| 50 | | - | An Act relating to sentencing; creating the Oklahoma |
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| 51 | | - | Domestic Abuse Survivorship Act; defining terms; |
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| 52 | | - | directing courts to consider certain mitigating |
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| 53 | | - | factors during sentencing and pleas; requiring |
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| 54 | | - | defendants to provide documentary evidence; providing |
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| 55 | | - | the court the discretion to depart from applica ble |
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| 56 | | - | sentences; requiring certain attorneys to complete |
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| 57 | | - | annual education and training; am ending 22 O.S. 2021, |
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| 58 | | - | Section 982, which r elates to presentence |
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| 59 | | - | investigations; expanding scope of circumstances; |
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| 60 | | - | providing for codification; and providing an |
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| 61 | | - | effective date. |
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| 44 | + | [ sentencing - Oklahoma Domestic Abuse Survivorship |
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| 45 | + | Act - mitigating factors - documentary evidence - |
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| 46 | + | discretion to depart from applica ble sentences – |
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| 47 | + | evaluation - annual education and training – |
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| 48 | + | codification - effective date ] |
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| 98 | | - | Sections 1 through 4 of this act shall be known and may be cited |
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| 99 | | - | as the "Oklahoma Domestic Abuse Survivorship Ac t". |
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| 100 | | - | SECTION 2. NEW LAW A new section of law to be codified |
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| 101 | | - | in the Oklahoma Statu tes as Section 1090.1 of Title 22, unless there |
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| 102 | | - | is created a duplication in numbering, reads as follows: |
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| 103 | | - | As used in this act: |
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| 104 | | - | 1. "Conditional release" means a type of release from custody |
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| 105 | | - | that is not parole but which must comply with conditions such as |
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| 106 | | - | electronic monitoring; |
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| 107 | | - | 2. "Deferred sentence" means a type of sentence as provided in |
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| 108 | | - | Section 991c of Title 22 of the Oklahoma Statu tes; |
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| 109 | | - | 3. "Domestic abuse" means any act of physical harm or the |
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| 110 | | - | threat of imminent physical harm which is committed by an adult, |
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| 111 | | - | emancipated minor, or minor child thirteen (13) years of age or |
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| 112 | | - | older against another adult, emancipated minor or minor child who is |
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| 113 | | - | currently or was previously an intimate pa rtner or family or |
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| 114 | | - | household member; |
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| 115 | | - | 4. "Physical abuse" means any real or threatened physical |
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| 116 | | - | injury or damage to the body that is not accidental; |
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| 117 | | - | 5. "Posttraumatic stress disorder" means the same as such term |
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| 118 | | - | is defined in the Diagnostic and Statistica l Manual of Mental |
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| 119 | | - | Disorders, Fifth Edition (DSM-5, 2013), and occurred as a result of |
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| 120 | | - | the victimization of a survivor of domestic abuse; |
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| 84 | + | Passed the Senate the 24th day of April, 2023. |
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| 151 | | - | 7. "Sentencing hearing" means a type of postconviction hearing |
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| 152 | | - | in which the defendant is brought before the court for imposition of |
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| 153 | | - | the sentence. |
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| 154 | | - | SECTION 3. NEW LAW A new section of law to be codified |
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| 155 | | - | in the Oklahoma Statutes as Section 1090.2 of Title 22, unless there |
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| 131 | + | |
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| 132 | + | Daniels of the Senate |
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| 133 | + | |
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| 134 | + | |
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| 135 | + | |
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| 136 | + | |
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| 137 | + | |
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| 138 | + | [ sentencing - Oklahoma Domestic Abuse Survivorship |
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| 139 | + | Act - mitigating factors - documentary evidence - |
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| 140 | + | discretion to depart from applica ble sentences – |
