f.s.1983 procedure after arrest ch.907 chapter 907 · judicial process, has threatened,...

F.S.1983 PROCEDURE AFTER ARREST Ch.907

CHAPTER 907

PROCEDURE AFTER ARREST

907.04 907.041 907.045

907.05

907.055

Disposition of defendant upon arrest. Pretrial detention and release. Habeas corpus; motion to dismiss; prelimi-

nary hearing. Criminal cases in circuit court to be tried

first. Trial of persons in custody.

907.04 Disposition of defendant upon arrest. -If a person who is arrested does not have a right to bail for the offense charged, he shall be delivered im-mediately into the custody of the sheriff of the coun-ty in which the indictment, information, or affidavit is filed. If the person who is arrested has a right to bail, he shall be released after giving bond on the amount specified in the warrant.

History.-s. 133a, ch. 19554, 1939; CGL 1940 Supp. 8663(139); s. 67, ch. 70-339.

907.041 Pretrial detention and release.-(1) LEGISLATIVE INTENT.-It is the policy of

this state that persons committing serious criminal offenses, posing a threat to the safety of the commu-nity or the integrity of the judicial process, or failing to appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be re-leased under certain conditions until proceedings are concluded and adjudication has been determined. The Legislature finds that this policy of pretrial de-tention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasihg, until trial, those persons not considered a danger to the community who meet certain criteria. It is the intent of the Leg-islature that the primary consideration be the protec-tion of the community from risk of physical harm to persons.

(2) RULES OF PROCEDURE.-Procedures for pretrial release determinations shall be governed by rules adopted by the Supreme Court.

(3) RELEASE ON NONMONETARY CONDI-TIONS.-It is the intent of the Legislature to create a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial re-lease. Such person shall be released on monetary con-ditions only if it is determined that such monetary conditions are necessary to assure the presence of the person at trial or at other proceedings, to protect the community from risk of physical harm to persons, to assure the presence of the accused at trial, or to as-sure the integrity of the judicial process.

(4) PRETRIAL DETENTION.-(a) As used in this subsection, "dangerous crime"

means any of the following felonies: 1. Arson; 2. Aggravated assault; 3. Aggravated battery; 4. Illegal use of explosives; 5. Child abuse; 6. Hijacking; 7. Kidnapping;

8. Homicide; 9. Manslaughter; 10. Sexual battery; 11. Robbery; 12. Burglary of a dwelling; and 13. Attempting or conspiring to commit any

such crime. (b) The court may order pretrial detention if it

finds a substantial probability, based on a defen-dant's past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that:

1. The defendant has previously violated condi-tions of release and that no further conditions of re-lease are reasonably likely to assure his appearance at subsequent proceedings;

2. The defendant, with the intent to obstruct the judicial process, has threatened, intimidated, or in-jured any victim, potential witness, juror, or judicial officer, or has attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process;

3. The defendant is charged with trafficking in controlled substances as defined by s. 893.135, that there is a substantial probability that the defendant has committed the offense, and that no conditions of release will reasonably assure the defendant's ap-pearance at subsequent criminal proceedings; or

4. The defendant poses the threat of harm to the community. The court may so conclude if it finds that the defendant is presently charged with a dan-gerous crime, that there is a substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disre-gard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons. In addition, the court must find that at least one of the following conditions is pres-ent:

a. The defendant has previously been convicted of a crime punishable by death or life imprisonment.

b. The defendant has been convicted of a danger-ous crime within the 10 years immediately preceding the date of his arrest for the crime presently charged.

c. The defendant is on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time of the cur-rent arrest.

(c) When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency shall promptly notify the state at-torney of the arrest and shall provide the state attor-ney with such information as the arresting agency has obtained relative to:

1. The nature and circumstances of the offense charged;

2. The nature of any physical evidence seized and the contents of any statements obtained from the de-fendant or any witness;

3. The defendant's family ties, residence, employ-ment, financial condition, and mental condition; and

1501

Ch.907 PROCEDURE AFTER ARREST F.S.1983

4. The defendant's past conduct and present con-duct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings.

(d) When a person charged with a crime for which pretrial detention could be ordered is arrested, the arresting agency may detain such defendant, pri-or to the filing by the state attorney of a motion seek-ing pretrial detention, for a period not to exceed 24 hours.

(e) The court shall order detention only after a pretrial detention hearing. The hearing shall be held within 5 days of the filing by the state attorney of a complaint to seek pretrial detention. The defendant may request a continuance. No continuance shall be for longer than 5 days unless there are extenuating circumstances. The defendant may be detained pending the hearing. The state attorney shall be enti-tled to one continuance for good cause.

(f) The state attorney has the burden of showing the need for pretrial detention.

(g) The defendant is entitled to be represented by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may admit rele-vant evidence without complying with the rules of ev-idence, but evidence secured in violation of the Unit-ed States Constitution or the Constitution of the State of Florida shall not be admissible. No testimo-ny by the defendant shall be admissible to prove guilt at any other judicial proceeding, but such testimony may be admitted in an action for perjury, based upon the defendant's statements made at the pretrial de-tention hearing, or for impeachment.

(h) The pretrial detention order of the court shall be based solely upon evidence produced at the hear-ing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing.

(i) If ordered detained pending trial pursuant to subparagraph (b)4., the defendant may not be held for more than 90 days. Failure of the state to bring the defendant to trial within that time shall result in his release from detention, subject to any conditions

of release, unless the trial delay was requested or caused by the defendant or his counsel.

(j) A defendant convicted at trial following the is-suance of a pretrial detention order shall have credit-ed to his sentence, if imprisonment is imposed, the time he was held under the order, pursuant to s. 921.161.

(k) The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the ba-sis for detention.

History.-BS. I, 2, 3, 4, ch. 82-398.

907.045 Habeas corpus; motion to dismiss; preliminary hearing.-A defendant who is in cus-tody when an indictment, information, or affidavit on which he can be tried is filed may apply for a writ of habeas corpus attacking the indictment, information, or affidavit, or he may move to dismiss the indict-ment, information, or affidavit. A defendant who has been confined for 30 days after his arrest without a trial shall be allowed a preliminary hearing upon ap-plication.

History.-s. 140, ch. 19554, 1939; CGL 1940 Supp. 8663(147); s. I , ch. 26767, 1951; s. 69, ch. 70-339.

Note.-Former s. 909.04.

907.05 Criminal cases in circuit court to be tried first.-Cases on the criminal docket shall be tried first at each term of the circuit court, if they can be tried without injury to the interests of the state or defendant. Cases presented by the grand jury during a term may be tried during the term.

History.-s. 133b, ch. 19554, 1939; CGL 1940 Supp. 8663(140); s. 68, ch. 70-339.

907.055 Trial of persons in custody.-A de-fendant who is in custody when an indictment or in-formation for a felony is filed shall be arraigned and tried during the term when the indictment or infor-mation is filed unless good cause is shown for a con-tinuance.

History.-s. 159, ch. 19554, 1939; CGL 1940 Supp. 8663(166); s. 71, ch. 70-339.


1502

F.S.1983 JURISDICTION AND VENUE Ch.910

CHAPTER 910

JURISDICTION AND VENUE

910.005 910.01 910.02 910.03 910.035

910.04

910.05

910.06

910.09

910.10

910.11 910.12 910.13 910.14 910.15

State criminal jurisdiction. Offenses committed partly in this state. Offense committed while in transit. Place of trial generally. Transfer from county for plea and sen-

tence. Where aider in one county and offense

committed in another. Where acts constituting one offense are

committed in two or more counties. Where person in one county commits of-

fense in another. Cause of death inflicted in one county and

death occurs in another. Where stolen property brought into anoth-

er county. Conviction or acquittal bar to prosecution. Trial of aider. Accessory after the fact. Kidnapping. Theft and fraudulent practices concerning

communication systems.

910.005 State criminal jurisdiction.-(1) A person is subject to prosecution in this state

for an offense that he commits, while either within or outside the state, by his own conduct or that of an-other for which he is legally accountable, if:

(a) The offense is committed wholly or partly within the state;

(b) The conduct outside the state constitutes an attempt to commit an offense within the state;

(c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or

(d) The conduct within the state constitutes an attempt or conspiracy to commit in another jurisdic-tion an offense under the laws of both this state and the other jurisdiction.

