This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0555c.JDC
DATE: 3/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 555 Sentencing Proceedings in Death Penalty Cases
SPONSOR(S): Criminal Justice Subcommittee, Jacques and others
TIED BILLS: IDEN./SIM. BILLS: SB 450
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 13 Y, 5 N, As CS Loyed Hall
2) Justice Appropriations Subcommittee 8 Y, 6 N Saag Keith
3) Judiciary Committee Loyed Kramer
SUMMARY ANALYSIS
Florida’s capital sentencing scheme was amended in 2017 to comply with the Florida Supreme Court’s (FSC) decisions in Hurst
v. State, 202 So. 3d 40 (Fla. 2016), and Perry v. State, 210 So. 3d 630 (Fla. 2016), by requiring jury unanimity for a death
sentence recommendation. Sections 921.141 or 921.142, F.S., apply to a capital defendant who does not waive his or her right
to a sentencing proceeding by a jury. Under this framework, a jury must consider all the evidence presented regarding
aggravating factors and mitigating circumstances and determine if at least one aggravating factor has been proven beyond a
reasonable doubt. If the jury does not unanimously find at least one aggravating factor, the defendant is ineligible for a death
sentence and must be sentenced to life imprisonment.
If the jury unanimously finds at least one aggravating factor, the defendant is eligible for a death sentence and the jury must
make a sentencing recommendation to the court based on a weighing of the following: whether sufficient aggravating factors
exist; whether aggravating factors exist which outweigh the mitigating circumstances found to exist; and whether, based on the
prior considerations, the defendant should be sentenced to life imprisonment without the possibility of parole or to death. If a
unanimous jury determines the defendant should be sentenced to death, the jury must recommend a sentence of death to the
court. If any juror does not determine that the defendant should be sentenced to death, the jury must recommend a sentence of
life imprisonment to the court.
If the jury recommends a sentence of life imprisonment without the possibility of parole, the court must impose the
recommended sentence. If the jury recommends a sentence of death, then the court must consider each aggravating factor
unanimously found by the jury and all mitigating circumstances, and may impose a sentence of life imprisonment without the
possibility of parole or a sentence of death.
In 2020, in State v. Poole, 297 So. 3d 487 (Fla. 2020), the FSC partially receded from its decision in Hurst except to the extent
that Hurst required a jury to unanimously find the existence of at least one aggravating factor beyond a reasonable doubt to
make a defendant eligible for a death sentence.
CS/HB 555 amends ss. 921.141 and 921.142, F.S., to revise Florida’s capital sentencing scheme by requiring:
A jury to recommend a sentence of death to the court if at least eight jurors determine a defendant should be sentenced
to death; and
The court to impose a sentence of death when such a sentence is recommended by the jury.
As such, the bill removes the current requirement for a jury to be unanimous in recommending a death sentence and also
removes the ability of the court, in cases in which the jury has recommended a death sentence, to consider each aggravating
factor found by the jury and all mitigating circumstances, and to determine whether the defendant should be sentenced to death
or to life imprisonment.
The bill retains the requirements for: a jury to unanimously find at least one aggravating factor was proven beyond a reasonable
doubt to make a defendant eligible for a death sentence, and a court to impose a sentence of life imprisonment without the
possibility of parole when a jury recommends such a sentence.
The bill may have an indeterminate fiscal impact on state expenditures, to the extent the bill results in a greater number of death
sentences being imposed, by increasing the number of inmates on death row, and increasing the number of automatic reviews
of a death sentence that the FSC must perform. However, such reviews are performed as part of the FSC’s normal operations
and would likely be absorbed within existing resources.
The bill provides an effective date of October 1, 2023. STORAGE NAME: h0555c.JDC PAGE: 2
DATE: 3/29/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida’s Capital Sentencing Scheme (Before 2016)
Under s. 921.141, F.S. (2015), if a defendant was convicted of a capital felony, a separate sentencing
proceeding (typically referred to as the “penalty phase”) was conducted before the trial jury or, if the
defendant pled guilty, before a jury impaneled for only that purpose. During the penalty phase, the jury
was required to recommend whether the defendant should be sentenced to death or to life
imprisonment. After hearing all the evidence, the jury was required to render an advisory sentence to
the judge based on the following factors:
Whether sufficient aggravating circumstances existed;
Whether sufficient mitigating circumstances existed which outweighed the aggravating
circumstances; and
Based on these considerations, whether the defendant should be sentenced to life
imprisonment or death.
