Bill Text: FL H0761 | 2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: State Attorneys

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2010-04-30 - Died in Committee on Criminal & Civil Justice Appropriations (CGHC) [H0761 Detail]

Download: Florida-2010-H0761-Introduced.html

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HB 761

1	A bill to be entitled
2	An act relating to state attorneys; amending s. 27.366,
3	F.S.; deleting a provision that requires each state
4	attorney to report why a case-qualified defendant did not
5	receive the mandatory minimum prison sentence in cases
6	involving the possession or use of a weapon; amending s.
7	775.082, F.S.; deleting a provision that requires each
8	state attorney to report why a case-qualified defendant
9	did not receive the mandatory minimum prison sentence in
10	cases involving certain specified offenses; repealing s.
11	775.08401, F.S., relating to criteria to be used when
12	state attorneys decide to pursue habitual felony
13	offenders, habitual violent felony offenders, or violent
14	career criminals; repealing s. 775.087(5), relating to a
15	provision that requires each state attorney to report why
16	a case-qualified defendant did not receive the mandatory
17	minimum prison sentence in cases involving certain
18	specified offenses; amending s. 903.286, F.S.; requiring
19	the clerk of the court to withhold sufficient funds to pay
20	any unpaid costs of prosecution from the return of a cash
21	bond posted on behalf of a criminal defendant by a person
22	other than a bail bond agent; amending s. 938.27, F.S.;
23	providing that persons whose cases are disposed of under
24	any diversionary alternative are liable for payment of the
25	costs of prosecution; deleting provisions regarding the
26	burden of establishing financial resources of the
27	defendant; requiring the clerk of court to separately
28	record each assessment and payment of costs of
29	prosecution; requiring the clerk to prepare a monthly
30	report to the state attorney's office of the recorded
31	assessments and payments; amending s. 943.0585, F.S.;
32	requiring a person to remit a processing fee to the state
33	attorney's office in order to receive a certificate of
34	eligibility for expunction of a criminal history record;
35	conforming cross-references; amending s. 943.059, F.S.;
36	requiring a person to remit a processing fee to the state
37	attorney's office in order to receive a certificate of
38	eligibility for sealing a criminal history record;
39	repealing s. 985.557(4), F.S., relating to direct-file
40	policies and guidelines for juveniles; amending s.
41	775.0843, F.S.; conforming a cross-reference; providing an
42	effective date.
43
44	Be It Enacted by the Legislature of the State of Florida:
45
46	Section 1. Section 27.366, Florida Statutes, is amended to
47	read:
48	27.366 Legislative intent and policy in cases meeting
49	criteria of s. 775.087(2) and (3); report.-
50	(1) It is the intent of the Legislature that convicted
51	criminal offenders who meet the criteria in s. 775.087(2) and
52	(3) be sentenced to the minimum mandatory prison terms provided
53	therein herein. It is the intent of the Legislature to establish
54	zero tolerance of criminals who use, threaten to use, or avail
55	themselves of firearms in order to commit crimes and thereby
56	demonstrate their lack of value for human life. It is also the
57	intent of the Legislature that prosecutors should appropriately
58	exercise their discretion in those cases in which the offenders'
59	possession of the firearm is incidental to the commission of a
60	crime and not used in furtherance of the crime, used in order to
61	commit the crime, or used in preparation to commit the crime.
62	For every case in which the offender meets the criteria in this
63	act and does not receive the mandatory minimum prison sentence,
64	the state attorney must explain the sentencing deviation in
65	writing and place such explanation in the case file maintained
66	by the state attorney. On a quarterly basis, each state attorney
67	shall submit copies of deviation memoranda regarding offenses
68	committed on or after the effective date of this act to the
69	President of the Florida Prosecuting Attorneys Association, Inc.
70	The association must maintain such information and make such
71	information available to the public upon request for at least a
72	10-year period.
73	(2) Effective July 1, 2000, each state attorney shall
74	annually report to the Speaker of the House of Representatives,
75	the President of the Senate, and the Executive Office of the
76	Governor regarding the prosecution and sentencing of offenders
77	who met the criteria in s. 775.087(2) and (3). The report must
78	categorize the defendants by age, gender, race, and ethnicity.
