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Senate Bill 2336

Senate Bill sb2336

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004        (Technical Correction)    SB 2336

    By the Committee on Criminal Justice





    307-1812B-04

  1                      A bill to be entitled

  2         An act relating to probation and community

  3         control; amending s. 948.001, F.S.; deleting

  4         provisions authorizing the Department of

  5         Corrections to collect certain fees as a part

  6         of administrative probation; amending s.

  7         948.01, F.S.; correcting a cross-reference;

  8         transferring and renumbering provisions

  9         governing probation and community control as s.

10         948.10(10), F.S.; transferring and renumbering

11         provisions authorizing a split sentence of

12         probation or community control and imprisonment

13         as s. 948.012(1), F.S.; prohibiting a private

14         entity from providing probation or supervision

15         services to certain offenders; transferring and

16         renumbering provisions relating to violations

17         of community control as s. 948.10(9), F.S.;

18         transferring and renumbering provisions

19         restricting the placement of certain offenders

20         into community control as s. 948.10(2), F.S.;

21         transferring and renumbering provisions

22         authorizing split sentencing as s. 948.012(2)

23         and (3), F.S.; transferring and renumbering

24         provisions relating to drug offender probation

25         as s. 948.20, F.S.; transferring and

26         renumbering provisions governing community

27         control and criminal quarantine community

28         control as s. 948.101(3), F.S.; transferring

29         and renumbering provisions relating to

30         administration probation as s. 948.013, F.S.;

31         amending s. 948.011, F.S.; clarifying

                                  1

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    Florida Senate - 2004        (Technical Correction)    SB 2336
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 1         circumstances under which the court may impose

 2         a fine or place an offender on probation or

 3         community control; amending s. 948.03, F.S.;

 4         conforming cross-references; providing for

 5         submission of blood or other biological

 6         specimens as a standard condition of probation;

 7         transferring and renumbering provisions

 8         relating to intensive supervision and

 9         surveillance as s. 948.101, F.S.; authorizing

10         the court to impose additional terms or

11         conditions of community control; providing

12         certain limitations; transferring and

13         renumbering provisions governing electronic

14         monitoring as s. 948.11(2), F.S.; transferring

15         and renumbering provisions governing the

16         diagnosis, evaluation, and treatment of certain

17         sex offenders as s. 948.31, F.S.; transferring

18         and renumbering provisions governing additional

19         terms and conditions of probation or community

20         control for certain sex offenses as s. 948.30,

21         F.S.; clarifying a requirement for submitting

22         blood and other specimens; transferring and

23         renumbering provisions relating to residential

24         treatment as s. 948.035, F.S.; transferring and

25         renumbering provisions relating to work

26         programs as s. 948.036, F.S.; transferring and

27         renumbering provisions relating to education

28         and learning as a condition of probation or

29         community control as s. 948.037, F.S.;

30         transferring and renumbering provisions

31         relating to the submission of blood or other

                                  2

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    Florida Senate - 2004        (Technical Correction)    SB 2336
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 1         biological specimens as s. 948.014, F.S.;

 2         transferring and renumbering provisions

 3         relating to a batterers' intervention program

 4         as s. 948.038, F.S.; creating s. 948.039, F.S.;

 5         authorizing the court to impose special terms

 6         and conditions of probation or community

 7         control, including requiring the offender to

 8         attend an HIV/AIDS awareness program and pay

 9         certain costs; amending s. 948.06, F.S.,

10         relating to procedures following an arrest of

11         an offender for a violation of probation or

12         community control; transferring and renumbering

13         provisions relating to the arrest of a person

14         for certain sex offenses as s. 948.32, F.S.;

15         amending s. 948.09, F.S.; requiring an offender

16         under addiction-recovery supervision to pay the

17         cost of supervision; amending s. 948.10, F.S.;

18         correcting a cross-reference; providing an

19         effective date.

20  

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

22  

23         Section 1.  Subsection (1) of section 948.001, Florida

24  Statutes, is amended to read:

25         948.001  Definitions.--As used in this chapter, the

26  term:

27         (1)  "Administrative probation" means a form of

28  noncontact supervision in which an offender who presents a low

29  risk of harm to the community may, upon satisfactory

30  completion of half the term of probation, be transferred

31  placed by the Department of Corrections to on nonreporting

                                  3

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    Florida Senate - 2004        (Technical Correction)    SB 2336
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 1  status until expiration of the term of supervision. The

 2  department is authorized to collect an initial processing fee

 3  of up to $50 for each probationer reduced to administrative

 4  probation.  Such offender is exempt from further payment for

 5  cost of supervision as required in s. 948.09.

 6         Section 2.  Paragraph (c) of subsection (3) of section

 7  948.01, Florida Statutes, is amended to read:

 8         948.01  When court may place defendant on probation or

 9  into community control.--

10         (3)  If, after considering the provisions of subsection

11  (2) and the offender's prior record or the seriousness of the

12  offense, it appears to the court in the case of a felony

13  disposition that probation is an unsuitable dispositional

14  alternative to imprisonment, the court may place the offender

15  in a community control program as provided in s. 948.10.  Or,

16  in a case of prior disposition of a felony commitment, upon

17  motion of the offender or the department or upon its own

18  motion, the court may, within the period of its retained

19  jurisdiction following commitment, suspend the further

20  execution of the disposition and place the offender in a

21  community control program upon such terms as the court may

22  require.  The court may consult with a local offender advisory

23  council pursuant to s. 948.90 with respect to the placement of

24  an offender into community control.  Not later than 3 working

25  days before the hearing on the motion, the department shall

26  forward to the court all relevant material on the offender's

27  progress while in custody.  If this sentencing alternative to

28  incarceration is utilized, the court shall:

29         (c)  Require the department to provide notifications

30  pursuant to s.948.10(8) s. 948.10(6).

