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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; amending s. 18
924.07, F.S.; authorizing the state to appeal f rom a 19
sentence on the grounds that it resulted from the 20
failure of the circuit court to comply with specified 21
sentencing procedure requirements; providing an 22
effective date. 23
24
Be It Enacted by the Legislature of the State of Florida: 25
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Section 1. Paragraph (a) of subsection (2) of section 27
794.011, Florida Statutes, is amended to read: 28
794.011 Sexual battery. — 29
(2)(a) A person 18 years of age or older who commits 30
sexual battery upon, or in an attempt to commit sexual battery 31
injures the sexual organ s of, a person less than 12 years of age 32
commits a capital felony, punishable as provided in ss. 775.082 33
and 921.1425. In all capital cases under this section, the 34
procedure set forth in s. 921.1425 shall be followed in order to 35
determine a sentence of dea th or life imprisonment. If the 36
prosecutor intends to seek the death penalty, the prosecutor 37
must give notice to the defendant and file the notice with the 38
court within 45 days after arraignment. The notice must contain 39
a list of the aggravating factors th e state intends to prove and 40
has reason to believe it can prove beyond a reasonable doubt. 41
The court may allow the prosecutor to amend the notice upon a 42
showing of good cause 921.141. 43
Section 2. Section 921.1425, Florida Statutes, is created 44
to read: 45
921.1425 Sentence of death or life imprisonment for 46
capital sexual battery; further proceedings to determine 47
sentence.— 48
(1) INTENT.— 49
(a) The Legislature finds that a person who commits a 50
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sexual battery upon, or in an attempt to commit sexual battery 51
injures the sexual organs of, a person less than 12 years of age 52
carries a great risk of death and danger to vulnerable members 53
of this state. Such crimes destroy the innocence of a young 54
child and violate all standards of decency held by civilized 55
society. The Legislature further finds that Buford v. State of 56
Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 57
that Kennedy v. Louisiana , 554 U.S. 407, (2008), was wrongly 58
decided and an egregious infringement of the states' power to 59
punish the most heinous of crimes. 60
(b) It is the intent of the Legislature that the procedure 61
set forth in this section shall be followed, and a prosecutor 62
must file notice, as provided in s. 794.011(2)(a), if he or she 63
intends to seek the death penalty. 64
(2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY. —Upon 65
conviction or adjudication of guilt of a defendant of a capital 66
felony under s. 794.011, the court shall conduct a separate 67
sentencing proceeding to determine whether the defendant should 68
be sentenced to death or lif e imprisonment as authorized by s. 69
775.082. The proceeding shall be conducted by the trial judge 70
before the trial jury as soon as practicable. If, through 71
impossibility or inability, the trial jury is unable to 72
reconvene for a hearing on the issue of penal ty, having 73
determined the guilt of the accused, the trial judge may summon 74
a special juror or jurors as provided in chapter 913 to 75
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determine the issue of the imposition of the penalty. If the 76
trial jury has been waived, or if the defendant pleaded guilty, 77
the sentencing proceeding shall be conducted before a jury 78
impaneled for that purpose, unless waived by the defendant. In 79
the proceeding, evidence may be presented as to any matter that 80
the court deems relevant to the nature of the crime and the 81
character of the defendant and shall include matters relating to 82
any of the aggravating factors enumerated in subsection (7) and 83
for which notice has been provided pursuant to s. 794.011(2)(a) 84
or mitigating circumstances enumerated in subsection (8). Any 85
such evidence that the court deems to have probative value may 86
be received, regardless of its admissibility under the 87
exclusionary rules of evidence, provided the defendant is 88
accorded a fair opportunity to rebut any hearsay statements. 89
However, this subsection shall not be construed to authorize the 90
introduction of any evidence secured in violation of the United 91
States Constitution or the Florida Constitution. The state and 92
the defendant or the defendant's counsel shall be permitted to 93
present argument for or against a sentence of death. 94
(3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY. —This 95
subsection applies only if the defendant has not waived his or 96
her right to a sentencing proceeding by a jury. 97
(a) After hearing all of the evidence presented regarding 98
aggravating factors and mitigating circumstances, the jury shall 99
deliberate and determine if the state has proven, beyond a 100
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reasonable doubt, the existence of at least two aggravating 101
factors set forth in subsection (7). 102
(b) The jury shall return findings ide ntifying each 103
aggravating factor found to exist. A finding that at least two 104
aggravating factors exist must be unanimous. If the jury: 105
1. Does not unanimously find at least two aggravating 106
factors, the defendant is ineligible for a sentence of death. 107
2. Unanimously finds at least two aggravating factors, the 108
defendant is eligible for a sentence of death and the jury shall 109
