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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to capital sexual battery; amending s. 2
794.011, F.S.; providing for death sentences for 3
certain child sexual offenders; creating s. 921.1425, 4
F.S.; providing legislative intent concerning capital 5
punishment for certain child sexual offenders; 6
providing for separate death penalty proceedings in 7
such cases; providing for findings and recommended 8
sentences by a jury; providing for imposition of 9
sentence of life imprisonment or death; providing 10
requirements for a court order in support of a death 11
sentence; providing for automatic review of sentences 12
of death; specifying aggravating factors and 13
mitigating circumstances; providing for victim impact 14
evidence; providing for resentencing if provisions are 15
found to be unconstitutional; providing applicability; 16
amending ss. 921.137 and 921.141, F.S.; conforming 17
provisions to changes made by the act; providing an 18
effective date. 19
20
Be It Enacted by the Legi slature of the State of Florida: 21
22
Section 1. Paragraph (a) of subsection (2) of section 23
794.011, Florida Statutes, is amended to read: 24
794.011 Sexual battery. — 25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(2)(a) A person 18 years of age or older who commits 26
sexual battery upon, or in an attem pt to commit sexual battery 27
injures the sexual organs of, a person less than 12 years of age 28
commits a capital felony, punishable as provided in ss. 775.082 29
and 921.1425. In all capital cases under this section, the 30
procedure set forth in s. 921.1425 shall be followed in order to 31
determine a sentence of death or life imprisonment. If the 32
prosecutor intends to seek the death penalty, the prosecutor 33
must give notice to the defendant and file the notice with the 34
court within 45 days after arraignment. The noti ce must contain 35
a list of the aggravating factors the state intends to prove and 36
has reason to believe it can prove beyond a reasonable doubt. 37
The court may allow the prosecutor to amend the notice upon a 38
showing of good cause 921.141. 39
Section 2. Section 921.1425, Florida Statutes, is created 40
to read: 41
921.1425 Sentence of death or life imprisonment for 42
capital sexual battery; further proceedings to determine 43
sentence.— 44
(1) INTENT.— 45
(a) The Legislature finds that a person who commits a 46
sexual battery upon, or in an attempt to commit sexual battery 47
injures the sexual organs of, a person less than 12 years of age 48
carries a great risk of death and danger to vulnerable members 49
of this state. Such crimes destroy the innocence of a young 50
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child and violate all standards of decency held by civilized 51
society. The Legislature further finds that Buford v. State of 52
Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 53
that Kennedy v. Louisiana , 554 U.S. 407, (2008), was wrongly 54
decided and an egregious infringement of the states' power to 55
punish the most heinous of crimes. 56
(b) It is the intent of the Legislature that the procedure 57
set forth in this section shall be followed, and a prosecutor 58
must file notice, as provided in s. 794.011(2)(a), if he or s he 59
intends to seek the death penalty. 60
(2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY. —Upon 61
conviction or adjudication of guilt of a defendant of a capital 62
felony under s. 794.011, the court shall conduct a separate 63
sentencing proceeding to determine wheth er the defendant should 64
be sentenced to death or life imprisonment as authorized by s. 65
775.082. The proceeding shall be conducted by the trial judge 66
before the trial jury as soon as practicable. If, through 67
impossibility or inability, the trial jury is una ble to 68
reconvene for a hearing on the issue of penalty, having 69
determined the guilt of the accused, the trial judge may summon 70
a special juror or jurors as provided in chapter 913 to 71
determine the issue of the imposition of the penalty. If the 72
trial jury has been waived, or if the defendant pleaded guilty, 73
the sentencing proceeding shall be conducted before a jury 74
impaneled for that purpose, unless waived by the defendant. In 75
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the proceeding, evidence may be presented as to any matter that 76
the court deems relevant to the nature of the crime and the 77
character of the defendant and shall include matters relating to 78
any of the aggravating factors enumerated in subsection (7) and 79
for which notice has been provided pursuant to s. 794.011(2)(a) 80
or mitigating circums tances enumerated in subsection (8). Any 81
such evidence that the court deems to have probative value may 82
be received, regardless of its admissibility under the 83
exclusionary rules of evidence, provided the defendant is 84
accorded a fair opportunity to rebut an y hearsay statements. 85
However, this subsection shall not be construed to authorize the 86
introduction of any evidence secured in violation of the United 87
States Constitution or the Florida Constitution. The state and 88
the defendant or the defendant's counsel s hall be permitted to 89
present argument for or against a sentence of death. 90
(3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY. —This 91
subsection applies only if the defendant has not waived his or 92
her right to a sentencing proceeding by a jury. 93
(a) After hearing all of the evidence presented regarding 94