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| 141 | + | evaluation - annual education and training – |
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| 142 | + | codification - effective date ] |
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| 143 | + | |
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| 144 | + | |
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| 145 | + | |
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| 146 | + | |
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| 147 | + | BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
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| 148 | + | SECTION 1. NEW LAW A new section of law to be codified |
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| 149 | + | in the Oklahoma Statutes as Section 1090 of Title 22, unless there |
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| 157 | | - | A. During a hearing to: |
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| 158 | | - | 1. Sentence a person; or |
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| 159 | | - | 2. Accept a plea of guilty, |
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| 160 | | - | for a person who is a survivor of domestic abuse, and has been |
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| 161 | | - | charged with the crime against his or her intimate partner where |
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| 162 | | - | self-defense could have been raised as an affirmative defense, the |
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| 163 | | - | court shall consider as a mitigati ng factor that the person has been |
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| 164 | | - | abused physically, sexually, or psychologically by the person the |
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| 165 | | - | defendant defended himself or herself against, along with any other |
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| 166 | | - | mitigating or aggravating factors. |
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| 167 | | - | B. The defendant shall provide to the co urt evidence including, |
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| 168 | | - | but not limited to: |
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| 169 | | - | 1. Documentary evidence, corroborating that the defendant was, |
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| 170 | | - | at the time of the offense or within one (1) year prior to the |
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| 151 | + | Sections 1 through 4 of this act shall be known and may be cited |
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| 152 | + | as the "Oklahoma Domestic Abuse Survivorship Ac t". |
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| 153 | + | SECTION 2. NEW LAW A new section of law to be codified |
|---|
| 154 | + | in the Oklahoma Statu tes as Section 1090.1 of Title 22, unless there |
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| 155 | + | is created a duplication in numbering, reads as follows: |
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| 156 | + | As used in this act: |
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| 197 | | - | commission of the offense, a victim of domestic abuse, as such term |
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| 198 | | - | is defined in Section 2 of this act, perpetrated by the person the |
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| 199 | | - | defendant defended himself or herself against; and |
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| 200 | | - | 2. At least one piece of documentary evidence shall be a court |
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| 201 | | - | record, presentence report, social services record, hospital record, |
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| 202 | | - | sworn statement from a witness to the domestic violence who is not |
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| 203 | | - | the defendant, law enforcement record, domestic incident report, or |
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| 204 | | - | order of protection. |
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| 205 | | - | Other evidence may include, but sha ll not be limited to, local |
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| 206 | | - | jail records or records of the Department of Corrections, |
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| 207 | | - | documentation prepared at or near the time of the commission of the |
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| 208 | | - | offense or the prosecution thereof tending to support the claims of |
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| 209 | | - | the defendant, or verification of consultation with a licensed |
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| 210 | | - | medical care provider or mental health care provider, employee of a |
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| 211 | | - | court acting within the scope of his or her employment, member of |
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| 212 | | - | the clergy, attorney, social worker, or rape crisis counselor , or |
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| 213 | | - | other advocate acting on be half of an agency that assists vic tims of |
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| 214 | | - | domestic abuse. Expert testimony from a psychiatrist, psycholog ist, |
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| 215 | | - | or mental health professional showing that the defendant has been |
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| 216 | | - | diagnosed with posttraumatic stress disorder as a result of domestic |
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| 217 | | - | violence may also be submitted to the court as evidence. |
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| 218 | | - | C. If the court finds by a preponderance of the e vidence that |
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| 219 | | - | the defendant is a survivor of domestic abuse within one (1) year |