make a recommendation to the court as to whether the defendant 110
shall be sentenced to life imprisonment without the possibility 111
of parole or to death. The recommendation shall be based on a 112
weighing of all of the following: 113
a. Whether sufficient aggravating factors exist. 114
b. Whether aggravating factors exist which outweigh the 115
mitigating circumstances found to exist. 116
c. Based on the considerations in sub -subparagraphs a. and 117
b., whether the defendant should be sentenced to life 118
imprisonment without the possibility of parole or to death. 119
(c) If at least eight jurors determine that the defendant 120
should be sentenced to death, the j ury's recommendation to the 121
court shall be a sentence of death. If fewer than eight jurors 122
determine that the defendant should be sentenced to death, the 123
jury's recommendation to the court shall be a sentence of life 124
imprisonment without the possibility of parole. 125
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(4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. — 126
(a) If the jury has recommended a sentence of: 127
1. Life imprisonment without the possibility of parole, 128
the court shall impose the recommended sentence of life 129
imprisonment without th e possibility of parole. 130
2. Death, the court, after considering each aggravating 131
factor found by the jury and all mitigating circumstances, may 132
impose a sentence of life imprisonment without the possibility 133
of parole or a sentence of death. The court may consider only an 134
aggravating factor that was unanimously found to exist by the 135
jury. The court may impose a sentence of death only if the jury 136
unanimously found at least two aggravating factors beyond a 137
reasonable doubt. 138
(b) If the defendant waived his or her right to a 139
sentencing proceeding by a jury, the court, after considering 140
all aggravating factors and mitigating circumstances, may impose 141
a sentence of life imprisonment without the possibility of 142
parole or a sentence of death. The court may impose a sentence 143
of death only if the court finds that at least two aggravating 144
factors have been proven to exist beyond a reasonable doubt. 145
(5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE 146
IMPRISONMENT OR DEATH. —In each case in which the court imposes a 147
sentence of life imprisonment without the possibility of parole 148
or death, the court shall, considering the records of the trial 149
and the sentencing proceedings, enter a written order addressing 150
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the aggravating factors set forth in subsection (7) found to 151
exist, the mitigating circumstances in subsection (8) reasonably 152
established by the evidence, whether there are sufficient 153
aggravating factors to warrant the death penalty, and whether 154
the aggravating factors outweigh the mitigating circumstances 155
reasonably established by the evidence. The court shall include 156
in its written order the reasons for not accepting the jury's 157
recommended sentence, if applicable. If the court does not issue 158
its order requiring the death sentence within 30 days after the 159
rendition of the judgment and sentence, the court shall impose a 160
sentence of life imprisonment without the possibility of parole 161
in accordance with s. 775.082. 162
(6) REVIEW OF JUDGMENT AND SENTENCE. —The judgment of 163
conviction and sentence of death shall be subject to automatic 164
review by the Supreme Court and disposition rendered within 2 165
years after the filing of a notice of appeal. Such review by the 166
Supreme Court shall have priority over all other cases and shall 167
be heard in accordance with rules adopted by the Supre me Court. 168
(7) AGGRAVATING FACTORS. —Aggravating factors shall be 169
limited to the following: 170
(a) The capital felony was committed by a person 171
previously convicted of a felony violation of s. 794.011, and 172
under sentence of imprisonment or placed on communi ty control or 173
on felony probation. 174
(b) The defendant was previously convicted of another 175
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capital felony or of a felony involving the use or threat of 176
violence to the person. 177
(c) The capital felony was committed by a person 178
designated as a sexual preda tor pursuant to s. 775.21 or a 179
person previously designated as a sexual predator who had the 180
sexual predator designation removed. 181
(d) The capital felony was committed by a sexual offender 182
who is required to register pursuant to s. 943.0435 or a person 183
previously required to register as a sexual offender who had 184
such requirement removed. 185
(e) The defendant knowingly created a great risk of death 186
to one or more persons such that participation in the offense 187
constituted reckless indifference or disregard fo r human life. 188
(f) The defendant used a firearm or knowingly directed, 189
advised, authorized, or assisted another to use a firearm to 190
threaten, intimidate, assault, or injure a person in committing 191
the offense or in furtherance of the offense. 192
(g) The capital felony was committed for pecuniary gain. 193
(h) The capital felony was especially heinous, atrocious, 194
or cruel. 195
(i) The victim of the capital felony was particularly 196
vulnerable due to age or disability, or because the defendant 197
stood in a position of familial or custodial authority over the 198
victim. 199
(j) The capital felony was committed by a person subject 200
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to an injunction issued pursuant to s. 741.30 or s. 784.046, or 201