(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state. In homicide, the "result" is either the physi-cal contact that causes death, or the death itself; and if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.

(3) An offense that is based on an omission to perform a duty imposed by the law of this state is committed within the state, regardless of the location of the offender at the time of the omission.

History.-s. 72, ch. 70-339.

910.01 Offenses committed partly in this state.-

(1) If the commission of an offense commenced outside the state is consummated within this state, the offender shall be tried in the county where the of-fense is consummated.

(2) If the commission of an offense commenced within this state is consummated outside the state, the offender shall be tried in the county where the of-fense is commenced.

History.-RS 2360; GS 3185; RGS 5015; CGL 7117; •. 160, ch. 19554, 1939; CGL 1940 Supp. 8663(167); •. 73, ch. 70-339.

Note.-Former •. 932.07.

910.02 Offense committed while in transit. -If'an offense is committed on a railroad car, vehi-cle, watercraft, or aircraft traveling within this state and it is not known in which county the offense was committed, the accused may be tried in any county through which the railroad car, vehicle, watercraft, or aircraft has traveled. The accused is entitled to elect the county in which he will be tried, as provided in s. 910.03.

History.-ss. 161, 166, 167, ch. 19554, 1939; CGL 1940 Supp. 8863(168), (173), (174); s. 74, ch. 70-339.

Note.-Former ... 910.07, 910.08.

910.03 Place of trial generally.-Except as provided in s. 910.035 criminal prosecutions shall be tried in the county where the offense was committed; but if the county is not known, the accused may be charged in two or more counties conjunctively, and before trial the accused may elect the county in which he will be tried. By his election, the accused waives the right to trial in the county in which the crime was committed. Such election shall have the force and effect of the granting of an application of the accused for change of venue from the county in which the offense was committed to the county in which the case is tried.

History.-s. 162, ch. 19554, 1939; CGL 1940 Supp. 8663(169); s. 75, ch. 70-339; s. 2, ch. 72-45. cf.-s. 817.04 Prosecution for making false statement to obtain goods on credit.

910.035 Transfer from county for plea and sentence.-

(1) INDICTMENT OR INFORMATION PENDING.-A defendant arrested or held in a coun-ty other than that in which an indictment or'informa-tion is pending against him may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the indictment or infor-mation is pending, and to consent to disposition of the case in the county in which he was arrested or is held, subject to the approval of the prosecuting attor-ney of the court in which the indictment or informa-tion is pending. Upon receipt of the defendant's statement and the written approval of the prosecut-ing attorney, the clerk of the court in which the in-dictment or information is pending shall transmit the papers in the proceeding, or certified copies thereof, to the clerk of the court of competent jurisdiction for the county in which the defendant is held, and the prosecution shall continue in that county upon the information or indictment originally filed. In the event a fine is imposed upon the defendant in that county, two-thirds thereof shall be returned to the county in which the indictment or information was originally filed.

1503

Ch.910 JURISDICTION AND VENUE F.S.1983

(2) INDICTMENT OR INFORMATION NOT PENDING.-A defendant arrested on a warrant is-sued upon a complaint in a county other than the county of arrest may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the county in which the warrant was issued, and to consent to disposition of the case in the county in which he was arrested, subject to the approval of the prosecuting attorney of the court in which the indict-ment or information is pending. Upon receipt of the defendant's statement and the written approval of the prosecuting attorney, and upon the filing of an information or the return of an indictment, the clerk of the court from which the warrant was issued shall transmit the papers in the proceeding, or certified copies thereof, to the clerk of the court of competent jurisdiction in the county in which the defendant was arrested, and the prosecution shall continue in that county upon the information or indictment originally filed.

(3) EFFECT OF NOT GUILTY PLEA.-If, after the proceeding has been transferred pursuant to sub-sections (1) or (2), the defendant pleads not guilty, the clerk shall return the papers to the court in which the prosecution was commenced, and the proceeding shall be restored to the docket of that court. The de-fendant's statement that he wishes to plead guilty or nolo contendere shall not be used against him.

(4) APPEARANCE IN RESPONSE TO A SUM-MONS.-For the purpose of initiating a transfer un-der this section, a person who appears in response to a summons shall be treated as if he had been arrested on a warrant in the county of such appearance.

Hi.tory.-s. I , ch. 72·45.

910.04 Where aider in one county and of-fense committed in another.-If a person in one county aids, abets, or procures the commission of an offense in another county, he may be tried in either county.

Hi.tory.-s. 163, ch. 19554, 1939; CGL 1940 Supp. 8663(170); s. 76, ch. 70-339.

910.05 Where acts constituting one offense are committed in two or more counties.-If the acts constituting one offense are committed in two or more counties, the offender may be tried in any coun-ty in which any of the acts occurred.


910.06 Where person in one county commits offense in another.-If a person in one county com-mits an offense in another county, the offender may be tried in either county.


910.09 Cause of death inflicted in one county and death occurs in another.-If the cause of death is inflicted in one county and death occurs in another county, the offender may be tried in either county.


910.10 Where stolen property brought into

another county.-A person who obtains property by larceny, robbery, or embezzlement may be tried in any county in which he exercises control over the property.


910.11 Conviction or acquittal bar to prose-cution.-

(1) No person shall be held to answer on a second indictment, information, or affidavit for an offense for which he has been acquitted. The acquittal shall be a bar to a subsequent prosecution for the same of-fense, notwithstanding any defect in the form or cir-cumstances of the indictment, information, or affida-vit.

(2) When a person may be tried for an offense in two or more counties, a conviction or acquittal in one county shall be a bar to prosecution for the same of-fense in another county.


910.12 Trial of aider.-A person, within or out-side this state, who counsels, hires, or procures a felo-ny to be committed may be tried in the same county in which the principal felon might be tried.

Hi.tory.-s. 5, ch. 1637, 1868; RS 2366; GS 3191; RGS 5021; CGL 7123; s. 82, ch.70-339.

Note.- Former s. 932.12.

910.13 Accessory after the fact.-A person who becomes an accessory after the fact to a felony may be tried in the county in which he became an ac-cessory or in any county in which the principal in the first degree might be tried. Prosecution of a person who is an accessory after the fact to a felony shall not be contingent on prosecution or conviction of the principal in the first degree.

Hi.tory.-s. 7, ch. 1637, 1868; RS 2367; GS 3192; RGS 5022; CGL 7124; s. 83, ch.70-339.

Note.-Former s. 932.13. cf.-s. 777.03 Accessory after the fact.

910.14 Kidnapping.-A person who commits an offense provided for in s. 787.01 or s. 787.02 may be tried in any county in which his victim has been tak-en or confined during the course of the offense.

Hi.tory.-s. 44, ch. 1637, 1868; RS 2368; GS 3193; RGS 5023; CGL 7125; s. 84, ch. 70-339; s. 55, ch. 83-215.


910.15 Theft and fraudulent practices con-cerning communication systems.-A person charged with committing a fraudulent practice in a manner in which it may reasonably be assumed that a solicitation or false or misleading representation could or would be disseminated across jurisdictional lines, or a theft involving the use of the mail, tele-phone, newspaper, radio, television, or other means of communication, may be tried in the county in which the dissemination originated, in which the dis-semination was made, or in which the last act neces-sary to consummate the offense occurred.

Hi.tory.-s. I, ch. 80-25.

1504

F.S.1983 TRIAL JURY Ch.913

CHAPTER 913

TRIAL JURY

913.03

913.08 913.10 913.12 913.13 913.15

Grounds for challenge to individual jurors for cause.

Number of peremptory challenges. Number of jurors. Qualifications of jurors. Jurors in capital cases. Special jurors.