31  

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 1         Section 3.  Present subsection (8) of section 948.10,

 2  Florida Statutes, is redesignated as subsection (11) of

 3  section 948.10, Florida Statutes, and present subsection (5)

 4  of section 948.01, Florida Statutes, is transferred and

 5  renumbered as subsection (10) of section 948.10, Florida

 6  Statutes, to read:

 7         948.10  Community control programs.--

 8         (10)(5)  Upon completion of the sanctions imposed in

 9  the community control plan before the expiration of the term

10  ordered by the court, the department may petition the court to

11  discharge the offender from community control supervision or

12  to return the offender to a program of regular probation

13  supervision.  In considering the petition, the court should

14  recognize the limited staff resources committed to the

15  community control program, the purpose of the program, and the

16  offender's successful compliance with the conditions set forth

17  in the order of the court.

18         Section 4.  Present subsection (6) of section 948.01,

19  Florida Statutes, is transferred and renumbered as subsection

20  (1) of section 948.012, Florida Statutes, to read:

21         948.012  Split sentence of probation or community

22  control and imprisonment.--

23         (1)(6)  Whenever punishment by imprisonment for a

24  misdemeanor or a felony, except for a capital felony, is

25  prescribed, the court, in its discretion, may, at the time of

26  sentencing, impose a split sentence whereby the defendant is

27  to be placed on probation or, with respect to any such felony,

28  into community control upon completion of any specified period

29  of such sentence which may include a term of years or less.

30  In such case, the court shall stay and withhold the imposition

31  of the remainder of sentence imposed upon the defendant and

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    Florida Senate - 2004        (Technical Correction)    SB 2336
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 1  direct that the defendant be placed upon probation or into

 2  community control after serving such period as may be imposed

 3  by the court.  The period of probation or community control

 4  shall commence immediately upon the release of the defendant

 5  from incarceration, whether by parole or gain-time allowances.

 6         Section 5.  Subsection (7) of section 948.01, Florida

 7  Statutes, is amended to read:

 8         948.01  When court may place defendant on probation or

 9  into community control.--

10         (7)  In no case shall The imposition of sentence may

11  not be suspended and the defendant thereupon placed on

12  probation or into community control unless the such defendant

13  is placed under the custody of the department or another

14  public or private entity. A private entity may not provide

15  probationary or supervision services to felony or misdemeanor

16  offenders sentenced or placed on probation or other

17  supervision by the circuit court.

18         Section 6.  Present subsection (9) of section 948.10,

19  Florida Statutes, is redesignated as subsection (12) of

20  section 948.10, Florida Statutes, and present subsection (9)

21  of section 948.01, Florida Statutes, is transferred and

22  renumbered as subsection (9) of section 948.10, Florida

23  Statutes, to read:

24         948.10  Community control programs.--

25         (9)  Procedures governing violations of community

26  control shall be the same as those described in s. 948.06 with

27  respect to probation.

28         Section 7.  Present subsections (2) through (7) of

29  section 948.10, Florida Statutes, are redesignated as

30  subsections (3) through (8), respectively, and present

31  subsection (10) of section 948.01, Florida Statutes, is

                                  6

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    Florida Senate - 2004        (Technical Correction)    SB 2336
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 1  transferred and renumbered as subsection (2) of section

 2  948.10, Florida Statutes, to read:

 3         948.10  Community control programs.--

 4         (2)(10)  An offender may not be placed in community

 5  control if:

 6         (a)  Convicted of or adjudication withheld for a

 7  forcible felony as defined in s. 776.08, and

 8         (b)  Previously convicted of or adjudication withheld

 9  for a forcible felony as defined in s. 776.08.

10  

11  Nothing in this subsection prohibits placement of certain

12  inmates on community control pursuant to s. 947.1747.  For the

13  purposes of this subsection, a forcible felony does not

14  include manslaughter or burglary.

15         Section 8.  Present subsection (11) of section 948.01,

16  Florida Statutes, is transferred and renumbered as subsection

17  (2) of section 948.012, Florida Statutes, to read:

18         948.012  Split sentence of probation or community

19  control and imprisonment.--

20         (2)(11)  The court may also impose a split sentence

21  whereby the defendant is sentenced to a term of probation

22  which may be followed by a period of incarceration or, with

23  respect to a felony, into community control, as follows:

24         (a)  If the offender meets the terms and conditions of

25  probation or community control, any term of incarceration may

26  be modified by court order to eliminate the term of

27  incarceration.

28         (b)  If the offender does not meet the terms and

29  conditions of probation or community control, the court may

30  revoke, modify, or continue the probation or community control

31  as provided in s. 948.06. If the probation or community

                                  7

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 1  control is revoked, the court may impose any sentence that it

 2  could have imposed at the time the offender was placed on

 3  probation or community control. The court may not provide

 4  credit for time served for any portion of a probation or

 5  community control term toward a subsequent term of probation

 6  or community control. However, the court may not impose a

 7  subsequent term of probation or community control which, when

 8  combined with any amount of time served on preceding terms of

 9  probation or community control for offenses pending before the

10  court for sentencing, would exceed the maximum penalty

11  allowable as provided in s. 775.082. Such term of

12  incarceration shall be served under applicable law or county

13  ordinance governing service of sentences in state or county

14  jurisdiction. This paragraph does not prohibit any other

15  sanction provided by law.