79	Cases in which a final disposition has not yet been reached
80	shall be reported in a subsequent annual report.
81	Section 2. Paragraph (d) of subsection (9) of section
82	775.082, Florida Statutes, is amended to read:
83	775.082 Penalties; applicability of sentencing structures;
84	mandatory minimum sentences for certain reoffenders previously
85	released from prison.-
86	(9)
87	(d)1. It is the intent of the Legislature that offenders
88	previously released from prison who meet the criteria in
89	paragraph (a) be punished to the fullest extent of the law and
90	as provided in this subsection, unless the state attorney
91	determines that extenuating circumstances exist which preclude
92	the just prosecution of the offender, including whether the
93	victim recommends that the offender not be sentenced as provided
94	in this subsection.
95	2. For every case in which the offender meets the criteria
96	in paragraph (a) and does not receive the mandatory minimum
97	prison sentence, the state attorney must explain the sentencing
98	deviation in writing and place such explanation in the case file
99	maintained by the state attorney. On an annual basis, each state
100	attorney shall submit copies of deviation memoranda regarding
101	offenses committed on or after the effective date of this
102	subsection, to the president of the Florida Prosecuting
103	Attorneys Association, Inc. The association must maintain such
104	information, and make such information available to the public
105	upon request, for at least a 10-year period.
106	Section 3. Section 775.08401, Florida Statutes, is
107	repealed.
108	Section 4. Subsection (5) of section 775.087, Florida
109	Statutes, is repealed.
110	Section 5. Subsection (1) of section 903.286, Florida
111	Statutes, is amended to read:
112	903.286 Return of cash bond; requirement to withhold
113	unpaid fines, fees, court costs; cash bond forms.-
114	(1) Notwithstanding s. 903.31(2), the clerk of the court
115	shall withhold from the return of a cash bond posted on behalf
116	of a criminal defendant by a person other than a bail bond agent
117	licensed pursuant to chapter 648 sufficient funds to pay any
118	unpaid court fees, court costs, costs of prosecution, and
119	criminal penalties. If sufficient funds are not available to pay
120	all unpaid court fees, court costs, costs of prosecution, and
121	criminal penalties, the clerk of the court shall immediately
122	obtain payment from the defendant or enroll the defendant in a
123	payment plan pursuant to s. 28.246.
124	Section 6. Section 938.27, Florida Statutes, is amended to
125	read:
126	938.27 Judgment for costs on conviction and disposition.-
127	(1) In all criminal and violation-of-probation or
128	community-control cases, convicted persons and persons whose
129	cases are disposed of under any diversionary alternative are
130	liable for payment of the costs of prosecution, including
131	investigative costs incurred by law enforcement agencies, by
132	fire departments for arson investigations, and by investigations
133	of the Department of Financial Services or the Office of
134	Financial Regulation of the Financial Services Commission, if
135	requested by such agencies. The court shall include these costs
136	in every judgment rendered against the convicted person. For
137	purposes of this section, "convicted" means a determination of
138	guilt, or of violation of probation or community control, which
139	is a result of a plea, trial, or violation proceeding,
140	regardless of whether adjudication is withheld.
141	(2)(a) The court shall impose the costs of prosecution and
142	investigation notwithstanding the defendant's present ability to
143	pay. The court shall require the defendant to pay the costs
144	within a specified period or in specified installments.
145	(b) The end of such period or the last such installment
146	shall not be later than:
147	1. The end of the period of probation or community
148	control, if probation or community control is ordered;
149	2. Five years after the end of the term of imprisonment
150	imposed, if the court does not order probation or community
151	control; or
152	3. Five years after the date of sentencing in any other
153	case.
154
155	However, in no event shall the obligation to pay any unpaid
156	amounts expire if not paid in full within the period specified
157	in this paragraph.
158	(c) If not otherwise provided by the court under this
159	section, costs shall be paid immediately.
