FL
Florida House Bill H1297

Florida 2023 Regular Session

Florida House Bill H1297 Compare Versions

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1010 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
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14+A bill to be entitled 1
1515 An act relating to capital sexual battery; amending s. 2
1616 794.011, F.S.; providing for death sentences for 3
1717 certain child sexual offenders; creating s. 921.1425, 4
1818 F.S.; providing legislative intent concerning capital 5
1919 punishment for certain child sexual offenders; 6
2020 providing for separate death penalty proceedings in 7
2121 such cases; providing for findings and recommended 8
2222 sentences by a jury; providing for imposition of 9
2323 sentence of life imprisonment or death; providing 10
2424 requirements for a court order in support of a death 11
2525 sentence; providing for automatic review of sentences 12
2626 of death; specifying aggravating factors and 13
2727 mitigating circumstances; providing for victim impact 14
2828 evidence; providing for resentencing if provisions are 15
2929 found to be unconstitutional; providing applicability; 16
3030 amending ss. 921.137 and 921.141, F.S.; conforming 17
3131 provisions to changes made by the act; amending s. 18
3232 924.07, F.S.; authorizing the state to appeal f rom a 19
3333 sentence on the grounds that it resulted from the 20
3434 failure of the circuit court to comply with specified 21
3535 sentencing procedure requirements; providing an 22
3636 effective date. 23
3737 24
3838 Be It Enacted by the Legislature of the State of Florida: 25
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4747 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
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5151 26
5252 Section 1. Paragraph (a) of subsection (2) of section 27
5353 794.011, Florida Statutes, is amended to read: 28
5454 794.011 Sexual battery. — 29
5555 (2)(a) A person 18 years of age or older who commits 30
5656 sexual battery upon, or in an attempt to commit sexual battery 31
5757 injures the sexual organ s of, a person less than 12 years of age 32
5858 commits a capital felony, punishable as provided in ss. 775.082 33
5959 and 921.1425. In all capital cases under this section, the 34
6060 procedure set forth in s. 921.1425 shall be followed in order to 35
6161 determine a sentence of dea th or life imprisonment. If the 36
6262 prosecutor intends to seek the death penalty, the prosecutor 37
6363 must give notice to the defendant and file the notice with the 38
6464 court within 45 days after arraignment. The notice must contain 39
6565 a list of the aggravating factors th e state intends to prove and 40
6666 has reason to believe it can prove beyond a reasonable doubt. 41
6767 The court may allow the prosecutor to amend the notice upon a 42
6868 showing of good cause 921.141. 43
6969 Section 2. Section 921.1425, Florida Statutes, is created 44
7070 to read: 45
7171 921.1425 Sentence of death or life imprisonment for 46
7272 capital sexual battery; further proceedings to determine 47
7373 sentence.— 48
7474 (1) INTENT.— 49
7575 (a) The Legislature finds that a person who commits a 50
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8484 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
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8888 sexual battery upon, or in an attempt to commit sexual battery 51
8989 injures the sexual organs of, a person less than 12 years of age 52
9090 carries a great risk of death and danger to vulnerable members 53
9191 of this state. Such crimes destroy the innocence of a young 54
9292 child and violate all standards of decency held by civilized 55
9393 society. The Legislature further finds that Buford v. State of 56
9494 Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 57
9595 that Kennedy v. Louisiana , 554 U.S. 407, (2008), was wrongly 58
9696 decided and an egregious infringement of the states' power to 59
9797 punish the most heinous of crimes. 60
9898 (b) It is the intent of the Legislature that the procedure 61
9999 set forth in this section shall be followed, and a prosecutor 62
100100 must file notice, as provided in s. 794.011(2)(a), if he or she 63
101101 intends to seek the death penalty. 64
102102 (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY. —Upon 65
103103 conviction or adjudication of guilt of a defendant of a capital 66
104104 felony under s. 794.011, the court shall conduct a separate 67
105105 sentencing proceeding to determine whether the defendant should 68
106106 be sentenced to death or lif e imprisonment as authorized by s. 69
107107 775.082. The proceeding shall be conducted by the trial judge 70
108108 before the trial jury as soon as practicable. If, through 71
109109 impossibility or inability, the trial jury is unable to 72
110110 reconvene for a hearing on the issue of penal ty, having 73
111111 determined the guilt of the accused, the trial judge may summon 74
112112 a special juror or jurors as provided in chapter 913 to 75
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121121 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
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125125 determine the issue of the imposition of the penalty. If the 76