913.03 Grounds for challenge to individual jurors for cause.-A challenge for cause to an indi-vidual juror may be made only on the following grounds:

(1) The juror does not have the qualifications re-quired by law;

(2) The juror is of unsound mind or has a bodily defect that renders him incapable of performing the duties of a juror;

(3) The juror has conscientious beliefs that would preclude him from finding the defendant guilty;

(4) The juror served on the grand jury that found the indictment or on a coroner's jury that inquired into the death of a person whose death is the subject of the indictment or information;

(5) The juror served on a jury formerly sworn to try the defendant for the same offense;

(6) The juror served on a jury that tried another person for the offense charged in the indictment, in-formation, or affidavit;

(7) The juror served as a juror in a civil action brought against the defendant for the act charged as an offense;

(8) The juror is an adverse party to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution;

(9) The juror is related by blood or marriage within the third degree to the defendant, the attor-neys of either party, the person alleged to be injured by the offense charged, or the person on whose com-plaint the prosecution was instituted;

(10) The juror has a state of mind regarding the defendant, the case, the person alleged to have been injured by the offense charged, or the person on whose complaint the prosecution was instituted that will prevent him from acting with impartiality, but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he de-clares and the court determines that he can render an impartial verdict according to the evidence;

(11) The juror was a witness for the state or the defendant at the preliminary hearing or before the

grand jury or is to be a witness for either party at the trial;

(12) The juror is a surety on defendant's bail bond in the case.

History.-s. 184, ch. 19554, 1939; CGL 1940 Supp. 8663(191); s. 85, ch. 70-339. cf.-s. 40.01 Qualifications of jurors.

913.08 Number of peremptory challenges.

(1) The state and the defendant shall each be al-lowed the following number of peremptory chal-lenges:

(a) Ten, if the offense charged is punishable by death or imprisonment for life;

(b) Six, if the offense charged is punishable by imprisonment for more than 12 months but is not punishable by death or imprisonment for life;

(c) Three, for all other offenses. (2) If two or more defendants are tried jointly,

each defendant shall be allowed the number of pe-remptory challenges specified in subsection (1), and the state shall be allowed as many challenges as are allowed to all of the defendants.

History_-s. 189, ch. 19554, 1939; CGL 1940 Supp. 8863(196); s. 86, ch. 70-339.

913.10 Number of jurors.-Twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other crimi-nal cases.

History.-s. 191, ch. 19554, 1939; CGL 1940 Supp. 8663(198); s. 87, ch. 70-339.

913.12 Qualifications of jurors.-The qualifi-cations of jurors in criminal cases shall be the same as their qualifications in civil cases.

History_-RS 2849; GS 3905; RGS 6003; CGL 8297; s. 88, ch. 70-339. N ote.-Former s. 932.19.

913.13 Jurors in capital cases.-A person who has beliefs which preclude him from finding a defen-dant guilty of an offense punishable by death shall not be qualified as a juror in a capital case.

History.-s. 12, ch. 1637,1868; RS 2850; GS 3906; RGS 6004; CGL 8298; s. 89, ch. 70-339.


913.15 Special jurors.-The court may sum-mon jurors in addition to the regular panel.

History_-RS 2853; GS 3909; RGS 6007; CGL 8301; s. 91, ch. 70-339. Note_-Former s. 932.22.

1505

Ch.914 WITNESSES; CRIMINAL PROCEEDINGS F.S.1983

CHAPTER 914

WITNESSES; CRIMINAL PROCEEDINGS

914.001

914.03 914.04

914.05

914.06

914.07 914.09

914.11 914.12

914.13 914.14 914.15

Witnesses; subpoenas to run throughout the state; all names to be included in one subpoena.

Attendance of witnesses. Witnesses; person not excused from testi-

fying in certain prosecutions on ground testimony might incriminate him.

Compelled testimony tending to incrimi-nate witness; immunity. '

Compensation of expert witnesses in felony cases.

Competency of evidence. Compensation of witness summoned in two

or more cases. Indigent defendants. Memorandum of recognizance of witness;

removal for violation. Commitment for perjury. Witnesses accepting bribes. Law enforcement officers; nondisclosure of

personal information.

914.001 Witnesses; subpoenas to run throughout the state; all names to be included in one subpoena.-

(1) Subpoenas for witnesses in criminal cases shall run throughout the state and be directed to all of the sheriffs of the state.

(2) When possible, the names of all witnesses summoned for, or at the cost of, the state in a crimi-nal case shall be included in one subpoena, and the prosecuting officer shall, when possible, include the names of all such witnesses in one praecipe for such subpoena.

History.-8. 2, ch. 871, 1859; ss. 2, 4, 6, ch. 3702, 1887; RS 2859, 2860; GS 3915, 3916; RGS 6013, 6014; CGL 8307, 8308; s. 94, ch. 70·339.

914.03 Attendance of witnesses.-A witness summoned by a grand jury or in a criminal case shall remain in attendance until excused by the court. A witness who departs without permission of the court shall be in criminal contempt of court. A witness shall attend each succeeding term of court until the case is terminated.

History.-s. 4, ch. 159, 1843; 8. 2, ch. 2094, 1877; RS 2862; GS 3918; RGS 6016; CGL 8310; 8. 96, ch. 70·339.


914.04 Witnesses; person not excused from testifying in certain prosecutions on ground tes-timony might incriminate him.-No person who .

duced shall be received against him upon any crimi-nal investigation or proceeding.

History.-8. 1, cb. 5400, 1905; 8. 1, ch. 7850, 1919; RGS 6017; CGL 8311; 8. 1, cb. 69·316; s. 97, ch. 70·339; 8. 1, ch. 71·99; 8. 36, ch. 73·334; 8. 1, cb. 82·393; 8. 175, ch. 83·216.

Note.-Former s. 932.29. cf.-

F.S.1983 WITNESSES; CRIMINAL PROCEEDINGS Ch.914

914.11 Indigent defendants.-If a court decides, on the basis of an affi· davit, that a defendant in a preliminary hearing or trial is indigent and unable to pay the cost of procuring the attendance of witnesses and that certain wit· nesses are necessary to the defense, the court shall order the witnesses subpoe-naed, and the costs shall be paid by the state.

B.-Section 7, ch. 82·176, provides that those provisions of that act "which provide for state assumption of witness fees which are currently paid by the counties shan take effect on a date determined by the appropriation of funds for this purpose."

I'iote.-Former ... 93?36, 932.37. cf.-"). 92.142 Witnesses, pay.

914.12 Memorandum of recognizance of wit-ness; removal for violation.-When a county court judge recognizes a witness to appear before the grand jury, he shall give the witness a written memorandum stating that the witness is required to appear before the grand jury and the date when the grand jury will meet. An intentional failure of a county court judge to comply with this section, on recommendation of the grand jury, shall subject him to suspension from office by the Governor.

History.-s. I , ch. 2096, 1877; RS 2880; ... 1·3, ch. 5401, 1905; GS 3939; RGS 6041; CGL 8342; s. 105, ch. 70-339; s. 38, ch. 73-334.


914.13 Commitment for perjury.-When a court of record has reason to believe that a witness or party who has been legally sworn and examined or has made an affidavit in a proceeding has committed perjury, the court may immediately commit the per-son or take a recognizance with sureties for his ap-pearance to answer the charge of perjury. Witnesses who are present may be recognized to the proper court, and the state attorney shall be given notice of

the proceedings. History.-s. 15, ch. 1637, 1868; RS 2862; GS 3941; RGS 6043; CGL 8344; s.

lOG. ch. 70-339; s. 38, ch. 73-334. Note.-Former s. 932.41.

914.14 Witnesses accepting bribes.-(1) It is unlawful for any person who is a witness

in a proceeding instituted by a duly constituted pros-ecuting authority of this state to solicit, request, ac-cept, or agree to accept any money or anything of val-ue as an inducement to:

(a) Testify or inform falsely; or (b) Withhold any testimony, information, docu-

ment, or thing. (2) Any person violating any provision of this sec-

tion shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-s. 4, ch. 72-315.

914.15 Law enforcement officers; nondisclo-sure of personal information.-Any law enforce-ment officer of the state or of any political subdivi-sion thereof who provides information relative to a criminal investigation or in proceedings preliminary to a criminal case may refuse, unless ordered by the court, to disclose his residence address, home tele-phone number, or any personal information concern-ing his family. Any law enforcement officer who testi-fies as a witness in a criminal case may refuse to dis-close personal information concerning his family un-less it is determined by the court that such evidence is relevant to the case. \

History.-s. I, ch. 79-60. L' U Li

1507

Ch.916 MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS F.S.1983

CHAPTER 916

MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS

916.11 916.12 916.13

916.14 916.145

916.15

916.16 916.17 916.18

916.19

Appointment of experts. Mental competence to stand trial. Hospitalization of defendant adjudicated

incompetent to stand trial. Statute of limitations; former jeopardy. Adjudication of incompetency due to men-

tal retardation; dismissal of charges. Hospitalization of defendant adjudicated

not guilty by reason of insanity. Jurisdiction of committing court. Conditional release. Program for treatment of patients involun-

tarily hospitalized because incompetent to stand trial.