The law required a simple majority vote of the jury to recommend a death sentence, meaning that a jury
could recommend the punishment when at least seven jurors were in favor of death. The jury was not
required to list any aggravating factors or mitigating circumstances it found or to disclose the number of
jurors making such findings; however, the jury was required to find any aggravating circumstances were
proven beyond a reasonable doubt.
The judge was not required to sentence a defendant as recommended by the jury. Under this
framework, the judge conducted an independent analysis of the aggravating factors and mitigating
circumstances. In rendering the sentence, the judge was required to give great weight to the jury’s
sentencing recommendation, however, he or she was permitted to sentence the defendant as he or she
determined was appropriate, notwithstanding the jury’s recommendation. If the judge sentenced a
person to death, he or she was required to make written findings that sufficient aggravating factors
existed and that any mitigating circumstances were insufficient to outweigh the aggravating factors.
Each death sentence was subject to automatic review by the Florida Supreme Court (FSC).
Ring v. Arizona, 536 U.S. 584 (2002)
In June 2002, the United States Supreme Court (USSC) examined Arizona’s capital sentencing
scheme in Ring v. Arizona.
1
Arizona’s law required a judge to determine the presence of aggravating
factors and mitigating circumstances and authorized the judge to sentence a defendant to death only if
the judge found at least one aggravating factor. The USSC struck down Arizona’s law, holding it
violated the Sixth Amendment
2
by permitting the sentencing judge alone, without a jury, to find
aggravating circumstances justifying the imposition of the death penalty.
In the years following Ring, the FSC repeatedly held that Florida’s capital sentencing scheme did not
violate the Sixth Amendment under Ring because s. 921.141, F.S., was distinguishable from Arizona’s
1
536 U.S. 584 (2002).
2
The Sixth Amendment in part provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury . . .” U.S. CONST. amend VI. This right, in conjunction with the Due Process Clause, requires each element of a crime to
be proven to a jury beyond a reasonable doubt. Applying this right, the USSC held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that
any facts increasing the penalty for a defendant must be submitted to a jury and proved beyond a reasonable doubt. STORAGE NAME: h0555c.JDC PAGE: 3
DATE: 3/29/2023
scheme in that it allowed the jury to make an advisory sentencing recommendation and the judge to
impose the sentence.
3
Hurst v. State, 147 So. 3d 435 (Fla. 2014) (Hurst I)
In 1998, Timothy Lee Hurst was convicted of first-degree murder for fatally stabbing his co-worker with
a box cutter. The jury recommended a death sentence by a seven-to-five vote and the trial court
sentenced Hurst to death. Hurst challenged his death sentence, arguing it was unconstitutional for two
reasons: because Florida law did not require the jury to find specific facts as to the aggravating factors
and because Florida law did not require the jury to issue a unanimous sentencing recommendation.
4
The FSC affirmed Hurst’s death sentence. In holding the sentence did not violate the USSC’s holding in
Ring, the Court adhered to Florida precedent of not adopting Ring, relying on Florida’s jury advisory
recommendation to distinguish Florida’s scheme from Arizona’s scheme, and citing to the Eleventh
Circuit’s recent approval of Florida’s capital sentencing scheme.
5
Hurst appealed this denial to the
USSC arguing that Florida’s capital sentencing scheme violated Ring because it allowed the jury to
recommend a death sentence with only a simple majority vote, it required the judge to find the facts
necessary to impose the death penalty, and it authorized the judge to impose the death penalty.
Hurst v. Florida, 577 U.S. 92 (2016)
In January 2016, in Hurst v. Florida, the USSC held Florida’s capital sentencing scheme
unconstitutional in an eight-to-one opinion.
6
The USSC ruled that the Sixth Amendment requires a jury,
not a judge, to find each fact necessary to impose a death sentence as a jury’s “mere recommendation
is not enough.”
7
Specifically, the USSC held that a jury must unanimously find the existence of an
aggravating factor, making the defendant eligible for a death sentence. A judge’s finding of an
aggravating factor, in the absence of a jury finding of the same, violates the Sixth Amendment, making
Florida’s capital punishment scheme unconstitutional. The USSC compared Florida’s sentencing
scheme to Arizona’s in Ring and found Florida’s distinguishing factor of the advisory jury
recommendation to be immaterial. Like the unconstitutional practice in Ring, the Court found the judge
in Hurst performed her own fact finding which increased Hurst’s authorized punishment, thereby
violating the Sixth Amendment. The USSC also expressly overruled its past decisions upholding
Florida’s law that were issued prior to Ring to the extent they allowed a sentencing judge to find an
aggravating factor, independent of a jury’s factfinding, necessary for the imposition of a death
sentence.