160	(3) If a defendant is placed on probation or community
161	control, payment of any costs under this section shall be a
162	condition of such probation or community control. The court may
163	revoke probation or community control if the defendant fails to
164	pay these costs.
165	(4) Any dispute as to the proper amount or type of costs
166	shall be resolved by the court by the preponderance of the
167	evidence. The burden of demonstrating the amount of costs
168	incurred is on the state attorney. The burden of demonstrating
169	the financial resources of the defendant and the financial needs
170	of the defendant is on the defendant. The burden of
171	demonstrating such other matters as the court deems appropriate
172	is upon the party designated by the court as justice requires.
173	(5) Any default in payment of costs may be collected by
174	any means authorized by law for enforcement of a judgment.
175	(6) The clerk of the court shall collect and dispense cost
176	payments in any case. The clerk of court shall separately record
177	each assessment and the payment of costs of prosecution. Costs
178	of prosecution must be assessed with respect to each case number
179	before the court. The clerk shall provide a monthly report to
180	the state attorney's office of the assessments and payments
181	recorded.
182	(7) Investigative costs that are recovered shall be
183	returned to the appropriate investigative agency that incurred
184	the expense. Such costs include actual expenses incurred in
185	conducting the investigation and prosecution of the criminal
186	case; however, costs may also include the salaries of permanent
187	employees. Any investigative costs recovered on behalf of a
188	state agency must be remitted to the Department of Revenue for
189	deposit in the agency operating trust fund, and a report of the
190	payment must be sent to the agency, except that any
191	investigative costs recovered on behalf of the Department of Law
192	Enforcement shall be deposited in the department's Forfeiture
193	and Investigative Support Trust Fund under s. 943.362.
194	(8) Costs for the state attorney shall be set in all cases
195	at no less than $50 per case when a misdemeanor or criminal
196	traffic offense is charged and no less than $100 per case when a
197	felony offense is charged, including a proceeding in which the
198	underlying offense is a violation of probation or community
199	control. The court may set a higher amount upon a showing of
200	sufficient proof of higher costs incurred. Costs recovered on
201	behalf of the state attorney under this section shall be
202	deposited into the state attorney's grants and donations trust
203	fund to be used during the fiscal year in which the funds are
204	collected, or in any subsequent fiscal year, for actual expenses
205	incurred in investigating and prosecuting criminal cases, which
206	may include the salaries of permanent employees, or for any
207	other purpose authorized by the Legislature.
208	Section 7. Paragraph (b) of subsection (1) of section
209	943.0585, Florida Statutes, is amended, present paragraphs (c)
210	through (h) of subsection (2) of that section are redesignated
211	as paragraphs (d) through (i), respectively, a new paragraph (c)
212	is added to that subsection, and present paragraph (f) of that
213	subsection is amended, to read:
214	943.0585 Court-ordered expunction of criminal history
215	records.-The courts of this state have jurisdiction over their
216	own procedures, including the maintenance, expunction, and
217	correction of judicial records containing criminal history
218	information to the extent such procedures are not inconsistent
219	with the conditions, responsibilities, and duties established by
220	this section. Any court of competent jurisdiction may order a
221	criminal justice agency to expunge the criminal history record
222	of a minor or an adult who complies with the requirements of
223	this section. The court shall not order a criminal justice
224	agency to expunge a criminal history record until the person
225	seeking to expunge a criminal history record has applied for and
226	received a certificate of eligibility for expunction pursuant to
227	subsection (2). A criminal history record that relates to a
228	violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
229	s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
230	827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
231	893.135, s. 916.1075, a violation enumerated in s. 907.041, or
232	any violation specified as a predicate offense for registration
233	as a sexual predator pursuant to s. 775.21, without regard to
234	whether that offense alone is sufficient to require such
235	registration, or for registration as a sexual offender pursuant
236	to s. 943.0435, may not be expunged, without regard to whether
237	adjudication was withheld, if the defendant was found guilty of
238	or pled guilty or nolo contendere to the offense, or if the
239	defendant, as a minor, was found to have committed, or pled
240	guilty or nolo contendere to committing, the offense as a
241	delinquent act. The court may only order expunction of a
242	criminal history record pertaining to one arrest or one incident
243	of alleged criminal activity, except as provided in this
244	section. The court may, at its sole discretion, order the
245	expunction of a criminal history record pertaining to more than
246	one arrest if the additional arrests directly relate to the
247	original arrest. If the court intends to order the expunction of
248	records pertaining to such additional arrests, such intent must
249	be specified in the order. A criminal justice agency may not
250	expunge any record pertaining to such additional arrests if the
251	order to expunge does not articulate the intention of the court
252	to expunge a record pertaining to more than one arrest. This
253	section does not prevent the court from ordering the expunction
254	of only a portion of a criminal history record pertaining to one
255	arrest or one incident of alleged criminal activity.
