This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1297b.JDC
DATE: 3/29/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1297 Capital Sexual Battery
SPONSOR(S): Criminal Justice Subcommittee, Baker and others
TIED BILLS: IDEN./SIM. BILLS: SB 1342
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 14 Y, 3 N, As CS Hall Hall
2) Judiciary Committee Hall Kramer
SUMMARY ANALYSIS
A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery
injures the sexual organs of, a person less than 12 years of age commits a capital felony. Under s. 775.082(1), F.S.,
a capital felony is punishable by a sentence of death or life imprisonment without the possibility of parole.
In Buford v. State, 403 So.2d 943 (Fla. 1981), the Florida Supreme Court (FSC) examined the constitutionality of a
death sentence for capital sexual battery, holding that “a sentence of death is grossly disproportionate and
excessive punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel
and unusual punishment.” Later, in 2008, the United States Supreme Court (USSC) considered the same question
in Kennedy v. Louisiana, 554 U.S. 407 (2008), and held that in their “independent judgment” the death penalty was
not a proportional punishment for child rape.
CS/HB 1297 amends s. 794.011, F.S., to authorize a death sentence for capital sexual battery. The bill creates s.
921.1425, F.S., to require a court to conduct a separate sentencing proceeding to determine whether a defendant
convicted of a capital sexual battery offense for which the state is seeking the death penalty should be sentenced to
death or life imprisonment. The bill establishes statutory aggravating factors and mitigating circumstances specific to
capital sexual battery. Under the bill, a jury must determine if the state has proven, beyond a reasonable doubt, the
existence of at least one aggravating factor. If the jury does not unanimously find at least one aggravating factor, the
defendant is ineligible for a death sentence. If the jury unanimously finds at least one aggravating factor, the
defendant is eligible for death and the jury must recommend to the court whether the defendant should be
sentenced to life imprisonment or to death.
Under the bill, if at least eight jurors determine the defendant should be sentenced to death, the jury’s
recommendation to the court must be a sentence of death. If fewer than eight jurors determine the defendant should
be sentenced to death, the jury’s recommendation to the court must be a sentence of life imprisonment. The bill
requires the court to sentence a defendant as recommended by the jury, but specifies that the court may only
impose a death sentence if the jury unanimously found at least one aggravating factor beyond a reasonable doubt.
The bill provides legislative findings that: a person who commits capital sexual battery carries a great risk of death
and danger to vulnerable members of the state; such crimes destroy the innocence of a young child and violate all
standards of decency held by a civilized society; and both Buford v. State and Kennedy v. Louisiana were wrongly
decided and an egregious infringement of the state’s power to punish the most heinous of crimes.
The bill requires a court to impose a death sentence notwithstanding existing case law which holds such a sentence
unconstitutional under the Florida Constitution and the United States Constitution. However, in any case for which
the FSC or the USSC reviews a death sentence imposed for a capital sexual battery offense, and in making such a
review reconsiders the holdings in Buford and Kennedy, and determines a sentence of death remains
unconstitutional, the court having jurisdiction over the person previously sentenced to death must resentence the
person to life imprisonment.
The bill specifies it is applicable to crimes committed on or after October 1, 2023. The bill may have a positive
indeterminate impact on state expenditures to the extent the bill results in death sentences being imposed for capital
sexual battery and a greater number of death sentences being subject to automatic review by the FSC.
The bill provides an effective date of October 1, 2023.
FULL ANALYSIS STORAGE NAME: h1297b.JDC PAGE: 2
DATE: 3/29/2023
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Capital Sexual Battery
Section 794.011, F.S., criminalizes sexual battery offenses and defines “sexual battery” as oral, anal, or
female genital penetration by, or union with, the sexual organ of another or the anal or female genital
penetration of another by any other object.
1
A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual
battery injures the sexual organs of, a person less than 12 years of age commits a capital felony,
punishable by death or life imprisonment.
2
Additionally, without regard to the willingness or consent of
the victim, which is not a defense to prosecution, a person who is in a position of familial or custodial
authority to a person less than 18 years of age and who engages in any act with that person while the
person is less than 12 years of age which constitutes sexual battery, or in an attempt to commit sexual
battery injures the sexual organs of such person, commits a capital felony if the offender is 18 years of
age or older.
3
Capital Sentencing
Section 775.082(1), F.S., requires a person who has been convicted of a capital felony to be punished
by death if a proceeding held to determine sentence under s. 921.141, F.S., results in a determination
that such person shall be punished by death, otherwise the person shall be punished by life
imprisonment and is not eligible for parole.