8
The case was reversed and remanded to the FSC.
HB 7101 (2016)- Sentencing for Capital Felonies
In March of 2016, the Legislature responded to the USSC’s Hurst v. Florida ruling by passing HB
7101.
9
Under this new statutory scheme, the jury continued to determine whether an aggravating factor
existed, but was required to find each aggravating factor it relied upon unanimously. If the jury:
Did not unanimously find at least one aggravating factor, the jury was required to recommend a
sentence of life imprisonment without the possibility of parole.
Unanimously found at least one aggravating factor, the defendant was eligible for a sentence of
death and the jury was required to make a recommendation to the court as to whether the
defendant should be sentenced to life imprisonment without the possibility of parole or to death.
This recommendation was required to be based on a determination of whether: sufficient aggravating
factors exist; whether those factors were sufficient to outweigh any mitigating circumstances which
3
See, e.g., Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) cert. denied, 537 U.S. 1070 (2002); King v. Moore, 831 So. 2d 143 (Fla.
2002) cert. denied, 537 U.S. 1067 (2002); State v. Steele, 921 So. 2d 538, 548 (Fla. 2005).
4
See Hurst v. State, 147 So. 3d 435 (Fla. 2014).
5
See Evans v. Secretary, Fla. Dep’t of Corrections, 699 F. 3d 1249 (11th Cir. 2012).
6
577 U.S. 92 (2016).
7
Id. at 94.
8
Id. at 102.
9
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existed; and whether, based on a weighing of those considerations, the defendant should be sentenced
to life imprisonment without the possibility of parole or to death.
If at least 10 jurors determined the defendant should be sentenced to death, the jury was required to
make a recommendation of a death sentence. If fewer than 10 jurors determined a death sentence was
appropriate, the jury was required to recommend a sentence of life imprisonment. If the jury
recommended life imprisonment, the judge was required to impose the recommended sentence. If the
jury recommended a death sentence, the judge was authorized to impose a death sentence or a
sentence of life imprisonment without the possibility of parole after considering each aggravating factor
found by the jury and all mitigating circumstances. The judge was only permitted to consider an
aggravating factor that was unanimously found by the jury.
Hurst v. State, 202 So. 3d 40 (Fla. 2016) (Hurst II)
In October of 2016, on remand from the USSC, the FSC issued its opinion in Hurst v. State. The FSC
reasoned that there are three “critical findings,” also referred to by the FSC as “facts” or “elements,”
which must be found by a capital jury before it may consider recommending a sentence of death. These
critical findings or “elements” were:
The existence of each aggravating factor that has been proven beyond a reasonable doubt;
That the aggravating factors are sufficient to impose death; and
That the aggravating factors outweigh the mitigating circumstances.
Further, the FSC ruled that each of the critical findings must be found unanimously by the jury based on
Florida’s adoption of the common law, the Florida Constitution’s right to trial by jury, and the Sixth and
Eighth Amendments to the U.S. Constitution. Finally, the FSC ruled that a jury’s recommendation of a
death sentence must also be unanimous. In part, the majority stated: “we conclude that juror unanimity
in any recommended verdict resulting in a death sentence is required under the Eighth Amendment.
Although the [U.S.] Supreme Court has not ruled on whether unanimity is required in the jury's advisory
verdict in capital cases, the foundational precept of the Eighth Amendment calls for unanimity….”
10
Perry v. State, 210 So. 3d 630 (Fla. 2016)
On the same day the FSC decided Hurst II, it also decided Perry v. State. There, the FSC held the
Legislature’s March 2016 revision to Florida’s capital sentencing scheme (HB 7101)
11
unconstitutional
because it required only 10 jurors to recommend a death sentence as opposed to a unanimous, 12-
member jury. As such, the FSC found the 10-2 jury sentence recommendation requirement could not
be applied to pending prosecutions. The Court stated that the revision to the statute could not “be
applied constitutionally to pending prosecutions because the [revisions do] not require unanimity in the
jury’s final recommendation as to whether the defendant should be sentenced to death” and thus
violate the state constitutional right to trial by jury. However, the Court found that the other changes
made by HB 7101, which required a unanimous jury finding on all “elements” required to impose a
death sentence, were constitutional.
SB 280 (2017)- Sentencing for Capital Felonies
In March of 2017, in response to the FSC’s Hurst II and Perry decisions, the Legislature passed SB 280
to require a jury’s recommendation of a death sentence to be unanimous.
