944.35 Authorized use of force; malicious battery and sexual misconduct prohibited; reporting required; penalties.—
(1)(a) An employee of the department is authorized to apply physical force upon an inmate only when and to the extent that it reasonably appears necessary:
1. To defend himself or herself or another against such other imminent use of unlawful force;
2. To prevent a person from escaping from a state correctional institution when the officer reasonably believes that person is lawfully detained in such institution;
3. To prevent damage to property;
4. To quell a disturbance;
5. To overcome physical resistance to a lawful command; or
6. To administer medical treatment only by or under the supervision of a physician or his or her designee and only:
a. When treatment is necessary to protect the health of other persons, as in the case of contagious or venereal diseases; or
b. When treatment is offered in satisfaction of a duty to protect the inmate against self-inflicted injury or death.
As part of the correctional officer training program, the Criminal Justice Standards and Training Commission shall develop a course specifically designed to explain the parameters of this subsection and to teach the proper methods and techniques in applying authorized physical force upon an inmate.
(b) Following any use of force, a qualified health care provider shall examine any person physically involved to determine the extent of injury, if any, and shall prepare a report which shall include, but not be limited to, a statement of whether further examination by a physician is necessary. Any noticeable physical injury shall be examined by a physician, and the physician shall prepare a report documenting the extent and probable cause of the injury and the treatment prescribed. Such report shall be completed within 5 working days of the incident and shall be submitted to the warden for appropriate investigation.
(2) Each employee of the department who either applies physical force or was responsible for making the decision to apply physical force upon an inmate or an offender supervised by the department in the community pursuant to this subsection shall prepare, date, and sign an independent report within 1 working day of the incident. The report shall be delivered to the warden or the circuit administrator, who shall forward the report with all appropriate documentation to the office of the inspector general. The inspector general shall conduct a review and make recommendations regarding the appropriateness or inappropriateness of the use of force. If the inspector general finds that the use of force was appropriate, the employee’s report, together with the inspector general’s written determination of the appropriateness of the force used and the reasons therefor, shall be forwarded to the circuit administrator or warden upon completion of the review. If the inspector general finds that the use of force was inappropriate, the inspector general shall conduct a complete investigation into the incident and forward the findings of fact to the appropriate regional director for further action. Copies of the employee’s report and the inspector general’s review shall be kept in the files of the inmate or the offender supervised by the department in the community. A notation of each incident involving use of force and the outcome based on the inspector general’s evaluation shall be kept in the employee’s file.
(3)(a)1. Any employee of the department who, with malicious intent, commits a battery upon an inmate or an offender supervised by the department in the community, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
2. Any employee of the department who, with malicious intent, commits a battery or inflicts cruel or inhuman treatment by neglect or otherwise, and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to an inmate or an offender supervised by the department in the community, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b)1. As used in this paragraph, the term:
a. “Contractor-operated correctional facility” has the same meaning as in s. 944.710.
b. “Female genitals” includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.
c. “Sexual misconduct” means the oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female genital penetration of another by any other object, but does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of the employee’s duty.
d. “Volunteer” means a person registered with the department or a contractor-operated correctional facility who is engaged in specific voluntary service activities on an ongoing or continual basis.
2. Any employee of the department or a contractor-operated correctional facility or any volunteer in, or any employee of a contractor or subcontractor of, the department or a contractor-operated correctional facility who engages in sexual misconduct with an inmate or an offender supervised by the department in the community, without committing the crime of sexual battery, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. The consent of the inmate or offender supervised by the department in the community to any act of sexual misconduct may not be raised as a defense to a prosecution under this paragraph.
4. This paragraph does not apply to any employee, volunteer, or employee of a contractor or subcontractor of the department or any employee, volunteer, or employee of a contractor or subcontractor of a contractor-operated correctional facility who is legally married to an inmate or an offender supervised by the department in the community, nor does it apply to any employee, volunteer, or employee of a contractor or subcontractor who has no knowledge, and would have no reason to believe, that the person with whom the employee, volunteer, or employee of a contractor or subcontractor has engaged in sexual misconduct is an inmate or an offender under community supervision of the department.
