F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
HB 771 2021
1 A bill to be entitled
2 An act relating to direct filing of an information;
3 amending s. 985.265, F.S.; prohibiting a child who has
4 been transferred to adult court for criminal
5 prosecution pursuant to direct file from being held in
6 a jail or other facility used for the detention of
7 adults before a specified hearing to determine if the
8 child should be prosecuted as an adult; amending s.
9 985.557, F.S.; deleting references to the state
10 attorney's discretion to direct file a juvenile;
11 revising discretionary direct file criteria; requiring
12 a court to advise a child and his or her parent or
13 guardian of the child's right to a certain due process
14 evidentiary hearing upon a state attorney filing an
15 information transferring a child to adult court;
16 authorizing the child or the child's parent or
17 guardian to request an evidentiary hearing; requiring
18 the judge to conduct the hearing within a certain
19 timeframe; requiring a judge to consider specified
20 information and factors; authorizing a judge to
21 consider certain reports; providing for continued
22 jurisdiction with regard to the child; providing an
23 exception; requiring the adult court to render an
24 order that includes certain findings; authorizing
25 review of the order; reenacting s. 985.556(3), F.S.,
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26 relating to involuntary mandatory waivers, to
27 incorporate the amendment made to s. 985.557, F.S., in
28 a reference thereto; providing an effective date.
29
30 Be It Enacted by the Legislature of the State of Florida:
31
32 Section 1. Subsection (5) of section 985.265, Florida
33 Statutes, is amended to read
34 985.265 Detention transfer and release; education; adult
35 jails.—
36 (5) The court shall order the delivery of a child to a
37 jail or other facility intended or used for the detention of
38 adults:
39 (a) When the child has been transferred or indicted for
40 criminal prosecution as an adult under part X, except that:
41 1. The court may not order or allow a child alleged to
42 have committed a misdemeanor who is being transferred for
43 criminal prosecution pursuant to either s. 985.556 or s. 985.557
44 to be detained or held in a jail or other facility intended or
45 used for the detention of adults; however, such child may be
46 held temporarily in a detention facility; and or
47 2. A child who has been transferred for criminal
48 prosecution as an adult pursuant to s. 985.557 may not be held
49 in a jail or other facility intended or used for the detention
50 of adults before a court finding, as a result of a hearing
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51 provided for under s. 985.557(3), that the child should be
52 prosecuted as an adult; or
53 (b) When a child taken into custody in this state is
54 wanted by another jurisdiction for prosecution as an adult.
55
56 The child shall be housed separately from adult inmates to
57 prohibit a child from having regular contact with incarcerated
58 adults, including trusties. "Regular contact" means sight and
59 sound contact. Separation of children from adults shall permit
60 no more than haphazard or accidental contact. The receiving jail
61 or other facility shall contain a separate section for children
62 and shall have an adequate staff to supervise and monitor the
63 child's activities at all times. Supervision and monitoring of
64 children includes physical observation and documented checks by
65 jail or receiving facility supervisory personnel at intervals
66 not to exceed 10 minutes. This subsection does not prohibit
67 placing two or more children in the same cell. Under no
68 circumstances shall a child be placed in the same cell with an
69 adult.
70 Section 2. Section 985.557, Florida Statutes, is amended
71 to read:
72 985.557 Direct filing of an information; discretionary
73 criteria.—
74 (1) DISCRETIONARY DIRECT FILE.—
75 (a) With respect to any child who was 14 or 15 years of
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76 age at the time the alleged offense was committed, the state
77 attorney may file an information when in the state attorney's
78 judgment and discretion the public interest requires that adult
79 sanctions be considered or imposed and when the offense charged
80 is for the commission of, or attempt to commit, any of the
81 following, or conspiracy to commit:
82 1. Arson.;
83 2. Sexual battery.;
84 3. Robbery.;
85 4. Kidnapping.;
86 5. Aggravated child abuse.;
87 6. Aggravated assault.;
88 7. Aggravated stalking.;
89 8. Murder.;
90 9. Manslaughter.;
91 10. Unlawful throwing, placing, or discharging of a
92 destructive device or bomb.;
93 11. Armed burglary in violation of s. 810.02(2)(b), or
94 specified burglary of a dwelling or structure in violation of s.
95 810.02(2)(c), or burglary with an assault or battery in
96 violation of s. 810.02(2)(a).;
97 12. Aggravated battery.;
98 13. Any lewd or lascivious offense committed upon or in
99 the presence of a person less than 16 years of age.;
100 14. Carrying, displaying, using, threatening, or
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101 attempting to use a weapon or firearm during the commission of a
102 felony.;
103 15. Grand theft in violation of s. 812.014(2)(a).;
104 16. Possessing or discharging any weapon or firearm on
105 school property in violation of s. 790.115.;
106 17. Home invasion robbery.;
107 18. Carjacking.; or
108 19. Grand theft of a motor vehicle in violation of s.
