Bill Text: FL S0850 | 2019 | Regular Session | Introduced


Bill Title: Prosecuting Children as Adults

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2019-05-03 - Died in Criminal Justice [S0850 Detail]

Download: Florida-2019-S0850-Introduced.html
       Florida Senate - 2019                                     SB 850
       
       
        
       By Senator Powell
       
       
       
       
       
       30-00881-19                                            2019850__
    1                        A bill to be entitled                      
    2         An act relating to prosecuting children as adults;
    3         amending s. 985.556, F.S.; deleting provisions under
    4         which a state attorney either must request a court to
    5         transfer and certify children of certain ages who
    6         commit specified crimes for prosecution as adults or
    7         must provide written reasons to the court for not
    8         making such a request, or proceed under certain
    9         provisions; amending s. 985.557, F.S.; revising the
   10         circumstances under which a state attorney may file an
   11         information in cases that involve children of certain
   12         ages who commit certain crimes; deleting provisions
   13         under which a state attorney must file an information
   14         on children of certain ages who commit, attempt to
   15         commit, are charged with committing, or conspire to
   16         commit, specified crimes; deleting definitions;
   17         amending s. 985.56, F.S.; providing that children 14
   18         years of age or older, rather than children of any
   19         age, who are charged with certain offenses are subject
   20         to the jurisdiction of the court until an indictment
   21         is returned by the grand jury; prohibiting the
   22         transfer to adult court for criminal prosecution of
   23         children who commit an indictable offense and who have
   24         a pending competency hearing or have previously been
   25         found incompetent and have not been restored to
   26         competency by a court until the child’s competency is
   27         restored; providing for the tolling of certain time
   28         limits; authorizing, rather than requiring, that a
   29         child who is found to have committed specified crimes
   30         be sentenced according to certain provisions; amending
   31         s. 985.03, F.S.; conforming a cross-reference;
   32         amending s. 985.565, F.S.; conforming provisions to
   33         changes made by the act; reenacting ss. 985.15(1) and
   34         985.265(5), F.S., relating to filing decisions and
   35         detention transfer and release, education, and adult
   36         jails, respectively, to incorporate the amendments
   37         made to ss. 985.556 and 985.557, F.S., in references
   38         thereto; reenacting s. 985.26(2)(c), F.S., relating to
   39         the length of detention, to incorporate the amendments
   40         to ss. 985.557 and 985.56, F.S., in references
   41         thereto; providing an effective date.
   42          
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Subsections (2) and (3) of section 985.556,
   46  Florida Statutes, are amended, and subsection (1) of that
   47  section is republished, to read:
   48         985.556 Waiver of juvenile court jurisdiction; hearing.—
   49         (1) VOLUNTARY WAIVER.—The court shall transfer and certify
   50  a child’s criminal case for trial as an adult if the child is
   51  alleged to have committed a violation of law and, prior to the
   52  commencement of an adjudicatory hearing, the child, joined by a
   53  parent or, in the absence of a parent, by the guardian or
   54  guardian ad litem, demands in writing to be tried as an adult.
   55  Once a child has been transferred for criminal prosecution
   56  pursuant to a voluntary waiver hearing and has been found to
   57  have committed the presenting offense or a lesser included
   58  offense, the child shall be handled thereafter in every respect
   59  as an adult for any subsequent violation of state law, unless
   60  the court imposes juvenile sanctions under s. 985.565(4)(b).
   61         (2) INVOLUNTARY DISCRETIONARY WAIVER.—Except as provided in
   62  subsection (3), The state attorney may file a motion requesting
   63  the court to transfer the child for criminal prosecution if the
   64  child was 14 years of age or older at the time the alleged
   65  delinquent act or violation of law was committed.
