THE BILL ITSELF
HB 295
Prosecuting Children as Adults
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A bill to be entitled
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An act relating to prosecuting children as adults;
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amending s. 985.265, F.S.; prohibiting a jail or other
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facility intended or used for the detention of adults
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from holding a child who has been transferred to adult
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court for criminal prosecution before a specified
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hearing is held to determine if the child should be
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prosecuted as an adult, unless the child waives his or
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her right to such hearing; amending s. 985.556, F.S.;
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deleting provisions requiring a state attorney to
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request a court to transfer and certify a child for
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prosecution as an adult or to provide written reasons
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to the court for not making such request, or to
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proceed under a specified provision; amending s.
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985.557, F.S.; deleting references to the state
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attorney's discretion to direct file a juvenile;
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revising discretionary direct file criteria; requiring
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a court to advise a child and his or her parent or
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legal guardian of the child's right to a due process
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evidentiary hearing before a judge upon the filing by
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a state attorney of an information transferring the
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child to adult court; requiring that the child or the
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child's parent or legal guardian be afforded such
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hearing; requiring the judge to conduct the hearing
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within a certain timeframe; requiring the judge to
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consider specified information and factors during such
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hearing; authorizing the judge to consider, and
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certain parties to the action to examine, certain
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reports; providing for continued jurisdiction of the
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adult court with regard to the child unless the court
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makes a specified finding by a preponderance of the
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evidence; requiring the adult court to render an order
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that includes certain findings of fact; authorizing
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immediate review of the order; providing that the
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order is reviewable on appeal under specified rules;
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amending ss. 985.15 and 985.565, F.S.; conforming
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provisions to changes made by the act; amending s.
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985.03, F.S.; conforming a cross-reference; providing
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an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Subsection (5) of section 985.265, Florida
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Statutes, is amended to read:
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985.265 Detention transfer and release; education; adult
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jails.—
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(5) The court shall order the delivery of a child to a
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jail or other facility intended or used for the detention of
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adults:
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(a) When the child has been transferred or indicted for
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criminal prosecution as an adult under part X, except that:
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1. The court may not order or allow a child alleged to
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have committed a misdemeanor who is being transferred for
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criminal prosecution pursuant to either s. 985.556 or s. 985.557
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to be detained or held in a jail or other facility intended or
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used for the detention of adults; however, such child may be
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held temporarily in a detention facility; and
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2. A child who has been transferred for criminal
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prosecution as an adult pursuant to s. 985.557 may not be held
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in a jail or other facility intended or used for the detention
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of adults before a court finding, as a result of a hearing under
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s. 985.557(3), that the child should be prosecuted as an adult,
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unless the child waives his or her right to such hearing; or
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(b) When a child taken into custody in this state is
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wanted by another jurisdiction for prosecution as an adult.
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The child shall be housed separately from adult inmates to
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prohibit a child from having regular contact with incarcerated
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adults, including trusties. "Regular contact" means sight and
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sound contact. Separation of children from adults shall permit
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no more than haphazard or accidental contact. The receiving jail
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or other facility shall contain a separate section for children
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and shall have an adequate staff to supervise and monitor the
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child's activities at all times. Supervision and monitoring of
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children includes physical observation and documented checks by
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jail or receiving facility supervisory personnel at intervals
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not to exceed 10 minutes. This subsection does not prohibit
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placing two or more children in the same cell. Under no
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circumstances shall a child be placed in the same cell with an
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adult.
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Section 2. Subsections (4) and (5) of section 985.556,
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Florida Statutes, are renumbered as subsections (3) and (4),
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respectively, and subsection (2) and present subsection (3) of
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that section are amended to read:
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985.556 Waiver of juvenile court jurisdiction; hearing.—
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(2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided
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in subsection (3), The state attorney may file a motion
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requesting the court to transfer the child for criminal
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prosecution if the child was 14 years of age or older at the
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time the alleged delinquent act or violation of law was
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committed.
