Florida Senate - 2023 SB 1342 By Senator Martin 33-00739B-23 20231342__ 1 A bill to be entitled 2 An act relating to capital sexual battery; amending s. 3 794.011, F.S.; revising how certain capital felonies 4 are punished; requiring that specified procedures be 5 followed to determine a sentence of death or life 6 imprisonment without the possibility of parole in 7 specified capital felony cases; requiring a prosecutor 8 to give certain notice if he or she intends to seek 9 the death penalty; providing notice requirements; 10 creating s. 921.1425, F.S.; providing legislative 11 findings and intent; requiring a court to conduct a 12 separate sentencing proceeding to determine whether a 13 defendant should be sentenced to death or life 14 imprisonment without the possibility of parole upon 15 the defendants conviction or adjudication of guilt 16 for a capital felony; providing proceeding 17 requirements; authorizing the presentation of certain 18 evidence during such proceedings; requiring a jury to 19 make specified determinations, findings, and 20 recommendations; requiring a recommendation to the 21 court of a sentence of death if at least eight jurors 22 determine that the defendant should be sentenced to 23 death; requiring a recommendation to the court of a 24 sentence of life imprisonment without the possibility 25 of parole if fewer than eight jurors determine that 26 the defendant should be sentenced to death; requiring 27 the court to impose the jurys recommended sentence; 28 requiring a finding of unanimity on at least one 29 aggravating factor beyond a reasonable doubt for a 30 court to impose a sentence of death; requiring a 31 court, if a defendant waives his or her right to a 32 sentencing proceeding by a jury and the court imposes 33 a sentence of death, to enter a written order 34 addressing specified information; specifying that a 35 judgment of conviction and sentence of death is 36 subject to automatic review by the Florida Supreme 37 Court; specifying aggravating factors; specifying 38 mitigating circumstances; authorizing the prosecution 39 to introduce and argue victim impact evidence to the 40 jury; providing construction; providing applicability; 41 amending s. 921.141, F.S.; conforming a provision to 42 changes made by the act; providing an effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1.Paragraph (a) of subsection (2) of section 47 794.011, Florida Statutes, is amended, and paragraph (c) of 48 subsection (8) of that section is republished, to read: 49 794.011Sexual battery. 50 (2)(a)A person 18 years of age or older who commits sexual 51 battery upon, or in an attempt to commit sexual battery injures 52 the sexual organs of, a person less than 12 years of age commits 53 a capital felony, punishable as provided in ss. 775.082 and 54 921.1425. In all capital felony cases under this section, the 55 procedure set forth in s. 921.1425 must be followed in order to 56 determine a sentence of death or life imprisonment without the 57 possibility of parole. If the prosecutor intends to seek the 58 death penalty, the prosecutor must give notice to the defendant 59 and file the notice with the court within 45 days after 60 arraignment. The notice must contain a list of the aggravating 61 factors the state intends to prove and has reason to believe it 62 can prove beyond a reasonable doubt. The court may allow the 63 prosecutor to amend the notice upon a showing of good cause ss. 64 775.082 and 921.141. 65 (8)Without regard to the willingness or consent of the 66 victim, which is not a defense to prosecution under this 67 subsection, a person who is in a position of familial or 68 custodial authority to a person less than 18 years of age and 69 who: 70 (c)Engages in any act with that person while the person is 71 less than 12 years of age which constitutes sexual battery, or 72 in an attempt to commit sexual battery injures the sexual organs 73 of such person commits a capital or life felony, punishable 74 pursuant to subsection (2). 75 Section 2.Section 921.1425, Florida Statutes, is created 76 to read: 77 921.1425Sentence of death or life imprisonment for capital 78 sexual battery; further proceedings to determine sentence. 79 (1)LEGISLATIVE FINDINGS AND INTENT. 80 (a)The Legislature finds that a person who commits a 81 sexual battery upon, or in an attempt to commit sexual battery 82 injures the sexual organs of, a person less than 12 years of age 83 carries a great risk of death and danger to vulnerable members 84 of this state. Such crimes destroy the innocence of a young 85 child and violate all standards of decency held by civilized 86 society. The Legislature further finds that Buford v. State of 87 Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 88 that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly 89 decided, and that such cases are an egregious infringement of 90 the states power to punish the most heinous of crimes. 91 (b)It is the intent of the Legislature that the procedure 92 set forth in this section shall be followed, and a prosecutor 93 must file a notice, as provided in s. 794.011(2)(a), if he or 94 she intends to seek the death penalty. 