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| 220 | | - | prior to or on the date of the offense by the person the defendant |
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| 183 | + | 1. "Conditional release" means a type of release from custody |
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| 184 | + | that is not parole but which must comply with conditions such as |
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| 185 | + | electronic monitoring; |
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| 186 | + | 2. "Deferred sentence" means a type of sentence as provided in |
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| 187 | + | Section 991c of Title 22 of the Oklahoma Statu tes; |
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| 188 | + | 3. "Domestic abuse" means any act of physical harm or the |
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| 189 | + | threat of imminent physical harm which is committed by an adult, |
|---|
| 190 | + | emancipated minor, or minor child thirteen (13) years of age or |
|---|
| 191 | + | older against another adult, emancipated minor or minor child who is |
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| 192 | + | currently or was previously an intimate partner or family or |
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| 193 | + | household member; |
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| 194 | + | 4. "Physical abuse" means any real or threatened physical |
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| 195 | + | injury or damage to the body that is not accidental ; |
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| 196 | + | 5. "Posttraumatic stress disorder" means the same as such term |
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| 197 | + | is defined in the Diagnostic and Statistical Manual of Mental |
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| 198 | + | Disorders, Fifth Edition (DSM-5, 2013), and occurred as a result of |
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| 199 | + | the victimization of a survivor; |
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| 200 | + | 6. "Psychological abuse" means a pattern of real or threatened |
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| 201 | + | mental intimidation, threats, coercive control, economic-financial |
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| 202 | + | control, and humiliation that is intended to provoke fear of harm ; |
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| 203 | + | and |
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| 204 | + | 7. "Sentencing hearing" means a type of postconviction hearing |
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| 205 | + | in which the defendant is brought before the court for imposition of |
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| 206 | + | the sentence. |
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| 254 | | - | A. Any district attorney, assistant district attorney, public |
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| 255 | | - | defender, assistant public defender, attorney employ ed by or under |
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| 256 | | - | contract with the Oklahoma Indigent Defense System, court -appointed |
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| 257 | | - | attorney, private defense attorneys, or attorney employed by or |
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| 258 | | - | under contract with a district court whose duties include domestic |
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| 259 | | - | violence responsibility shall complete at least three (3) hours of |
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| 260 | | - | education and training annually in courses relating to the topics |
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| 261 | | - | described in paragraph 1 of subsection A of this section. The |
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| 262 | | - | education and training requirements may be accomplished through a |
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| 263 | | - | collaborative effort between the judiciary and others with dome stic |
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| 264 | | - | violence responsibilities. |
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| 265 | | - | B. Each judicial district shall be responsible for developing |
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| 266 | | - | and administering procedures and rules for such courses for |
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| 267 | | - | attorneys identified in paragraph 1 of this subsection whose duties |
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| 268 | | - | routinely include domestic violen ce responsibilities. The chief |
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| 269 | | - | judge of each judici al district, or any designee judge with domestic |
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| 236 | + | A. During a hearing to: |
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| 237 | + | 1. Sentence a person; or |
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| 238 | + | 2. Accept a plea of guilty, |
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| 239 | + | for a person who is a survivor of domestic abuse, and has been |
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| 240 | + | charged with the crime against his or her intimate partner where |
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| 241 | + | self-defense could have been raised as an affirmative defense, the |
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| 242 | + | court shall consider as a mitigati ng factor that the person has been |
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| 243 | + | abused physically, sexually, or psychologically by the person the |
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| 244 | + | defendant defended his or herself against; |
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| 245 | + | B. The defendant shall provide to the co urt evidence including, |
