  committing a forcible felony,

29  

30  the court shall revoke his or her probation or community

31  control, adjudicate the probationer or offender guilty of the

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 1  offense forming the basis of the probation or community

 2  control unless he or she has previously been adjudicated

 3  guilty, and impose a term of imprisonment of at least 5 years.

 4  However, if such term of imprisonment would result in a

 5  sentence that exceeds the statutory maximum sentence, the

 6  court shall impose the maximum term of imprisonment that would

 7  not exceed the statutory maximum sentence. A term of

 8  imprisonment of at least 5 years may be followed by a term of

 9  probation or community control for the remainder of the

10  statutory maximum sentence. Any term of imprisonment imposed

11  pursuant to this subsection shall be in addition to any time

12  previously served in prison or county jail, or both, for the

13  offense for which the probation or community control was

14  provided and subsequently revoked.

15         (5)(3)  When the court imposes a subsequent term of

16  supervision following a revocation of probation or community

17  control, it shall not provide credit for time served while on

18  probation or community control toward any subsequent term of

19  probation or community control. However, the court may not

20  impose a subsequent term of probation or community control

21  which, when combined with any amount of time served on

22  preceding terms of probation or community control for offenses

23  before the court for sentencing, would exceed the maximum

24  penalty allowable as provided by s. 775.082. No part of the

25  time that the defendant is on probation or in community

26  control shall be considered as any part of the time that he or

27  she shall be sentenced to serve.

28         (6)(4)  Notwithstanding any other provision of this

29  section, a probationer or an offender in community control who

30  is arrested for violating his or her probation or community

31  control in a material respect may be taken before the court in

                                  17

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    Florida Senate - 2004                                  SB 2284
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 1  the county or circuit in which the probationer or offender was

 2  arrested. That court shall advise him or her of such charge of

 3  a violation and, if such charge is admitted, shall cause him

 4  or her to be brought before the court which granted the

 5  probation or community control.

 6         (a)  If such violation is not admitted by the

 7  probationer or offender, the court may commit him or her or

 8  release him or her with or without bail to await further

 9  hearing. The court, as soon as is practicable, shall give the

10  probationer or offender an opportunity to be fully heard on

11  his or her behalf in person or by counsel.

12         (b)  After such hearing, the court shall make findings

13  of fact and forward the findings to the court which granted

14  the probation or community control and to the probationer or

15  offender or his or her attorney. The findings of fact by the

16  hearing court are binding on the court which granted the

17  probation or community control.  Upon the probationer or

18  offender being brought before it, the court which granted the

19  probation or community control may revoke, modify, or continue

20  the probation or community control or may place the

21  probationer into community control as provided in this

22  section.

23         (7)(5)  Whenever the department submits a violation

24  report to the court for failure to pay court-ordered

25  obligations, the department shall include a statement by the

26  probationer or offender on community control concerning his or

27  her ability to pay. In any hearing in which the failure of a

28  probationer or offender in community control to pay

29  restitution or the cost of supervision as provided in s.

30  948.09, as directed, is established by the state, if the

31  probationer or offender asserts his or her inability to pay

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    Florida Senate - 2004                                  SB 2284
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 1  restitution or the cost of supervision, it is incumbent upon

 2  the probationer or offender to prove by clear and convincing

 3  evidence that he or she does not have the present resources

 4  available to pay restitution or the cost of supervision

 5  despite sufficient bona fide efforts legally to acquire the

 6  resources to do so. If the probationer or offender cannot pay

 7  restitution or the cost of supervision despite sufficient bona

 8  fide efforts, the court shall consider alternate measures of

 9  punishment other than imprisonment. Only if alternate measures

10  are not adequate to meet the state's interests in punishment

11  and deterrence may the court imprison a probationer or

12  offender in community control who has demonstrated sufficient

13  bona fide efforts to pay restitution or the cost of

14  supervision.

15         (8)(6)  Any parolee in a community control program who

16  has allegedly violated the terms and conditions of such

17  placement is subject to the provisions of ss. 947.22 and

18  947.23.

19         (9)(7)  Any provision of law to the contrary

20  notwithstanding, whenever probation, community control, or

21  control release, including the probationary, community control

22  portion of a split sentence, is violated and the probation or

23  community control is revoked, the offender, by reason of his

24  or her misconduct, shall be deemed to have forfeited all

25  gain-time or commutation of time for good conduct, as provided

26  by law, earned up to the date of his or her release on

27  probation, community control, or control release. This

28  subsection does not deprive the prisoner of his or her right

29  to gain-time or commutation of time for good conduct, as

30  provided by law, from the date on which the prisoner is

31  returned to prison. However, if a prisoner is sentenced to

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    Florida Senate - 2004                                  SB 2284
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 1  incarceration following termination from a drug punishment

 2  program imposed as a condition of probation, the sentence may

 3  include incarceration without the possibility of gain-time or

 4  early release for the period of time remaining in his or her

 5  treatment program placement term.

