Florida Senate - 2023 CS for SB 1342 By the Committee on Criminal Justice; and Senators Martin and Book 591-02795-23 20231342c1 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 if 28 the recommendation is for a sentence of life 29 imprisonment without the possibility of parole; 30 authorizing the court to impose a sentence of life 31 imprisonment without the possibility of parole or a 32 sentence of death if the recommended sentence is for 33 death; authorizing the court to impose a sentence of 34 death only if the jury unanimously finds at least two 35 aggravating factors beyond a reasonable doubt; 36 requiring a court to enter a written order addressing 37 specified information; specifying that a judgment of 38 conviction and sentence of death is subject to 39 automatic review by the Florida Supreme Court; 40 specifying aggravating factors; specifying mitigating 41 circumstances; authorizing the prosecution to 42 introduce and argue victim impact evidence to the 43 jury; providing construction; providing applicability; 44 amending s. 921.141, F.S.; conforming a provision to 45 changes made by the act; providing an effective date. 46 47 Be It Enacted by the Legislature of the State of Florida: 48 49 Section 1.Paragraph (a) of subsection (2) of section 50 794.011, Florida Statutes, is amended, and paragraph (c) of 51 subsection (8) of that section is republished, to read: 52 794.011Sexual battery. 53 (2)(a)A person 18 years of age or older who commits sexual 54 battery upon, or in an attempt to commit sexual battery injures 55 the sexual organs of, a person less than 12 years of age commits 56 a capital felony, punishable as provided in ss. 775.082 and 57 921.1425. In all capital felony cases under this section, the 58 procedure set forth in s. 921.1425 must be followed in order to 59 determine a sentence of death or life imprisonment without the 60 possibility of parole. If the prosecutor intends to seek the 61 death penalty, the prosecutor must give notice to the defendant 62 and file the notice with the court within 45 days after 63 arraignment. The notice must contain a list of the aggravating 64 factors the state intends to prove and has reason to believe it 65 can prove beyond a reasonable doubt. The court may allow the 66 prosecutor to amend the notice upon a showing of good cause ss. 67 775.082 and 921.141. 68 (8)Without regard to the willingness or consent of the 69 victim, which is not a defense to prosecution under this 70 subsection, a person who is in a position of familial or 71 custodial authority to a person less than 18 years of age and 72 who: 73 (c)Engages in any act with that person while the person is 74 less than 12 years of age which constitutes sexual battery, or 75 in an attempt to commit sexual battery injures the sexual organs 76 of such person commits a capital or life felony, punishable 77 pursuant to subsection (2). 78 Section 2.Section 921.1425, Florida Statutes, is created 79 to read: 80 921.1425Sentence of death or life imprisonment for capital 81 sexual battery; further proceedings to determine sentence. 82 (1)LEGISLATIVE FINDINGS AND INTENT. 83 (a)The Legislature finds that a person who commits a 84 sexual battery upon, or in an attempt to commit sexual battery 85 injures the sexual organs of, a person less than 12 years of age 86 carries a great risk of death and danger to vulnerable members 87 of this state. Such crimes destroy the innocence of a young 88 child and violate all standards of decency held by civilized 89 society. The Legislature further finds that Buford v. State of 90 Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 91 that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly 92 decided, and that such cases are an egregious infringement of 93 the states power to punish the most heinous of crimes. 94 (b)It is the intent of the Legislature that the procedure 95 set forth in this section shall be followed, and a prosecutor 96 must file a notice, as provided in s. 794.011(2)(a), if he or 97 she intends to seek the death penalty. 98 (2)SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.Upon 99 conviction or adjudication of guilt of a defendant of a capital 100 felony under s. 794.011, the court must conduct a separate 101 sentencing proceeding to determine whether the defendant should 102 be sentenced to death or life imprisonment as authorized by s. 103 775.082. The proceeding must be conducted by the trial judge 104 before the trial jury as soon as practicable. If, through 105 impossibility or inability, the trial jury is unable to 106 reconvene for a hearing on the issue of penalty, having 107 determined the guilt of the accused, the trial judge may summon 108 a special juror or jurors as provided in chapter 913 to 109 determine the issue of the imposition of the penalty. If the 110 trial jury has been waived, or if the defendant pleads guilty, 111 the sentencing proceeding shall be conducted before a jury 112 impaneled for that purpose, unless waived by the defendant. In 113 the proceeding, evidence may be presented as to any matter that 114 the court deems relevant to the nature of the crime and the 115 character of the defendant and must include matters relating to 116 any of the aggravating factors enumerated in subsection (7) and 117 for which notice has been provided pursuant to s. 794.011(2)(a) 118 or relating to any of the mitigating circumstances enumerated in 119 subsection (8). Any such evidence that the court deems to have 120 probative value may be received, regardless of its admissibility 121 under the exclusionary rules of evidence, provided the defendant 122 is accorded a fair opportunity to rebut any hearsay statements. 