The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 474
INTRODUCER: Senator Bracy
SUBJECT: Prosecuting Children as Adults
DATE: March 1, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Favorable
2. Stokes Jones CJ Favorable
3. RC
I. Summary:
SB 474 amends s. 985.556, F.S., to increase the minimum age, from 14 to 15 that a child may
qualify for involuntary discretionary waiver and involuntary mandatory waiver. Section 985.556,
F.S., provides the waiver processes by which the state attorney may request the court to transfer
a child to adult court.
The bill amends s. 985.557, F.S., to increase the age a child may qualify for discretionary direct
file. Section 985.557, F.S., provides that a state attorney, within their sole discretion, may direct
file certain children, thereby transferring a child to adult court.
Currently, s. 985.557(1)(a), F.S., provides that a state attorney may direct file any child who is
14 or 15 years of age at the time of the offense and has been charged with certain enumerated
offenses. This bill amends the ages of a child that a state attorney may direct file to 15 or 16.
Additionally, s. 985.557(1)(b), F.S., currently provides that a state attorney may direct file any
child who is 16 or 17 years of age at the time of the offense, and the offense was a felony, or the
child has at least two previous adjudications or adjudications withheld for delinquent acts, one of
which must have been a felony. The bill amends the age of a child that a state attorney may
direct file to 17.
This bill will likely have an indeterminate fiscal impact on the Department of Juvenile Justice
(DJJ) and the Department of Corrections. See Section V. Fiscal Impact Statement.
The bill is effective July 1, 2021.
BILL: SB 474 Page 2
II. Present Situation:
Delinquency - In General
The state constitution allows creation of a separate juvenile justice system:
When authorized by law, a child as therein defined may be charged with a
violation of law as an act of delinquency instead of crime and tried without a jury
or other requirements applicable to criminal cases. Any child so charged shall,
upon demand made as provided by law before a trial in a juvenile proceeding, be
tried in an appropriate court as an adult. A child found delinquent shall be
disciplined as provided by law.1
A child for purposes of juvenile court is defined as any individual whose offense occurred before
the offender’s 18th birthday.2 Juvenile justice policy and procedure is governed by ch. 985, F.S.
Legislative findings governing that chapter say, in relevant part, that:
The purposes of this chapter are . . . to assure that the sentencing and placement of
a child tried as an adult be appropriate and in keeping with the seriousness of the
offense and the child’s need for rehabilitative services, and that the proceedings and
procedures applicable to such sentencing and placement be applied within the full
framework of constitutional standards of fundamental fairness and due process.3
The Legislature also finds that certain juveniles have committed a sufficient number
of criminal acts, including acts involving violence to persons, to represent sufficient
danger to the community to warrant sentencing and placement within the adult
system. It is the intent of the Legislature to establish clear criteria in order to identify
these juveniles and remove them from the juvenile justice system.4
Detention of Children in Florida
A child is entitled to a hearing within 24 hours of being taken into custody or placed in detention
care. At the hearing, the court may order continued detention care under certain circumstances. 5
“Detention care” means “the temporary care of a child in secure, or supervised release detention,
pending a court adjudication or disposition or execution of a court order.”6 There are two types
of detention care, including:
 “Secure detention” which is the temporary custody of a child while he or she is under the
physical restriction of a secure detention center or facility pending adjudication, disposition,
or placement.
 “Supervised release detention” which is the temporary, nonsecure custody of a child while
the child is released to the custody of a parent, guardian, or custodian in a physically
nonrestrictive environment under the supervision of department staff pending adjudication or
1
FLA. CONST. art. I, s. 15(b).
2
Section 985.03(7), F.S.
3
Section 985.01(1)(f)2., F.S.
4
Section 985.02(4)(b), F.S.
5
Section 985.255(1), F.S.
6
Section 985.03(18), F.S.