256	Notwithstanding any law to the contrary, a criminal justice
257	agency may comply with laws, court orders, and official requests
258	of other jurisdictions relating to expunction, correction, or
259	confidential handling of criminal history records or information
260	derived therefrom. This section does not confer any right to the
261	expunction of any criminal history record, and any request for
262	expunction of a criminal history record may be denied at the
263	sole discretion of the court.
264	(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.-Each
265	petition to a court to expunge a criminal history record is
266	complete only when accompanied by:
267	(b) The petitioner's sworn statement attesting that the
268	petitioner:
269	1. Has never, prior to the date on which the petition is
270	filed, been adjudicated guilty of a criminal offense or
271	comparable ordinance violation, or been adjudicated delinquent
272	for committing any felony or a misdemeanor specified in s.
273	943.051(3)(b).
274	2. Has not been adjudicated guilty of, or adjudicated
275	delinquent for committing, any of the acts stemming from the
276	arrest or alleged criminal activity to which the petition
277	pertains.
278	3. Has never secured a prior sealing or expunction of a
279	criminal history record under this section, former s. 893.14,
280	former s. 901.33, or former s. 943.058, or from any jurisdiction
281	outside the state, unless expunction is sought of a criminal
282	history record previously sealed for 10 years pursuant to
283	paragraph (2)(i)(h) and the record is otherwise eligible for
284	expunction.
285	4. Is eligible for such an expunction to the best of his
286	or her knowledge or belief and does not have any other petition
287	to expunge or any petition to seal pending before any court.
288
289	Any person who knowingly provides false information on such
290	sworn statement to the court commits a felony of the third
291	degree, punishable as provided in s. 775.082, s. 775.083, or s.
292	775.084.
293	(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.-Prior to
294	petitioning the court to expunge a criminal history record, a
295	person seeking to expunge a criminal history record shall apply
296	to the department for a certificate of eligibility for
297	expunction. The department shall, by rule adopted pursuant to
298	chapter 120, establish procedures pertaining to the application
299	for and issuance of certificates of eligibility for expunction.
300	A certificate of eligibility for expunction is valid for 12
301	months after the date stamped on the certificate when issued by
302	the department. After that time, the petitioner must reapply to
303	the department for a new certificate of eligibility. Eligibility
304	for a renewed certification of eligibility must be based on the
305	status of the applicant and the law in effect at the time of the
306	renewal application. The department shall issue a certificate of
307	eligibility for expunction to a person who is the subject of a
308	criminal history record if that person:
309	(c) Remits a $75 processing fee to the state attorney's
310	office to be deposited into the state attorney's grants and
311	donations trust fund unless the fee is waived by the state
312	attorney.
313	(g)(f) Has never secured a prior sealing or expunction of
314	a criminal history record under this section, former s. 893.14,
315	former s. 901.33, or former s. 943.058, unless expunction is
316	sought of a criminal history record previously sealed for 10
317	years pursuant to paragraph (i) (h) and the record is otherwise
318	eligible for expunction.