   66         (3) INVOLUNTARY MANDATORY WAIVER.—
   67         (a) If the child was 14 years of age or older, and if the
   68  child has been previously adjudicated delinquent for an act
   69  classified as a felony, which adjudication was for the
   70  commission of, attempt to commit, or conspiracy to commit
   71  murder, sexual battery, armed or strong-armed robbery,
   72  carjacking, home-invasion robbery, aggravated battery,
   73  aggravated assault, or burglary with an assault or battery, and
   74  the child is currently charged with a second or subsequent
   75  violent crime against a person; or
   76         (b) If the child was 14 years of age or older at the time
   77  of commission of a fourth or subsequent alleged felony offense
   78  and the child was previously adjudicated delinquent or had
   79  adjudication withheld for or was found to have committed, or to
   80  have attempted or conspired to commit, three offenses that are
   81  felony offenses if committed by an adult, and one or more of
   82  such felony offenses involved the use or possession of a firearm
   83  or violence against a person;
   84  
   85  the state attorney shall request the court to transfer and
   86  certify the child for prosecution as an adult or shall provide
   87  written reasons to the court for not making such request, or
   88  proceed under s. 985.557(1). Upon the state attorney’s request,
   89  the court shall either enter an order transferring the case and
   90  certifying the case for trial as if the child were an adult or
   91  provide written reasons for not issuing such an order.
   92         Section 2. Section 985.557, Florida Statutes, is amended to
   93  read:
   94         985.557 Prosecuting children as adults Direct filing of an
   95  information; discretionary and mandatory criteria.—
   96         (1) DISCRETIONARY PROSECUTION OF CHILDREN AS ADULTS DIRECT
   97  FILE.—
   98         (a) With respect to any child who was 14 or 15 years of age
   99  at the time the alleged offense was committed, the state
  100  attorney may file an information when in the state attorney’s
  101  judgment and discretion the public interest requires that adult
  102  sanctions be considered or imposed and when the offense charged
  103  is for the commission of, attempt to commit, or conspiracy to
  104  commit:
  105         1.Arson;
  106         2.Sexual battery;
  107         3.Robbery;
  108         4.Kidnapping;
  109         5.Aggravated child abuse;
  110         6.Aggravated assault;
  111         7.Aggravated stalking;
  112         8.Murder;
  113         9.Manslaughter;
  114         10.Unlawful throwing, placing, or discharging of a
  115  destructive device or bomb;
  116         11.Armed burglary in violation of s. 810.02(2)(b) or
  117  specified burglary of a dwelling or structure in violation of s.
  118  810.02(2)(c), or burglary with an assault or battery in
  119  violation of s. 810.02(2)(a);
  120         12.Aggravated battery;
  121         13.Any lewd or lascivious offense committed upon or in the
  122  presence of a person less than 16 years of age;
  123         14.Carrying, displaying, using, threatening, or attempting
  124  to use a weapon or firearm during the commission of a felony;
  125         15.Grand theft in violation of s. 812.014(2)(a);
  126         16.Possessing or discharging any weapon or firearm on
  127  school property in violation of s. 790.115;
  128         17.Home invasion robbery;
  129         18.Carjacking; or
  130         19.Grand theft of a motor vehicle in violation of s.
  131  812.014(2)(c)6. or grand theft of a motor vehicle valued at
  132  $20,000 or more in violation of s. 812.014(2)(b) if the child
  133  has a previous adjudication for grand theft of a motor vehicle
  134  in violation of s. 812.014(2)(c)6. or s. 812.014(2)(b).
  135         (b) With respect to any child who was 16 or 17 years of age
  136  at the time the alleged violent felony offense was committed,
  137  the state attorney may file an information when in the state
  138  attorney’s judgment and discretion the public interest requires
  139  that adult sanctions be considered or imposed. However, the
  140  state attorney may not file an information on a child charged
  141  with a misdemeanor, unless the child has had at least two
  142  previous adjudications or adjudications withheld for delinquent
  143  acts, one of which involved an offense classified as a violent
  144  felony under state law.
  145         (2) MANDATORY DIRECT FILE.—
  146         (a) With respect to any child who was 16 or 17 years of age
  147  at the time the alleged offense was committed, the state
  148  attorney shall file an information if the child has been
  149  previously adjudicated delinquent for an act classified as a
  150  felony, which adjudication was for the commission of, attempt to
  151  commit, or conspiracy to commit murder, sexual battery, armed or
  152  strong-armed robbery, carjacking, home-invasion robbery,
  153  aggravated battery, or aggravated assault, and the child is
  154  currently charged with a second or subsequent violent crime
  155  against a person.