123 However, this subsection may not be construed to authorize the 124 introduction of any evidence secured in violation of the United 125 States Constitution or the State Constitution. The state and the 126 defendant or the defendants counsel must be permitted to 127 present arguments for or against a sentence of death. 128 (3)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.This 129 subsection applies only if the defendant has not waived his or 130 her right to a sentencing proceeding by a jury. 131 (a)After hearing all of the evidence presented regarding 132 aggravating factors and mitigating circumstances, the jury must 133 deliberate and determine if the state has proven, beyond a 134 reasonable doubt, the existence of at least two aggravating 135 factors set forth in subsection (7). 136 (b)The jury must return findings identifying each 137 aggravating factor found to exist. A finding that two 138 aggravating factors exist must be unanimous. If the jury: 139 1.Does not unanimously find at least two aggravating 140 factors, the defendant is ineligible for a sentence of death. 141 2.Unanimously finds at least two aggravating factors, the 142 defendant is eligible for a sentence of death and the jury must 143 make a recommendation to the court as to whether the defendant 144 must be sentenced to life imprisonment without the possibility 145 of parole or to death. The recommendation must be based on a 146 weighing of all of the following: 147 a.Whether sufficient aggravating factors exist. 148 b.Whether aggravating factors exist which outweigh the 149 mitigating circumstances found to exist. 150 c.Based on the considerations in sub-subparagraphs a. and 151 b., whether the defendant should be sentenced to life 152 imprisonment without the possibility of parole or to death. 153 (c)If at least eight jurors determine that the defendant 154 should be sentenced to death, the jurys recommendation to the 155 court must be a sentence of death. If fewer than eight jurors 156 determine that the defendant should be sentenced to death, the 157 jurys recommendation to the court must be a sentence of life 158 imprisonment without the possibility of parole. 159 (4)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. 160 (a)If the jury has recommended a sentence of: 161 1.Life imprisonment without the possibility of parole, the 162 court must impose the recommended sentence of life imprisonment 163 without the possibility of parole. 164 2.Death, the court, after considering each aggravating 165 factor found by the jury and all mitigating circumstances, may 166 impose a sentence of life imprisonment without the possibility 167 of parole or a sentence of death. The court may consider only an 168 aggravating factor that was unanimously found to exist by the 169 jury. The court may impose a sentence of death only if the jury 170 unanimously finds at least two aggravating factors beyond a 171 reasonable doubt. 172 (b)If the defendant waives his or her right to a 173 sentencing proceeding by a jury, the court, after considering 174 all aggravating factors and mitigating circumstances, may impose 175 a sentence of life imprisonment without the possibility of 176 parole or a sentence of death. The court may impose a sentence 177 of death only if the court finds that at least two aggravating 178 factors have been proven to exist beyond a reasonable doubt. 179 (5)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE 180 IMPRISONMENT OR DEATH.In each case in which the court imposes a 181 sentence of life imprisonment without the possibility of parole 182 or death, the court must, considering the records of the trial 183 and the sentencing proceedings, enter a written order addressing 184 the aggravating factors set forth in subsection (7) found to 185 exist, the mitigating circumstances in subsection (8) reasonably 186 established by the evidence, whether there are sufficient 187 aggravating factors to warrant the death penalty, and whether 188 the aggravating factors outweigh the mitigating circumstances 189 reasonably established by the evidence. The court must include 190 in its written order the reasons for not accepting the jurys 191 recommended sentence, if applicable. If the court does not issue 192 its order requiring a sentence of death within 30 days after the 193 rendition of the judgment and sentence, the court must impose a 194 sentence of life imprisonment without the possibility of parole 195 in accordance with s. 775.082. 196 (6)REVIEW OF JUDGMENT AND SENTENCE.The judgment of 197 conviction and sentence of death shall be subject to automatic 198 review by the Florida Supreme Court and disposition rendered 199 within 2 years after the filing of a notice of appeal. Such 200 review by the Florida Supreme Court must have priority over all 201 other cases and must be heard in accordance with rules adopted 202 by the Florida Supreme Court. 