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disposition, through programs that include, but are not limited to, electronic monitoring, day
reporting centers, and nonsecure shelters, in addition to other court-imposed requirements.7
Generally, a child may not be held in detention care for more than 21 days, unless an
adjudicatory hearing for the case has been commenced in good faith by the court. The court may
extend the length of detention for an additional 9 days if the child is charged with certain
offenses, and there is good cause shown that the nature of the charge requires additional time for
the prosecution or defense of the case.8 Additionally, a prolific juvenile9 offender must be placed
on supervised release detention care with electronic monitoring or in secure detention care under
a special detention order.10
Cost Sharing of Detention Care
Cost sharing is governed by s. 985.6865, F.S., which provides, notwithstanding s. 985.686, F.S.,
each fiscal year, every county that is not fiscally constrained11 and that has dismissed any action
or claim described in s. 985.6865(2), F.S.,12 must pay 50 percent of the total shared detention
cost.13
The DJJ calculates a county’s annual percentage share by dividing the total number of detention
days for children residing in the non-fiscally constrained county for the most recently completed
12-month period by the total number of detention days for children in all non-fiscally constrained
counties. The county must pay 50 percent of the annual percentage share in 12 equal payments,
due on the first day of each month.14
Counties that are required to pay their share of detention costs must incorporate sufficient funds
to pay its share of detention costs into its annual budget.15 Funds paid by the counties to the DJJ
under this section must be deposited into the Shared County/State Juvenile Detention Trust
Fund.16 The DJJ will determine quarterly whether counties are complying with this section.17
7
Id.
8
Section 985.26, F.S.
9
Section 985.255, F.S., provides that a “prolific juvenile offender” means a child that is charged with a delinquent act that
would be a felony if committed by an adult, has a prior adjudication or adjudication withheld for a delinquent act that would
be a felony if committed by an adult, and has 5 or more arrests, adjudications, or adjudications withheld, 3 of which must
have been felony offenses.
10
Section 985.26, F.S.
11
Section 985.6865(3)(b), F.S., defines “fiscally constrained county” as a county within a rural area of opportunity as
designated by the Governor pursuant to s. 288.0656, F.S., or each county for which the value of a mill will raise no more than
$5 million in revenue, based on the certified school taxable value certified pursuant to s. 1011.62(4)(a)1.a., F.S., from the
previous July 1.
12
Various counties and the DJJ have engaged in a multitude of legal proceedings, including administrative or judicial claims,
regarding detention cost sharing for juveniles. Such litigation has largely focused on how the DJJ calculates the detention
costs that the counties are responsible for paying, leading to the overbilling of counties for a period of years. Section
985.6865(1) and (2), F.S.
13
Section 985.6865(4), F.S.
14
Id.
15
Section 985.6865(6), F.S.
16
Section 985.6865(7), F.S.
17
Section 985.6865(8), F.S.
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The State must pay all costs of detention care for children:
 Residing in a fiscally constrained county.
 Residing out of State.
 Housed in state detention centers from counties that provide their own detention care for
children.18
Transfer of a Child to Adult Court
There are three methods of transferring a child to adult court for prosecution: judicial waiver,
indictment,19 or direct filing an information.20
Judicial waiver and indictment are both uncommon. During FY 2019-20, there were 4 voluntary
waivers, 5 involuntary waivers, 4 indictments, and 788 direct files.21
The term “mandatory direct file” refers to laws that require the state attorney to file an
information22 in adult criminal court, thereby bypassing juvenile court. In 2019, Florida repealed
laws on mandatory direct file.23
Judicial Waiver
The term “judicial waiver” refers to the process by which a child or a state attorney requests the
juvenile court to transfer a child to adult court. Judicial waiver applies to certain offenders who
were between 14 and 17 years of age at the time of the offense. There are three types of judicial
wavier: voluntary,24 involuntary discretionary waiver, and involuntary mandatory waiver.25
Involuntary Discretionary Waiver
Section 985.556(2), F.S., provides that the state attorney may file a motion requesting the court
to transfer the child to adult court if the child was 14 years of age or older at the time of the
offense.26 Involuntary discretionary waiver may be filed for any offense.
Involuntary Mandatory Waiver
Section 985.556(3), F.S., provides that the state attorney must request the court transfer a child to
adult court, or provide written reasons to the court for not making such request, or proceed under
discretionary direct file, if the child was 14 years of age or older:
18
Section 985.6865(5), F.S.
19
A grand jury can indict a child of any age who is charged with an offense punishable by death or life imprisonment. Upon
indictment, the child’s case must be transferred to adult court for prosecution. See s. 985.56, F.S.
20
Section 985.557, F.S.
21
Department of Juvenile Justice, 2021 Legislative Bill Analysis for SB 474, (February 11, 2021) (on file with the Senate
Committee on Criminal Justice).