109 812.014(2)(c)6. or grand theft of a motor vehicle valued at
110 $20,000 or more in violation of s. 812.014(2)(b) if the child
111 has a previous adjudication for grand theft of a motor vehicle
112 in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
113 (b) With respect to any child who was 16 or 17 years of
114 age at the time the alleged offense was committed, the state
115 attorney may file an information when in the state attorney's
116 judgment and discretion the public interest requires that adult
117 sanctions be considered or imposed. However, the state attorney
118 may not file an information on a child charged with a
119 misdemeanor, unless the child has had at least two previous
120 adjudications or adjudications withheld for delinquent acts, one
121 of which involved an offense classified as a felony under state
122 law.
123 (2) NOTIFICATION TO PARENT OR GUARDIAN.—Upon a state
124 attorney filing an information transferring a child to adult
125 court, the court must advise the child and his or her parent or
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126 guardian that the child has the right to a due process
127 evidentiary hearing before a judge, and the child or the parent
128 or guardian may request such evidentiary hearing.
129 (3) DUE PROCESS EVIDENTIARY HEARING BEFORE A JUDGE.—
130 Notwithstanding any other law, and in all cases, a child charged
131 with a crime or his or her parent or guardian may request a due
132 process evidentiary hearing after the state attorney's filing of
133 an information in adult court under this section.
134 (a) The judge shall conduct the hearing within 30 days
135 after the request, excluding Saturdays, Sundays, and legal
136 holidays, unless the child or the child's attorney shows good
137 cause for a delay. The purpose of the hearing is for the court
138 to determine whether it is necessary for the community's
139 protection that the child be prosecuted in adult court. The
140 judge shall consider all of the following:
141 1. Evaluations and assessments completed by the
142 department.
143 2. The sophistication and maturity of the child,
144 including:
145 a. The effect, if any, of immaturity, impetuosity, or
146 failure to appreciate risks and consequences of the child's
147 participation in the alleged offense.
148 b. The child's age, maturity, intellectual capacity, and
149 mental and emotional health at the time of the alleged offense.
150 c. The effect, if any, of characteristics attributable to
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151 the child's youth on the child's judgment.
152 3. The record and previous history of the child,
153 including:
154 a. Previous contacts with the department, the Department
155 of Corrections, the Department of Children and Families, other
156 law enforcement agencies, and the courts.
157 b. Prior periods of probation.
158 c. Prior adjudications that the child committed a
159 delinquent act or violation of law, with greater weight being
160 given if a court previously found that the child committed a
161 delinquent act or violation of law involving violence to
162 persons.
163 d. Prior commitments to institutions of the department,
164 the Department of Corrections, or agencies under contract with
165 either department.
166 e. Any history of trauma, abuse or neglect, foster care
167 placements, failed adoption, fetal alcohol syndrome, exposure to
168 controlled substances at birth, or below-average intellectual
169 functioning.
170 f. Identification of the child as a student requiring
171 exceptional student education or having previously received
172 psychological services.
173 4. The nature of the alleged offense and the child's
174 participation in it, including:
175 a. Whether the alleged offense is punishable by death or
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176 life imprisonment.
177 b. Whether the alleged offense was against persons or
178 property.
179 c. Whether the alleged offense is alleged to have been
180 committed in an aggressive, violent, or premeditated manner.
181 d. The extent of the child's participation in the alleged
182 offense.
183 e. The effect, if any, of familial pressure or peer
184 pressure on the child's actions.
185 5. The prospects for adequate protection of the public and
186 the likelihood of reasonable rehabilitation of the child, if the
187 child is found to have committed the alleged offense:
188 a. By the use of procedures, services, and facilities
189 currently available to the juvenile court.
190 b. By the use of procedures, services, and facilities
191 currently available to the adult court, including whether the
192 lowest permissible sentence under the Criminal Punishment Code
193 is a nonstate prison sanction.
194 6. Whether the child could obtain habilitative or
195 rehabilitative services available in the juvenile justice
196 system.
197 7. Whether the child could receive a sentence in juvenile
198 court which would provide adequate safety and protection for the
199 community.
200 8. Whether the child's best interests would be served by
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201 prosecuting the child in juvenile court.
202 (b) The judge may consider any reports that may assist the
203 court, including prior predisposition reports, psychosocial
204 assessments, individual educational plans, developmental
205 assessments, school records, abuse or neglect reports, home
206 studies, protective investigations, and psychological and
207 psychiatric evaluations. The child, the child's parents or legal
208 guardians, his or her defense counsel, and the state attorney
209 may examine these reports and, at the hearing, question the
210 parties responsible for creating them.
211 (c) The adult court shall retain jurisdiction unless the
212 court finds by a preponderance of the evidence that the factors
213 listed in paragraph (a) support returning the child to juvenile
214 court.
215 (d) The adult court shall render an order including
216 specific findings of fact and the reasons for its decision. The
217 prosecution or defense may seek immediate review of the order
218 through interlocutory appeal. The order shall be reviewable on
219 appeal under the Florida Rules of Appellate Procedure.
220 (4)(2) EFFECT OF DIRECT FILE.—
221 (a) Once a child has been transferred for criminal
222 prosecution pursuant to an information and has been found to
223 have committed the presenting offense or a lesser included
224 offense, the child shall be handled thereafter in every respect
225 as if an adult for any subsequent violation of state law, unless