Under s. 921.141, F.S.,
4
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 are sufficient to impose death;
The aggravating factors outweigh the mitigating circumstances found to exist; and
That, based on the prior considerations, the defendant should be sentenced to death.
5
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. 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.
6
The aggravating factors a jury may consider are limited by statute. Section 921.141(6), F.S., provides
for the following aggravating factors:
The capital felony was committed by a person previously convicted of a felony and under
sentence of imprisonment or placed on community control or on felony probation.
The defendant was previously convicted of another capital felony or of a felony involving the use
or threat of violence to the person.
1
S. 794.011(1)(j), F.S.
2
Punishable as provided in ss. 775.082 and 921.141, F.S.
3
S. 794.011(8)(c), F.S.
4
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.
5
S. 921.141(2), F.S.
6
S. 921.141(3), F.S. STORAGE NAME: h1297b.JDC PAGE: 3
DATE: 3/29/2023
The defendant knowingly created a great risk of death to many persons.
The capital felony was committed while the defendant was engaged, or was an accomplice, in
the commission of, or an attempt to commit, or flight after committing or attempting to commit,
any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled
adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson;
burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a
destructive device or bomb.
The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody.
The capital felony was committed for pecuniary gain.
The capital felony was committed to disrupt or hinder the lawful exercise of any governmental
function or the enforcement of laws.
The capital felony was especially heinous, atrocious, or cruel.
The capital felony was a homicide and was committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal justification.
The victim of the capital felony was a law enforcement officer engaged in the performance of his
or her official duties.
The victim of the capital felony was an elected or appointed public official engaged in the
performance of his or her official duties if the motive for the capital felony was related, in whole
or in part, to the victim's official capacity.
The victim of the capital felony was a person less than 12 years of age.
The victim of the capital felony was particularly vulnerable due to advanced age or disability, or
because the defendant stood in a position of familial or custodial authority over the victim.
The capital felony was committed by a criminal gang member, as defined in s. 874.03, F.S.
The capital felony was committed by a person designated as a sexual predator pursuant to s.
775.21, F.S., or a person previously designated as a sexual predator who had the sexual
predator designation removed.
The capital felony was committed by a person subject to specified injunctions or foreign
protection orders and was committed against the petitioner who obtained the injunction or
protection order or any spouse, child, sibling, or parent of the petitioner.
Mitigating circumstances are not limited by statute. Section 921.141(7), F.S., specifies that mitigating
circumstances for a capital offense include the following:
The defendant has no significant history of prior criminal activity.
The capital felony was committed while the defendant was under the influence of extreme
mental or emotional disturbance.
The victim was a participant in the defendant's conduct or consented to the act.
The defendant was an accomplice in the capital felony committed by another person and his or
her participation was relatively minor.
The defendant acted under extreme duress or under the substantial domination of another
person.
The capacity of the defendant to appreciate the criminality of his or her conduct or to conform
his or her conduct to the requirements of law was substantially impaired.
The age of the defendant at the time of the crime.
The existence of any other factors in the defendant’s background that would mitigate against
imposition of the death penalty.
Section 775.082(2), F.S., sets out the procedure to be followed in the event the death penalty in a
capital felony is held to be unconstitutional by the Florida Supreme Court (FSC) or the United States
Supreme Court (USSC). The court which has jurisdiction over a person previously sentenced to death
for a capital felony must cause the person to be brought before the court and must sentence such a
person to life imprisonment. A death sentence cannot be reduced as a result of a determination that a STORAGE NAME: h1297b.JDC PAGE: 4
DATE: 3/29/2023
method of execution has been held to be unconstitutional under the Florida Constitution or the U.S.
Constitution.
7
Jury Unanimity Requirements in Capital Sentencing
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 FSC.
Ring v. Arizona, 536 U.S. 584 (2002)
In June 2002, the USSC examined Arizona’s capital sentencing scheme in Ring v. Arizona.
8
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
9
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
scheme in that it allowed the jury to make an advisory sentencing recommendation and the judge to
impose the sentence.
10
7
Section 775.15(1), F.S., sets forth the time limitations to initiate prosecutions for a capital felony. A capital felony may be commenced
at any time. Further, if the death penalty is held to be unconstitutional by the Florida Supreme Court or the U.S. Supreme Court, all
crimes designated as capital felonies shall be considered life felonies, and prosecution for such crimes may be commenced at any time.
