5 bills that could reshape criminal justice in Florida

The bills touch on elder abuse, victimized children, criminal records and more.
Five bills are poised to reshape Florida’s criminal justice system in the coming years.
Five bills are poised to reshape Florida’s criminal justice system in the coming years. [ BRIANAJACKSON | South Florida Sun-Sentinel ]
Published May 29

This year, Florida legislators dramatically reshaped the state’s death penalty and quickly passed a bill allowing people to carry firearms without training.

Those bills garnered statewide and national headlines, hourslong debates and broad public interest.

Less noticed, though, was a slew of other consequential criminal justice bills. Here are five bills poised to reshape Florida’s criminal justice system in the coming years.

HB 667 Deposing victimized children

Passed the House 112-0, passed the Senate 36-4. Sponsored by Rep. Jessica Baker, R-Jacksonville, Rep. Taylor Yarkosky, R-Montverde. Signed by Gov. Ron DeSantis.

This legislation would put speed bumps on the path of defense attorneys taking the discovery deposition of children who are victims of sex crimes.

Before a defense attorney can depose a victim of a sex crime under 16 years old, the court would need to have a hearing to determine if the deposition is appropriate, considering things like the victim’s maturity, the nature of the offense, the relationship of the victim to the defendant and whether the evidence sought is available by other means.

For victims of sex crimes under 12, the bill puts into statute a “presumption that the taking of the victim’s deposition is not appropriate” unless the state has filed a notice to seek the death penalty or if a forensic interview is not available.

Applying the death penalty to someone who commits rape of a child is unconstitutional, based on U.S. Supreme Court precedent, but another bill passed this session would change that. Rep. Jessica Baker, who sponsored this bill, also sponsored the death penalty challenge.

If the ability to depose a child victim is granted by the court, a judge could order stipulations, such as limiting the length of the deposition, prohibiting certain people from attending or requiring questions be submitted ahead of time.

The final version of the bill took pieces from a few different pieces of legislation — one of which Sen. Danny Burgess, R-Zephyrhills, sponsored. Burgess said that the legislation would be a way to protect the most vulnerable victims, and that other states have moved toward a similar standard.

Opponents of the bill, like the Florida Public Defenders Association, said that without the private, smaller depositions, victims may have to testify during a trial, which could inadvertently cause them more trauma.

HB 605 Expunction second chances

Passed the House 107-0, passed the Senate 38-0. Sponsored by Rep. David Smith, R-Winter Springs, Rep. Michael Gottlieb, D-Davie.

Under current law, if someone gets their criminal record expunged as a juvenile, they can no longer have a criminal record expunged as an adult.

That could soon change if Gov. Ron DeSantis signs this bill into law. The legislation allows for an expunction of a person’s adult criminal record even if they had an offense scrubbed as a minor, so long as they weren’t charged as an adult for that crime.

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A person can petition for expunction if they were arrested but had the charges dropped or weren’t charged by prosecutors, unless they were dismissed because they were found incompetent to stand trial. A person can also have their record expunged if they were found not guilty.

Rep. David Smith, R-Winter Springs, said the bill will help with worker shortages by allowing employees to put their best foot forward.

“These are people who have never been convicted of a crime in Florida,” Smith said. “I think that’s why employers are looking for this. They like this.”

The move comes on the heels of Florida’s recent juvenile criminal record expungement bill, which lets juveniles who complete diversion programs have their record cleared as long as their charges weren’t “forcible felonies,” which includes murder, carjacking, burglary and other crimes that involve the use of or threat of physical force.

HB 365 Capital drug crimes

Passed by the House 85-28, passed by the Senate 31-6. Sponsored by Rep. Rachel Lora Saunders Plakon, R-Lake Mary.

In Florida, people can be charged with murder — eligible for the death penalty — if someone dies because of drugs they distributed.

For years, the state has ruled that those substances should be the “proximate cause” of death for someone to be charged. But this legislation lowers that threshold to a “substantial factor.”