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| 246 | + | but not limited to: |
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| 247 | + | 1. Documentary evidence, corroborating that the defendant was, |
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| 248 | + | at the time of the offense or within one (1) year prior to the |
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| 249 | + | commission of the offense, a victim of domestic abuse, as such term |
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| 250 | + | is defined in Section 2 of this act, perpetrated by the person the |
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| 251 | + | defendant defended his or herself against; and |
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| 252 | + | 2. At least one piece of documentary evidence shall be a court |
|---|
| 253 | + | record, presentence report, social services record, hospital record, |
|---|
| 254 | + | sworn statement from a witness to the domestic violence who is not |
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| 255 | + | the defendant, law enforcement record, domestic incident report, or |
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| 256 | + | order of protection. |
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| 296 | | - | violence case responsibilities, shal l carry out this mandate within |
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| 297 | | - | one (1) year of the effective date of this act. |
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| 298 | | - | SECTION 5. AMENDATORY 22 O.S . 2021, Section 982, is |
|---|
| 299 | | - | amended to read as follows: |
|---|
| 300 | | - | Section 982. A. Whenever a person is convicted of a violent |
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| 301 | | - | felony offense whether the conviction is for a single offense or |
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| 302 | | - | part of any combination of offenses, except when the death sentence |
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| 303 | | - | is available as punishment for the of fense, the court may, before |
|---|
| 304 | | - | imposing the sentence, require a presentence investigation be mad e |
|---|
| 305 | | - | of the offender by the Department of Corrections. The court shall |
|---|
| 306 | | - | order the defendant to pay a fee to the Department of Corrections of |
|---|
| 307 | | - | not less than Fifty Doll ars ($50.00) nor more than Five Hundred |
|---|
| 308 | | - | Dollars ($500.00) for the presentence investigation. In hardship |
|---|
| 309 | | - | cases, the court may reduce the amount of the fee and establish a |
|---|
| 310 | | - | payment schedule. |
|---|
| 311 | | - | B. Whenever a person has a prior felo ny conviction and enters a |
|---|
| 312 | | - | plea of guilty or nolo contendere to a felony offense other than a |
|---|
| 313 | | - | violent felony offense, with out an agreement by the district |
|---|
| 314 | | - | attorney regarding the sentence to be imposed, the court may order a |
|---|
| 315 | | - | presentence investigation be mad e by the Department of Corre ctions. |
|---|
| 316 | | - | The fee provided in subsection A of this section shall apply to |
|---|
| 317 | | - | persons subject to th is subsection. |
|---|
| 318 | | - | C. Whenever a person has entered a plea of not guilty to a |
|---|
| 319 | | - | nonviolent felony offense and is found guilty by a court fo llowing a |
|---|
| 283 | + | Other evidence may include, but shall not be limited to, local |
|---|
| 284 | + | jail records or records of the Department of Corrections, |
|---|
| 285 | + | documentation prepared at or near the time of the commission of the |
|---|
| 286 | + | offense or the prosecution thereof tending to support the claims of |
|---|
| 287 | + | the person, or verification of consu ltation with a licensed medic al |
|---|
| 288 | + | care provider or mental health care provider, employee of a court |
|---|
| 289 | + | acting within the scope of his or her employment, member of the |
|---|
| 290 | + | clergy, attorney, social worker, or rape crisis counselor , or other |
|---|
| 291 | + | advocate acting on behalf of an agency that assists vic tims of |
|---|
| 292 | + | domestic abuse. Expert testimony from a psychiatrist, psycholog ist, |
|---|
| 293 | + | or mental health professional showing that the defendant has been |
|---|
| 294 | + | diagnosed with posttraumatic stress disorder may also be submitted |
|---|
| 295 | + | to the court as evidence. |
|---|
| 296 | + | C. If the court finds by a preponderance of the e vidence that |
|---|
| 297 | + | the defendant is a survivor of domestic abuse within one (1) year |
|---|
| 298 | + | prior to or on the date of the offense by the person the defendant |
|---|
| 299 | + | defended his or herself ag ainst, then the court shall have the |
|---|
| 300 | + | discretion to depart from the applicable sentence. Furthermore, if |
|---|
| 301 | + | the defendant is pregnant at the time of sentencing, the court shall |
|---|
| 302 | + | be authorized to give due re gard to such condition of the defe ndant |
|---|
| 303 | + | when departing from the applicable sentence. |
|---|
| 304 | + | D. Within seventy-two (72) hours after the arrest of a person |
|---|
| 305 | + | described in subsection A of this section, a psychological or |
|---|
| 306 | + | psychiatric evaluation routinely used by the Department of Mental |
|---|
| 346 | | - | non-jury trial, the court may require a presentence investigation be |
|---|
| 347 | | - | made by the Department of Corrections. The fee provided in |
|---|
| 348 | | - | subsection A of this section shall apply to persons subject to this |
|---|
| 349 | | - | subsection. |
|---|
| 350 | | - | D. When conducting a presentence inv estigation, the Department |
|---|
| 351 | | - | shall inquire into the circumstances of the offense and the |
|---|
| 352 | | - | characteristics of the offender. T he information obtained from the |
|---|
| 353 | | - | investigation shall include, but not be limited to, a voluntary |
|---|
| 354 | | - | statement from each victim of the off ense concerning the nature o f |
|---|