8
536 U.S. 584 (2002).
9
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.
10
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). STORAGE NAME: h1297b.JDC PAGE: 5
DATE: 3/29/2023
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.
11
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.
12
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.
13
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.”
14
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.
15
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.
16
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
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
11
See Hurst v. State, 147 So. 3d 435 (Fla. 2014).
12
See Evans v. Secretary, Fla. Dep’t of Corrections, 699 F. 3d 1249 (11th Cir. 2012).
13
577 U.S. 92 (2016).
14
Id. at 94.
15
Id. at 102.
16
Ch. 2016-13, Laws of Fla. STORAGE NAME: h1297b.JDC PAGE: 6
DATE: 3/29/2023
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….”
17
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)
18
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.
19
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.
State v. Poole, 297 So. 3d 487 (Fla. 2020)
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
17
Hurst v. State, 202 So. 3d 40, 44-45 (Fla. 2016).
18
Supra note 20.
19
Ch. 2017-1, Laws of Fla. STORAGE NAME: h1297b.JDC PAGE: 7
DATE: 3/29/2023
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.
20
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.
Imposing the Death Penalty for Sexual Battery Offenses
Coker v. Georgia, 433 U.S. 584 (1977)
In Coker v. Georgia, the USSC determined that, with respect to rape of an adult woman,
21
a sentence
of death is grossly disproportionate and excessive punishment forbidden by the Eighth Amendment as
cruel and unusual punishment.
22
The defendant in Coker, had prior convictions for capital felonies of
rape, murder, and kidnapping, however, the USSC found his previous convictions did not change the
fact that in the case being punished, the rape did not involve the taking of a life. Distinguishing the
crime of rape from the crime of murder, the USSC said, “The murderer kills; the rapist, if no more than
that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so
happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction
that the death penalty, which ‘is unique in its severity and irrevocability’ is an excessive punishment for
the rapist who, as such, does not take human life.”
Buford v. State, 403 So.2d 943 (Fla. 1981)
In Buford, the Defendant was convicted of first degree murder, sexual battery on a child under 11 years
of age, and burglary with intent to commit sexual battery. The trial court imposed two death sentences
for the murder and sexual battery convictions. In determining whether a death sentence for the crime of
sexual battery of a child violated the Eighth and Fourteenth Amendments to the U.S. Constitution as
cruel and unusual punishment, the FSC looked to the USSC’s Coker decision, explicitly acknowledging
that Coker did not decide whether a death sentence for the rape of a child under the age of 11 was
unconstitutional. However, the FSC went on to explain that “[t]he reasoning in Coker v. Georgia
compels us to hold that a sentence of death is grossly disproportionate and excessive punishment for
the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual
punishment.” The FSC did not explicitly explain why the Coker holding regarding the rape of an adult
woman should apply equally to the rape of a child under 11 years of age. The death sentence for the
defendant’s murder conviction was sustained and the death sentence for sexual assault was vacated
and he was sentenced to life imprisonment on the sexual assault.
Kennedy v. Louisiana, 554 U.S. 407 (2008)
In this case, the defendant was charged with the aggravated rape of his 8 year old stepdaughter. The
jury unanimously determined the defendant should be sentenced to death and the Louisiana Supreme
Court affirmed the death sentence. In determining whether the death penalty was cruel and unusual
punishment and thus violative of the Eighth Amendment, the USSC examined the number of states with
capital rape provisions, finding that of the 36 states plus the Federal Government that had the death
penalty, only six of those jurisdictions authorized the death penalty for rape of a child. As such, the
Court found there was a national consensus against capital punishment for the crime of child rape.
Consistent with evolving standards of decency, the Court found a distinction between intentional first
degree murder and nonhomicide crimes against individual persons, including child rape. The Court
went on to conclude that regardless of any restrictions requiring the finding of aggravating factors
20
See Spaziano v. Florida, 104 S.Ct. 3154 (1984).
21
In subsequent decisions, the USSC has noted that the victim in this case, although characterized as an adult was actually a 16-year-
old woman, however, she may have qualified as an adult as she was married, had her own home, and had a child. See Kennedy v.
Louisiana, 554 U.S. 407, 427 (2008).
22
At the time the case was decided, Georgia was the only jurisdiction in the United States that authorized a sentence of death for the
rape of an adult woman. STORAGE NAME: h1297b.JDC PAGE: 8
DATE: 3/29/2023
necessary to impose a death sentence for child rape, it had “no confidence that the imposition of the
death penalty would not be so arbitrary as to be ‘freakish.’”