Bill sponsors have said that medical examiners have a difficult time determining when someone’s death is caused by a single substance, like fentanyl, when many people who die of an overdose have other substances in their system at the time, making it hard to prosecute.

The bill also creates a new penalty that allows for someone to be charged with a second-degree felony if a specific drug they distributed results in a nonfatal overdose.

Some lawmakers and opponents raised concerns that the wrong people would be targeted by the law — including drug addicts themselves, who may share drugs with other people with addiction, or young adults sharing drugs not knowing what is in them.

But Sen. Jason Brodeur, R-Lake Mary, who sponsored the bill in the Senate, said prosecutors could already charge in those cases under current law.

The bill includes a clause that says that if someone is “acting in good faith” and seeks medical assistance for someone experiencing an overdose, they can receive immunity from arrest for possession of drug paraphernalia or possession of a controlled substance, according to a House analysis of the bill.

SB 232 Elder abuse

Passed the House 115-0, passed the Senate 38-0. Sponsored by Sen. Ileana Garcia, R-Miami. Signed by DeSantis.

If someone exploits a person over 65 years old out of their property, they could commit a first-degree felony under the provisions created by this bill.

The bill expands Florida’s current law regarding exploitation of an elderly person, which only applies to a subset of elders, including those who are suffering from mental and physical dysfunction. The current statute also allows for prosecution in most cases only if the individual stands in a position of trust, has a business relationship with the elder, reasonably knows the elder cannot consent, or is their guardian.

Under the proposed legislation, any person, regardless of relationship, can commit exploitation if they obtain or seek to obtain any property of a person over 65 years old, regardless of that elder’s mental status. Someone can be charged if they obtain the property through “deception or intimidation” — including telling the elder that they will be deprived of food, clothing, shelter or medicine.

A person would also commit exploitation if they seek to alter or intimidate the elder into changing their will or trusts in order to get their property.

If the property is worth more than $50,000, it would be a first-degree felony. It would be a second-degree felony if worth more than $10,000 but less than $50,000.

The legislation also creates an avenue for an elder who is in “imminent danger” of being exploited to petition for an injunction.

According to a 2021 FBI report, Florida ranked second in the nation for fraud victims older than 60. The FBI estimates that about 9,600 elders in Florida were victims of fraud, and that their losses totaled about $224,205,71.

HB 95 Law enforcement officer accountability

Passed House 93-17, passed Senate 39-0. Sponsored by Rep. Wyman Duggan, R-Jacksonville.

State attorney’s offices across Florida can keep lists of law enforcement officers with questionable credibility. Often those lists include officers who have lied on the stand, falsified evidence or been arrested for various crimes.

This legislation, supported by the Fraternal Order of Police, would allow officers to petition to be removed from that list.

The bill specifies that officers have the right to know about their inclusion on a so-called “Brady list,” and cannot be disciplined solely for being on the list. An agency could still discipline or remove an officer for the event that put them on the list, however.

The Brady list was born out of a 1960s U.S. Supreme Court case, which determined that state attorneys must disclose exculpatory evidence to the defense, including incidents that could lead to an officer’s credibility being called into question, according to a Senate analysis of the bill.

State attorneys would not have to maintain a Brady list under the bill, and can instead determine “in its discretion” that its obligation to disclose that information can be done through another vehicle.

Officers who are notified that their names are on the list could request the prosecutor to reconsider, and will have the right to submit documents and evidence in support of their request.

An officer does not have to be notified of their placement on the list if the information relates to a criminal conviction or a finalized internal affairs complaint, both of which could be used for impeachment of a witness.

Jacksonville Rep. Wyman Duggan sponsored the legislation, and Jacksonville’s police union has pushed for changes to how the list is handled, according to First Coast News. In that judicial circuit, 90 officers were on the list at the start of the year. Reasons for being on the list included DUIs, domestic battery, evidence tampering, etc.