  156         (b) With respect to any child 16 or 17 years of age at the
  157  time an offense classified as a forcible felony, as defined in
  158  s. 776.08, was committed, the state attorney shall file an
  159  information if the child has previously been adjudicated
  160  delinquent or had adjudication withheld for three acts
  161  classified as felonies each of which occurred at least 45 days
  162  apart from each other. This paragraph does not apply when the
  163  state attorney has good cause to believe that exceptional
  164  circumstances exist which preclude the just prosecution of the
  165  juvenile in adult court.
  166         (c) The state attorney must file an information if a child,
  167  regardless of the child’s age at the time the alleged offense
  168  was committed, is alleged to have committed an act that would be
  169  a violation of law if the child were an adult, that involves
  170  stealing a motor vehicle, including, but not limited to, a
  171  violation of s. 812.133, relating to carjacking, or s.
  172  812.014(2)(c)6., relating to grand theft of a motor vehicle, and
  173  while the child was in possession of the stolen motor vehicle
  174  the child caused serious bodily injury to or the death of a
  175  person who was not involved in the underlying offense. For
  176  purposes of this section, the driver and all willing passengers
  177  in the stolen motor vehicle at the time such serious bodily
  178  injury or death is inflicted shall also be subject to mandatory
  179  transfer to adult court. “Stolen motor vehicle,” for the
  180  purposes of this section, means a motor vehicle that has been
  181  the subject of any criminal wrongful taking. For purposes of
  182  this section, “willing passengers” means all willing passengers
  183  who have participated in the underlying offense.
  184         (d)1. With respect to any child who was 16 or 17 years of
  185  age at the time the alleged offense was committed, the state
  186  attorney shall file an information if the child has been charged
  187  with committing or attempting to commit an offense listed in s.
  188  775.087(2)(a)1.a.-p., and, during the commission of or attempt
  189  to commit the offense, the child:
  190         a.Actually possessed a firearm or destructive device, as
  191  those terms are defined in s. 790.001.
  192         b.Discharged a firearm or destructive device, as described
  193  in s. 775.087(2)(a)2.
  194         c.Discharged a firearm or destructive device, as described
  195  in s. 775.087(2)(a)3., and, as a result of the discharge, death
  196  or great bodily harm was inflicted upon any person.
  197         2.Upon transfer, any child who is:
  198         a.Charged under sub-subparagraph 1.a. and who has been
  199  previously adjudicated or had adjudication withheld for a
  200  forcible felony offense or any offense involving a firearm, or
  201  who has been previously placed in a residential commitment
  202  program, shall be subject to sentencing under s. 775.087(2)(a),
  203  notwithstanding s. 985.565.
  204         b.Charged under sub-subparagraph 1.b. or sub-subparagraph
  205  1.c., shall be subject to sentencing under s. 775.087(2)(a),
  206  notwithstanding s. 985.565.
  207         3.Upon transfer, any child who is charged under this
  208  paragraph, but who does not meet the requirements specified in
  209  subparagraph 2., shall be sentenced under s. 985.565; however,
  210  if the court imposes a juvenile sanction, the court must commit
  211  the child to a high-risk or maximum-risk juvenile facility.
  212         4.This paragraph shall not apply if the state attorney has
  213  good cause to believe that exceptional circumstances exist that
  214  preclude the just prosecution of the child in adult court.
  215         (b)5. The Department of Corrections shall make every
  216  reasonable effort to ensure that any child 16 or 17 years of age
  217  who is convicted and sentenced under this subsection is
  218  paragraph be completely separated such that there is no physical
  219  contact with adult offenders in the facility, to the extent that
  220  it is consistent with chapter 958.
  221         (2)(3) EFFECT OF PROSECUTION OF CHILDREN AS ADULTS DIRECT
  222  FILE.—
  223         (a) Once a child has been transferred for criminal
  224  prosecution pursuant to an information and has been found to
  225  have committed the presenting offense or a lesser included
  226  offense, the child shall be handled thereafter in every respect
  227  as if an adult for any subsequent violation of state law, unless
  228  the court imposes juvenile sanctions under s. 985.565.
  229         (b) When a child is transferred for criminal prosecution as
  230  an adult, the court shall immediately transfer and certify to
  231  the adult circuit court all felony cases pertaining to the
  232  child, for prosecution of the child as an adult, which have not
  233  yet resulted in a plea of guilty or nolo contendere or in which
  234  a finding of guilt has not been made. If a child is acquitted of
  235  all charged offenses or lesser included offenses contained in
  236  the original case transferred to adult court, all felony cases
  237  that were transferred to adult court as a result of this
  238  paragraph shall be subject to the same penalties to which such
  239  cases would have been subject before being transferred to adult
  240  court.