| 355 | | - | the offense and the impact of the offense on the victim and the |
|---|
| 356 | | - | immediate family of the vict im, the amount of the loss suffered or |
|---|
| 357 | | - | incurred by the victim as a result of the criminal conduct of the |
|---|
| 358 | | - | offender, and the age, marita l status, living arrangement s, |
|---|
| 359 | | - | financial obligations, income, family history and education, prior |
|---|
| 360 | | - | juvenile and criminal re cords, prior abusive relationships, prior |
|---|
| 361 | | - | sexual assaults, prior experiences being human trafficked , |
|---|
| 362 | | - | associations with other persons c onvicted of a felony offense, |
|---|
| 363 | | - | social history, indications of a predisposition to violence or |
|---|
| 364 | | - | substance abuse, remorse or g uilt about the offense or the harm to |
|---|
| 365 | | - | the victim, job skills and employment history of the offender. The |
|---|
| 366 | | - | Department shall make a repo rt of information from such |
|---|
| 367 | | - | investigation to the court, including a recommendation detailing the |
|---|
| 368 | | - | punishment which is deeme d appropriate for both the offense and the |
|---|
| 369 | | - | offender, and specifically a recommendation for or against probation |
|---|
| 333 | + | Health and Substance Abuse Se rvices shall be administ ered to the |
|---|
| 334 | + | defendant. The evaluation shall be trauma-informed and take into |
|---|
| 335 | + | consideration possible common diagnoses for abuse victims such as |
|---|
| 336 | + | acute stress disorder and posttraumatic stress disorder. The |
|---|
| 337 | + | results of the evalu ation shall be forwarded to th e defendant and |
|---|
| 338 | + | submitted to the court as evidence. The Department shall conduct |
|---|
| 339 | + | the evaluation at no cost. Should the defendant choose to defer the |
|---|
| 340 | + | evaluation by the Department in favor of an evaluation conducted by |
|---|
| 341 | + | a private practitioner, the evaluation by the Department shall be |
|---|
| 342 | + | considered waived. It shall be the responsib ility of the defendant |
|---|
| 343 | + | to bear the cost of any evaluation conducted by a private |
|---|
| 344 | + | practitioner. |
|---|
| 345 | + | SECTION 4. NEW LAW A new section of law to be codified |
|---|
| 346 | + | in the Oklahoma Statutes as Section 1090.3 of Title 22, unless there |
|---|
| 347 | + | is created a duplication in numbering, reads as follows: |
|---|
| 348 | + | A. Any district attorney, assistant district attorney, public |
|---|
| 349 | + | defender, assistant public defender, attorney employ ed by or under |
|---|
| 350 | + | contract with the Oklahoma Indigent Defense System, court -appointed |
|---|
| 351 | + | attorney, private defense attorneys, or attorney employed by or |
|---|
| 352 | + | under contract with a district court whose duties include domestic |
|---|
| 353 | + | violence responsibility shall complete at least three (3) hours of |
|---|
| 354 | + | education and training annually in courses relating to the topics |
|---|
| 355 | + | described in paragraph 1 of subsection A of this section. The |
|---|
| 356 | + | education and training requirements may be accomplished through a |
|---|
| 396 | | - | or suspended sentence. The report of the investigation sha ll be |
|---|
| 397 | | - | presented to the judge within a reasonable time, and upon failure to |
|---|
| 398 | | - | present the report, the judge may proceed with sentencing. |
|---|
| 399 | | - | Whenever, in the opinion of the court or the Department, it is |
|---|
| 400 | | - | desirable, the invest igation shall include a physical and mental |
|---|
| 401 | | - | examination or either a physical or mental examination of the |
|---|
| 402 | | - | offender. |
|---|
| 403 | | - | E. The district attorney may have a presentence investigation |
|---|
| 404 | | - | made by the Department on each person charged with a violent felony |
|---|
| 405 | | - | offense and entering a plea of guilty or a ple a of nolo contendere |
|---|
| 406 | | - | as part of or in exchange for a plea agreement for a violent fel ony |
|---|
| 407 | | - | offense. The presentence investigation shall be completed before |
|---|
| 408 | | - | the terms of the plea agreement are finalized. The court shall not |
|---|
| 409 | | - | approve the terms of any plea agr eement without reviewing the |
|---|
| 410 | | - | presentence investigation report to determine whether or not the |
|---|
| 411 | | - | terms of the sentence are appropriate for both the offender and the |
|---|
| 412 | | - | offense. The fee provided in subsection A of this sectio n shall |
|---|
| 413 | | - | apply to persons subject to t his subsection and shall be a condition |
|---|
| 414 | | - | of the plea agreement and sentence. |
|---|
| 415 | | - | F. The presentence investigation reports specified in this |
|---|
| 416 | | - | section shall not be referred to, or be considered, in any appeal |
|---|
| 417 | | - | proceedings. Before imposing a sentence, the court sh all advise the |
|---|
| 418 | | - | defendant, counsel for the defendant, and the district attorney of |
|---|
| 419 | | - | the factual contents and conclusions of the presentence |
|---|
| 383 | + | collaborative effort between the judiciary and others with dome stic |
|---|
| 384 | + | violence responsibilities. |
|---|
| 385 | + | B. Each judicial district shall be responsible for developing |
|---|
| 386 | + | and administering procedures and rules for such courses for |
|---|
| 387 | + | attorneys identified in paragraph 1 of this subsection whose duties |
|---|
| 388 | + | routinely include domestic violen ce responsibilities. The chief |
|---|
| 389 | + | judge of each judicial district, or any designee judge with domestic |
|---|
| 390 | + | violence case responsibilities, shal l carry out this mandate within |
|---|
| 391 | + | one (1) year of the effective date of this act. |
|---|
| 392 | + | SECTION 5. AMENDATORY 22 O.S . 2021, Section 982, is |
|---|
| 393 | + | amended to read as follows: |
|---|
| 394 | + | Section 982. A. Whenever a person is convicted of a violent |
|---|
| 395 | + | felony offense whether the conviction is for a single offense or |