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(3) INVOLUNTARY MANDATORY WAIVER.—
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(a) If the child was 14 years of age or older, and if the
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child has been previously adjudicated delinquent for an act
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classified as a felony, which adjudication was for the
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commission of, attempt to commit, or conspiracy to commit
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murder, sexual battery, armed or strong-armed robbery,
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carjacking, home-invasion robbery, aggravated battery,
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aggravated assault, or burglary with an assault or battery, and
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the child is currently charged with a second or subsequent
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violent crime against a person; or
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(b) If the child was 14 years of age or older at the time
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of commission of a fourth or subsequent alleged felony offense
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and the child was previously adjudicated delinquent or had
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adjudication withheld for or was found to have committed, or to
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have attempted or conspired to commit, three offenses that are
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felony offenses if committed by an adult, and one or more of
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such felony offenses involved the use or possession of a firearm
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or violence against a person;
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the state attorney shall request the court to transfer and
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certify the child for prosecution as an adult or shall provide
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written reasons to the court for not making such request, or
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proceed under s. 985.557(1). Upon the state attorney's request,
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the court shall either enter an order transferring the case and
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certifying the case for trial as if the child were an adult or
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provide written reasons for not issuing such an order.
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Section 3. Section 985.557, Florida Statutes, is amended
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to read:
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985.557 Prosecuting children as adults Direct filing of an
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information; discretionary criteria.—
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(1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
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FILE.—
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(a) With respect to any child who was 14 or 15 years of
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age at the time the alleged offense was committed, the state
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attorney may file an information when in the state attorney's
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judgment and discretion the public interest requires that adult
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sanctions be considered or imposed and when the offense charged
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is for the commission of, attempt to commit, or conspiracy to
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commit:
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1. Arson;
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2. Sexual battery;
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3. Robbery;
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4. Kidnapping;
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5. Aggravated child abuse;
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6. Aggravated assault;
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7. Aggravated stalking;
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8. Murder;
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9. Manslaughter;
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10. Unlawful throwing, placing, or discharging of a
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destructive device or bomb;
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11. Armed burglary in violation of s. 810.02(2)(b) or
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specified burglary of a dwelling or structure in violation of s.
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810.02(2)(c), or burglary with an assault or battery in
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violation of s. 810.02(2)(a);
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12. Aggravated battery;
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13. Any lewd or lascivious offense committed upon or in
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the presence of a person less than 16 years of age;
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14. Carrying, displaying, using, threatening, or
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attempting to use a weapon or firearm during the commission of a
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felony;
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15. Grand theft in violation of s. 812.014(2)(a);
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16. Possessing or discharging any weapon or firearm on
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school property in violation of s. 790.115;
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17. Home invasion robbery;
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18. Carjacking; or
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19. Grand theft of a motor vehicle in violation of s.
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812.014(2)(c)6. or grand theft of a motor vehicle valued at
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$20,000 or more in violation of s. 812.014(2)(b) if the child
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has a previous adjudication for grand theft of a motor vehicle
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in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
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(b) With respect to any child who was 16 or 17 years of
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age at the time the alleged forcible felony as defined in s.
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776.08 offense was committed, the state attorney may file an
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information when in the state attorney's judgment and discretion
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the public interest requires that adult sanctions be considered
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or imposed. However, the state attorney may not file an
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information on a child charged with a misdemeanor, unless the
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child has had at least two previous adjudications or
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adjudications withheld for delinquent acts, one of which
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involved an offense classified as a forcible felony as defined
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in s. 776.08 under state law.
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(2) NOTIFICATION TO PARENT OR GUARDIAN.—Upon the filing by
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the state attorney of an information transferring a child to
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adult court, the court must advise the child and his or her
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parent or legal guardian that the child has the right to a due
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process evidentiary hearing before a judge.
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(3) DUE PROCESS EVIDENTIARY HEARING.—Notwithstanding any
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other law, and in all cases, a child charged with a crime or his
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or her parent or legal guardian must be afforded a due process
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evidentiary hearing before a judge after the state attorney
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files an information in adult court under this section.
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(a) The judge shall conduct the hearing within 30 days
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after the information is filed, excluding Saturdays, Sundays,
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and legal holidays, unless the child or the child's attorney
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shows good cause for a delay. The purpose of the hearing is for
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the court to determine whether it is necessary for the
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community's protection that the child be prosecuted in adult
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court. The judge shall consider all of the following:
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1. Evaluations and assessments completed by the
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department.
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2. The sophistication and maturity of the child,
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including:
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a. The effect, if any, of immaturity, impetuosity, or
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failure to appreciate risks and consequences on the child's
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participation in the alleged offense.
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b. The child's age, maturity, intellectual capacity, and
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mental and emotional health at the time of the alleged offense.
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c. The effect, if any, of characteristics attributable to
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the child's youth on his or her judgment.
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3. The record and previous history of the child,
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including:
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a. Previous contacts with the department, the Department
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of Corrections, the Department of Children and Families, other
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law enforcement agencies, and the courts.
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b. Prior periods of probation.