Use of chemical weapons; restrictions.

916.11 Appointment of experts.-(l)(a) The court may appoint no more than three

nor fewer than two experts to determine issues of the mental condition of a defendant in a criminal case, including the issues of competency to stand trial, in-sanity, and involuntary hospitalization or placement. The panel of experts may evaluate the defendant in jailor in another appropriate local facility.

(b) To the extent possible, at least one of the ap-pointed experts shall be either a state-employed psy-chiatrist, psychologist, or physician if in the local vi-cinity; a psychiatrist, psychologist, or physician as designated by the district mental health board; or a community mental health center psychiatrist, psy-chologist, or physician.

(c) If a defendant's suspected mental condition is mental retardation, the court shall appoint the diag-nosis and evaluation team of the Department of Health and Rehabilitative Services to examine the defendant and determine whether he meets the defi-nition of "retardation" in s. 393.063 and, if so, wheth-er he is competent to stand trial.

1(2) Expert witnesses appointed by the court to determine the mental condition of a defendant in a criminal case shall be allowed reasonable fees for ser-vices rendered as witnesses, which shall be paid by the county in which the indictment was found or the information or affidavit was filed. State employees shall be paid expenses pursuant to s. 112.061. The fees shall be taxed as costs in the case.

History.-s. I, ch. 80-75; s. 5, ch. 82-176; s. 5, ch. 83-274. 'Note.-A.-Section 5 of ch. 82-176 amended this subsection to read: (2) Expert witnesses appointed by the court to determine the mental condi-

tion of a defendant in a criminal case shall be allowed reasonable fees for ser-vices rendered 8S witnesses, which fees shall be paid by the state. State employ-ees shall be paid expenses pursuant to s. 112.061. The fees .hall be taxed as costs in the case.

B.-Section 7, ch. 82-176, provides that those provisions of that act "which provide for state assumption of witness fees which are currently paid by the counties shall take effect on a date determined by the appropriation of funds for this purpose."

916.12 Mental competence to stand trial.-(1) A person is incompetent to stand trial within

the meaning of this chapter if he does not have suffi-cient present ability to consult with his lawyer with a reasonable degree of rational understanding or if he

has no rational, as well as factual, understanding of the proceedings against him.

(2) A defendant who, because of psychotropic medication, is able to understand the nature of pro-ceedings and assist in his defense shall not automati-cally be deemed incompetent to stand trial simply because his satisfactory mental functioning is depen-dent upon such medication. As used in this subsec-tion, "psychotropic medication" means any drug or compound used to treat mental or emotional disor-ders affecting the mind, behavior, intellectual func-tions, perception, moods, or emotions and includes antipsychotic, antidepressant, antimanic, and an-tianxiety drugs.

History.-s. I, ch. 80-75.

916.13 Hospitalization of defendant adjudi-cated incompetent to stand trial.-

(1) Every person adjudicated incompetent to stand trial and found to meet the criteria for involun-tary hospitalization or placement shall be admitted for hospitalization and treatment in accordance with the provisions of this section and the applicable Rules of Criminal Procedure. The Department of Health and Rehabilitative Services shall admit a de-fendant so adjudicated to an appropriate facility for hospitalization and treatment and may retain and treat the defendant. No later than 6 months after the date of admission or at the end of any period of ex-tended hospitalization or at any time the administra-tor has determined that the defendant has regained competency to stand trial or no longer meets the criteria for continued hospitalization or placement, the administrator shall file a report with the court pursuant to the applicable Rules of Criminal Proce-dure.

(2) An adjudication of incompetency to stand tri-al shall not operate as an adjudication of incompeten-cy to give informed consent for medical treatment or for any other purpose, unless specifically set forth in the court order.

(3) A defendant adjudicated incompetent to stand trial due to his mental retardation may be or-dered into a secure facility designated by the Depart-ment of Health and Rehabilitative Services for re-tarded defendants. The department may not transfer a client from the secure facility to another residential setting without first notifying the court; the depart-ment may transfer such defendant unless the depart-ment receives written objection to the transfer from the court within 30 days after receipt of the notice by the court. No retarded client may be placed in the designated secure facility except by criminal court order. However, if criminal charges are subsequently dropped and the client is involuntarily admitted to retardation residential services, the placement at the secure facility may be continued if so ordered by the committing court following a hearing with the same due process requirements as set out in s. 393.11 for an initial involuntary admission. Such court hearings shall be held at least annually, with notice to the state attorney; each order continuing placement shall

1508

F.S.1983 MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS Ch.916

be based on a finding that the client is likely to phys-ically injure others as specified in s. 393.11(1)(c)2. In no case may a client's placement in a secure facility pursuant to this part exceed the maximum sentence for the crime for which he was charged.

History.-s. I, ch. 80-75; s. 6, ch. 83-274.

916.14 Statute of limitations; former jeopar-dy.-The statute of limitations shall not be applica-ble to criminal charges dismissed because of the in-competency of the defendant to stand trial. If a de-fendant is declared incompetent to stand trial during trial and afterwards is declared competent to stand trial, his other, uncompleted trial shall not constitute former jeopardy.


916.145 Adjudication of incompetency due to mental retardation; dismissal of charges.-The charges against any defendant adjudicated incompe-tent to stand trial due to his mental retardation shall be dismissed if the defendant remains incompetent to stand trial 2 years after such adjudication, unless the court in its order specifies its reasons for believ-ing that the defendant will become competent to stand trial and the time 'within which the defendant is expected to become competent to stand trial.

History.-s. 6, ch. 83-274. 'Note.-The words "within which the defendant is expected to become com-

petent to stand trial" were substituted by the editors for the words "frame there· for."

916.15 Hospitalization of defendant adjudi-cated not guilty by reason of insanity.-

(1) A person who is acquitted of criminal charges because of a finding of not guilty by reason of insani-ty may be involuntarily hospitalized pursuant to such finding if he is mentally ill and, because of his illness, is manifestly dangerous to himself or others.

(2) Every person acquitted of criminal charges by reason of insanity and found to meet the criteria for involuntary hospitalization or placement may be committed for hospitalization and treatment in ac-cordance with the provisions of this section and the applicable Rules of Criminal Procedure. The Depart-ment of Health and Rehabilitative Services shall ad-mit a defendant so adjudicated to an appropriate fa-cility for hospitalization and treatment and may re-tain and treat such defendant. No later than 6 months after the date of admission, prior to the end of any period of extended hospitalization, or at any time the administrator shall have determined that the defendant no longer meets the criteria for contin-ued hospitalization or placement, the administrator shall file a report with the court pursuant to the ap-plicable Rules of Criminal Procedure.

(3) In all proceedings under this subsection, both the patient and the state shall have the right to a hearing before the committing court. Evidence at such hearing may be presented by the hospital ad-ministrator or his designee as well as by the state and the defendant. The defendant shall have the right to counsel at any such hearing. In the event that a de-fendant cannot afford counsel, the court shall ap-point the public defender to represent him. The par-ties shall have access to the defendant's records at the treating facilities and may interview or depose

personnel who have had contact with the defendant at the treating facilities.


916.16 Jurisdiction of committing court. -The committing court shall retain jurisdiction in the case of any patient hospitalized or, if retarded, admitted to retardation residential services pursuant to this chapter. No such person may be released ex-cept by order of the committing court. The adminis-trative hearing examiner shall have no jurisdiction to determine issues of continuing hospitalization or re-lease of any person admitted pursuant to this chap-ter.

History.-s. I, ch. 80-75; s. 7, ch. 83-274.

916.17 Conditional release.-(1) The committing court may order a condition-

al release of any defendant who has been committed according to a finding of incompetency to stand trial or an adjudication of not guilty by reason of insanity, based on an approved plan for providing appropriate outpatient care and treatment. At such time as the administrator shall determine outpatient treatment of the defendant to be appropriate, he may file with the court, with copies to all parties, a written plan for outpatient treatment, including recommendations from qualified professionals. Such a plan may be sub-mitted by the defendant. The plan shall include:

(a) Special provisions for residential care or ade-quate supervision of the defendant.