  241         (c) When a child has been transferred for criminal
  242  prosecution as an adult and has been found to have committed a
  243  violation of state law, the disposition of the case may be made
  244  under s. 985.565 and may include the enforcement of any
  245  restitution ordered in any juvenile proceeding.
  246         (3)(4)CHARGES INCLUDED ON INFORMATION.—An information
  247  filed pursuant to this section may include all charges that are
  248  based on the same act, criminal episode, or transaction as the
  249  primary offenses.
  250         Section 3. Section 985.56, Florida Statutes, is amended to
  251  read:
  252         985.56 Indictment of a juvenile.—
  253         (1) A child 14 years of age or older of any age who is
  254  charged with a violation of state law punishable by death or by
  255  life imprisonment is subject to the jurisdiction of the court as
  256  set forth in s. 985.0301(2) unless and until an indictment on
  257  the charge is returned by the grand jury. When such indictment
  258  is returned, the petition for delinquency, if any, must be
  259  dismissed and the child must be tried and handled in every
  260  respect as an adult:
  261         (a) On the indictable offense punishable by death or by
  262  life imprisonment; and
  263         (b) On all other felonies or misdemeanors charged in the
  264  indictment which are based on the same act or transaction as the
  265  indictable offense punishable by death or by life imprisonment
  266  or on one or more acts or transactions connected with the
  267  offense punishable by death or by life imprisonment.
  268         (2) An adjudicatory hearing may not be held until 21 days
  269  after the child is taken into custody and charged with having
  270  committed an indictable offense punishable by death or by life
  271  imprisonment, unless the state attorney advises the court in
  272  writing that he or she does not intend to present the case to
  273  the grand jury, or has presented the case to the grand jury and
  274  the grand jury has not returned an indictment. If the court
  275  receives such a notice from the state attorney, or if the grand
  276  jury fails to act within the 21-day period, the court may
  277  proceed as otherwise authorized under this part.
  278         (3) Notwithstanding any other law, a child who commits an
  279  offense for which he or she may be indicted and who has a
  280  pending competency hearing in juvenile court or has been
  281  previously found to be incompetent and has not been restored to
  282  competency by a court may not be transferred to adult court for
  283  criminal prosecution until the child’s competency is restored. A
  284  pending competency hearing or a finding of incompetency tolls
  285  the time limits in subsection (2). If the child is found to have
  286  committed the offense punishable by death or by life
  287  imprisonment, the child may shall be sentenced pursuant to s.
  288  985.565 as an adult. If the juvenile is not found to have
  289  committed the indictable offense but is found to have committed
  290  a lesser included offense or any other offense for which he or
  291  she was indicted as a part of the criminal episode, the court
  292  may sentence under s. 985.565.
  293         (4)(a) If Once a child has been indicted pursuant to this
  294  section and has been found to have committed any offense for
  295  which he or she was indicted as a part of the criminal episode,
  296  the child shall be handled thereafter in every respect as if an
  297  adult for any subsequent violation of state law, unless the
  298  court imposes juvenile sanctions under s. 985.565.
  299         (b) If When a child has been indicted pursuant to this
  300  section, the court shall immediately transfer and certify to the
  301  adult circuit court all felony cases pertaining to the child,
  302  for prosecution of the child as an adult, which have not yet
  303  resulted in a plea of guilty or nolo contendere or in which a
  304  finding of guilt has not been made. If the child is acquitted of
  305  all charged offenses or lesser included offenses contained in
  306  the indictment case, all felony cases that were transferred to
  307  adult court pursuant to this paragraph shall be subject to the
  308  same penalties such cases were subject to before being
  309  transferred to adult court.
  310         Section 4. Subsection (54) of section 985.03, Florida
  311  Statutes, is amended to read:
  312         985.03 Definitions.—As used in this chapter, the term:
  313         (54) “Waiver hearing” means a hearing provided for under s.
  314  985.556(3) s. 985.556(4).