16         Section 9.  Present subsection (12) of section 948.01,

17  Florida Statutes, is transferred and renumbered as subsection

18  (3) of section 948.012, Florida Statutes, and amended to read:

19         948.012  Split sentence of probation or community

20  control and imprisonment.--

21         (3)(12)  The court may also impose split probation

22  whereby, upon satisfactory completion of half the term of

23  probation, the Department of Corrections may place the

24  offender on administrative probation as defined in s. 948.001

25  for the remainder of the term of supervision.

26         Section 10.  Present subsection (13) of section 948.01,

27  Florida Statutes, is transferred and renumbered as section

28  948.20, Florida Statutes, and amended to read:

29         948.20 (13)  Drug offender probation.--  If it appears

30  to the court upon a hearing that the defendant is a chronic

31  substance abuser whose criminal conduct is a violation of s.

                                  8

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 1  893.13(2)(a) or (6)(a), the court may either adjudge the

 2  defendant guilty or stay and withhold the adjudication of

 3  guilt; and, in either case, it may stay and withhold the

 4  imposition of sentence and place the defendant on drug

 5  offender probation.

 6         (1)(a)  The Department of Corrections shall develop and

 7  administer a drug offender probation program which emphasizes

 8  a combination of treatment and intensive community supervision

 9  approaches and which includes provision for supervision of

10  offenders in accordance with a specific treatment plan. The

11  program may include the use of graduated sanctions consistent

12  with the conditions imposed by the court. Drug offender

13  probation status shall include surveillance and random drug

14  testing, and may include those measures normally associated

15  with community control, except that specific treatment

16  conditions and other treatment approaches necessary to monitor

17  this population may be ordered.

18         (2)(b)  Offenders placed on drug offender probation are

19  subject to revocation of probation as provided in s. 948.06.

20         Section 11.  Present subsection (14) of section 948.01,

21  Florida Statutes, is transferred and renumbered as subsection

22  (3) of section 948.101, Florida Statutes, to read:

23         948.101  Terms and conditions of community control and

24  criminal quarantine community control.--

25         (3)(14)  The court may place a defendant who is being

26  sentenced for criminal transmission of HIV in violation of s.

27  775.0877 on criminal quarantine community control.  The

28  Department of Corrections shall develop and administer a

29  criminal quarantine community control program emphasizing

30  intensive supervision with 24-hour-per-day electronic

31  monitoring. Criminal quarantine community control status must

                                  9

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 1  include surveillance and may include other measures normally

 2  associated with community control, except that specific

 3  conditions necessary to monitor this population may be

 4  ordered.

 5         Section 12.  Present subsection (15) of section 948.01,

 6  Florida Statutes, is transferred and renumbered as subsection

 7  (2) of 948.013, Florida Statutes, and amended to read:

 8         948.013  Administrative probation.--

 9         (1)  The Department of Corrections may establish

10  procedures for transferring an offender to administrative

11  probation. The department may collect an initial processing

12  fee of up to $50 for each probationer transferred to

13  administrative probation. The offender is exempt from further

14  payment for the cost of supervision as required in s. 948.09.

15         (2)(15)  Effective for an offense committed on or after

16  July 1, 1998, a person is ineligible for placement on

17  administrative probation if the person is sentenced to or is

18  serving a term of probation or community control, regardless

19  of the conviction or adjudication, for committing, or

20  attempting, conspiring, or soliciting to commit, any of the

21  felony offenses described in s. 787.01 or s. 787.02, where the

22  victim is a minor and the defendant is not the victim's

23  parent; s. 787.025; chapter 794; s. 796.03; s. 800.04; s.

24  825.1025(2)(b); s. 827.071; s. 847.0133; s. 847.0135; or s.

25  847.0145.

26         Section 13.  Section 948.011, Florida Statutes, is

27  amended to read:

28         948.011  When court may impose fine and place on

29  probation or into community control as an alternative to

30  imprisonment.--When the law authorizes the placing of a

31  defendant on probation, and when the defendant's offense is

                                  10

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 1  punishable by both fine and imprisonment, the trial court may,

 2  in its discretion, impose a fine upon him or her and place him

 3  or her on probation or into community control as an

 4  alternative to imprisonment.

 5         Section 14.  Subsection (1) of section 948.03, Florida

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

 7  of Florida, is amended to read:

 8         948.03  Terms and conditions of probation or community

 9  control.--

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

11  of probation or community control. Conditions specified in

12  this section paragraphs (a)-(m) do not require oral

13  pronouncement at the time of sentencing and may be considered

14  standard conditions of probation. Conditions specified in

15  paragraphs (a)-(m) and (2)(a) do not require oral

16  pronouncement at sentencing and may be considered standard

17  conditions of community control. These conditions may include

18  among them the following, that the probationer or offender in

19  community control shall:

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

21  directed.

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

23  or her home or elsewhere.

24         (c)  Work faithfully at suitable employment insofar as

25  may be possible.

26         (d)  Remain within a specified place.

27         (e)  Make reparation or restitution to the aggrieved

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

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

30  such reparation or restitution a condition of probation,

31  unless it determines that clear and compelling reasons exist

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

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

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

 4  the reasons therefor.

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

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

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

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

 9  or transportation received by the felony probationer while in

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

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

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

13  of the institution for the medical expenses incurred, the

14  financial resources of the felony probationer, the present and

15  potential future financial needs and earning ability of the

16  probationer, and dependents, and other appropriate factors.

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

18  his or her ability.

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

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

21  of circumstances.

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

23  27.52(2)(a) and attorney's fees and costs assessed under s.

24  938.29, subject to modification based on change of

25  circumstances.

26         (j)  Not associate with persons engaged in criminal

27  activities.

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

29  correctional probation officer or the professional staff of

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

31  

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 1  determine the presence or use of alcohol or controlled

 2  substances.