22
In criminal law, the term “information” refers to the initial charging document that opens a criminal court file. It is
analogous to the civil complaint that opens a civil action.
23
Chapter 2019-167, s. 76, Laws of Fla.
24
Voluntary wavier requires the court to transfer a child’s criminal case to adult court if the child, with a parent or a guardian,
demands to be tried as an adult. Section 985.556(1), F.S.
25
Section 985.556, F.S.
26
Section 985.556(2), F.S.
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 And has been previously adjudicated delinquent for the commission of, attempt to commit, or
conspiracy to commit murder, sexual battery, armed or strong armed robbery, carjacking,
home invasion robbery, aggravated battery, aggravated assault, or burglary with an assault or
battery, and the child is currently charged with a second or subsequent violent crime against a
person;27 or
 At the time of commission of a fourth or subsequent alleged felony offense, and the child
was previously adjudicated delinquent or had adjudication withheld for the commission of,
attempted commission of, or conspiracy to commit three felony offenses, and at least one of
such offenses involved the use or possession of a firearm or violence against a person.28
The court must either transfer a child to adult court upon the state attorney’s request, or provide
written reasons for not transferring the child.29
Waiver Hearing
The state attorney may file a motion requesting the court to transfer the child to adult court
within 7 days (excluding Saturdays, Sundays, and legal holidays) after the date of filing the
petition. The state attorney may file such motion at a later time with court approval, but this must
occur before an adjudicatory hearing and after considering the recommendation of the juvenile
probation officer.30
The court must conduct a hearing on all transfer request motions to determine whether a child
should be transferred. The court should consider the following in making its determination:
 The seriousness of the alleged offense to the community and whether the protection of the
community is best served by transferring the child for adult sanctions.
 Whether the alleged offense was committed in an aggressive, violent, premediated, or willful
manner.
 Whether the alleged offense was against persons or against property, greater weight being
given to offenses against persons, especially if personal injury resulted.
 The probable cause as found in the report, affidavit, or complaint.
 The desirability of trial and disposition of the entire offense in one court when the child’s
associates in the alleged crime are adults or children who are to be tried as adults.
 The sophistication and maturity of the child.
 The record and previous history of the child.31
27
Section 985.556(3)(a), F.S.
28
Section 985.556(3)(b), F.S.
29
Section 985.556(3), F.S.
30
Section 985.556(4)(a), F.S.
31
Section 985.556(4)(a)-(d), F.S., provides that the record and previous history of the child includes: previous contacts with
the DJJ, the Department of Corrections, the former Department of Health and Rehabilitative Services, the Department of
Children and Families, other law enforcement agencies, and courts; prior periods of probation; prior adjudications that the
child committed a delinquent act or violation of law, greater weight being given if the child has previously been found by a
court to have committed a delinquent act or violation of law involving an offense classified as a felony or has twice
previously been found to have committed a delinquent act or violation of law involving an offense classified as a
misdemeanor; and prior commitments to institutions.
BILL: SB 474 Page 6
 The prospects for adequate protection of the public and the likelihood of reasonable
rehabilitation of the child, if the child is found to have committed the alleged offense, by the
use of procedures, services, and facilities currently available to the court.32
A study and written report from the DJJ must be completed prior to the hearing. The child, the
child’s parents or legal guardians, defense counsel and the state attorney have the right to
examine the report and question the parties responsible for them at the hearing.33 The court must
render a written order including specific findings of fact and the reason for a decision to transfer
to adult court. Once a child is transferred to adult court pursuant to an involuntary waiver hearing
and has been found to have committed the presenting offense or a lesser included offense, the
child must thereafter be handled in every respect as an adult for any subsequent violation of law,
unless the court imposes juvenile sanctions.34
Direct File
Direct file describes the process whereby a state attorney files an information charging a child in
adult court. Pursuant to s. 985.557, F.S., the decision to direct file is left to the discretion of the
state attorney and does not require the court’s approval. Direct file is the predominant transfer
method to adult court, accounting for 98.4 percent (788 children) of the transfers in FY 2019-
20.35 In that fiscal year, there were 45,336 arrests,36 thus, direct file occurred in approximately
1.7 percent of all juvenile arrests.37
Discretionary Direct File
Section 985.557(1), F.S., provides the state attorney has discretion to file a case in adult court for
specified crimes when he or she beli