12
Under the bill, if the jury did
not unanimously determine that the defendant should be sentenced to death, the jury’s
recommendation was required to be a sentence of life imprisonment without the possibility of parole.
Section 921.141, F.S., has not been amended since SB 280 became law in 2017.
State v. Poole, 297 So. 3d 487 (Fla. 2020)
10
Hurst v. State, 202 So. 3d 40, 44-45 (Fla. 2016).
11
Supra note 9.
12
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DATE: 3/29/2023
In January of 2020, the FSC partially receded from its Hurt II decision in State v. Poole. There, the FSC
determined that under USSC precedent and the Florida Constitution the only “Hurst element” that truly
qualifies as an “element” required to be found unanimously by a jury is the finding of the existence of an
aggravating factor which makes the defendant eligible for a death sentence. Further, the FSC reasoned
that because the determination of whether the aggravating factors outweigh the mitigating
circumstances is not a fact that exposes the defendant to a greater punishment than that authorized by
the jury's guilty verdict, it is not an “element” and, as such, the Sixth Amendment does not require a jury
to make the finding. Finally, the Court found that the Hurst II requirement of a unanimous jury
recommendation of death was wrongly decided because the USSC had previously explicitly rejected
such a requirement by holding that a trial judge, acting alone, could impose a capital sentence.
13
Ultimately, the FSC partially receded from Hurst except to the extent that Hurst required a jury to
unanimously find the existence of a statutory aggravating factor beyond a reasonable doubt for a
defendant to be eligible for a death sentence.
Florida’s Capital Sentencing Scheme (Current)
Section 921.141, F.S.,
14
has remained unchanged since 2017 when the Legislature amended the law to
comply with the FSC’s rulings in Hurst II and Perry. Specifically, to sentence a defendant to death when
he or she has not waived the right to a sentencing proceeding by a jury, a jury must unanimously find:
The existence of at least one aggravating factor and that any aggravating factors found to exist
were proven beyond a reasonable doubt;
The aggravating factors
15
are sufficient to impose death;
The aggravating factors outweigh the mitigating circumstances
16
found to exist; and
That, based on the prior considerations, the defendant should be sentenced to death.
17
Additionally, if a jury does not unanimously determine the defendant should be sentenced to death, the
jury’s recommendation must be a sentence of life imprisonment and the court must impose the
recommended sentence.
18
If, however, a jury unanimously determines a death sentence is appropriate,
it must recommend a sentence of death. Thereafter, the judge must consider each aggravating factor
found by the jury and all mitigating circumstances, and may impose a sentence of life imprisonment or
a death sentence.
19
According to the Death Penalty Information Center,
20
the number of death sentences imposed in
Florida for the past 10 years are as follows:
Death Sentences Imposed in Florida (2012-2021)
13
See Spaziano v. Florida, 104 S.Ct. 3154 (1984).
14
Section 921.142, F.S., governs sentencing for defendants convicted of capital drug trafficking crimes. The statute substantially
mirrors s. 921.141, F.S., but differs in the aggravating factors and mitigating circumstances eligible for consideration in a sentencing
determination. This bill analysis primarily discusses s. 921.141, F.S., as it is the primary statute governing the imposition of the death
penalty, however, the same discussion is applicable to s. 921.142, F.S.
15
The aggravating factors a jury may consider are limited to those enumerated in s. 921.141(6), F.S., and include factors such as: the
defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person, the capital
felony was especially heinous, atrocious, or cruel, and the victim of the capital felony was a person less than 12 years of age.
16
The mitigating circumstances a jury may consider are enumerated in s. 921.141(7), F.S., and include factors such as: the defendant
has no significant history of prior criminal activity, the age of the defendant at the time of the crime, and the existence of any other
factors in the defendant’s background that would mitigate against imposition of the death penalty.
17
S. 921.141(2), F.S.
18
In October of 2022, convicted murderer Nicholas Cruz, who plead guilty to killing 17 people at Marjory Stoneman Douglas High
School in February of 2018, was sentenced to life imprisonment without the possibility of parole. The sentencing jury foreman reported
that three jurors voted against the death penalty.
19
S. 921.141(3), F.S.
20
Death Sentences in the United States Since 1977, By State and By Year, https://deathpenaltyinfo.org/facts-and-research/sentencing-
data/death-sentences-in-the-united-states-from-1977-by-state-and-by-year (last visited Mar. 10, 2023). STORAGE NAME: h0555c.JDC PAGE: 6
DATE: 3/29/2023
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
20 15 11 9 3 3 7 7 7 2
Other States
Twenty-seven other states
21
and the federal government have a capital punishment scheme.