 3         2.  If the offense was a controlled substance violation

 4  and the period of probation immediately follows a period of

 5  incarceration in the state correction system, the conditions

 6  shall include a requirement that the offender submit to random

 7  substance abuse testing intermittently throughout the term of

 8  supervision, upon the direction of the correctional probation

 9  officer as defined in s. 943.10(3).

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

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

12  the probation officer.

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

14  possessing any drugs or narcotics unless prescribed by a

15  physician. The probationer or community controllee shall not

16  knowingly visit places where intoxicants, drugs, or other

17  dangerous substances are unlawfully sold, dispensed, or used.

18         (n)  Submit to the drawing of blood or other biological

19  specimens as prescribed in ss. 948.014 and 943.325, and

20  reimburse the appropriate agency for the costs of drawing and

21  transmitting the blood or other biological specimens to the

22  Department of Law Enforcement.

23         (n)  Attend an HIV/AIDS awareness program consisting of

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

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

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

27  residence.

28         (o)  Pay not more than $1 per month during the term of

29  probation or community control to a nonprofit organization

30  established for the sole purpose of supplementing the

31  rehabilitative efforts of the Department of Corrections.

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 1         Section 15.  Present subsection (2) of section 948.03,

 2  Florida Statutes, is transferred and renumbered as subsection

 3  (1) of section 948.101, Florida Statutes, and amended to read:

 4         948.101  Terms and conditions of community control and

 5  criminal quarantine community control.--

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

 7  of community control. Conditions specified in this subsection

 8  do not require oral pronouncement at the time of sentencing

 9  and may be considered standard conditions of community

10  control.

11         (2)(a)  The court shall require intensive supervision

12  and surveillance for an offender placed into community

13  control, which may include but is not limited to:

14         1.  Specified contact with the parole and probation

15  officer.

16         2.  Confinement to an agreed-upon residence during

17  hours away from employment and public service activities.

18         3.  Mandatory public service.

19         4.  Supervision by the Department of Corrections by

20  means of an electronic monitoring device or system.

21         5.  The standard conditions of probation set forth in

22  s. 948.03(1) and (2).

23         (b)  For an offender placed on criminal quarantine

24  community control, the court shall require:

25         1.  Electronic monitoring 24 hours per day.

26         2.  Confinement to a designated residence during

27  designated hours.

28         (2)  The enumeration of specific kinds of terms and

29  conditions does not prevent the court from adding thereto any

30  other terms or conditions that the court considers proper.

31  However, the sentencing court may only impose a condition of

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 1  supervision allowing an offender convicted of s. 794.011, s.

 2  800.04, s. 827.071, or s. 847.0145 to reside in another state

 3  if the order stipulates that it is contingent upon the

 4  approval of the receiving state interstate compact authority.

 5  The court may rescind or modify at any time the terms and

 6  conditions theretofore imposed by it upon the offender in

 7  community control. However, if the court withholds

 8  adjudication of guilt or imposes a period of incarceration as

 9  a condition of community control, the period may not exceed

10  364 days, and incarceration shall be restricted to a county

11  facility, a probation and restitution center under the

12  jurisdiction of the Department of Corrections, a probation

13  program drug punishment phase I secure residential treatment

14  institution, or a community residential facility owned or

15  operated by any entity providing such services.

16         Section 16.  Present subsection (3) of section 948.03,

17  Florida Statutes, is transferred and renumbered as subsection

18  (2) of section 948.11, Florida Statutes, and amended to read:

19         948.11  Electronic monitoring devices.--Pursuant to

20  chapter 287, the department shall issue a request for proposal

21  for electronic monitoring devices to be utilized by the

22  department for purposes of electronic monitoring under this

23  section or any other section of law which authorizes

24  electronic monitoring. Electronic monitoring devices certified

25  for use by the department must be licensed by the FCC, must be

26  capable of maintaining full operation on a backup power source

27  for 8 hours, and must meet such other necessary and vital

28  specifications as may be set by the department for

29  tamper-alert, efficient, and economical usage.  The provisions

30  of this section do not apply to passive devices.

31  

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 1         (2)(3)(a)1.  The Department of Corrections may, at its

 2  discretion, electronically monitor an offender sentenced to

 3  community control.

 4         2.  The Department of Corrections shall electronically

 5  monitor an offender sentenced to criminal quarantine community

 6  control 24 hours per day.

 7         (b)  Any offender placed on community control who

 8  violates the terms and conditions of community control and is

 9  restored to community control may be supervised by means of an

10  electronic monitoring device or system.

11         (c)  For those offenders being electronically

12  monitored, the Department of Corrections shall develop

13  procedures to determine, investigate, and report the

14  offender's noncompliance with the terms and conditions of

15  sentence 24 hours per day.  All reports of noncompliance shall

16  be immediately investigated by a community control officer.

17         (d)  The Department of Corrections may contract with

18  local law enforcement agencies to assist in the location and

19  apprehension of offenders who are in noncompliance as reported

20  by the electronic monitoring system. This contract is intended

21  to provide the department a means for providing immediate

22  investigation of noncompliance reports, especially after

23  normal office hours.

24         (e)  Any person being electronically monitored by the

25  department as a result of placement on community control shall

26  be required to pay a surcharge as provided in s. 948.09(2).

27         Section 17.  Present subsection (4) of section 948.03,

28  Florida Statutes, is transferred and renumbered as section

29  948.31, Florida Statutes, and amended to read:

30         948.31 (4)  Diagnosis, evaluation, and treatment of

31  offenders placed on probation or community control for certain

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 1  sex offenses or child exploitation.-- The court shall require

 2  a diagnosis and evaluation to determine the need of a

 3  probationer or offender in community control for treatment.