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c. Prior adjudications that the child committed a
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delinquent act or violation of law, with greater weight being
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given if a court previously found that the child committed a
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delinquent act or violation of law involving violence to
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persons.
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d. Prior commitments to institutions of the department,
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the Department of Corrections, or agencies under contract with
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either department.
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e. Any history of trauma, abuse or neglect, foster care
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placements, failed adoption, fetal alcohol syndrome, exposure to
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controlled substances at birth, or below-average intellectual
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functioning.
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f. Identification of the child as a student requiring
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exceptional student education or having previously received
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psychological services.
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4. The nature of the alleged offense and the child's
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participation in it, including:
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a. Whether the alleged offense is punishable by death or
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life imprisonment.
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b. Whether the alleged offense was against persons or
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property.
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c. Whether the alleged offense is alleged to have been
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committed in an aggressive, violent, or premeditated manner.
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d. The extent of the child's participation in the alleged
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offense.
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e. The effect, if any, of familial pressure or peer
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pressure on the child's actions.
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5. The prospects for adequate protection of the public and
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the likelihood of reasonable rehabilitation of the child, if the
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child is found to have committed the alleged offense:
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a. By the use of procedures, services, and facilities
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currently available to the juvenile court.
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b. By the use of procedures, services, and facilities
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currently available to the adult court, including whether the
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lowest permissible sentence under the Criminal Punishment Code
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is a nonstate prison sanction.
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6. Whether the child could obtain habilitative or
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rehabilitative services available in the juvenile justice
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system.
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7. Whether the child could receive a sentence in juvenile
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court which would provide adequate safety and protection for the
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community.
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8. Whether the child's best interests would be served by
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prosecuting the child in juvenile court.
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(b) The judge may consider any reports that may assist the
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court, including prior predisposition reports, psychosocial
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assessments, individual educational plans, developmental
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assessments, school records, abuse or neglect reports, home
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studies, protective investigations, and psychological and
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psychiatric evaluations. The child, the child's parent or legal
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guardian, the child's defense counsel, and the state attorney
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may examine these reports and, at the hearing, question the
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parties responsible for creating such reports.
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(c) The adult court shall retain jurisdiction unless the
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court finds by a preponderance of the evidence that the factors
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listed in paragraph (a) support returning the child to juvenile
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court.
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(d) The adult court shall render an order that includes
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specific findings of fact and the reasons for its decision. The
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prosecution or defense may seek immediate review of the order
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through interlocutory appeal. The order is reviewable on appeal
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under the Florida Rules of Appellate Procedure.
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(4)(2) EFFECT OF PROSECUTING CHILDREN AS ADULTS DIRECT
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FILE.—
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(a) Once a child has been transferred for criminal
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prosecution pursuant to an information and has been found to
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have committed the presenting offense or a lesser included
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offense, the child shall be handled thereafter in every respect
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as if an adult for any subsequent violation of state law, unless
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the court imposes juvenile sanctions under s. 985.565.
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(b) When a child is transferred for criminal prosecution
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as an adult, the court shall immediately transfer and certify to
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the adult circuit court all felony cases pertaining to the
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child, for prosecution of the child as an adult, which have not
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yet resulted in a plea of guilty or nolo contendere or in which
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a finding of guilt has not been made. If a child is acquitted of
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all charged offenses or lesser included offenses contained in
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the original case transferred to adult court, all felony cases
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that were transferred to adult court as a result of this
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paragraph shall be subject to the same penalties to which such
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cases would have been subject before being transferred to adult
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court.
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(c) When a child has been transferred for criminal
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prosecution as an adult and has been found to have committed a
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violation of state law, the disposition of the case may be made
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under s. 985.565 and may include the enforcement of any
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restitution ordered in any juvenile proceeding.
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(5)(3) CHARGES THAT MAY BE INCLUDED IN INFORMATION.—An
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information filed pursuant to this section may include all
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charges that are based on the same act, criminal episode, or
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transaction as the primary offenses.