126126 trial jury has been waived, or if the defendant pleaded guilty, 77
127127 the sentencing proceeding shall be conducted before a jury 78
128128 impaneled for that purpose, unless waived by the defendant. In 79
129129 the proceeding, evidence may be presented as to any matter that 80
130130 the court deems relevant to the nature of the crime and the 81
131131 character of the defendant and shall include matters relating to 82
132132 any of the aggravating factors enumerated in subsection (7) and 83
133133 for which notice has been provided pursuant to s. 794.011(2)(a) 84
134134 or mitigating circumstances enumerated in subsection (8). Any 85
135135 such evidence that the court deems to have probative value may 86
136136 be received, regardless of its admissibility under the 87
137137 exclusionary rules of evidence, provided the defendant is 88
138138 accorded a fair opportunity to rebut any hearsay statements. 89
139139 However, this subsection shall not be construed to authorize the 90
140140 introduction of any evidence secured in violation of the United 91
141141 States Constitution or the Florida Constitution. The state and 92
142142 the defendant or the defendant's counsel shall be permitted to 93
143143 present argument for or against a sentence of death. 94
144144 (3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY. —This 95
145145 subsection applies only if the defendant has not waived his or 96
146146 her right to a sentencing proceeding by a jury. 97
147147 (a) After hearing all of the evidence presented regarding 98
148148 aggravating factors and mitigating circumstances, the jury shall 99
149149 deliberate and determine if the state has proven, beyond a 100
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158158 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
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162162 reasonable doubt, the existence of at least two aggravating 101
163163 factors set forth in subsection (7). 102
164164 (b) The jury shall return findings ide ntifying each 103
165165 aggravating factor found to exist. A finding that at least two 104
166166 aggravating factors exist must be unanimous. If the jury: 105
167167 1. Does not unanimously find at least two aggravating 106
168168 factors, the defendant is ineligible for a sentence of death. 107
169169 2. Unanimously finds at least two aggravating factors, the 108
170170 defendant is eligible for a sentence of death and the jury shall 109
171171 make a recommendation to the court as to whether the defendant 110
172172 shall be sentenced to life imprisonment without the possibility 111
173173 of parole or to death. The recommendation shall be based on a 112
174174 weighing of all of the following: 113
175175 a. Whether sufficient aggravating factors exist. 114
176176 b. Whether aggravating factors exist which outweigh the 115
177177 mitigating circumstances found to exist. 116
178178 c. Based on the considerations in sub -subparagraphs a. and 117
179179 b., whether the defendant should be sentenced to life 118
180180 imprisonment without the possibility of parole or to death. 119
181181 (c) If at least eight jurors determine that the defendant 120
182182 should be sentenced to death, the jur y's recommendation to the 121
183183 court shall be a sentence of death. If fewer than eight jurors 122
184184 determine that the defendant should be sentenced to death, the 123
185185 jury's recommendation to the court shall be a sentence of life 124
186186 imprisonment without the possibility of p arole. 125
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195195 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
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199199 (4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. — 126
200200 (a) If the jury has recommended a sentence of: 127
201201 1. Life imprisonment without the possibility of parole, 128
202202 the court shall impose the recommended sentence of life 129
203203 imprisonment without the possibility of parole. 130
204204 2. Death, the court, after considering each aggravating 131
205205 factor found by the jury and all mitigating circumstances, may 132
206206 impose a sentence of life imprisonment without the possibility 133
207207 of parole or a sentence of death. The court may c onsider only an 134
208208 aggravating factor that was unanimously found to exist by the 135
209209 jury. The court may impose a sentence of death only if the jury 136
210210 unanimously found at least two aggravating factors beyond a 137
211211 reasonable doubt. 138
212212 (b) If the defendant waived his or her right to a 139
213213 sentencing proceeding by a jury, the court, after considering 140
214214 all aggravating factors and mitigating circumstances, may impose 141
215215 a sentence of life imprisonment without the possibility of 142
216216 parole or a sentence of death. The court may impose a sentence 143
217217 of death only if the court finds that at least two aggravating 144
218218 factors have been proven to exist beyond a reasonable doubt. 145
219219 (5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE 146
220220 IMPRISONMENT OR DEATH. —In each case in which the court imposes a 147
221221 sentence of life imprisonment without the possibility of parole 148