 4  If the court determines that a need therefor is established by

 5  such diagnosis and evaluation process, the court shall require

 6  outpatient counseling as a term or condition of probation or

 7  community control for any person who was found guilty of any

 8  of the following, or whose plea of guilty or nolo contendere

 9  to any of the following was accepted by the court:

10         (1)(a)  Lewd or lascivious battery, lewd or lascivious

11  molestation, lewd or lascivious conduct, or lewd or lascivious

12  exhibition, as defined in s. 800.04.

13         (2)(b)  Sexual battery, as defined in chapter 794,

14  against a child.

15         (3)(c)  Exploitation of a child as provided in s.

16  450.151, or for prostitution.

17  

18  Such counseling shall be required to be obtained from a

19  community mental health center, a recognized social service

20  agency providing mental health services, or a private mental

21  health professional or through other professional counseling.

22  The plan for counseling for the individual shall be provided

23  to the court for review.

24         Section 18.  Present subsection (5) of section 948.03,

25  Florida Statutes, is transferred and renumbered as section

26  948.30, Florida Statutes, and amended to read:

27         948.30 (5)  Additional terms and conditions of

28  probation or community control for certain sex offenses.--

29  Conditions imposed pursuant to this section subsection, as

30  specified in paragraphs (a) and (b), do not require oral

31  pronouncement at the time of sentencing and shall be

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 1  considered standard conditions of probation or community

 2  control for offenders specified in this section subsection.

 3         (1)(a)  Effective for probationers or community

 4  controllees whose crime was committed on or after October 1,

 5  1995, and who are placed under supervision for violation of

 6  chapter 794, s. 800.04, s. 827.071, or s. 847.0145, the court

 7  must impose the following conditions in addition to all other

 8  standard and special conditions imposed:

 9         (a)1.  A mandatory curfew from 10 p.m. to 6 a.m. The

10  court may designate another 8-hour period if the offender's

11  employment precludes the above specified time, and such

12  alternative is recommended by the Department of Corrections.

13  If the court determines that imposing a curfew would endanger

14  the victim, the court may consider alternative sanctions.

15         (b)2.  If the victim was under the age of 18, a

16  prohibition on living within 1,000 feet of a school, day care

17  center, park, playground, or other place where children

18  regularly congregate, as prescribed by the court. The

19  1,000-foot distance shall be measured in a straight line from

20  the offender's place of residence to the nearest boundary line

21  of the school, day care center, park, playground, or other

22  place where children congregate. The distance may not be

23  measured by a pedestrian route or automobile route.

24         (c)3.  Active participation in and successful

25  completion of a sex offender treatment program with therapists

26  specifically trained to treat sex offenders, at the

27  probationer's or community controllee's own expense. If a

28  specially trained therapist is not available within a 50-mile

29  radius of the probationer's or community controllee's

30  residence, the offender shall participate in other appropriate

31  therapy.

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 1         (d)4.  A prohibition on any contact with the victim,

 2  directly or indirectly, including through a third person,

 3  unless approved by the victim, the offender's therapist, and

 4  the sentencing court.

 5         (e)5.  If the victim was under the age of 18, a

 6  prohibition, until successful completion of a sex offender

 7  treatment program, on unsupervised contact with a child under

 8  the age of 18, unless authorized by the sentencing court

 9  without another adult present who is responsible for the

10  child's welfare, has been advised of the crime, and is

11  approved by the sentencing court.

12         (f)6.  If the victim was under age 18, a prohibition on

13  working for pay or as a volunteer at any school, day care

14  center, park, playground, or other place where children

15  regularly congregate.

16         (g)7.  Unless otherwise indicated in the treatment plan

17  provided by the sexual offender treatment program, a

18  prohibition on viewing, owning, or possessing any obscene,

19  pornographic, or sexually stimulating visual or auditory

20  material, including telephone, electronic media, computer

21  programs, or computer services that are relevant to the

22  offender's deviant behavior pattern.

23         (h)8.  A requirement that the probationer or community

24  controllee must submit a specimen two specimens of blood or

25  other approved biological specimen specimens to the Florida

26  Department of Law Enforcement to be registered with the DNA

27  data bank.

28         (i)9.  A requirement that the probationer or community

29  controllee make restitution to the victim, as ordered by the

30  court under s. 775.089, for all necessary medical and related

31  

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 1  professional services relating to physical, psychiatric, and

 2  psychological care.

 3         (j)10.  Submission to a warrantless search by the

 4  community control or probation officer of the probationer's or

 5  community controllee's person, residence, or vehicle.

 6         (2)(b)  Effective for a probationer or community

 7  controllee whose crime was committed on or after October 1,

 8  1997, and who is placed on sex offender probation for a

 9  violation of chapter 794, s. 800.04, s. 827.071, or s.

10  847.0145, in addition to any other provision of this

11  subsection, the court must impose the following conditions of

12  probation or community control:

13         (a)1.  As part of a treatment program, participation at

14  least annually in polygraph examinations to obtain information

15  necessary for risk management and treatment and to reduce the

16  sex offender's denial mechanisms. A polygraph examination must

17  be conducted by a polygrapher trained specifically in the use

18  of the polygraph for the monitoring of sex offenders, where

19  available, and shall be paid for by the sex offender. The

20  results of the polygraph examination shall not be used as

21  evidence in court to prove that a violation of community

22  supervision has occurred.

23         (b)2.  Maintenance of a driving log and a prohibition

24  against driving a motor vehicle alone without the prior

25  approval of the supervising officer.

26         (c)3.  A prohibition against obtaining or using a post

27  office box without the prior approval of the supervising

28  officer.