203 (7)AGGRAVATING FACTORS.Aggravating factors are limited to 204 the following: 205 (a)The capital felony was committed by a person who was 206 previously convicted of a felony violation of s. 794.011, and 207 was under a sentence of imprisonment or was placed on community 208 control or on felony probation. 209 (b)The defendant was previously convicted of another 210 capital felony or of a felony involving the use or threat of 211 violence. 212 (c)The capital felony was committed by a person designated 213 as a sexual predator pursuant to s. 775.21 or a person 214 previously designated as a sexual predator who had the sexual 215 predator designation removed. 216 (d)The capital felony was committed by a sexual offender 217 who is required to register pursuant to s. 943.0435 or a person 218 previously required to register as a sexual offender who had 219 such requirement removed. 220 (e)The defendant knowingly created a great risk of death 221 to one or more persons such that participation in the offense 222 constituted reckless indifference or disregard for human life. 223 (f)The defendant used a firearm or knowingly directed, 224 advised, authorized, or assisted another to use a firearm to 225 threaten, intimidate, assault, or injure a person in committing 226 the offense or in furtherance of the offense. 227 (g)The capital felony was committed for pecuniary gain. 228 (h)The capital felony was especially heinous, atrocious, 229 or cruel. 230 (i)The victim of the capital felony was particularly 231 vulnerable due to age or disability, or because the defendant 232 was in a position of familial or custodial authority in relation 233 to the victim. 234 (j)The capital felony was committed by a person subject to 235 an injunction issued pursuant to s. 741.30 or s. 784.046, or a 236 foreign protection order accorded full faith and credit pursuant 237 to s. 741.315, and was committed against the petitioner who 238 obtained the injunction or protection order or any spouse, 239 child, sibling, or parent of the petitioner. 240 (k)The victim of the capital felony sustained serious 241 bodily injury. 242 (8)MITIGATING CIRCUMSTANCES.Mitigating circumstances are 243 the following: 244 (a)The defendant has no significant history of prior 245 criminal activity. 246 (b)The capital felony was committed while the defendant 247 was under the influence of extreme mental or emotional 248 disturbance. 249 (c)The defendant was an accomplice in the capital felony 250 committed by another person and his or her participation was 251 relatively minor. 252 (d)The defendant acted under extreme duress or under the 253 substantial domination of another person. 254 (e)The capacity of the defendant to appreciate the 255 criminality of his or her conduct or to conform his or her 256 conduct to the requirements of law was substantially impaired. 257 (f)The age of the defendant at the time of the crime. 258 (g)The existence of any other factors in the defendants 259 background that would mitigate against imposition of the death 260 penalty. 261 (9)VICTIM IMPACT EVIDENCE.Once the prosecution has 262 provided evidence of the existence of one or more aggravating 263 factors as described in subsection (7), the prosecution may 264 introduce, and subsequently argue, victim impact evidence to the 265 jury. Such evidence must be designed to demonstrate the victims 266 uniqueness as an individual human being and the physical and 267 psychological harm to the victim. Characterizations and opinions 268 about the crime, the defendant, and the appropriate sentence may 269 not be permitted as a part of victim impact evidence. 270 (10)CONSTITUTIONALITY.Notwithstanding s. 775.082(2), s. 271 775.15, or any other provision of law, a sentence of death must 272 be imposed under this section notwithstanding existing case law 273 that holds such a sentence to be unconstitutional under the 274 United States Constitution or the State Constitution. In any 275 case for which the Florida Supreme Court or the United States 276 Supreme Court reviews a sentence of death imposed pursuant to 277 this section, and in making such a review reconsiders the prior 278 holdings in Buford v. State and Kennedy v. Louisiana, and 279 determines a sentence of death remains unconstitutional, the 280 court having jurisdiction over the person previously sentenced 281 to death must cause such person to be brought before the court, 282 and the court must sentence such person to life imprisonment 283 without the possibility of parole as provided in s. 775.082(1). 284 (11)APPLICABILITY.This section applies to any capital 285 felony under s. 794.011 that is committed on or after October 1, 286 2023. 287 Section 3.Subsection (9) of section 921.141, Florida 288 Statutes, is amended to read: 289 921.141Sentence of death or life imprisonment for capital 290 felonies; further proceedings to determine sentence. 291 (9)APPLICABILITY.This section does not apply to a person 292 convicted or adjudicated guilty of a capital sexual battery 293 offense under s. 794.011 or a capital drug trafficking felony 294 under s. 893.135. 295 Section 4.This act shall take effect October 1, 2023.