|---|
| 396 | + | part of any combination of offenses, except when the death sentence |
|---|
| 397 | + | is available as punishment for the of fense, the court may, be fore |
|---|
| 398 | + | imposing the sentence, require a presentence investigation be mad e |
|---|
| 399 | + | of the offender by the Department of Corrections. The court shall |
|---|
| 400 | + | order the defendant to pay a fee to the Department of Corrections of |
|---|
| 401 | + | not less than Fifty Doll ars ($50.00) nor more th an Five Hundred |
|---|
| 402 | + | Dollars ($500.00) for the presentence investigation. In hardship |
|---|
| 403 | + | cases, the court may reduce the amount of the fee and establish a |
|---|
| 404 | + | payment schedule. |
|---|
| 405 | + | B. Whenever a person has a prior felo ny conviction and enters a |
|---|
| 406 | + | plea of guilty or nolo co ntendere to a felony offense other than a |
|---|
| 446 | | - | investigation report. The court shall afford the offender a fair |
|---|
| 447 | | - | opportunity to controvert the findings and conclusio ns of the |
|---|
| 448 | | - | reports at the time of sentencing. If either the defendant or the |
|---|
| 449 | | - | district attorney desires, a hearing shall be set by the court to |
|---|
| 450 | | - | allow both parties an opportunity to offer evidence proving or |
|---|
| 451 | | - | disproving any finding contained in a report, whic h shall be a |
|---|
| 452 | | - | hearing in mitigation or aggravation of punishment. |
|---|
| 453 | | - | G. The required pre sentence investigation and report may be |
|---|
| 454 | | - | waived upon written waiver by the district attorney and the |
|---|
| 455 | | - | defendant and upon approval by th e Court. |
|---|
| 456 | | - | H. As used in this section, "violent felony offense" means: |
|---|
| 457 | | - | 1. Arson in the first degree; |
|---|
| 458 | | - | 2. Assault with a da ngerous weapon, battery with a dangerous |
|---|
| 459 | | - | weapon or assault and battery with a dangerous weapon; |
|---|
| 460 | | - | 3. Aggravated assault and battery on a police officer, sheriff, |
|---|
| 461 | | - | highway patrol officer, or any other officer of the law; |
|---|
| 462 | | - | 4. Assault with intent to kill, or sh ooting with intent to |
|---|
| 463 | | - | kill; |
|---|
| 464 | | - | 5. Assault with intent to commit a felony, or use of a firearm |
|---|
| 465 | | - | to commit a felony; |
|---|
| 466 | | - | 6. Assault while mask ed or disguised; |
|---|
| 467 | | - | 7. Burglary in the first degree or burglary with explosives; |
|---|
| 468 | | - | 8. Child beating or maiming; |
|---|
| 469 | | - | 9. Forcible sodomy; |
|---|
| 433 | + | violent felony offense, with out an agreement by the district |
|---|
| 434 | + | attorney regarding the sentence to be imposed, the court may order a |
|---|
| 435 | + | presentence investigation be mad e by the Department of Corre ctions. |
|---|
| 436 | + | The fee provided in subsection A of this section shall apply to |
|---|
| 437 | + | persons subject to th is subsection. |
|---|
| 438 | + | C. Whenever a person has entered a plea of not guilty to a |
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| 439 | + | nonviolent felony offense and is found guilty by a court fo llowing a |
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| 440 | + | non-jury trial, the court may require a pr esentence investigation be |
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| 441 | + | made by the Department of Corrections. The fee provided in |
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| 442 | + | subsection A of this section shall apply to persons subject to this |
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| 443 | + | subsection. |
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| 444 | + | D. When conducting a presentence inv estigation, the Department |
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| 445 | + | shall inquire into the ci rcumstances of the offense and the |
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| 446 | + | characteristics of the offender. T he information obtained from the |
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| 447 | + | investigation shall include, but not be limited to, a voluntary |
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| 448 | + | statement from each victim of the off ense concerning the nature o f |
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| 449 | + | the offense and the im pact of the offense on the victim and the |
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| 450 | + | immediate family of the vict im, the amount of the loss suffered or |
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| 451 | + | incurred by the victim as a result of the criminal conduct of the |
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| 452 | + | offender, and the age, marita l status, living arrangement s, |
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| 453 | + | financial obligations , income, family history and education, prior |
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| 454 | + | juvenile and criminal re cords, prior abusive relationships, prior |
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| 455 | + | sexual assaults, prior experiences being human trafficked , |
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| 456 | + | associations with other persons c onvicted of a felony offense, |
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| 483 | + | social history, indica tions of a predisposition to violence or |
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| 484 | + | substance abuse, remorse or g uilt about the offense or the harm to |
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| 485 | + | the victim, job skills and employment history of the offender. The |
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| 486 | + | Department shall make a repo rt of information from such |
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| 487 | + | investigation to the cou rt, including a recommendation detailing the |
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| 488 | + | punishment which is deeme d appropriate for both the offense and the |