29         (d)4.  If there was sexual contact, a submission to, at

30  the probationer's or community controllee's expense, an HIV

31  

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 1  test with the results to be released to the victim or and/or

 2  the victim's parent or guardian.

 3         (e)5.  Electronic monitoring when deemed necessary by

 4  the community control or probation officer and his or her

 5  supervisor, and ordered by the court at the recommendation of

 6  the Department of Corrections.

 7         Section 19.  Subsection (6) of section 948.03, Florida

 8  Statutes, is amended to read:

 9         948.03  Terms and conditions of probation or community

10  control.--

11         (6)  The enumeration of specific kinds of terms and

12  conditions shall not prevent the court from adding thereto

13  such other or others as it considers proper. However, the

14  sentencing court may only impose a condition of supervision

15  allowing an offender convicted of s. 794.011, s. 800.04, s.

16  827.071, or s. 847.0145, to reside in another state, if the

17  order stipulates that it is contingent upon the approval of

18  the receiving state interstate compact authority. The court

19  may rescind or modify at any time the terms and conditions

20  theretofore imposed by it upon the probationer or offender in

21  community control.  However, if the court withholds

22  adjudication of guilt or imposes a period of incarceration as

23  a condition of probation or community control, the period

24  shall not exceed 364 days, and incarceration shall be

25  restricted to either a county facility, a probation and

26  restitution center under the jurisdiction of the Department of

27  Corrections, a probation program drug punishment phase I

28  secure residential treatment institution, or a community

29  residential facility owned or operated by any entity providing

30  such services.

31  

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 1         Section 20.  Present subsection (7) of section 948.03,

 2  Florida Statutes, is transferred and renumbered as section

 3  948.035, Florida Statutes, and amended to read:

 4         948.035 (7)(a)  Residential treatment as a condition of

 5  probation or community control.--

 6         (1)  If the court imposes a period of residential

 7  treatment or incarceration as a condition of probation or

 8  community control, the residential treatment or incarceration

 9  shall be restricted to the following facilities:

10         (a)1.  A Department of Corrections probation and

11  restitution center;

12         (b)2.  A probation program drug punishment treatment

13  community;

14         (c)3.  A community residential facility which is owned

15  and operated by any public or private entity, excluding a

16  community correctional center as defined in s. 944.026; or

17         (d)4.  A county-owned facility.

18         (2)(b)  It is the intent of the Legislature that a

19  county jail be used as the last available alternative for

20  placement of an offender as a condition of probation.

21  However, this shall not create a right of placement for the

22  probationer, nor shall it restrict judicial discretion in

23  ordering such treatment or incarceration.

24         (3)(c)  Prior to admission to such a facility or

25  treatment community, the court shall obtain an individual

26  assessment and recommendation on the appropriate treatment

27  needs pursuant to chapter 953 or the Community Control

28  Implementation Manual which shall be considered by the court

29  in ordering such placements. Placement in such a facility or

30  center, or in the phase I secure residential phase of a

31  probation program drug punishment treatment community, shall

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 1  not exceed 364 days. Early completion of an offender's

 2  placement shall be recommended to the court, when appropriate,

 3  by the facility or center supervisor, by the supervising

 4  probation officer, or by the program manager. However, with

 5  respect to the placement of a probationer pursuant to chapter

 6  953, such placement shall not be completed until satisfactory

 7  completion of the drug punishment program.  Termination for

 8  cause from such a program shall be pursuant to s. 953.25(4).

 9  The Department of Corrections is authorized to contract with

10  appropriate agencies for provision of services.

11         Section 21.  Present subsection (8) of section 948.03,

12  Florida Statutes, is transferred and renumbered as section

13  948.036, Florida Statutes, and amended to read:

14         948.036 (8)(a)  Work programs as a condition of

15  probation, community control, or other court-ordered community

16  supervision.--

17         (1)  Whenever an offender is required by the court to

18  participate in any work program under the provisions of this

19  chapter, enters into the pretrial intervention program

20  pursuant to s. 948.08, or volunteers to work in a supervised

21  work program conducted by a specified state, county,

22  municipal, or community service organization or to work for

23  the victim, either as an alternative to monetary restitution

24  or as a part of the rehabilitative or community control

25  program, the offender shall be considered an employee of the

26  state for the purposes of chapter 440.

27         (2)(b)  In determining the average weekly wage, unless

28  otherwise determined by a specific funding program, all

29  remuneration received from the employer shall be considered a

30  gratuity, and the offender shall not be entitled to any

31  benefits otherwise payable under s. 440.15, regardless of

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 1  whether the offender may be receiving wages and remuneration

 2  from other employment with another employer and regardless of

 3  his or her future wage-earning capacity.  The provisions of

 4  this subsection do not apply to any person performing labor

 5  under a sentence of a court to perform community services as

 6  provided in s. 316.193.

 7         Section 22.  Present subsection (9) of section 948.03,

 8  Florida Statutes, is transferred and renumbered as section

 9  948.037, Florida Statutes, and amended to read:

10         948.037 (9)(a)  Education and learning as a condition

11  of probation or community control.--

12         (1)  As a condition of community control, probation, or

13  probation following incarceration, the court shall require an

14  offender who has not obtained a high school diploma or high

15  school equivalency diploma or who lacks basic or functional

16  literacy skills, upon acceptance by an adult education

17  program, to make a good faith effort toward completion of such

18  basic or functional literacy skills or high school equivalency

19  diploma, as defined in s. 1003.435, in accordance with the

20  assessed adult general education needs of the individual

21  offender.  The court shall not revoke community control,

22  probation, or probation following incarceration because of the

23  offender's inability to achieve such skills or diploma but may

24  revoke community control, probation, or probation following

25  incarceration if the offender fails to make a good faith

26  effort to achieve such skills or diploma.  The court may grant

27  early termination of community control, probation, or

28  probation following incarceration upon the offender's

29  successful completion of the approved program.  As used in

30  this subsection, "good faith effort" means the offender is

31  enrolled in a program of instruction and is attending and

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 1  making satisfactory progress toward completion of the

 2  requirements.