22
The way
in which a death sentence may be imposed varies amongst jurisdictions; however, capital sentencing
schemes can be grouped into three primary categories, including those in which:
A unanimous jury recommendation is required to impose a death sentence;
23
A non-unanimous jury recommendation is permitted to impose a death sentence;
24
and
A judge may impose a death sentence after a jury finding of eligibility.
25
While a majority of other states require a unanimous jury recommendation to impose a death sentence,
several states authorize a court to impanel one or more new juries during the penalty phase of a capital
case if the initial jury is not able to reach a unanimous recommendation of either life imprisonment or a
death sentence.
26
Effect of Proposed Changes
CS/HB 555 amends ss. 921.141 and 921.142, F.S., to revise Florida’s capital sentencing scheme by
requiring:
A jury to recommend a sentence of death to the court if at least eight jurors determine a
defendant should be sentenced to death; and
The court to impose a sentence of death when such a sentence is recommended by the jury.
As such, the bill removes the current requirement for a unanimous jury to recommend a death sentence
and also removes the ability of the court, in cases in which the jury has recommended a death
sentence, to consider each aggravating factor found by the jury and all mitigating circumstances, and to
determine whether the defendant should be sentenced to death or to imprisonment without the
possibility of parole.
The bill retains the requirements for: a jury to unanimously find at least one aggravating factor was
proven beyond a reasonable doubt to make a defendant eligible for a death sentence, and a court to
impose a sentence of life imprisonment without the possibility of parole when a jury recommends such
a sentence.
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 921.141, F.S., relating to a sentence of death or life imprisonment for capital
felonies.
Section 2: Amends s. 921.142, F.S., relating to a sentence of death or life imprisonment for capital
21
Three states- California, Oregon, and Pennsylvania have a moratorium on the death penalty. States with the Death Penalty, Death
Penalty Bans, and Death Penalty Moratoriums, https://deathpenalty.procon.org/states-with-the-death-penalty-and-states-with-death-
penalty-bans/ (last visited Mar. 10, 2023).
22
Facts about the Death Penalty, https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf (last visited Mar. 10, 2023).
23
See, e.g., Cal. Penal Code § 190.4 (b) (requiring a unanimous jury recommendation of a death sentence in order for capital
punishment to be imposed by the court).
24
See, e.g., AL Code § 13A-5-46 (f)-(g) (requiring at least ten-out-of-twelve jurors to concur in order for a jury to recommend the death
penalty).
25
See, e.g., Mont. Code Ann. § 46-18-301 (1)-(2)(a) (allowing for the trial court judge alone to impose the death penalty if the jury finds
a defendant to be eligible); Neb. Rev. Stat. Ann. § 29-2521 (1) (allowing for a three-judge panel to decide whether to impose the death
penalty after a defendant is deemed eligible).
26
See, e.g., Ariz. Rev. Stat. Ann. § 13-752 (K) (authorizing a new jury to be impaneled if a jury is not unanimous in its recommendation
of a death sentence or life imprisonment without the possibility of parole). STORAGE NAME: h0555c.JDC PAGE: 7
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drug trafficking felonies.
Section 3: Provides an effective date of October 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an indeterminate fiscal impact on state expenditures. To the extent the bill results
in a greater number of death sentences being imposed, it may increase the number of inmates on
death row and the costs associated with their incarceration and execution.
Additionally, s. 921.141(4), F.S., requires a death sentence to be subject to automatic review by the
FSC and requires a disposition to be rendered within two years of the filing of the notice of appeal.
To the extent that the bill results in an increased number of death sentences being imposed, the
FSC will be required to review more sentences within the required timeframe. However, such
reviews are performed as part of the FSC’s normal operations and would likely be absorbed within
existing resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of a state tax shared with counties or
municipalities.
2. Other:
The bill implicates the United States Constitution’s Fifth Amendment Due Process Clause, the Sixth
Amendment right to trial by jury, and the Eight Amendment prohibition on cruel and unusual
punishment as well as the right to a jury trial in Florida’s Constitution. STORAGE NAME: h0555c.JDC PAGE: 8
DATE: 3/29/2023
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 7, 2023, the Criminal Justice adopted a proposed committee substitute (PCS) and reported the
bill favorably as a committee substitute. The PCS differed from the original bill in that it:
Required the court to sentence a defendant as recommended by the jury, rather than performing an
independent evaluation of aggravating factors and mitigating circumstances to determine the
sentence after receiving the jury’s advisory recommendation.
Removed the requirement for the court to set forth specified findings in writing if it imposes a death
sentence.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.