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| 489 | + | offender, and specifically a recommendation for or against probation |
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| 490 | + | or suspended sentence. The report of the investigation shall be |
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| 491 | + | presented to the judge within a reasonable time, and upon failure to |
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| 492 | + | present the report, the judge may proceed with sentencing. |
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| 493 | + | Whenever, in the opinion of the court or the Department, it is |
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| 494 | + | desirable, the invest igation shall include a physical and mental |
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| 495 | + | examination or either a physical or mental examination of the |
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| 496 | + | offender. |
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| 497 | + | E. The district attorney may have a presentence investigation |
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| 498 | + | made by the Department on each person charged with a violent felony |
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| 499 | + | offense and entering a plea of guilty or a plea of nolo conte ndere |
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| 500 | + | as part of or in exchange for a plea agreement for a violent fel ony |
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| 501 | + | offense. The presentence investigation shall be completed before |
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| 502 | + | the terms of the plea agreement are finalized. The court shall not |
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| 503 | + | approve the terms of any plea agreement without reviewing the |
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| 504 | + | presentence investigation report to determine whether or not the |
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| 505 | + | terms of the sentence are appropriate for both the offender and the |
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| 506 | + | offense. The fee provided in subsection A of this sectio n shall |
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| 507 | + | |
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| 533 | + | apply to persons subject to this subsection and shall be a condition |
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| 534 | + | of the plea agreement and sentence. |
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| 535 | + | F. The presentence investigation reports specified in this |
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| 536 | + | section shall not be referred to, or be considered, in any appeal |
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| 537 | + | proceedings. Before imposing a sentence, the court shall advise the |
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| 538 | + | defendant, counsel for the defendant, and the district attorney of |
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| 539 | + | the factual contents and conclusions of the presentence |
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| 540 | + | investigation report. The court shall afford the offender a fair |
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| 541 | + | opportunity to controvert the findings and conclusions of the |
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| 542 | + | reports at the time of sentencing. If either the defendant or the |
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| 543 | + | district attorney desires, a hearing shall be set by the court to |
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| 544 | + | allow both parties an opportunity to offer evidence proving or |
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| 545 | + | disproving any finding contained in a report, which shall be a |
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| 546 | + | hearing in mitigation or aggravation of punishment. |
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| 547 | + | G. The required pre sentence investigation and report may be |
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| 548 | + | waived upon written waiver by the district attorney and the |
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| 549 | + | defendant and upon approval by th e Court. |
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| 550 | + | H. As used in this section, "violent felony offense" means: |
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| 551 | + | 1. Arson in the first degree; |
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| 552 | + | 2. Assault with a da ngerous weapon, battery with a dangerous |
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| 553 | + | weapon or assault and battery with a dangerous weapon; |
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| 554 | + | 3. Aggravated assault and battery on a police officer, sheriff, |
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| 555 | + | highway patrol officer, o r any other officer of the law; |
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| 556 | + | |
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| 582 | + | 4. Assault with intent to kill, or sh ooting with intent to |
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| 583 | + | kill; |
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| 584 | + | 5. Assault with intent to commit a felony, or use of a firearm |
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| 585 | + | to commit a felony; |
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| 586 | + | 6. Assault while mask ed or disguised; |
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| 587 | + | 7. Burglary in the first degree or burglary with explosives; |
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| 588 | + | 8. Child beating or maiming; |
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| 589 | + | 9. Forcible sodomy; |
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