 3         (2)(b)  A juvenile on community control who is a public

 4  school student must attend a public adult education program or

 5  a dropout prevention program, pursuant to s. 1003.53, which

 6  includes a second chance school or an alternative to

 7  expulsion, if the school district where the juvenile is

 8  enrolled offers such programs, unless the principal of the

 9  school determines that special circumstances warrant

10  continuation in the regular educational school program.

11         (3)(c)  If a juvenile on community control attends a

12  regular educational school program because a public adult

13  education program or dropout prevention program, which

14  includes a second chance school or an alternative to

15  expulsion, is not available in the school district, the

16  identity of the juvenile on community control, the nature of

17  the felony offense committed by the juvenile, and the

18  conditions of community control must be made known to each of

19  the student's teachers.

20         Section 23.  Present subsection (10) of section 948.03,

21  Florida Statutes, is transferred and renumbered as subsections

22  (1) and (2) of section 948.014, Florida Statutes, and amended

23  to read:

24         948.014 (10)  Requirement to submit to drawing of blood

25  or other biological specimens.--

26         (1)  As a condition of probation, community control, or

27  any other court-ordered community supervision, the court shall

28  order persons convicted of offenses specified in s. 943.325 to

29  submit to the drawing of the blood or other biological

30  specimens as prescribed in that section as a condition of the

31  

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 1  probation, community control, or other court-ordered community

 2  supervision.

 3         (2)  For the purposes of this section subsection,

 4  conviction shall include a finding of guilty, or entry of a

 5  plea of nolo contendere or guilty, regardless of adjudication,

 6  or, in the case of a juvenile, the finding of delinquency.

 7         Section 24.  Present subsection (11) of section 948.03,

 8  Florida Statutes, is transferred and renumbered as subsection

 9  (3) of section 948.014, Florida Statutes, and amended to read:

10         948.014  Requirement to submit to drawing of blood or

11  other biological specimens.--

12         (3)(11)  Any order issued pursuant to this section

13  subsection (10) shall also require the convicted person to

14  reimburse the appropriate agency for the costs of drawing and

15  transmitting the blood or other biological specimens to the

16  Florida Department of Law Enforcement.

17         Section 25.  Present subsection (12) of section 948.03,

18  Florida Statutes, is transferred and renumbered as section

19  948.038, Florida Statutes, and amended to read:

20         948.038 (12)  Batterers' intervention program as a

21  condition of probation, community control, or other

22  court-ordered community supervision.--As a condition of

23  probation, community control, or any other court-ordered

24  community supervision, the court shall order a person

25  convicted of an offense of domestic violence, as defined in s.

26  741.28, to attend and successfully complete a batterers'

27  intervention program unless the court determines that the

28  person does not qualify for the batterers' intervention

29  program pursuant to s. 741.325. Effective July 1, 2002, The

30  batterers' intervention program must be a program certified

31  

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 1  under s. 741.32 and the offender must pay the cost of

 2  attending the program.

 3         Section 26.  Section 948.039, Florida Statutes, is

 4  created to read:

 5         948.039  Special terms and conditions of probation or

 6  community control imposed by court order.--The court may

 7  determine any special terms and conditions of probation or

 8  community control. The terms and conditions should be

 9  reasonably related to the circumstances of the offense

10  committed and appropriate for the offender. The court shall

11  impose the special terms and conditions by oral pronouncement

12  at sentencing and include the terms and conditions in the

13  written sentencing order. Special terms and conditions may

14  include, but are not limited to, requirements that the

15  offender:

16         (1)  Attend an HIV/AIDS awareness program consisting of

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

18  length, if such a program is available in the county of the

19  offender's residence. The offender shall pay the cost of

20  attending the program.

21         (2)  Pay not more than $1 per month during the term of

22  probation or community control to a nonprofit organization

23  established for the sole purpose of supplementing the

24  rehabilitative efforts of the Department of Corrections.

25         Section 27.  Subsection (1) of section 948.06, Florida

26  Statutes, is amended to read:

27         948.06  Violation of probation or community control;

28  revocation; modification; continuance; failure to pay

29  restitution or cost of supervision.--

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

31  community control there are reasonable grounds to believe that

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 1  a probationer or offender in community control has violated

 2  his or her probation or community control in a material

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

 4  probationary or community control status of the probationer or

 5  offender in community control or any parole or probation

 6  supervisor may arrest or request any county or municipal law

 7  enforcement officer to arrest such probationer or offender

 8  without warrant wherever found and forthwith return him or her

 9  to the court granting such probation or community control.

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

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

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

13  probationer or offender, returnable forthwith before the court

14  granting such probation or community control.

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

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

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

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

19  violation of probation or community control and following

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

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

22  Notwithstanding the tolling of probation as provided in this

23  subsection, the court shall retain jurisdiction over the

24  offender for any violation of the conditions of probation or

25  community control that is alleged to have occurred during the

26  tolling period. The probation officer is permitted to continue

27  to supervise any offender who remains available to the officer

28  for supervision until the supervision expires pursuant to the

29  order of probation or community control or until the court

30  revokes or terminates the probation or community control,

31  whichever comes first.

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

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

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

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

 5  or community control or place the probationer into a community

 6  control program.

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

 8  court shall adjudge the probationer or offender guilty of the

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

10  previously been adjudged guilty, and impose any sentence which

11  it might have originally imposed before placing the

12  probationer on probation or the offender into community

13  control.