222222 or death, the court shall, considering the records of the trial 149
223223 and the sentencing proceedings, enter a written order addressing 150
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232232 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
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236236 the aggravating factors set forth in subsection (7) found to 151
237237 exist, the mitigating circumstances in subsection (8) reasonably 152
238238 established by the evidence, whether there are sufficient 153
239239 aggravating factors to warrant the death penalty, and whether 154
240240 the aggravating factors outweigh the mitigating circumstances 155
241241 reasonably established by the evidence. The court shall include 156
242242 in its written order the reasons for not accepting the jury's 157
243243 recommended sentence, if applicable. If the court does not issue 158
244244 its order requiring the death sentence within 30 days after the 159
245245 rendition of the judgment and sentence, the court shall impose a 160
246246 sentence of life imprisonment without the possibility of parole 161
247247 in accordance with s. 775.082. 162
248248 (6) REVIEW OF JUDGMENT AND SENTENCE. —The judgment of 163
249249 conviction and sentence of death shall be subject to au tomatic 164
250250 review by the Supreme Court and disposition rendered within 2 165
251251 years after the filing of a notice of appeal. Such review by the 166
252252 Supreme Court shall have priority over all other cases and shall 167
253253 be heard in accordance with rules adopted by the Supreme Court. 168
254254 (7) AGGRAVATING FACTORS. —Aggravating factors shall be 169
255255 limited to the following: 170
256256 (a) The capital felony was committed by a person 171
257257 previously convicted of a felony violation of s. 794.011, and 172
258258 under sentence of imprisonment or placed on community control or 173
259259 on felony probation. 174
260260 (b) The defendant was previously convicted of another 175
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269269 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
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273273 capital felony or of a felony involving the use or threat of 176
274274 violence to the person. 177
275275 (c) The capital felony was committed by a person 178
276276 designated as a sexual predato r pursuant to s. 775.21 or a 179
277277 person previously designated as a sexual predator who had the 180
278278 sexual predator designation removed. 181
279279 (d) The capital felony was committed by a sexual offender 182
280280 who is required to register pursuant to s. 943.0435 or a person 183
281281 previously required to register as a sexual offender who had 184
282282 such requirement removed. 185
283283 (e) The defendant knowingly created a great risk of death 186
284284 to one or more persons such that participation in the offense 187
285285 constituted reckless indifference or disregard for human life. 188
286286 (f) The defendant used a firearm or knowingly directed, 189
287287 advised, authorized, or assisted another to use a firearm to 190
288288 threaten, intimidate, assault, or injure a person in committing 191
289289 the offense or in furtherance of the offense. 192
290290 (g) The capital felony was committed for pecuniary gain. 193
291291 (h) The capital felony was especially heinous, atrocious, 194
292292 or cruel. 195
293293 (i) The victim of the capital felony was particularly 196
294294 vulnerable due to age or disability, or because the defendant 197
295295 stood in a position of f amilial or custodial authority over the 198
296296 victim. 199
297297 (j) The capital felony was committed by a person subject 200
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306306 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
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310310 to an injunction issued pursuant to s. 741.30 or s. 784.046, or 201
311311 a foreign protection order accorded full faith and credit 202
312312 pursuant to s. 741.315, and was committed against the petitioner 203
313313 who obtained the injunction or protection order or any spouse, 204
314314 child, sibling, or parent of the petitioner. 205
315315 (k) The victim of the capital felony sustained serious 206
316316 bodily injury. 207
317317 (8) MITIGATING CIRCUMSTANCES.—Mitigating circumstances 208
318318 shall be the following: 209
319319 (a) The defendant has no significant history of prior 210
320320 criminal activity. 211
321321 (b) The capital felony was committed while the defendant 212
322322 was under the influence of extreme mental or emotional 213
323323 disturbance. 214
324324 (c) The defendant was an accomplice in the capital felony 215
325325 committed by another person and his or her participation was 216
326326 relatively minor. 217
327327 (d) The defendant acted under extreme duress or under the 218
328328 substantial domination of another person. 219
329329 (e) The capacity of the defendant to appreciate the 220
330330 criminality of his or her conduct or to conform his or her 221
331331 conduct to the requirements of law was substantially impaired. 222
332332 (f) The age of the defendant at the time of the crime. 223
333333 (g) The existence of any o ther factors in the defendant's 224