aggravating factors and mitigating circumstances, the jury shall 95
deliberate and determine if the state has proven, beyond a 96
reasonable doubt, the existence of at least one aggravating 97
factor set forth in subse ction (7). 98
(b) The jury shall return findings identifying each 99
aggravating factor found to exist. A finding that an aggravating 100
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factor exists must be unanimous. If the jury: 101
1. Does not unanimously find at least one aggravating 102
factor, the defendant is ineligible for a sentence of death. 103
2. Unanimously finds at least one aggravating factor, the 104
defendant is eligible for a sentence of death and the jury shall 105
make a recommendation to the court as to whether the defendant 106
shall be sentenced to life imprisonment without the possibility 107
of parole or to death. The recommendation shall be based on a 108
weighing of all of the following: 109
a. Whether sufficient aggravating factors exist. 110
b. Whether aggravating factors exist which outweigh the 111
mitigating circumstances found to exist. 112
c. Based on the considerations in sub -subparagraphs a. and 113
b., whether the defendant should be sentenced to life 114
imprisonment without the possibility of parole or to death. 115
(c) If at least eight jurors determine that the defe ndant 116
should be sentenced to death, the jury's recommendation to the 117
court shall be a sentence of death. If fewer than eight jurors 118
determine that the defendant should be sentenced to death, the 119
jury's recommendation to the court shall be a sentence of lif e 120
imprisonment without the possibility of parole. 121
(4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. — 122
(a) If the jury has recommended a sentence of: 123
1. Life imprisonment without the possibility of parole, 124
the court shall impose the recommended sentence of life 125
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imprisonment without the possibility of parole. 126
2. Death, the court shall impose the recommended sentence 127
of death. The court may only impose a sentence of death if the 128
jury unanimously found at least one aggravating factor beyond a 129
reasonable doubt. 130
(b) If the defendant waived his or her right to a 131
sentencing proceeding by a jury, the court, after considering 132
all aggravating factors and mitigating circumstances, may impose 133
a sentence of life imprisonment without the possibility of 134
parole or a sentence of death. The court may impose a sentence 135
of death only if the court finds that at least one aggravating 136
factor has been proven to exist beyond a reasonable doubt. 137
(5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH. — 138
If a defendant waived his or her right to a sentencing 139
proceeding by a jury, and the court imposed a sentence of death 140
under paragraph (4)(b), the court shall, considering the records 141
of the trial and the sentencing proceedings, enter a written 142
order addressing the aggra vating factors set forth in subsection 143
(7) found to exist, the mitigating circumstances in subsection 144
(8) reasonably established by the evidence, whether there are 145
sufficient aggravating factors to warrant the death penalty, and 146
whether the aggravating fac tors outweigh the mitigating 147
circumstances reasonably established by the evidence. If the 148
court does not issue its order requiring the death sentence 149
within 30 days after the rendition of the judgment and sentence, 150
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the court shall impose a sentence of life imprisonment without 151
the possibility of parole in accordance with s. 775.082. 152
(6) REVIEW OF JUDGMENT AND SENTENCE. —The judgment of 153
conviction and sentence of death shall be subject to automatic 154
review by the Supreme Court and disposition rendered within 2 155
years after the filing of a notice of appeal. Such review by the 156
Supreme Court shall have priority over all other cases and shall 157
be heard in accordance with rules adopted by the Supreme Court. 158
(7) AGGRAVATING FACTORS. —Aggravating factors shall be 159
limited to the following: 160
(a) The capital felony was committed by a person 161
previously convicted of a felony violation of s. 794.011, and 162
under sentence of imprisonment or placed on community control or 163
on felony probation. 164
(b) The defendant was previously convicted of another 165
capital felony or of a felony involving the use or threat of 166
violence to the person. 167
(c) The capital felony was committed by a person 168
designated as a sexual predator pursuant to s. 775.21 or a 169
person previously designated as a sexu al predator who had the 170
sexual predator designation removed. 171
(d) The capital felony was committed by a sexual offender 172
who is required to register pursuant to s. 943.0435 or a person 173
previously required to register as a sexual offender who had 174
such requirement removed. 175
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(e) The defendant knowingly created a great risk of death 176
to one or more persons such that participation in the offense 177
constituted reckless indifference or disregard for human life. 178
(f) The defendant used a firearm or knowingly directe d, 179
advised, authorized, or assisted another to use a firearm to 180
threaten, intimidate, assault, or injure a person in committing 181
the offense or in furtherance of the offense. 182
(g) The capital felony was committed for pecuniary gain. 183