(b) Provisions for outpatient mental health ser-vices.

(c) If appropriate, recommendations for auxiliary services such as vocational training, educational ser-vices, or special medical care.

In its order of conditional release, the court shall specify the conditions of release based upon the re-lease plan and shall direct the appropriate agencies or persons to submit periodic reports to the court re-garding the defendant's compliance with the condi-tions of the release and progress in treatment, with copies to all parties.

(2) If at any time it appears that the defendant has failed to comply with the conditions of release, that the defendant's condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court may, after a hearing, modify the release conditions or or-der that the defendant be returned to the Depart-ment of Health and Rehabilitative Services for fur-ther treatment.

(3) If at any time it is determined after a hearing that the defendant no longer requires court-supervised follow-up care, the court shall ter-minate its jurisdiction in the cause and discharge the defendant.


916.18 Program for treatment of patients in-voluntarily hospitalized because incompetent to stand trial.-

(1) It is the intent of the Legislature that treat-ment programs for those patients found to be incom-petent to stand trial and, therefore, involuntarily

1509

Ch.916 MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS F.S.1983

hospitalized in certain mental health facilities under the Florida Rules of Criminal Procedure be provided in such manner as to insure the full protection of the rights of said patients as set forth in part I of chapter 394. It is further intended by the Legislature that fa-cilities or parts of facilities in which such patients who are found to be dangerous or present a security risk are placed for purposes of treatment be estab-lished and available for use at the earliest possible time and that said facilities or parts of facilities be made secure in order to control the ingress and egress of the facility and to protect the patient, hospital personnel, other patients, and citizens in adjacent communities.

(2) The Department of Health and Rehabilitative Services is authorized and directed to locate, estab-lish, and maintain, by not later than January 1, 1977, a secure and separate unit or units for the treatment of patients who, under the Florida Rules of Criminal Procedure, have been involuntarily hospitalized for reason of having been determined by the court to be incompetent to stand trial and who have been found by the Department of Health and Rehabilitative Ser-vices to have the clear and present potential to es-cape or to cause severe injury to themselves or others. The unit or units shall be sufficient to accommodate the number of patients involuntarily hospitalized un-der the conditions noted above and shall be designed and administered so that ingress and egress may be strictly controlled by staff responsible for unit securi-ty. Such security staff shall be independent of treat-ment staff and shall meet or exceed the uniform minimum standards for employment and training of correctional officers established by the lCorrectional Standards Council under the provisions of 2SS. 944.581-944.593. The Department of Health and Re-habilitative Services may contract with the Depart-ment of Corrections or any law enforcement unit of county or local government or with any entity li-censed under chapter 493, whichever shall cost less, for the provision of security services in said units, should such an arrangement prove effective, cost beneficial, and not detrimental to treatment.

(3) Any current provisions of law to the contrary notwithstanding, the Department of Health and Re-habilitative Services, in consultation with the De-partment of Administration, for purposes of expedit-ing the implementation of this act, shall have the sole responsibility for the appointment of architects and engineers, approval of plans, and awarding of con-tracts to make available the secure and separate mental health treatment unit or units provided under subsection (2). The provisions of s. 287.055, regarding a public emergency shall apply, and the Department of Health and Rehabilitative Services is authorized to contract for the use or reuse of plans.

(4) The Department of Health and Rehabilitative Services is authorized to promulgate rules, enter into

contracts, and do such things as ma>.' be necessary and incidental to assure compliance wlth and to carry out the provisions of this act in accordance with the above stated legislative intent.

History.-ss. I, 2, 3, 4, ch. 76-194; s. 133, ch. 77-104; s. 13, ch. 79-3; s. I , ch. 79-336; s. 3, ch. 80-75.

'Note.-See s. I, ch. 81-24, which transferred tbe Correctional Standards Council of the Department of Corrections to, and merged tbe council into tbe Criminal Justice Standards and Training Commission within, the Department of Law Enforcement.

'Note.-Sections 944.581-944.593 were repealed by s. 24, ch. 81-24. Chapter 81-24 also created the Criminal Justice Standards and Training Commission with authority to establish uniform minimum standards for the employment and training of correctional officers under ... 943.085-943.255.

Note.-Former ss. 394.851, 394.905.

916.19 Use of chemical weapons; restric-tions.-

(1) As used in this section: (a) "Chemical weapon" means any shell, car-

tridge, bomb, gun, or other device capable of emitting chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any derivatives thereof in any form, or any other agent with lacrimatory properties, and shall in-clude products such as that commonly known as "mace."

(b) "Institutional security officer" means a staff member who meets the requirements of s. 394.851(2) and who is responsible for providing security to a fa-cility and patients and personnel therein, for the en-forcement of rules, and for the investigation of unau-thorized activities.

(c) "Forensic unit" means a secure mental health facility which is used for any patient:

1. Who has been determined to need treatment for a mental illness;

2. Who: a. Has charges pending; b. Has been convicted of a criminal offense; c. Has been acquitted by reason of insanity of a

criminal offense; or d. Is serving a sentence for a criminal offense; and 3. Who has been determined by the Department

of Health and Rehabilitative Services: a. To be dangerous to himself or others; or b. To present a clear and present potential to es-

cape. (2) In case of emergency and when necessary to

provide protection and security to any patient or to the personnel, equipment, buildings, or grounds of a facility, an institutional security officer may, when authorized by the administrator of the forensic unit or his designee when the administrator is not present, use a chemical weapon against a patient housed in a forensic unit; however, such weapon shall be used only to the extent necessary to provide such protec-tion and security. Under no circumstances shall any such officer carry a chemical weapon on his person except during the period of the emergency for which its use was authorized. All chemical weapons shall be placed in secure storage when their use is not author-ized as provided in this section.

History.-s. I , ch. 77-31; s. I , ch. 79-336; s. 158, ch. 79-400; s. 3, ch. 80-75. Note.-Former 88. 394.4671, 394.86, 394.906.

1510

F.S.1983 MENTALLY-DISORDERED SEX OFFENDERS Ch.917

CHAPTER 917

MENTALLY DISORDERED SEX OFFENDERS

917.011

917.012

917.014

917.016

917.017 917.018 917.019

917.021

Mentally disordered sex offenders commit-ted to Department of Health and Reha-bilitative Services before July 1, 1979; disposition.

Mentally disordered sex offenders; proce-dures for handling and treatment.

Credit for time spent in treatment pro-gram.

Probation; revocation; treatment pro-grams.

Entry of offenders. Escape from treatment program; penalties. Training in postdischarge treatment of

mentally disordered sex offenders. Annual report.

917.011 Mentally disordered sex offenders committed to Department of Health and Reha-bilitative Services before July 1, 1979; disposi-tion.-

(1) Upon completion of the treatment program, the Department of Health and Rehabilitative Ser-vices shall return those mentally disordered sex of-fenders committed to its custody pursuant to this chapter, as this chapter existed prior to July 1, 1979, to the committing court for recommencement of criminal proceedings. The court shall have the fol-lowing alternatives for disposition of such offenders:

(a) The court may suspend the sentence of the of-fender and place the offender on probation subject to such terms and conditions as provided in s. 917.016.

(b) The court may sentence the offender and commit him to the custody of the Department of Corrections.

(c) The court may make any other suitable dispo-sition of the offender as provided by law.

(2) The provisions of this section shall stand re-pealed on July 1, 1983.

History.-ss. 2, 10, ch. 79·341; s. 2, ch. 81·293.

917.012 Mentally disordered sex offenders; procedures for handling and treatment.-On July 1,1979, and thereafter, the following procedures shall apply to the handling and treatment of mental-ly disordered sex offenders:

(1) The Department of Corrections shall estab-lish, for each offender who has been sentenced for a violation of law involving a sex offense and placed in its custody, procedures for the classification of the of-fender based on the type of offense he committed. Such classification shall include the following sex of-fenses:

(a) Sexual battery or attempted sexual battery. (b) Incest or attempted incest. (c) An unnatural and lascivious act or an at-

tempted unnatural and lascivious act. (d) Lewd and lascivious behavior. (e) Assault or aggravated assault when a sexual

act is completed or attempted. (f) Battery or aggravated battery when a sexual

act is completed or attempted.