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Section 4. Subsection (1) of section 985.15, Florida
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Statutes, is amended to read:
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985.15 Filing decisions.—
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(1) The state attorney may in all cases take action
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independent of the action or lack of action of the juvenile
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probation officer and shall determine the action that is in the
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best interest of the public and the child. If the child meets
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the criteria requiring prosecution as an adult under s. 985.556,
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the state attorney shall request the court to transfer and
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certify the child for prosecution as an adult or shall provide
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written reasons to the court for not making such a request. In
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all other cases, The state attorney may:
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(a) File a petition for dependency;
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(b) File a petition under chapter 984;
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(c) File a petition for delinquency;
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(d) File a petition for delinquency with a motion to
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transfer and certify the child for prosecution as an adult;
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(e) File an information under s. 985.557;
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(f) Refer the case to a grand jury;
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(g) Refer the child to a diversionary, pretrial
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intervention, arbitration, or mediation program, or to some
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other treatment or care program if such program commitment is
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voluntarily accepted by the child or the child's parents or
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legal guardian; or
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(h) Decline to file.
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Section 5. Paragraphs (a) and (b) of subsection (4) of
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section 985.565, Florida Statutes, are amended to read:
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985.565 Sentencing powers; procedures; alternatives for
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juveniles prosecuted as adults.—
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(4) SENTENCING ALTERNATIVES.—
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(a) Adult sanctions.—
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1. Cases prosecuted on indictment.—If the child is found
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to have committed the offense punishable by death or life
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imprisonment, the child shall be sentenced as an adult. If the
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juvenile is not found to have committed the indictable offense
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but is found to have committed a lesser included offense or any
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other offense for which he or she was indicted as a part of the
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criminal episode, the court may sentence as follows:
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a. As an adult;
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b. Under chapter 958; or
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c. As a juvenile under this section.
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2. Other cases.—If a child who has been transferred for
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criminal prosecution pursuant to information or waiver of
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juvenile court jurisdiction is found to have committed a
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violation of state law or a lesser included offense for which he
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or she was charged as a part of the criminal episode, the court
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may sentence as follows:
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a. As an adult;
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b. Under chapter 958; or
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c. As a juvenile under this section.
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3. Notwithstanding any other provision to the contrary, if
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the state attorney is required to file a motion to transfer and
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certify the juvenile for prosecution as an adult under s.
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985.556(3) and that motion is granted, the court must impose
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adult sanctions.
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3.4. Any sentence imposing adult sanctions is presumed
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appropriate, and the court is not required to set forth specific
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findings or enumerate the criteria in this subsection as any
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basis for its decision to impose adult sanctions.
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4.5. When a child has been transferred for criminal
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prosecution as an adult and has been found to have committed a
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violation of state law, the disposition of the case may include
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the enforcement of any restitution ordered in any juvenile
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proceeding.
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(b) Juvenile sanctions.—For juveniles transferred to adult
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court but who do not qualify for such transfer under s.
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985.556(3), the court may impose juvenile sanctions under this
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paragraph. If juvenile sentences are imposed, the court shall,
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under this paragraph, adjudge the child to have committed a
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delinquent act. Adjudication of delinquency may not be deemed a
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conviction, nor shall it operate to impose any of the civil
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disabilities ordinarily resulting from a conviction. The court
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shall impose an adult sanction or a juvenile sanction and may
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not sentence the child to a combination of adult and juvenile
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punishments. An adult sanction or a juvenile sanction may
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include enforcement of an order of restitution or probation
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previously ordered in any juvenile proceeding. However, if the
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court imposes a juvenile sanction and the department determines
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that the sanction is unsuitable for the child, the department
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shall return custody of the child to the sentencing court for
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further proceedings, including the imposition of adult
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sanctions. Upon adjudicating a child delinquent under subsection
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(1), the court may:
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1. Place the child in a probation program under the
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supervision of the department for an indeterminate period of
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time until the child reaches the age of 19 years or sooner if
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discharged by order of the court.
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2. Commit the child to the department for treatment in an
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appropriate program for children for an indeterminate period of
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time until the child is 21 or sooner if discharged by the
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department. The department shall notify the court of its intent
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to discharge no later than 14 days before discharge. Failure of
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the court to timely respond to the department's notice shall be
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considered approval for discharge.
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3. Order disposition under ss. 985.435, 985.437, 985.439,
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985.441, 985.45, and 985.455 as an alternative to youthful
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offender or adult sentencing if the court determines not to
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impose youthful offender or adult sanctions.
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It is the intent of the Legislature that the criteria and
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guidelines in this subsection are mandatory and that a
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determination of disposition under this subsection is subject to
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the right of the child to appellate review under s. 985.534.
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Section 6. Subsection (55) of section 985.03, Florida
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Statutes, is amended to read:
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985.03 Definitions.—As used in this chapter, the term:
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(55) "Waiver hearing" means a hearing provided for under
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s. 985.556(3) s. 985.556(4).
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Section 7. This act shall take effect July 1, 2026.