14         (c)  If such violation of probation or community

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

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

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

18  charge of probation or community control violation.

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

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

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

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

23  in person or by counsel.

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

25  or continue the probation or community control or place the

26  probationer into community control. If such probation or

27  community control is revoked, the court shall adjudge the

28  probationer or offender guilty of the offense charged and

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

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

31  

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 1  originally imposed before placing the probationer or offender

 2  on probation or into community control.

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

 4  probation or community control has been tolled, upon

 5  revocation or modification of the probation or community

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

 7  combined with the amount of supervision served and tolled,

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

 9  up to the amount of the tolled period of supervision.

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

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

12  probation or community control shall continue as previously

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

14  time against his or her term of probation or community

15  control.

16         Section 28.  Present subsection (2) of section 948.06,

17  Florida Statutes, is transferred and renumbered as section

18  948.32, Florida Statutes, and amended to read:

19         948.32 (2)(a)  Requirements of law enforcement agency

20  upon arrest of persons for certain sex offenses.--

21         (1)  When any state or local law enforcement agency

22  investigates or arrests a person for committing, or

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

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

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

26  agency shall contact the Department of Corrections to verify

27  whether the person under investigation or under arrest is on

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

29  control release.

30         (2)(b)  If the law enforcement agency finds that the

31  person under investigation or under arrest is on probation,

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 1  community control, parole, conditional release, or control

 2  release, the law enforcement agency shall immediately notify

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

 4  investigation or the arrest.

 5         Section 29.  Subsections (1) and (7) of section 948.09,

 6  Florida Statutes, are amended to read:

 7         948.09  Payment for cost of supervision and

 8  rehabilitation.--

 9         (1)(a)1.  Any person ordered by the court, the

10  Department of Corrections, or the parole commission to be

11  placed on probation, drug offender probation, community

12  control, parole, control release, provisional release

13  supervision, addiction-recovery supervision, or conditional

14  release supervision under chapter 944, chapter 945, chapter

15  947, chapter 948, or chapter 958, or in a pretrial

16  intervention program, must, as a condition of any placement,

17  pay the department a total sum of money equal to the total

18  month or portion of a month of supervision times the

19  court-ordered amount, but not to exceed the actual per diem

20  cost of the supervision. The department shall adopt rules by

21  which an offender who pays in full and in advance of regular

22  termination of supervision may receive a reduction in the

23  amount due. The rules shall incorporate provisions by which

24  the offender's ability to pay is linked to an established

25  written payment plan. Funds collected from felony offenders

26  may be used to offset costs of the Department of Corrections

27  associated with community supervision programs, subject to

28  appropriation by the Legislature.

29         2.  In addition to any other contribution or surcharge

30  imposed by this section, each felony offender assessed under

31  this paragraph shall pay a $2-per-month surcharge to the

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 1  department. The surcharge shall be deemed to be paid only

 2  after the full amount of any monthly payment required by the

 3  established written payment plan has been collected by the

 4  department. These funds shall be used by the department to pay

 5  for correctional probation officers' training and equipment,

 6  including radios, and firearms training, firearms, and

 7  attendant equipment necessary to train and equip officers who

 8  choose to carry a concealed firearm while on duty. Nothing in

 9  this subparagraph shall be construed to limit the department's

10  authority to determine who shall be authorized to carry a

11  concealed firearm while on duty, or to limit the right of a

12  correctional probation officer to carry a personal firearm

13  approved by the department.

14         (b)  Any person placed on misdemeanor probation by a

15  county court must contribute not less than $40 per month, as

16  decided by the sentencing court, to the court-approved public

17  or private entity providing misdemeanor supervision.

18         (7)  The department shall establish a payment plan for

19  all costs ordered by the courts for collection by the

20  department and a priority order for payments, except that

21  victim restitution payments authorized under s. 948.03(5) s.

22  948.03(1)(e) take precedence over all other court-ordered

23  payments. The department is not required to disburse

24  cumulative amounts of less than $10 to individual payees

25  established on this payment plan.

26         Section 30.  Subsection (7) of section 948.10, Florida

27  Statutes, is amended to read:

28         948.10  Community control programs.--

29         (7)  If an offender is sentenced to community control

30  by the court and the offender is ineligible to be placed on

31  

                                  32

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






    Florida Senate - 2004        (Technical Correction)    SB 2336
    307-1812B-04




 1  community control as provided in s. 948.10(2) s. 948.01(10),

 2  the department shall:

 3         (a)  Review and verify whether an ineligible offender

 4  was placed on community control.

 5         (b)  Within 30 days after receipt of the order, notify

 6  the sentencing judge, the state attorney, and the Attorney

 7  General that the offender was ineligible for placement on

 8  community control.

 9         (c)  Provide a quarterly report to the chief judge and

10  the state attorney of each circuit citing the number of

11  ineligible offenders placed on community control within that

12  circuit.

13         (d)  Provide an annual report to the Governor, the

14  President of the Senate, the Speaker of the House of

15  Representatives, and the Chief Justice of the Supreme Court on

16  the placement of ineligible offenders on community control in

17  order to assist in preparing judicial education programs or

18  for any other purpose.

19         Section 31.  This act shall take effect July 1, 2004.

20  

21            *****************************************

22                          SENATE SUMMARY

23    Transfers and reorganizes various provisions of law
      governing probation and community control. Clarifies
24    provisions authorizing the court to impose certain fees.
      Revises provisions requiring that a probationer submit
25    blood or other biological specimens. Authorizes a court
      to require that a probationer attend an HIV/AIDS
26    awareness program. (See bill for details.)

27  

28  

29  

30  

31  

                                  33

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

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