(2) The Department of Corrections, jointly with the Department of Health and Rehabilitative Ser-vices, shall by rule establish procedures to identify those offenders who have been sentenced for the commission of a crime involving a sex offense, who are not psychotic, and who suffer from a psychosexu-al disorder, but are competent and amenable to treat-ment. From such group of offenders, the Department of Corrections and the Department of Health and Rehabilitative Services, jointly, shall also identify those offenders who may be treated by the Depart-ment of Corrections and those offenders who require the specialized services of the Department of Health and Rehabilitative Services, using professional psy-chiatric and psychological teams of the respective agencies.

(3) Each offender who is identified as needing the specialized services of the Department of Health and Rehabilitative Services shall be evaluated at a De-partment of Corrections facility and may be trans-ferred to the Department of Health and Rehabilita-tive Services pursuant to the provisions of s. 945.12.

(4) An offender transferred from the Department of Corrections to the Department of Health and Re-habilitative Services under s. 945.12 shall be evaluat-ed by the treatment facility during the first 90 days after admission as to his amenability to treatment. If the Department of Health and Rehabilitative Ser-vices determines at any time that the offender does not meet the definition of an offender identified in subsection (2), or that the treatment program to which the offender was assigned by the department has exhausted all appropriate treatment for the of-fender, a written report to that effect shall be fur-nished by the Department of Health and Rehabilita-tive Services to the Department of Corrections, which shall be responsible for the immediate trans-portation of the offender to an appropriate correc-tions facility.

(5) The Department of Health and Rehabilitative Services shall determine, for each offender trans-ferred pursuant to subsection (3), the manner and se-quence of treatment based on his length of sentence and his presumptive parole eligibility date; however, no such offender shall participate in a community furlough or work-release program while he is in a for-mal treatment program of the department.

(6) No person previously committed to the De-partment of Health and Rehabilitative Services as a sex offender under this act who commits a subse-quent offense shall be again committed for treatment pursuant to this act.

(7) The Department of Health and Rehabilitative Services shall determine which facility shall provide necessary care, treatment, and rehabilitation for an offender committed to the department under this act. Decisions on treatment modalities for all offend-ers committed or transferred to the Department of Health and Rehabilitative Services under this act shall be made by the Department of Health and Re-habilitative Services.

1511

Ch.917 MENTALLY DISORDERED SEX OFFENDERS F.S.1983

(8) The Department of Health and Rehabilitative Services shall cause each offender transferred pursu-ant to subsection (3) to be examined at least once an-nually to determine the progress of the treatment and shall file a written report of each examination with the Department of Corrections not less than once a year.

History.-ss. 3, 10, ch. 79·341; s. 492, ch. 81·259; s. 3, ch. 81·293; s. 2, ch. 83·109. cf.-s. 944.033 Community Correctional Centers; existence; location; purpose;

restriction.

917.014 Credit for time spent in treatment program.-Time spent in the treatment programs of the Department of Health and Rehabilitative Ser-vices shall be considered time served on the sentence imposed upon the offender by the court.

History.-ss. 4, 10, ch. 79·341; s. 4, ch. 81·293; s. 2, ch. 83·109.

917.016 Probation; revocation; treatment programs.-A judge who suspends the sentence of an offender convicted of a crime involving a sex of-fense and places the offender on probation:

(1) May at any time, for cause, revoke the order placing such offender on probation and impose such sentence of commitment as might have been imposed at the time of conviction.

(2) May require that such sex offender who is placed on probation be provided regular treatment in a community-based mental health program approved or operated by the Department of Health and Reha-bilitative Services. The agency or person treating the offender shall make written reports at least every 6 months to the court and to the probation officer su-pervising the offender. If the agency or person pro-viding treatment exhausts treatment for the offend-er, or if such agency or person determines that the of-fender will make no progress in the treatment pro-gram, the court, upon notification of such fact, shall terminate mandatory probation visits by the offender to that treatment program. The court may require the offender to be provided further treatment in an-other suitable community-based program approved by the Department of Health and Rehabilitative Ser-vices or may make such other disposition as provided by law.


917.017 Entry of offenders.-The Department of Health and Rehabilitative Services shall not per-mit entry under any procedure other than that speci-fied in s. 917.012 of an offender into a residential sex offender treatment program operated by the depart-ment.

History.-s. 6, ch. 81·293; s. 2, ch. 83·109.

917.018 Escape from treatment program; penalties.-An offender transferred to the Depart-ment of Health and Rehabilitative Services under the provisions of this act who escapes or attempts to es-cape from the department is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.-ss. 3, 10, ch. 79·341; s. 7, ch. 81.293; s. 2, ch. 83·109.

917.019 Training in postdischarge treat-ment of mentally disordered sex offenders. -The Department of Health and Rehabilitative Ser-vices may establish, within available appropriations, a program to train persons to provide postdischarge treatment for mentally disordered sex offenders.


917.021 Annual report.-No less than 30 days prior to the opening of each annual session of the Legislature, the Department of Health and Rehabili-tative Services shall file a written report with the Speaker of the House of Representatives and the President of the Senate. Such report shall contain, but is not limited to, the following information: treat-ment services being rendered, the number of offend-ers in each program and the current status of such of-fenders, and costs involved in operating the pro-grams. Additionally, the Department of Health and Rehabilitative Services shall maintain information and statistics on the rate of recidivism for previously treated offenders and shall include such information in the report.

History.-s. 9, ch. 81·293; s. 2, ch. 83·109.

1512

F.S.1983 CONDUCT OF TRIAL Ch.918

CHAPTER 918

CONDUCT OF TRIAL

918.015 918.016

918.03

918.04

918.05 918.06

918.07 918.10 918.12 918.13

918.14 918.16

918.17

Right to speedy trial. Trial of remaining defendants after grant

of continuance to others. Procedure when offense committed outside

state. Procedure when offense committed in an-

other county. View by jury. Separation and detention of jurors; admo-

nition by court. Admonition to officer in charge of jurors. Charge to jury; request for instructions. Tampering with jurors. Tampering with or fabricating physical ev-

idence. Tampering with witnesses. Sex offenses; testimony of person under

age 16; courtroom cleared; exceptions. Sexual battery or child abuse cases; vid-

eotaping of testimony of victims under age 12 permitted.

918.015 Right to speedy trial.-(1) In all criminal prosecutions the state and the

defendant shall each have the right to a speedy trial. (2) The Supreme Court shall, by rule of said

court, provide procedures through which the right to a speedy trial as guaranteed by subsection (1) and by s. 16, Art. I of the State Constitution shall be real-ized.

History.-s. 195, ch. 19554, 1939; CGL 1940 Supp. 8663(202); s. 6, ch. 71-1(8).


918.016 Trial of remaining defendants after grant of continuance to others.-When a continu-ance is granted to one or more of several defendants, the court may proceed with the trial of the defen-dants who have not been granted a continuance.

Hi.tory.-s. 202, ch. 19554, 1939; CGL 1940 Supp. 8663(210); s. 1l0, ch. 70-339.


918.03 Procedure when offense committed outside state.-When a court determines that it does not have jurisdiction because the offense charged was committed outside this state, the court may discharge the defendant or direct the clerk to communicate the location of the defendant to the chief executive of the state, territory, or district where the offense was committed. The court may commit the defendant to custody or admit him to bail for a reasonable period of time to await a requisi-tion for his extradition. If a requisition is not received within the time set by the court, the defendant shall be discharged. If the defendant has been admitted to bail, the court shall order the bond canceled and any deposit of money or bonds returned.


918.04 Procedure when offense committed

in another county.-When a court determines that it does not have jurisdiction because the offense charged was committed in another county of this state, the defendant shall be committed to custody or admitted to bail for a reasonable time to await a war-rant for his arrest from the proper county. The clerk shall notify the prosecuting attorney of the proper county of the location of the defendant. If the defen-dant is not arrested on a warrant from the proper county within the time set by the court, he shall be discharged. If the defendant has been admitted to bail, the court shall order the bond canceled and any deposit of money or bonds returned.


918.05 View by jury.-When a court deter-mines that it is proper for the jury to view a place where the offense may have been committed or other material events may have occurred, it may order the jury to be conducted in a body to the place, in custo-dy of a proper officer. The court shall admonish the officer that no person, including the officer, shall be allowed to communicate with the jury about any sub-ject connected with the trial. The jury shall be re-turned to the courtroom in accordance with the di-rections of the court. The judge and defendant, un-less the defendant absents himself without permis-sion of court, shall be present, and the prosecuting a~torney and defense counsel may be present at the V1ew.