 6         Section 7.  Section 948.061, Florida Statutes, is

 7  created to read:

 8         948.061  Identifying, assessing, and monitoring certain

 9  high-risk offenders on community supervision; providing

10  cumulative criminal and supervision histories to the court.--

11         (1)  By December 1, 2004, the department shall develop

12  a graduated risk assessment and alert system that continuously

13  identifies, assesses, and closely monitors the population of

14  offenders placed on probation or community control who have:

15         (a)  Previously been placed on probation or community

16  control and who have a history of committing multiple

17  community supervision violations in this state or in other

18  jurisdictions or who have previously been incarcerated in this

19  state or in other jurisdictions; and

20         (b)  Have experienced more than one of the following

21  risk factors that could potentially make the offender more

22  likely to pose a danger to others:

23         1.  Attempted suicide or severe depression;

24         2.  Marital instability or history of domestic

25  violence;

26         3.  History of substance abuse;

27         4.  Unemployment or substantial financial difficulties;

28         5.  History of violence, particularly involving

29  strangers; or

30         6.  Any other risk factor identified by the department.

31  

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    Florida Senate - 2004                                  SB 2284
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 1         (2)  Recognizing that there may be a propensity for

 2  these offenders with extensive criminal histories and multiple

 3  risk factors to pose a serious threat to the community, the

 4  department shall consider the cumulative impact of these risk

 5  factors and, if necessary, place these offenders on an

 6  elevated alert status and provide the highest level of

 7  supervision available for these offenders until the situation

 8  stabilizes and the department no longer believes that the

 9  offender poses a threat to others. In providing such

10  supervision and surveillance, the department shall increase

11  the number of office and home visits conducted by the

12  correctional probation officer; expand the number of and type

13  of employment, family, community, and neighborhood contacts by

14  the correctional probation officer; increase referrals to

15  available community mental health facilities and community

16  assistance programs; develop emergency communication plans and

17  alert systems for law enforcement agencies and the court in

18  order to quickly detain the offender in response to a

19  violation; and prioritize its resources in order to more

20  closely monitor the offender's activities in an effort to

21  prevent escalating criminal behavior.

22         (3)  In providing criminal history and background

23  information to the court on these complex and high-risk cases,

24  the correctional probation officer shall provide to the court

25  in each report submitted to the court and at every hearing

26  before the court a clear, complete, and concise cumulative and

27  integrated chronology of the offender's criminal history and

28  prior terms of community supervision, including all

29  substantive or technical violations of community supervision.

30         Section 8.  Section 948.062, Florida Statutes, is

31  created to read:

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    Florida Senate - 2004                                  SB 2284
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 1         948.062  Reviewing and reporting serious offenses

 2  committed by offenders placed on community supervision.--

 3         (1)  The department's inspector general as designated

 4  pursuant to s. 944.31 shall review the circumstances related

 5  to offenders placed on community supervision who have been

 6  arrested while on supervision for the following serious

 7  offenses:

 8         (a)  Any murder as provided in s. 782.04;

 9         (b)  Any sexual battery as provided in s. 794.011 or s.

10  794.023;

11         (c)  Any sexual performance by a child as provided in

12  s. 827.071;

13         (d)  Any kidnapping, false imprisonment, or luring of a

14  child as provided in s. 787.01, s. 782.07, or s. 787.025;

15         (e)  Any lewd and lascivious battery or lewd and

16  lascivious molestation as provided in s. 800.04(4) or s.

17  800.04(5);

18         (f)  Any aggravated child abuse as provided in s.

19  827.03(2);

20         (g)  Any robbery with a firearm or other deadly weapon,

21  home invasion robbery, or carjacking as provided in s.

22  812.13(2)(a), s. 812.135, or s. 812.133;

23         (h)  Any aggravated stalking as provided in s.

24  784.048(3), (4), or (5);

25         (i)  Any forcible felony as provided in s. 776.08

26  committed by any person under community supervision designated

27  as a sexual predator; or

28         (j)  Any DUI manslaughter as provided in s.