334334 background that would mitigate against imposition of the death 225
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343343 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
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347347 penalty. 226
348348 (9) VICTIM IMPACT EVIDENCE. —Once the prosecution has 227
349349 provided evidence of the existence of two or more aggravating 228
350350 factors as described in subsection (7), the prosecution may 229
351351 introduce, and subsequently argue, victim impact evidence to the 230
352352 jury. Such evidence shall be designed to demonstrate the 231
353353 victim's uniqueness as an individual human being and the 232
354354 physical and psychological harm to the victim. Chara cterizations 233
355355 and opinions about the crime, the defendant, and the appropriate 234
356356 sentence shall not be permitted as a part of victim impact 235
357357 evidence. 236
358358 (10) CONSTITUTIONALITY. —Notwithstanding s. 775.082(2) or 237
359359 s. 775.15, or any other provision of law, a senten ce of death 238
360360 shall be imposed under this section notwithstanding existing 239
361361 case law which holds such a sentence is unconstitutional under 240
362362 the Florida Constitution and the United States Constitution. In 241
363363 any case for which the Florida Supreme Court or the Unit ed 242
364364 States Supreme Court reviews a sentence of death imposed 243
365365 pursuant to this section, and in making such a review 244
366366 reconsiders the prior holdings in Buford v. State and Kennedy v. 245
367367 Louisiana, and determines a sentence of death remains 246
368368 unconstitutional, the c ourt having jurisdiction over the person 247
369369 previously sentenced to death shall cause such person to be 248
370370 brought before the court, and the court shall sentence such 249
371371 person to life imprisonment as provided in s. 775.082(1). 250
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380380 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
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384384 (11) APPLICABILITY. —This section applies to any capital 251
385385 felony under s. 794.011, that is committed on or after October 252
386386 1, 2023. 253
387387 Section 3. Subsection (4) of section 921.137, Florida 254
388388 Statutes, is amended to read: 255
389389 921.137 Imposition of the death sentence upon an 256
390390 intellectually disabled defendant prohibited. — 257
391391 (4) After a defendant who has given notice of his or her 258
392392 intention to raise intellectual disability as a bar to the death 259
393393 sentence is convicted of a capital felony and an advisory jury 260
394394 has returned a recommended sentence of death, the defendant may 261
395395 file a motion to determine whether the defendant is 262
396396 intellectually disabled. Upon receipt of the motion, the court 263
397397 shall appoint two experts in the field of intellectual 264
398398 disabilities who shall evaluate the defendant and report their 265
399399 findings to the court and all interested parties prior to the 266
400400 final sentencing hearing. Notwithstanding s. 921.141 , or s. 267
401401 921.142, or s. 921.1425, the final sentencing hearing shall be 268
402402 held without a jury. At the final sentencing hearing, the court 269
403403 shall consider the findings of the court -appointed experts and 270
404404 consider the findings of any other expert which is offered by 271
405405 the state or the defense on the issue of whether the defendant 272
406406 has an intellectual disability. If the court finds, by clear and 273
407407 convincing evidence, that the defendant has an intellectual 274
408408 disability as defined in subsection (1), the court may not 275
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417417 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
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421421 impose a sentence of death and shall enter a written order that 276
422422 sets forth with specificity the findings in support of the 277
423423 determination. 278
424424 Section 4. Subsection (9) of section 921.141, Florida 279
425425 Statutes, is amended to read: 280
426426 921.141 Sentence of death or life imprisonment for capital 281
427427 felonies; further proceedings to determine sentence. — 282
428428 (9) APPLICABILITY.—This section does not apply to a person 283
429429 convicted or adjudicated guilty of a capital sexual battery 284
430430 under s. 794.011 or a capital drug trafficking felony under s. 285
431431 893.135. 286
432432 Section 5. Paragraph (n) is added to subsection (1) of 287
433433 section 924.07, Florida Statutes, to read: 288
434434 924.07 Appeal by state. — 289
435435 (1) The state may appeal from: 290
436436 (n) The sentence in a case of capital sexual battery on 291
437437 the ground that it resulted from the circuit court's failure to 292
438438 comply with sentencing procedures under s. 921.1425, including 293
439439 by striking a notice of intent to seek the death penalty, 294
440440 refusing to impanel a capital jury, or otherwise granting relief 295
441441 that prevents the state from seeking a sentence of death. 296
442442 Section 6. This act shall take effect October 1, 2023. 297