918.06 Separation and detention of jurors; admonition by court.-The court shall admonish the jury that it is their duty not to converse among themselves or with anyone else on a subject connect-ed with the trial or to form or express an opinion on a subject connected with the trial until the cause is submitted to them. When the jurors leave the jury box, the court may direct that the jury be kept to-gether in the charge of a proper officer or allow them to separate. If the court permits the jurors to sepa-rate, it shall admonish them not to view the place where the offense appears to have been committed.


918.07 Admonition to officer in charge of ju-rors.-When the jury is committed to the charge of an officer, he shall be admonished by the court to keep the jurors together in the place specified and not to permit any person to communicate with them on any subject except with the permission of the court given in open court in the presence of the de-fendant or his counsel. The officer shall not commu-nicate with the jurors on any subject connected with the trial and shall return the jurors to court as direct-ed by the court.


1513

Ch.918 CONDUCT OF TRIAL F.S.1983

918.10 Charge to jury; request for instruc-tions.-

(1) At the conclusion of argument of counsel, the court shall charge the jury. The charge shall be only on the law of the case and must include the penalty for the offense for which the accused is being charged.

(2) All charges to the jury shall be delivered oral-ly and shall be taken by the court reporter, tran-scribed, and filed.

(3) At or after the close of the evidence, a party may file written requests that the court instruct the jury on the law as stated in the requests. The court shall inform counsel of its proposed action on the re-quests before their arguments to the jury.

Hi.tory.-s. 215, ch. 19554, 1939; CGL 1940 Supp. 8663(223); s. I , ch. 22775, 1945; s. 117, ch. 70·339.

918.12 Tampering with jurors.-Any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or pro-ceeding which may be pending, or which may by law be brought, before him as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provid-ed in s. 775.082, s. 775.083, or s. 775.084.

Hi.tory.-s. I, ch. 72·315.

918.13 Tampering with or fabricating physi-cal evidence.-

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investiga-tion; or

(b) Make, present, or use any record, document, or thing, knowing it to be false.

(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083 or s. 775.084.

Hi.tory.-s. 2, ch. 72·315.

918.14 Tampering with witnesses.-(1) It is unlawful for any person, knowing that a

criminal trial, an official proceeding, or an investiga-tion by a duly constituted prosecuting authority, a law enforcement agency, a grand jury or legislative committee, or the Judicial Qualifications Commis-sion of this state is pending, or knowing that such is about to be instituted, to endeavor or attempt to in-duce or otherwise cause a witness to:

(a) Testify or inform falsely; or (b) Withhold any testimony, information, docu-

ment, or thing. (2) If any person violates the provisions of this

section by the use of force, deception, threat, or offer of pecuniary benefit to induce any conduct described

in subsection (1), the violation shall constitute a felo-ny of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In all other cases, a violation shall constitute a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3)(a) It is unlawful for any person: 1. To cause a witness to be placed in fear by force

or threats of force; 2. To make an assault upon any witness or infor-

mant; or 3. To harm a witness by any unlawful act in retal-

iation against the said witness for anything lawfully done in the capacity of witness or informant.

(b) Any person violating the provisions of this subsection shall be guilty of a felony of the third de-gree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Hi.tory.-8. 3, ch. 72-315; s. 44, ch. 75-298.

918.16 Sex offenses; testimony of person un-der age 16; courtroom cleared; exceptions.-In the trial of any case, civil or criminal, when any per-son under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immedi-ate families or guardians, attorneys and their secre-taries, officers of the court, jurors, newspaper report-ers or broadcasters, and court reporters.

Hi.tory.-s. 28, ch. 77-312.

1918.17 Sexual battery or child abuse cases; videotaping of testimony of victims under age 12 permitted.-

(1) Upon application to the court and reasonable notice to the defendant, the state may apply for an order to 'videotape out of open court the testimony of a child 11 years of age or younger who has been the victim of a sexual battery under s. 794.011 or to vid-eotape the testimony of a child 11 years of age or younger who has been the victim of aggravated child abuse under s. 827.03 or child abuse under s. 827.04. The court may grant an order to videotape testimony as provided herein only if it finds that:

(a) The victim of the offense is a child 11 years of age or younger; and

(b) There is a substantial likelihood that such child will suffer severe emotional or mental strain if required to testify in open court.

(2) The trial judge shall preside at such proceed-ing and shall rule on all questions as if at trial.

(3) The application referred to in subsection (1) shall be made prior to trial, and the videotaping of the testimony shall be made only after the trial has commenced. The videotaped testimony shall be ad-missible as evidence in the trial of the cause.

Hi.tory.-88. I, 2, ch. 79-69. 'Note.-Section 3, ch. 79-69, repeals Rule 3.190(j), Florida Rules of Criminal

Procedure, " ... insofar as it is inconsistent with the provisions of this ... ," section.

1514

F.S.1983 SENTENCE Ch.921

CHAPTER 921

SENTENCE

921.001 921.005 921.09

921.12

921.141

921.143

921.15

921.16

921.161

921.18

921.185

921.187 921.20

921.21

921.22

921.231 921.241

921.242

Sentencing Commission. Criteria for sentencing. Fees of physicians who determine sanity at

time of sentence. Fees of physicians when pregnancy is al-

leged as cause for not pronouncing sen-tence.

Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.

Appearance of victim to make statement at sentencing hearing; submission of writ-ten statement.

Stay of execution of sentence to fine; bond and proceedings.

When sentences to be concurrent and when consecutive.

Sentence not to run until imposed; credit for county jail time after sentence; certif-icate of sheriff.

Sentence for indeterminate period for non-capital felony.

Sentence; restitution a mitigation in cer-tain crimes.

Disposition and sentencing; alternatives. Classification summary; Parole and Proba-

tion Commission. Progress reports to Parole and Probation

Commission. Determination of exact period of imprison-~ent by Parole and Probation Commis-SIOn.

Presentence investigation reports. Felony judgments; fingerprints required in

record. Subsequent offenses under chapter 796;

method of proof applicable.

921.001 Sentencing Commission.-(1) The provision of criminal penalties and of

limitations upon the application of such penalties is a matter of predominantly substantive law and, as such, is a matter properly addressed by the Legisla-ture. The Legislature, in the exercise of its authority to establish sentencing criteria and to provide for the imposition of criminal penalties, has determined that it is in the best interest of the state to develop, imple-ment, and revise a uniform sentencing policy in coop-eration with the Supreme Court. In furtherance of this cooperative effort, there is created a Sentencing Commission which shall be responsible for the initial development of a statewide system of sentencing guidelines. After final development of a sentencing guidelines system by the Supreme Court, the com-mission shall evaluate these guidelines periodically and recommend such changes on a continuing basis as are necessary to ensure certainty of punishment as well as fairness to offenders and to citizens of the state.

(2)(a) The commission shall be composed of 15

members, consisting of: two members of the Senate to be appointed by the President of the Senate; two members of the House of Representatives to be ap-pointed by the Speaker of the House of Representa-tives; the Chief Justice of the Supreme Court or a member of the Supreme Court designated by the Chief Justice; three circuit court judges and one county court judge to be appointed by the Chief Jus-tice of the Supreme Court; and the Attorney General or his designee. The following members shall be ap-pointed by the Governor: one state attorney recom-mended by the Florida Prosecuting Attorneys Associ-ation; one public defender recommended by the Pub-lic Defenders Association; one private attorney rec-ommended by the President of The Florida Bar; and two persons of the Governor's choice. The Chief Jus-tice or the member of the Supreme Court designated by th~ C:hief Justice shall serve as chairman of the commISSIOn.

(b) The members of the commission appointed by the Governor, the President of the Senate, and the Speaker of the House of Representatives shall serve 2-year terms, except that the initial appointees shall serve until January 1, 1984. The members appointed by the Chief Justice of the Supreme Court shall serve at his pleasure.

(c) Membership on the commission shall not dis-qualify a member from holding any other public of-fice or from being employed by a public entity. The Legislature finds and declares that the commission serves a state, county, and municipal purpose and that service on the commission is consistent with a member's principal service in a public office or in public employment.