a foreign protection order accorded full faith and credit 202
pursuant to s. 741.315, and was committed against the petitioner 203
who obtained the injunction or protection order or any spouse, 204
child, sibling, or parent of the petitioner. 205
(k) The victim of the capital felony sustained serious 206
bodily injury. 207
(8) MITIGATING CIRCUMSTANCES. —Mitigating circumstances 208
shall be the following: 209
(a) The defendant has no significant history of prior 210
criminal activity. 211
(b) The capital felony was committed while the defendant 212
was under the influence of extreme mental or emotion al 213
disturbance. 214
(c) The defendant was an accomplice in the capital felony 215
committed by another person and his or her participation was 216
relatively minor. 217
(d) The defendant acted under extreme duress or under the 218
substantial domination of another person. 219
(e) The capacity of the defendant to appreciate the 220
criminality of his or her conduct or to conform his or her 221
conduct to the requirements of law was substantially impaired. 222
(f) The age of the defendant at the time of the crime. 223
(g) The existence of any other factors in the defendant's 224
background that would mitigate against imposition of the death 225
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penalty. 226
(9) VICTIM IMPACT EVIDENCE. —Once the prosecution has 227
provided evidence of the existence of two or more aggravating 228
factors as described in subsection (7), the prosecution may 229
introduce, and subsequently argue, victim impact evidence to the 230
jury. Such evidence shall be designed to demonstrate the 231
victim's uniqueness as an individual human being and the 232
physical and psychologica l harm to the victim. Characterizations 233
and opinions about the crime, the defendant, and the appropriate 234
sentence shall not be permitted as a part of victim impact 235
evidence. 236
(10) CONSTITUTIONALITY. —Notwithstanding s. 775.082(2) or 237
s. 775.15, or any other provision of law, a sentence of death 238
shall be imposed under this section notwithstanding existing 239
case law which holds such a sentence is unconstitutional under 240
the Florida Constitution and the United States Constitution. In 241
any case for which the Florid a Supreme Court or the United 242
States Supreme Court reviews a sentence of death imposed 243
pursuant to this section, and in making such a review 244
reconsiders the prior holdings in Buford v. State and Kennedy v. 245
Louisiana, and determines a sentence of death rema ins 246
unconstitutional, the court having jurisdiction over the person 247
previously sentenced to death shall cause such person to be 248
brought before the court, and the court shall sentence such 249
person to life imprisonment as provided in s. 775.082(1). 250
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(11) APPLICABILITY.—This section applies to any capital 251
felony under s. 794.011, that is committed on or after October 252
1, 2023. 253
Section 3. Subsection (4) of section 921.137, Florida 254
Statutes, is amended to read: 255
921.137 Imposition of the death sentence upon an 256
intellectually disabled defendant prohibited. — 257
(4) After a defendant who has given notice of his or her 258
intention to raise intellectual disability as a bar to the death 259
sentence is convicted of a capital felony and an advisory jury 260
has returned a recommended sentence of death, the defendant may 261
file a motion to determine whether the defendant is 262
intellectually disabled. Upon receipt of the motion, the court 263
shall appoint two experts in the field of intellectual 264
disabilities who shall evaluate the defen dant and report their 265
findings to the court and all interested parties prior to the 266
final sentencing hearing. Notwithstanding s. 921.141 , or s. 267
921.142, or s. 921.1425, the final sentencing hearing shall be 268
held without a jury. At the final sentencing hear ing, the court 269
shall consider the findings of the court -appointed experts and 270
consider the findings of any other expert which is offered by 271
the state or the defense on the issue of whether the defendant 272
has an intellectual disability. If the court finds, b y clear and 273
convincing evidence, that the defendant has an intellectual 274
disability as defined in subsection (1), the court may not 275
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impose a sentence of death and shall enter a written order that 276
sets forth with specificity the findings in support of the 277
determination. 278
Section 4. Subsection (9) of section 921.141, Florida 279
Statutes, is amended to read: 280
921.141 Sentence of death or life imprisonment for capital 281
felonies; further proceedings to determine sentence. — 282
(9) APPLICABILITY.—This section does not apply to a person 283
convicted or adjudicated guilty of a capital sexual battery 284
under s. 794.011 or a capital drug trafficking felony under s. 285
893.135. 286
Section 5. Paragraph (n) is added to subsection (1) of 287
section 924.07, Florida Statutes, to read: 288
924.07 Appeal by state. — 289
(1) The state may appeal from: 290
(n) The sentence in a case of capital sexual battery on 291
the ground that it resulted from the circuit court's failure to 292
comply with sentencing procedures under s. 921.1425, including 293
by striking a notice of intent to seek the death penalty, 294
refusing to impanel a capital jury, or otherwise granting relief 295
that prevents the state from seeking a sentence of death. 296
Section 6. This act shall take effect October 1, 2023. 297