29  316.193(3)(c), or vehicular or vessel homicide as provided in

30  s. 782.071 or s. 787.072, committed by any person under

31  

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    Florida Senate - 2004                                  SB 2284
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 1  community supervision for an offense involving death or injury

 2  resulting from a driving incident.

 3  

 4  The inspector general's review shall document whether the

 5  supervision of the offender met enumerated rules, policies,

 6  and procedures and whether supervision practices were

 7  followed. This review shall be completed no later than 10

 8  business days after the date of the arrest.

 9         (2)  On an annual basis, the inspector general shall

10  provide these reviews to the Office of Program Policy Analysis

11  and Government Accountability. The Office of Program Policy

12  Analysis and Government Accountability shall annually analyze

13  these reviews and provide a written report to the President of

14  the Senate and the Speaker of the House of Representatives.

15  The report must include, at a minimum, any identified systemic

16  deficiencies in managing high-risk offenders on community

17  supervision and the judicial disposition of such offenders;

18  any patterns of noncompliance by correctional probation

19  officers and any inconsistent or inefficient judicial case

20  processing for offenders who have violated community

21  supervision; and recommendations for improving the community

22  supervision program.

23         Section 9.  (1)  The 2004 Legislature closely examined

24  chapter 948, Florida Statutes, to address certain critical

25  public safety concerns and substantive policy issues involving

26  offenders who violate probation or community control. The

27  Legislature has carefully scrutinized the effectiveness of the

28  state's community supervision system and concluded that the

29  system should increase the level of supervision of high-risk

30  offenders who violate community supervision. The Legislature

31  finds there may be a propensity for such offenders with

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    Florida Senate - 2004                                  SB 2284
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 1  extensive criminal histories and multiple risk factors to pose

 2  a serious threat to the community. In addition, the

 3  Legislature finds that the system should consider the

 4  cumulative impact of such histories and factors and quickly

 5  detain offenders alleged to be in violation of community

 6  supervision in order to protect the public and prevent

 7  escalating criminal behavior.

 8         (2)(a)  Therefore, the Legislature strongly urges the

 9  Florida Supreme Court to amend the concomitant Rule of

10  Criminal Procedure which sets forth the procedures the lower

11  courts must follow when considering bail in cases of

12  violations of probation and community control.

13         (b)  As the Supreme Court opined in Bernhardt v. State,

14  288 So. 490 (Fla. 1974), release on bail pending revocation of

15  probation is not a constitutional right. However, the

16  Legislature recognizes that it is the prerogative of the

17  Supreme Court to act in the area of practice and procedure.

18  The Legislature, therefore, recommends that the Supreme Court

19  consider making the following revision to Rule 3.790 regarding

20  bail in certain cases involving a violation of community

21  supervision.

22         (c)  In particular, the Supreme Court is requested to

23  amend its rule to require that a probationer or community

24  controllee who is arrested on an alleged violation, regardless

25  of adjudication in the underlying offense, be detained while

26  awaiting a hearing before the court that granted the probation

27  or community control, if the offense for which the probationer

28  or community controllee is currently on probation or community

29  control is a forcible felony or if the probationer or

30  community controllee has previously been convicted of a

31  

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    Florida Senate - 2004                                  SB 2284
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 1  forcible felony as provided in section 776.08, Florida

 2  Statutes.

 3         Section 10.  The Florida Rules of Criminal Procedure

 4  shall be amended to reflect the newly created sentencing

 5  mandate for offenders who violate probation or community

 6  control, as provided in section 6 of this act, and to

 7  incorporate any other conforming amendments as deemed

 8  necessary by the Supreme Court.

 9         Section 11.  Except as otherwise expressly provided in

10  this act, this act shall take effect upon becoming a law.

11  

12            *****************************************

13                          SENATE SUMMARY

14    Revises various laws governing the supervision of
      offenders on probation or community control. Increases
15    the number of sentence points assessed for a community
      sanction violation. Requires that substance abuse
16    treatment be considered a basic support service in the
      release orientation program for certain offenders.
17    Requires the Department of Corrections and the Department
      of Law Enforcement to develop an interagency notification
18    agreement to identify felony arrest of former inmates who
      are not under supervision. Revises the requirements for
19    random substance abuse testing. Requires that the court
      revoke an offender's probation or community control if an
20    offender violates probation or community control by
      committing an offense. Requires the Department of
21    Corrections to monitor certain offenders placed on
      probation or community control. Requires the inspector
22    general of the Department of Corrections to review the
      circumstances of certain arrests of offenders on
23    probation or community control. Provides for a report to
      the Legislature. (See bill for details.)
24  

25  

26  

27  

28  

29  

30  

31  

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