  315         Section 5. Paragraphs (a) and (b) of subsection (4) of
  316  section 985.565, Florida Statutes, are amended to read:
  317         985.565 Sentencing powers; procedures; alternatives for
  318  juveniles prosecuted as adults.—
  319         (4) SENTENCING ALTERNATIVES.—
  320         (a) Adult sanctions.—
  321         1. Cases prosecuted on indictment.—If the child is found to
  322  have committed the offense punishable by death or life
  323  imprisonment, the child shall be sentenced as an adult. If the
  324  juvenile is not found to have committed the indictable offense
  325  but is found to have committed a lesser included offense or any
  326  other offense for which he or she was indicted as a part of the
  327  criminal episode, the court may sentence as follows:
  328         a. As an adult;
  329         b. Under chapter 958; or
  330         c. As a juvenile under this section.
  331         2. Other cases.—If a child who has been transferred for
  332  criminal prosecution pursuant to information or waiver of
  333  juvenile court jurisdiction is found to have committed a
  334  violation of state law or a lesser included offense for which he
  335  or she was charged as a part of the criminal episode, the court
  336  may sentence as follows:
  337         a. As an adult;
  338         b. Under chapter 958; or
  339         c. As a juvenile under this section.
  340         3. Notwithstanding any other provision to the contrary, if
  341  the state attorney is required to file a motion to transfer and
  342  certify the juvenile for prosecution as an adult under s.
  343  985.556(3) and that motion is granted, or if the state attorney
  344  is required to file an information under s. 985.557(2)(a) or
  345  (b), the court must impose adult sanctions.
  346         4. Any sentence imposing adult sanctions is presumed
  347  appropriate, and the court is not required to set forth specific
  348  findings or enumerate the criteria in this subsection as any
  349  basis for its decision to impose adult sanctions.
  350         4.5. When a child has been transferred for criminal
  351  prosecution as an adult and has been found to have committed a
  352  violation of state law, the disposition of the case may include
  353  the enforcement of any restitution ordered in any juvenile
  354  proceeding.
  355         (b) Juvenile sanctions.—For juveniles transferred to adult
  356  court but who do not qualify for such transfer under s.
  357  985.556(3) or s. 985.557(2)(a) or (b), the court may impose
  358  juvenile sanctions under this paragraph. If juvenile sentences
  359  are imposed, the court shall, under this paragraph, adjudge the
  360  child to have committed a delinquent act. Adjudication of
  361  delinquency shall not be deemed a conviction, nor shall it
  362  operate to impose any of the civil disabilities ordinarily
  363  resulting from a conviction. The court shall impose an adult
  364  sanction or a juvenile sanction and may not sentence the child
  365  to a combination of adult and juvenile punishments. An adult
  366  sanction or a juvenile sanction may include enforcement of an
  367  order of restitution or probation previously ordered in any
  368  juvenile proceeding. However, if the court imposes a juvenile
  369  sanction and the department determines that the sanction is
  370  unsuitable for the child, the department shall return custody of
  371  the child to the sentencing court for further proceedings,
  372  including the imposition of adult sanctions. Upon adjudicating a
  373  child delinquent under subsection (1), the court may:
  374         1. Place the child in a probation program under the
  375  supervision of the department for an indeterminate period of
  376  time until the child reaches the age of 19 years or sooner if
  377  discharged by order of the court.
  378         2. Commit the child to the department for treatment in an
  379  appropriate program for children for an indeterminate period of
  380  time until the child is 21 or sooner if discharged by the
  381  department. The department shall notify the court of its intent
  382  to discharge no later than 14 days prior to discharge. Failure
  383  of the court to timely respond to the department’s notice shall
  384  be considered approval for discharge.
  385         3. Order disposition under ss. 985.435, 985.437, 985.439,
  386  985.441, 985.45, and 985.455 as an alternative to youthful
  387  offender or adult sentencing if the court determines not to
  388  impose youthful offender or adult sanctions.
  389  
  390  It is the intent of the Legislature that the criteria and
  391  guidelines in this subsection are mandatory and that a
  392  determination of disposition under this subsection is subject to
  393  the right of the child to appellate review under s. 985.534.
