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30         provisions are withdrawn and the witness is advised of 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