Finally, the Court went on to consider the problem of unreliable child testimony in some child rape
cases, the issue of removing the incentive for an offender not to kill their child rape victim, and the harm
that may be caused to the child victim if he or she was required to give testimony on multiple occasions
in a death penalty case. In striking down the death sentence in this case, the Court held that in their
“independent judgment” the death penalty was not a proportional punishment for the rape of a child.
23
Effect of Proposed Changes
CS/HB 1297 amends s. 794.011, F.S., to authorize a death sentence for a person 18 years of age or
older who commits sexual battery upon, or in attempting to commit sexual battery injures the sexual
organs of, a person less than 12 years of age. If the state attorney intends to seek the death penalty in
a capital sexual battery case, the bill requires the state attorney to give notice to the defendant and file
the notice with the court within 45 days of the defendant’s arraignment. The notice must contain a list of
the aggravating factors the state intends to prove and has reason to believe it can prove beyond a
reasonable doubt. Under the bill, the court may allow the state to amend the notice upon a showing of
good cause.
The bill creates s. 921.1425, F.S., to require a court to conduct a separate sentencing proceeding to
determine whether a defendant convicted of a capital sexual battery offense for which the state is
seeking the death penalty should be sentenced to death or life imprisonment. Under the bill, the
sentencing proceeding must be conduct by the trial judge in front of the trial jury as soon as practicable.
If the trial jury is unable to reconvene for the sentencing proceeding, the trial judge may summon a
special juror or jurors to determine the defendant’s sentence. In a case where the defendant waived a
trial jury or pleaded guilty, the sentencing proceeding must be conducted by a jury impaneled to
determine his or her sentence, unless the defendant waives a jury.
At the sentencing proceeding, the bill authorizes evidence relevant to the nature of the crime and the
character of the defendant to be presented and requires evidence relating to aggravating factors and
mitigating circumstances to be presented. The bill establishes statutory aggravating factors specific to
capital sexual battery, which include:
The capital felony was committed by a person previously convicted of a felony violation of s.
794.011, F.S., and under sentence of imprisonment or placed on community control or felony
probation.
The defendant was previously convicted of another capital felony or of a felony involving the use
or threat of violence to the person.
The capital felony was committed by a person designated as a sexual predator pursuant to s.
775.21, F.S., or a person previously designated as a sexual predator who had the sexual
predator designation removed.
The capital felony was committed by a sexual offender who is required to register pursuant to s.
943.0435, F.S., or a person previously required to register as a sexual offender who had such
requirement removed.
The defendant knowingly created a great risk of death to one or more persons such that
participation in the offense constituted reckless indifference or disregard for human life.
The defendant used a firearm or knowingly directed, advised, authorized, or assisted another to
use a firearm to threaten, intimidate, assault, or injure a person in committing the offense or in
furtherance of the offense.
The capital felony was committed for pecuniary gain.
The capital felony was especially heinous, atrocious, or cruel.
The victim of the capitol felony was particularly vulnerable due to age or disability, or because
the defendant stood in a position of familial or custodial authority over the victim.
The capital felony was committed by a person subject to an injunction issued pursuant to s.
741.30, F.S., or s. 784.046, F.S., or a foreign protection order accorded full faith and credit
23
Kennedy v. Louisiana, 554 U.S. 407, 421 (2008). STORAGE NAME: h1297b.JDC PAGE: 9
DATE: 3/29/2023
pursuant to s. 741.315, F.S., and was committed against the petitioner who obtained the
injunction or protection order or any spouse, child, sibling, or parent of the petitioner.
The victim of the capital felony sustained serious bodily injury.
Once the state provides evidence of one or more aggravating factors, the bill authorizes the state to
introduce victim impact evidence. Such evidence must be designed to demonstrate the victim’s
uniqueness as a human being and the physical and psychological harm to the victim.
The bill also establishes mitigating factors a jury may consider as follows:
The defendant has no significant history of prior criminal activity.
The capital felony was committed while the defendant was under the influence of extreme
mental or emotional disturbance.
The defendant was an accomplice in the capital felony committed by another person and his or
her participation was relatively minor.
The defendant acted under extreme duress or under the substantial domination of another
person.
The capacity of the defendant to appreciate the criminality of his or her conduct or to conform
his or her conduct to the requirements of law was substantially impaired.
The age of the defendant at the time of the crime.