  394         Section 6. For the purpose of incorporating the amendments
  395  made by this act to sections 985.556 and 985.557, Florida
  396  Statutes, in references thereto, subsection (1) of section
  397  985.15, Florida Statutes, is reenacted to read:
  398         985.15 Filing decisions.—
  399         (1) The state attorney may in all cases take action
  400  independent of the action or lack of action of the juvenile
  401  probation officer and shall determine the action that is in the
  402  best interest of the public and the child. If the child meets
  403  the criteria requiring prosecution as an adult under s. 985.556,
  404  the state attorney shall request the court to transfer and
  405  certify the child for prosecution as an adult or shall provide
  406  written reasons to the court for not making such a request. In
  407  all other cases, the state attorney may:
  408         (a) File a petition for dependency;
  409         (b) File a petition under chapter 984;
  410         (c) File a petition for delinquency;
  411         (d) File a petition for delinquency with a motion to
  412  transfer and certify the child for prosecution as an adult;
  413         (e) File an information under s. 985.557;
  414         (f) Refer the case to a grand jury;
  415         (g) Refer the child to a diversionary, pretrial
  416  intervention, arbitration, or mediation program, or to some
  417  other treatment or care program if such program commitment is
  418  voluntarily accepted by the child or the child’s parents or
  419  legal guardian; or
  420         (h) Decline to file.
  421         Section 7. For the purpose of incorporating the amendments
  422  made by this act to sections 985.556 and 985.557, Florida
  423  Statutes, in references thereto, subsection (5) of section
  424  985.265, Florida Statutes, is reenacted to read:
  425         985.265 Detention transfer and release; education; adult
  426  jails.—
  427         (5) The court shall order the delivery of a child to a jail
  428  or other facility intended or used for the detention of adults:
  429         (a) When the child has been transferred or indicted for
  430  criminal prosecution as an adult under part X, except that the
  431  court may not order or allow a child alleged to have committed a
  432  misdemeanor who is being transferred for criminal prosecution
  433  pursuant to either s. 985.556 or s. 985.557 to be detained or
  434  held in a jail or other facility intended or used for the
  435  detention of adults; however, such child may be held temporarily
  436  in a detention facility; or
  437         (b) When a child taken into custody in this state is wanted
  438  by another jurisdiction for prosecution as an adult.
  439  
  440  The child shall be housed separately from adult inmates to
  441  prohibit a child from having regular contact with incarcerated
  442  adults, including trusties. “Regular contact” means sight and
  443  sound contact. Separation of children from adults shall permit
  444  no more than haphazard or accidental contact. The receiving jail
  445  or other facility shall contain a separate section for children
  446  and shall have an adequate staff to supervise and monitor the
  447  child’s activities at all times. Supervision and monitoring of
  448  children includes physical observation and documented checks by
  449  jail or receiving facility supervisory personnel at intervals
  450  not to exceed 10 minutes. This subsection does not prohibit
  451  placing two or more children in the same cell. Under no
  452  circumstances shall a child be placed in the same cell with an
  453  adult.
  454         Section 8. Upon the amendments made to section 985.26,
  455  Florida Statutes, pursuant to section 11 of chapter 2018-86,
  456  Laws of Florida, becoming effective and for the purpose of
  457  incorporating the amendments made by this act to section 985.557
  458  and 985.56, Florida Statutes, in a reference thereto, paragraph
  459  (c) of subsection (2) of section 985.26, Florida Statutes, is
  460  reenacted to read:
  461         985.26 Length of detention.—
  462         (2)
  463         (c) A prolific juvenile offender under s. 985.255(1)(f)
  464  shall be placed on supervised release detention care with
  465  electronic monitoring or in secure detention care under a
  466  special detention order until disposition. If secure detention
  467  care is ordered by the court, it must be authorized under this
  468  part and may not exceed:
  469         1. Twenty-one days unless an adjudicatory hearing for the
  470  case has been commenced in good faith by the court or the period
  471  is extended by the court pursuant to paragraph (b); or
  472         2. Fifteen days after the entry of an order of
  473  adjudication.
  474  
  475  As used in this paragraph, the term “disposition” means a
  476  declination to file under s. 985.15(1)(h), the entry of nolle
  477  prosequi for the charges, the filing of an indictment under s.
  478  985.56 or an information under s. 985.557, a dismissal of the
  479  case, or an order of final disposition by the court.
  480         Section 9. This act shall take effect July 1, 2019.

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