(c) Notwithstanding prosecution, any violation of the provisions of this subsection, as determined by the Public Employees Relations Commission, shall constitute sufficient cause under s. 110.227 for dismissal from employment with the department, and such person shall not again be employed in any capacity in connection with the correctional system.
(d) Each employee who witnesses, or has reasonable cause to suspect, that an inmate or an offender under the supervision of the department in the community has been unlawfully abused or is the subject of sexual misconduct pursuant to this subsection shall immediately prepare, date, and sign an independent report specifically describing the nature of the force used or the nature of the sexual misconduct, the location and time of the incident, and the persons involved. The report shall be delivered to the inspector general of the department with a copy to be delivered to the warden of the institution or the regional administrator. The inspector general shall immediately conduct an appropriate investigation, and, if probable cause is determined that a violation of this subsection has occurred, the respective state attorney in the circuit in which the incident occurred shall be notified.
(4)(a) Any employee required to report pursuant to this section who knowingly or willfully fails to do so, or who knowingly or willfully prevents another person from doing so, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person who knowingly or willfully submits inaccurate, incomplete, or untruthful information with regard to reports required in this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) Any person who knowingly or willfully coerces or threatens any other person with the intent to alter either testimony or a written report regarding an incident where force was used or an incident of sexual misconduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
As part of the correctional officer training program, the Criminal Justice Standards and Training Commission shall develop course materials for inclusion in the appropriate required course specifically designed to explain the parameters of this subsection and to teach sexual assault identification and prevention methods and techniques.
Cited 13 times | Published | Florida 4th District Court of Appeal | 1996 WL 1113
...Thus, because there *1105 was no express authority to forcibly treat a prisoner, the attorney general concluded: ... it is my opinion that prisoners are governed by the same rule and may not be forcibly treated without consent, even though such treatment is necessary to save the prisoner's life. Id. Although section 944.35(1)(f)(2) allows the DOC to use force in administering medical treatment, we hold that a prisoner retains the fundamental right to privacy espoused by Article I, section 23 of the Florida Constitution....
...Smith, An End to Silence: Prisoners’ Handbook on Identifying and
Addressing Sexual Misconduct 21 (2d ed. 2002) (stating that nineteen states and
the District of Columbia provide for criminal liability for correctional staff even if
a prisoner consents to or voluntarily engages in sex); see, e.g., Fla. Stat.
§ 944.35(3)(b)(1), (3)(b)(3); Ga....
SAWAYA, J. The issue we must resolve is whether the Legislature intended section 944.35(l)(a), Florida Statutes (2011), to preclude a correctional officer from asserting the “stand your ground” defense provided in section 776.032, Florida Statutes (2011)....
...th this court. In that Petition, he requests this court issue a writ directing the trial court to hold an evidentiary hearing pursuant to section 776.032. Heilman contends the writ is necessitated by an order rendered by the trial court holding that section 944.35(l)(a), which lists specified circumstances in which a correctional officer is authorized to use force against an inmate, provides the defense for Heilman and precludes him from asserting the immunity and justification defense provided under section 776.032....
...The trial court denied the motion and the requested hearing based solely on the rationale of State v. Caamano, 105 So.3d 18 (Fla. 2d DCA 2012). Specifically, the court held that “[ajpplying the court’s reasoning in Caamano ... to the instant case, the specific language of section 944.35(l)(a), Florida Statutes, governs the Defendant’s use of force rather than section 776.032, Florida Statutes.” We believe that the trial court’s reliance on Caamano is misplaced because that case is clearly distinguishable from the instant case....
...nd reference a defense to, and immunity from, criminal prosecution. The immunity from criminal prosecution extends to “arresting, detaining in custody, and charging or prosecuting the defendant.” § 776.032(1), Fla. Stat. (2011). When we analyze section 944.35, we see a different statute. Section 944.35 is found in chapter 944, “The Florida Corrections Code of 1957,” 5 and the stated purpose of the statutes in chapter 944 is to make the correctional system in Florida more efficient and effective and to reduce recidivism. See § 944.012, Fla. Stat. (2011). While section 776.032 specifically provides a justification defense that immunizes an individual from criminal prosecution, no similar provision is found in section 944.35(l)(a). Rather, in section 944.35(l)(a), the Legislature utilized the term “authorized” (meaning “to give au *516 thority or power to”) 6 to provide criteria for and to specify the circumstances in which employees of the Department of Corrections may use physical force against inmates....