(d) Members of the commission shall serve with-out compensation but shall be entitled to be reim-bursed for per diem and travel expenses as provided for in s. 112.061.

(e) The office of the State Courts Administrator shall act as staff for the commission and provide all necessary data collection, analysis, and research and support services.

(3) Following the initial development of state-wide sentencing guidelines by the court, the commis-sion shall meet annually or at the call of the chair-man to review sentencing practices and recommend modifications to the guidelines. In establishing or modifying the sentencing guidelines, the commission shall take into consideration current sentencing and release practices and correctional resources, includ-ing the capacities of local and state correctional facil-ities, in addition to other relevant factors. For this purpose, the commission is authorized to collect and evaluate data on sentencing practices in the state from each of the judicial circuits.

(4)(a) Upon recommendation of a plan by the commission, the Supreme Court shall develop by September 1, 1983, statewide sentencing guidelines to provide trial court judges with factors to consider and utilize in determining the presumptively appro-priate sentences in criminal cases. The statewide sen-tencing guidelines shall be implemented by October

1515

Ch.921 SENTENCE F.S.1983

1, 1983, unless the Legislature affirmatively delays the implementation of such guidelines prior to Octo-ber 1, 1983. The guidelines shall be applied to all fel-onies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital fel-onies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sen-tenced pursuant to the provisions of this act.

(b) The commission shall, no later than 45 days before the convening of the Legislature in regular session each year, make a recommendation to the members of the Supreme Court, the President of the Senate, and the Speaker of the House of Representa-tives on the need for changes in the guidelines. Upon receipt of such recommendation, the Supreme Court may within 60 days revise the statewide sentencing guidelines to conforll1 them with all or part of the commission recommendation. However, such revision shall become effective only upon the subsequent adoption by the Legislature of legislation implement-ing the guidelines as then revised.

(5) Sentences imposed by trial court judges must be in all cases within any relevant minimum and maximum sentence limitations provided by statute and must conform to all other statutory provisions. The failure of a trial court to impose a sentence with-in the sentencing guidelines shall be subject to appel-late review pursuant to chapter 924.

(6) The sentencing guidelines shall provide that any sentences imposed outside the range recom-mended by the guidelines be explained in writing by the trial court judge.

(7) The Sentencing Commission and the office of the State Courts Administrator shall conduct ongo-ing research on the impact of sentencing guidelines adopted by the commission on sentencing practices, the use of imprisonment and alternatives to impris-onment, and plea bargaining. The commission, with the aid of the office of the State Courts Administra-tor, the department, and the Parole and Probation Commission, shall estimate the impact of any pro-posed sentencing guidelines on future rates of incar-ceration and levels of prison population. Such esti-mates shall be based in part on historical data of sen-tencing practices which have been accumulated by the office of the State Courts Administrator and on department records reflecting average time served for offenses covered by the proposed guidelines. Projec-tions of impact shall be reviewed by the commission and made available to other appropriate agencies of state government, including the Legislature.

(8) A person convicted of crimes committed on or after October 1, 19&3, or any other person sentenced pursuant to sentenCing guidelines adopted under this section shall be released from incarceration only:

(a) Upon expiration of his sentence; (b) Upon expir~tion of his sentence as reduced by

accumulated gain-time; or (c) As directed by an executive order granting

clemency.

The provisions of chapter 947 shall not be applied to such person.

Hi.tory.-ss. 1,2, 3, ch. 82-145; s. 2, ch. 83-87; s. 176, ch. 83-216.

921.005 Criteria for sentencing.-The courts shall use the following criteria for sentencing all per-sons who committed crimes before October 1, 1983:

(l)(a) A court shall not impose a sentence of im-prisonment unless, after considering the nature and circumstances of the crime and the prior criminal re-cord, if any, of the defendant, the court finds that im-prisonment is necessary for the protection of the public because:

1. A lesser sentence is not commensurate with the seriousness of the defendant's crime; or

2. There is a probability that during the period of a suspended sentence or probation the defendant will commit another crime.

(b) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding a sentence of imprisonment:

1. The defendant's criminal conduct neither caused nor threatened serious harm.

2. The defendant did not know and had no reason to know that his criminal conduct would cause or threaten serious harm.

3. The defendant acted under a strong provoca-tion.

4. There were substantial grounds tending to ex-cuse or justify the defendant's criminal conduct, though failing to establish a defense.

5. The defendant has compensated or will com-pensate the victim of his criminal conduct for the damage or injury that the victim sustained.

6. The defendant has no history of prior delin-quency or criminal activity or had led a law-abiding life for a substantial period of time before the com-mission of the present crime.

7. The defendant's criminal conduct was the re-sult of circumstances unlikely to recur.

8. The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

9. The defendant is particularly likely to respond affirmatively to noncustodial treatment.

(2)(a) A court shall sentence a defendant to pay a fine unless it finds that the defendant is unable or will be unable to pay the fine and the imposition of a fine will not prevent the defendant from being reha-bilitated or from making restitution to the victim of his crime.

(b) A court shall sentence a defendant to pay a fine whe~ever the imposition of a fine is sufficient to punish the defendant and protect the public.

(c) A court shall sentence a defendant to pay a fine in addition to imprisonment or probation if, in the opinion of the court, the defendant has derived a pecuniary gain from his crime or the fine is specially adapted to deterrence of the particular crime or to the punishment and rehabilitation of the offender.

Hi.tory.-s. 7, ch. 83-131.

921.09 Fees of physicians who determine sanity at time of sentence.-The court shall allow reasonable fees to physicians appointed by the court to determine the mental condition of a defendant who hilS alleged insanity as a cause for not pronounc-ing sentence. The fees shall be paid by the county in which·lhe indictment was found or the information or affidavit filed.


1516

F.S.1983 SENTENCE Ch.921

921.12 Fees of physicians when pregnancy is alleged as cause for not pronouncing sen-tence.-The court shall allow reasonable fees to the physicians appointed to examine a defendant who has alleged her pregnancy as a cause for not pro-nouncing sentence. The fees shall be paid by the county in which the indictment was found or the in-formation or affidavit filed.

History.-s. 258, ch. 19554, 1939; CGL 1940 Supp. 8663(267); s. 122, ch. 70·339.

921.141 Sentence of death or life imprison-ment for capital felonies; further proceedings to determine sentence.-

(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.-Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to deter-mine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted !:>y the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of pen-alty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sen-tencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the de-fendant. In the proceeding, evidence may be pres-ented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall inelude matters relating to any of the aggravating or mitigating circumstances enu-merated in subsections (5) and (6). Any such evi-dence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the de-fendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.

(2) ADVISORY SENTENCE BY THE JURY.-After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

(a) Whether sufficient aggravating circumstances exist as enumerated in subsection (5);

(b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and

(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

(3) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.-Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in

writing its findings upon which the sentence of death is based as to the facts:

(a) That sufficient aggravating circumstances ex-ist as enumerated in subsection (5), and

(b) That there are insufficient mitigating circum-stances to outweigh the aggravating circumstances.

In each case in which the court imposes the death sentence, the determination of the court shall be sup-ported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing pro-ceedings. If the court does not make the findings re-quiring the death sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082.

(4) REVIEW OF JUDGMENT AND SEN-TENCE.-The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida within 60 days after certi-fication by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed 30 days by the Supreme Court for good cause shown. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.

(5) AGGRAVATING CIRCUMSTANCES. - Aggravating circumstances shall be limited to the following:

(a) The capital felony was committed by a person under sentence of imprisonment.

(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.

(c) The defendant knowingly created a great risk of death to many persons.

(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight af-ter committing or attempting to commit, any rob-bery, sexual battery, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.

(e) The capital felony was committed for the pur-pose of avoiding or preventing a lawful arrest or ef-fecting an escape from custody.

(f) The capital felony was committed for pecuni-ary gain.

(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

(h) The capital felony was especially heinous, atrocious, or cruel.

(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justifi-cation.

(6) MITIGATING CIRCUMSTANCES. -Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

1517

Ch.921 SENTENCE F.S.1983

(c) The victim was a participant in the defen-dant's conduct or consented to the act.

(d) The defendant was an accomplice in the capi-

f.s.1983 procedure after arrest ch.907 chapter 907 · judicial process, has threatened,...

Documents