95 (2)SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.Upon 96 conviction or adjudication of guilt of a defendant of a capital 97 felony under s. 794.011, the court must conduct a separate 98 sentencing proceeding to determine whether the defendant should 99 be sentenced to death or life imprisonment as authorized by s. 100 775.082. The proceeding must be conducted by the trial judge 101 before the trial jury as soon as practicable. If, through 102 impossibility or inability, the trial jury is unable to 103 reconvene for a hearing on the issue of penalty, having 104 determined the guilt of the accused, the trial judge may summon 105 a special juror or jurors as provided in chapter 913 to 106 determine the issue of the imposition of the penalty. If the 107 trial jury has been waived, or if the defendant pleads guilty, 108 the sentencing proceeding shall be conducted before a jury 109 impaneled for that purpose, unless waived by the defendant. In 110 the proceeding, evidence may be presented as to any matter that 111 the court deems relevant to the nature of the crime and the 112 character of the defendant and must include matters relating to 113 any of the aggravating factors enumerated in subsection (7) and 114 for which notice has been provided pursuant to s. 794.011(2)(a) 115 or relating to any of the mitigating circumstances enumerated in 116 subsection (8). Any such evidence that the court deems to have 117 probative value may be received, regardless of its admissibility 118 under the exclusionary rules of evidence, provided the defendant 119 is accorded a fair opportunity to rebut any hearsay statements. 120 However, this subsection may not be construed to authorize the 121 introduction of any evidence secured in violation of the United 122 States Constitution or the State Constitution. The state and the 123 defendant or the defendants counsel must be permitted to 124 present arguments for or against a sentence of death. 125 (3)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.This 126 subsection applies only if the defendant has not waived his or 127 her right to a sentencing proceeding by a jury. 128 (a)After hearing all of the evidence presented regarding 129 aggravating factors and mitigating circumstances, the jury must 130 deliberate and determine if the state has proven, beyond a 131 reasonable doubt, the existence of at least one aggravating 132 factor set forth in subsection (7). 133 (b)The jury must return findings identifying each 134 aggravating factor found to exist. A finding that an aggravating 135 factor exists must be unanimous. If the jury: 136 1.Does not unanimously find at least one aggravating 137 factor, the defendant is ineligible for a sentence of death. 138 2.Unanimously finds at least one aggravating factor, the 139 defendant is eligible for a sentence of death and the jury must 140 make a recommendation to the court as to whether the defendant 141 must be sentenced to life imprisonment without the possibility 142 of parole or to death. The recommendation must be based on a 143 weighing of all of the following: 144 a.Whether sufficient aggravating factors exist. 145 b.Whether aggravating factors exist which outweigh the 146 mitigating circumstances found to exist. 147 c.Based on the considerations in sub-subparagraphs a. and 148 b., whether the defendant should be sentenced to life 149 imprisonment without the possibility of parole or to death. 150 (c)If at least eight jurors determine that the defendant 151 should be sentenced to death, the jurys recommendation to the 152 court must be a sentence of death. If fewer than eight jurors 153 determine that the defendant should be sentenced to death, the 154 jurys recommendation to the court must be a sentence of life 155 imprisonment without the possibility of parole. 156 (4)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. 157 (a)If the jury has recommended a sentence of: 158 1.Life imprisonment without the possibility of parole, the 159 court must impose the recommended sentence of life imprisonment 160 without the possibility of parole. 161 2.Death, the court must impose the recommended sentence of 162 death. The court may impose a sentence of death only if the jury 163 unanimously found at least one aggravating factor to have been 164 proven beyond a reasonable doubt. 165 (b)If the defendant waives his or her right to a 166 sentencing proceeding by a jury, the court, after considering 167 all aggravating factors and mitigating circumstances, may impose 168 a sentence of life imprisonment without the possibility of 169 parole or a sentence of death. The court may impose a sentence 170 of death only if the court finds that at least one aggravating 171 factor has been proven to exist beyond a reasonable doubt. 172 (5)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.If 173 a defendant waives his or her right to a sentencing proceeding 174 by a jury and the court imposes a sentence of death under 175 paragraph (4)(b), the court must, considering the records of the 176 trial and the sentencing proceedings, enter a written order 177 addressing the aggravating factors set forth in subsection (7) 178 found to exist, the mitigating circumstances in subsection (8) 179 reasonably established by the evidence, whether there are 180 sufficient aggravating factors to warrant the death penalty, and 181 whether the aggravating factors outweigh the mitigating 182 circumstances reasonably established by the evidence. If the 183 court does not issue its order requiring a sentence of death 184 within 30 days after the rendition of the judgment and sentence, 185 the court must impose a sentence of life imprisonment without 186 the possibility of parole in accordance with s. 775.082. 