319	Section 8. Present paragraphs (c) through (f) of
320	subsection (2) of section 943.059, Florida Statutes, are
321	redesignated as paragraphs (d) through (g), respectively, and a
322	new paragraph (c) is added to that subsection, to read:
323	943.059 Court-ordered sealing of criminal history
324	records.-The courts of this state shall continue to have
325	jurisdiction over their own procedures, including the
326	maintenance, sealing, and correction of judicial records
327	containing criminal history information to the extent such
328	procedures are not inconsistent with the conditions,
329	responsibilities, and duties established by this section. Any
330	court of competent jurisdiction may order a criminal justice
331	agency to seal the criminal history record of a minor or an
332	adult who complies with the requirements of this section. The
333	court shall not order a criminal justice agency to seal a
334	criminal history record until the person seeking to seal a
335	criminal history record has applied for and received a
336	certificate of eligibility for sealing pursuant to subsection
337	(2). A criminal history record that relates to a violation of s.
338	393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
339	800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
340	839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
341	916.1075, a violation enumerated in s. 907.041, or any violation
342	specified as a predicate offense for registration as a sexual
343	predator pursuant to s. 775.21, without regard to whether that
344	offense alone is sufficient to require such registration, or for
345	registration as a sexual offender pursuant to s. 943.0435, may
346	not be sealed, without regard to whether adjudication was
347	withheld, if the defendant was found guilty of or pled guilty or
348	nolo contendere to the offense, or if the defendant, as a minor,
349	was found to have committed or pled guilty or nolo contendere to
350	committing the offense as a delinquent act. The court may only
351	order sealing of a criminal history record pertaining to one
352	arrest or one incident of alleged criminal activity, except as
353	provided in this section. The court may, at its sole discretion,
354	order the sealing of a criminal history record pertaining to
355	more than one arrest if the additional arrests directly relate
356	to the original arrest. If the court intends to order the
357	sealing of records pertaining to such additional arrests, such
358	intent must be specified in the order. A criminal justice agency
359	may not seal any record pertaining to such additional arrests if
360	the order to seal does not articulate the intention of the court
361	to seal records pertaining to more than one arrest. This section
362	does not prevent the court from ordering the sealing of only a
363	portion of a criminal history record pertaining to one arrest or
364	one incident of alleged criminal activity. Notwithstanding any
365	law to the contrary, a criminal justice agency may comply with
366	laws, court orders, and official requests of other jurisdictions
367	relating to sealing, correction, or confidential handling of
368	criminal history records or information derived therefrom. This
369	section does not confer any right to the sealing of any criminal
370	history record, and any request for sealing a criminal history
371	record may be denied at the sole discretion of the court.
372	(2) CERTIFICATE OF ELIGIBILITY FOR SEALING.-Prior to
373	petitioning the court to seal a criminal history record, a
374	person seeking to seal a criminal history record shall apply to
375	the department for a certificate of eligibility for sealing. The
376	department shall, by rule adopted pursuant to chapter 120,
377	establish procedures pertaining to the application for and
378	issuance of certificates of eligibility for sealing. A
379	certificate of eligibility for sealing is valid for 12 months
380	after the date stamped on the certificate when issued by the
381	department. After that time, the petitioner must reapply to the
382	department for a new certificate of eligibility. Eligibility for
383	a renewed certification of eligibility must be based on the
384	status of the applicant and the law in effect at the time of the
385	renewal application. The department shall issue a certificate of
386	eligibility for sealing to a person who is the subject of a
387	criminal history record provided that such person:
388	(c) Remits a $75 processing fee to the state attorney's
389	office to be deposited into the state attorney's grants and
390	donations trust fund unless the fee is waived by the state
391	attorney.
392	Section 9. Subsection (4) of section 985.557, Florida
393	Statutes, is repealed.
394	Section 10. Subsection (5) of section 775.0843, Florida
395	Statutes, is amended to read:
396	775.0843 Policies to be adopted for career criminal
397	cases.-
398	(5) Each career criminal apprehension program shall
399	concentrate on the identification and arrest of career criminals
400	and the support of subsequent prosecution. The determination of
401	which suspected felony offenders shall be the subject of career
402	criminal apprehension efforts shall be made in accordance with
403	written target selection criteria selected by the individual law
404	enforcement agency and state attorney consistent with the
405	provisions of this section and s. ss. 775.08401 and 775.0842.
406	Section 11. This act shall take effect July 1, 2010.

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