The existence of any other factors in the defendant’s background that would mitigate against
imposition of the death penalty.
After hearing all the evidence presented regarding aggravating factors and mitigating circumstances,
the bill requires the jury to deliberate and determine if the state has proven, beyond a reasonable
doubt, the existence of at least one aggravating factor. If the jury:
Does not unanimously find at least one aggravating factor, the defendant is ineligible for a
sentence of death.
Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of
death and the jury must 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.
The bill requires the jury’s recommendation to be based on a weighing of the following:
Whether sufficient aggravators factors exist.
Whether aggravating factors exist which outweigh the mitigating circumstances found to exist.
Based on the prior considerations, whether the defendant should be sentenced to life
imprisonment without the possibility of parole or to death.
Under the bill, if at least eight jurors determine the defendant should be sentenced to death, the jury’s
recommendation to the court must be a sentence of death. If fewer than eight jurors determine the
defendant should be sentenced to death, the jury’s recommendation to the court must be a sentence of
life imprisonment without the possibility of parole. The bill requires the court to sentence a defendant as
recommended by the jury, but specifies that the court may only impose a sentence of death if the jury
unanimously found at least one aggravating factor beyond a reasonable doubt.
In a case where the defendant waives his or her right to a sentencing proceeding by a jury, the court
must consider all the aggravating factors and mitigating circumstances and may impose a sentence of
life imprisonment or death. The bill specifies a court may only impose a sentence of death if the court
finds that at least one aggravating factor has been proven to exist beyond a reasonable doubt. If the
court imposes a sentence of death it must enter a written order specifically the aggravating factors
found to exist, any mitigating circumstances established by the evidence, whether there are sufficient
aggravating factors to warrant the death penalty, and whether the aggravating factors outweigh the
mitigating circumstances in the case. If the court does not enter a written order requiring a death
sentence within 30 days after entering the defendant’s judgment and sentence, the court must impose
a sentence of life imprisonment without the possibility of parole.
STORAGE NAME: h1297b.JDC PAGE: 10
DATE: 3/29/2023
Under the bill, the FSC must automatically review a judgment of conviction and sentence of death and
must render an opinion within two years of the filing of a notice of appeal.
The bill provides legislative intent specifying that the Legislature finds that a person who commits
capital sexual battery carries a great risk of death and danger to vulnerable members of the state and
that such crimes destroy the innocence of a young child and violate all standards of decency held by a
civilized society. Further, the bill proves that the Legislature finds that both Buford v. State and Kennedy
v. Louisiana were wrongly decided and an egregious infringement of the state’s power to punish the
most heinous of crimes.
Under the bill, a court must impose a sentence of death notwithstanding existing case law which holds
such a sentence unconstitutional under the Florida Constitution and the United States Constitution.
However, in any case for which the FSC or the USSC reviews a death sentence imposed for a capital
sexual battery offense, and in making such a review reconsiders the holdings in Buford and Kennedy,
and determines a sentence of death remains unconstitutional, the court having jurisdiction over the
person previously sentenced to death must resentence the person to life imprisonment without the
possibility of parole.
The bill specifies it is applicable to crimes committed on or after October 1, 2023.
The bill provides an effective date of October 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 794.011, F.S., relating to sexual battery.
Section 2: Creates s. 921.1425, F.S., relating to sentence of death or life imprisonment for capital
sexual battery; further proceedings to determine sentence.
Section 3: Amends s. 921.137, F.S., relating to imposition of the death sentence upon an intellectually
disabled defendant prohibited.
Section 4: Amends s. 921.141, F.S., relating to sentence of death or life imprisonment for capital
felonies; further proceedings to determine sentence.
Section 5: Provides an effective date of October 1, 2023.
STORAGE NAME: h1297b.JDC PAGE: 11
DATE: 3/29/2023
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 death sentences being imposed, it may increase the number of inmates on death row and the
costs associated with their incarceration and execution.
Additionally, the bill 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. However,
the FSC is already responsible for reviewing death sentences for capital felonies and any increased
workload 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:
None.
2. Other:
The FSC and the USSC have both held that a death sentence for a capital sexual battery offense
violates the Eighth Amendment as cruel and unusual punishment. However, the bill acknowledges
the current case holdings and specifies that the Legislature finds those decisions were incorrectly
decided.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS: STORAGE NAME: h1297b.JDC PAGE: 12
DATE: 3/29/2023
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Criminal Justice Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment changed the effective date of the bill to October 1,
2023.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.