187 (6)REVIEW OF JUDGMENT AND SENTENCE.The judgment of 188 conviction and sentence of death shall be subject to automatic 189 review by the Florida Supreme Court and disposition rendered 190 within 2 years after the filing of a notice of appeal. Such 191 review by the Florida Supreme Court must have priority over all 192 other cases and must be heard in accordance with rules adopted 193 by the Florida Supreme Court. 194 (7)AGGRAVATING FACTORS.Aggravating factors are limited to 195 the following: 196 (a)The capital felony was committed by a person who was 197 previously convicted of a felony violation of s. 794.011, and 198 was under a sentence of imprisonment or was placed on community 199 control or on felony probation. 200 (b)The defendant was previously convicted of another 201 capital felony or of a felony involving the use or threat of 202 violence. 203 (c)The capital felony was committed by a person designated 204 as a sexual predator pursuant to s. 775.21 or a person 205 previously designated as a sexual predator who had the sexual 206 predator designation removed. 207 (d)The capital felony was committed by a sexual offender 208 who is required to register pursuant to s. 943.0435 or a person 209 previously required to register as a sexual offender who had 210 such requirement removed. 211 (e)The defendant knowingly created a great risk of death 212 to one or more persons such that participation in the offense 213 constituted reckless indifference or disregard for human life. 214 (f)The defendant used a firearm or knowingly directed, 215 advised, authorized, or assisted another to use a firearm to 216 threaten, intimidate, assault, or injure a person in committing 217 the offense or in furtherance of the offense. 218 (g)The capital felony was committed for pecuniary gain. 219 (h)The capital felony was especially heinous, atrocious, 220 or cruel. 221 (i)The victim of the capital felony was particularly 222 vulnerable due to age or disability, or because the defendant 223 was in a position of familial or custodial authority in relation 224 to the victim. 225 (j)The capital felony was committed by a person subject to 226 an injunction issued pursuant to s. 741.30 or s. 784.046, or a 227 foreign protection order accorded full faith and credit pursuant 228 to s. 741.315, and was committed against the petitioner who 229 obtained the injunction or protection order or any spouse, 230 child, sibling, or parent of the petitioner. 231 (k)The victim of the capital felony sustained serious 232 bodily injury. 233 (8)MITIGATING CIRCUMSTANCES.Mitigating circumstances are 234 the following: 235 (a)The defendant has no significant history of prior 236 criminal activity. 237 (b)The capital felony was committed while the defendant 238 was under the influence of extreme mental or emotional 239 disturbance. 240 (c)The defendant was an accomplice in the capital felony 241 committed by another person and his or her participation was 242 relatively minor. 243 (d)The defendant acted under extreme duress or under the 244 substantial domination of another person. 245 (e)The capacity of the defendant to appreciate the 246 criminality of his or her conduct or to conform his or her 247 conduct to the requirements of law was substantially impaired. 248 (f)The age of the defendant at the time of the crime. 249 (g)The existence of any other factors in the defendants 250 background that would mitigate against imposition of the death 251 penalty. 252 (9)VICTIM IMPACT EVIDENCE.Once the prosecution has 253 provided evidence of the existence of one or more aggravating 254 factors as described in subsection (7), the prosecution may 255 introduce, and subsequently argue, victim impact evidence to the 256 jury. Such evidence must be designed to demonstrate the victims 257 uniqueness as an individual human being and the physical and 258 psychological harm to the victim. Characterizations and opinions 259 about the crime, the defendant, and the appropriate sentence may 260 not be permitted as a part of victim impact evidence. 261 (10)CONSTITUTIONALITY.Notwithstanding s. 775.082(2), s. 262 775.15, or any other provision of law, a sentence of death must 263 be imposed under this section notwithstanding existing case law 264 that holds such a sentence to be unconstitutional under the 265 United States Constitution or the State Constitution. In any 266 case for which the Florida Supreme Court or the United States 267 Supreme Court reviews a sentence of death imposed pursuant to 268 this section, and in making such a review reconsiders the prior 269 holdings in Buford v. State and Kennedy v. Louisiana, and 270 determines a sentence of death remains unconstitutional, the 271 court having jurisdiction over the person previously sentenced 272 to death must cause such person to be brought before the court, 273 and the court must sentence such person to life imprisonment 274 without the possibility of parole as provided in s. 775.082(1). 275 (11)APPLICABILITY.This section applies to any capital 276 felony under s. 794.011 that is committed on or after October 1, 277 2023. 278 Section 3.Subsection (9) of section 921.141, Florida 279 Statutes, is amended to read: 280 921.141Sentence 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 offense under s. 794.011 or a capital drug trafficking felony 285 under s. 893.135. 286 Section 4.This act shall take effect October 1, 2023.