...The reasons this criteria and these circumstances are specified in the statute include the following: so that courses of instruction may be developed to “teach the proper methods and techniques in applying authorized physical force on an inmate,” section 944.35(l)(a); for reporting purposes and examination of inmates allegedly injured by the use of force by an employee, section 944.35(l)(b) and (2); for disciplinary action and dismissal from employment, section 944.35(3)(c); and to provide criminal penalties for employees of the Department of Corrections who use unauthorized physical force on inmates, section 944.35(3)(a) and (b). We, therefore, reject the implicit rationale adopted by the trial court that under the holding of Caamano , section 944.35(1) and section 776.032 are analogous to the point where the former precludes application of the latter to correctional officers. We also note that section 944.35 was enacted long before section 776.032, and we hardly think that the Legislature intended that statute preclude application of a statute that had not yet been enacted....
...etained in such institution under sentence for an offense or awaiting trial or commitment for an offense.” Under the Caamano rationale, this statute would appear to preclude application of the justification defense provided in section 776.032. But section 944.35(l)(a)2., Florida Statutes (2011), also addresses situations involving force by correctional officers in cases involving escape....
...an inmate only when and to the extent that it reasonably appears necessary ... [t]o prevent a person from escaping from a state correctional institution when the officer reasonably believes that person is lawfully detained in such institution!!]” § 944.35(l)(a)2., Fla....
...If we apply the Caamano rationale, it would appear that section 776.07(2) is a more specific statute intended to preclude application of section 776.032 in cases involving force used by correctional officers to prevent an escape. But if, under the Caama-no rationale, section 944.35(1) preempts section 776.032, there would be no reason for the Legislature to enact section 776.07(2) in the first instance....
...7 *517 The primary focus of our analysis has been to discern legislative intent — the proverbial polestar that guides statutory construction, see Bautista v. State, 863 So.2d 1180 (Fla.2003) — and the conclusions we reach are that the Legislature did not intend that section 944.35(1) preempt section 776.032 and that the Legislature did intend that section 776.032 apply to correctional officers with the exception provided in section 776.07(2)....
...At the time, (inmate) was an [inmate] [offender supervised by the
facility].
§ 951.221(1), Fla. Stat. Consent is not a defense.
The consent of an [inmate] [offender] to any act of sexual misconduct is
not a defense to the crime of Sexual Misconduct.
Definitions.
§ 951.221(1), Fla. Stat. and § 944.35(3)(b)1, Fla....
...Specifically, Lewis contests the 80 points assessed for victim injury on his criminal punishment code scoresheet. Lewis argues victim injury points are inappropriate because section 921.0021(7)(a) prohibits such points from being assessed for violations of a similar statute, section 944.35(3)(b)2., Florida Statutes (2002)....
...As the resolution of this appeal hinges upon statutory construction, the appeal is reviewed de novo. See State v. Burkhart, 869 So.2d 1242, 1244 (Fla. 4th DCA 2004). Section 921.0021(7)(c), exempts the assessment of victim injury points when the defendant is convicted of a violation of section 944.35(3)(b)2., which is similar to section 951.221(1), but applies exclusively to State Department of Corrections employees. § 944.35(3)(b)2., Fla....
...were not placed there by the Legislature.”). We write, however, to suggest the Legislature may wish -to readdress section 921.0021(7)(e), insomuch as the law provides an exemption from victim injury points to a State detention worker who violates section 944.35(3)(b)2., but' does not provide the same exemption to a county or municipal detention worker who violates section 951.221(1)....
inmates, the Department dismissed appellees. Section 944.35, Florida Statutes (1981); and Rule 33-4.03(21)
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