Amendments to probation rules.

In In re: Florida Rules of Criminal Procedure 3.131 and 3.132, case no. SC05-739, the Florida Bar Criminal Procedure Rules Committee (committee) submitted to the Florida Supreme Court, along with other proposals, proposed amendments to Florida Rule of Criminal Procedure 3.790, Probation and Community Control. The proposed amendments to rule 3.790, which were submitted in response to the Jessica Lundsford Act, chapter 2005-28, Laws of Florida, have been severed from the proposals concerning rules 3.131 and 3.132 in case no. SC05-739, and are being considered by the Court separately in In re: Amendments to Florida Rule of Criminal Procedure 3.790, case no. SC05-2381

The court invites all interested persons to comment on the committee's proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before August 15, with a certificate of service verifying that a copy has been served on William C. Vose, committee chair, 1104 Bahama Drive, Orlando 32806-1440, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until August 30 to file a response to any comments filed with the court. Electronic copies of all comments also must be filed in accordance with the court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.790, CASE NO. SC05-2381

RULE 3.790. PROBATION AND COMMUNITY CONTROL

(a) Suspension of the Pronouncement and Imposition of Sentence; Probation or Community Control. Pronouncement and imposition of sentence of imprisonment shall not be made on a defendant who is to be placed on probation, regardless of whether the defendant has been adjudicated guilty. An order of the court placing a person on probation or community control shall place the probationer under the authority of the Department of Corrections to be supervised as provided by law. The court shall specify the length of time during which the defendant is to be supervised.

(b) Revocation of Probation or Community Control; Judgment; Sentence.

(1) When a probationer or a community controllee is brought before a court of competent jurisdiction charged with a violation of probation or community control, the court shall advise the person of the charge and, if the charge is admitted to be true, may immediately enter an order revoking, modifying, or continuing the probation or community control. If the violation of probation or community control is not admitted by the probationer or community controllee, the court may commit the person or release the person with or without bail to await further hearing or it may dismiss the charge of violation of probation or community control. If the charge is not admitted by the probationer or community controllee and if it is not dismissed, the court, as soon as practicable, shall give the probationer or community controllee an opportunity to be fully heard in person, by counsel, or both. After the hearing, the court may enter an order revoking, modifying, or continuing the probation or community control. Following a revocation of probation or community control, the trial court shall adjudicate the defendant guilty of the crime forming the basis of the probation or community control if no such adjudication has been made previously. Pronouncement and imposition of sentence then shall be made on the defendant.

(2) When a probationer or community controllee is arrested violating his or her probation or community control in a material respect and is under supervision for any criminal offense proscribed in chapter 794, Florida Statutes, section 800.04(4), Florida Statutes, section 800.04(5), Florida Statutes, section 800.04(6), Florida Statutes, section 827.071, Florida Statutes, or section 847.0145, Florida Statutes, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which, but for the effective date, he or she would meet the registration criteria of section 775.21, Florida Statutes, section 943.0435, Florida Statutes, or section 944.607, Florida Statutes, the court must determine whether the probationer or community controllee is a danger to the public prior to release with or without bail.

(A) The hearing to determine whether the offender is a danger to the public shall be conducted by a court of competent jurisdiction no sooner than 24 hours after arrest. The time for conducting the hearing may be extended at the request of the accused, or at the request of the state upon a showing of good cause.

(B) At the hearing, the offender shall have the right to be heard in person or through counsel, to present witnesses and evidence, and to cross-examine witnesses.

(C) In determining the danger posed by the offender's release, the court may consider the nature and circumstances of the violation and any new offenses charged; the offender's past and present conduct, including convictions crimes; any record of arrests without conviction for of crimes involving violence or sexual crimes; any other evidence of allegations of unlawful sexual conduct or the use of violence by the offender; the offender's family ties, length of residence in the community, employment history, and mental condition; his or her history and conduct during the probation or community control supervision from which the violation arises and any other previous supervisions, including disciplinary records of previous incarcerations; the likelihood that the offender will engage again in a criminal course of conduct; the weight of the evidence against the offender; and any other facts the court considers relevant.