(h) The capital felon y was especially heinous, atrocious, 184
or cruel. 185
(i) The victim of the capital felony was particularly 186
vulnerable due to age or disability, or because the defendant 187
stood in a position of familial or custodial authority over the 188
victim. 189
(j) The capital felony was committed by a person subject 190
to an injunction issued pursuant to s. 741.30 or s. 784.046, or 191
a foreign protection order accorded full faith and credit 192
pursuant to s. 741.315, and was committed against the petitioner 193
who obtained the injunction o r protection order or any spouse, 194
child, sibling, or parent of the petitioner. 195
(k) The victim of the capital felony sustained serious 196
bodily injury. 197
(8) MITIGATING CIRCUMSTANCES. —Mitigating circumstances 198
shall be the following: 199
(a) The defendant has no significant history of prior 200
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criminal activity. 201
(b) The capital felony was committed while the defendant 202
was under the influence of extreme mental or emotional 203
disturbance. 204
(c) The defendant was an accomplice in the capital fe lony 205
committed by another person and his or her participation was 206
relatively minor. 207
(d) The defendant acted under extreme duress or under the 208
substantial domination of another person. 209
(e) The capacity of the defendant to appreciate the 210
criminality of his or her conduct or to conform his or her 211
conduct to the requirements of law was substantially impaired. 212
(f) The age of the defendant at the time of the crime. 213
(g) The existence of any other factors in the defendant's 214
background that would mitigate a gainst imposition of the death 215
penalty. 216
(9) VICTIM IMPACT EVIDENCE. —Once the prosecution has 217
provided evidence of the existence of one or more aggravating 218
factors as described in subsection (7), the prosecution may 219
introduce, and subsequently argue, vict im impact evidence to the 220
jury. Such evidence shall be designed to demonstrate the 221
victim's uniqueness as an individual human being and the 222
physical and psychological harm to the victim. Characterizations 223
and opinions about the crime, the defendant, and th e appropriate 224
sentence shall not be permitted as a part of victim impact 225
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evidence. 226
(10) CONSTITUTIONALITY. —Notwithstanding s. 775.082(2) or 227
s. 775.15, or any other provision of law, a sentence of death 228
shall be imposed under this section notwithstanding existing 229
case law which holds such a sentence is unconstitutional under 230
the Florida Constitution and the United States Constitution. In 231
any case for which the Florida Supreme Court or the United 232
States Supreme Court reviews a sentence of death imposed 233
pursuant to this section, and in making such a review 234
reconsiders the prior holdings in Buford v. State and Kennedy v. 235
Louisiana, and determines a sentence of death remains 236
unconstitutional, the court having jurisdiction over the person 237
previously sentenced to death shall cause such person to be 238
brought before the court, and the court shall sentence such 239
person to life imprisonment as provided in s. 775.082(1). 240
(11) APPLICABILITY. —This section applies to any capital 241
felony under s. 794.011, that is committed on or after October 242
1, 2023. 243
Section 3. Subsection (4) of section 921.137, Florida 244
Statutes, is amended to read: 245
921.137 Imposition of the death sentence upon an 246
intellectually disabled defendant prohibited. — 247
(4) After a defendant who has given not ice of his or her 248
intention to raise intellectual disability as a bar to the death 249
sentence is convicted of a capital felony and an advisory jury 250
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has returned a recommended sentence of death, the defendant may 251
file a motion to determine whether the defenda nt is 252
intellectually disabled. Upon receipt of the motion, the court 253
shall appoint two experts in the field of intellectual 254
disabilities who shall evaluate the defendant and report their 255
findings to the court and all interested parties prior to the 256
final sentencing hearing. Notwithstanding s. 921.141 , or s. 257
921.142, or s. 921.1425, the final sentencing hearing shall be 258
held without a jury. At the final sentencing hearing, the court 259
shall consider the findings of the court -appointed experts and 260
consider the findings of any other expert which is offered by 261
the state or the defense on the issue of whether the defendant 262
has an intellectual disability. If the court finds, by clear and 263
convincing evidence, that the defendant has an intellectual 264
disability as defined in subsection (1), the court may not 265
impose a sentence of death and shall enter a written order that 266
sets forth with specificity the findings in support of the 267
determination. 268
Section 4. Subsection (9) of section 921.141, Florida 269
Statutes, is amended to read: 270
921.141 Sentence of death or life imprisonment for capital 271
felonies; further proceedings to determine sentence. — 272
(9) APPLICABILITY.—This section does not apply to a person 273
convicted or adjudicated guilty of a capital sexual battery 274
under s. 794.011 or a capital drug trafficking felony under s. 275
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893.135. 276
Section 5. This act shall take effect October 1, 2023. 277