Florida Senate - 2023 CS for CS for SB 1342 By the Committees on Rules; and Criminal Justice; and Senators Martin and Book 595-03708-23 20231342c2 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. 924.07, F.S.; authorizing the state to 45 appeal from a sentence on the grounds that it resulted 46 from the failure of the circuit court to comply with 47 specified sentencing procedure requirements; amending 48 ss. 921.137 and 921.141, F.S.; conforming provisions 49 to changes made by the act; providing an effective 50 date. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1.Paragraph (a) of subsection (2) of section 55 794.011, Florida Statutes, is amended, and paragraph (c) of 56 subsection (8) of that section is republished, to read: 57 794.011Sexual battery. 58 (2)(a)A person 18 years of age or older who commits sexual 59 battery upon, or in an attempt to commit sexual battery injures 60 the sexual organs of, a person less than 12 years of age commits 61 a capital felony, punishable as provided in ss. 775.082 and 62 921.1425. In all capital felony cases under this section, the 63 procedure set forth in s. 921.1425 must be followed in order to 64 determine a sentence of death or life imprisonment without the 65 possibility of parole. If the prosecutor intends to seek the 66 death penalty, the prosecutor must give notice to the defendant 67 and file the notice with the court within 45 days after 68 arraignment. The notice must contain a list of the aggravating 69 factors the state intends to prove and has reason to believe it 70 can prove beyond a reasonable doubt. The court may allow the 71 prosecutor to amend the notice upon a showing of good cause ss. 72 775.082 and 921.141. 73 (8)Without regard to the willingness or consent of the 74 victim, which is not a defense to prosecution under this 75 subsection, a person who is in a position of familial or 76 custodial authority to a person less than 18 years of age and 77 who: 78 (c)Engages in any act with that person while the person is 79 less than 12 years of age which constitutes sexual battery, or 80 in an attempt to commit sexual battery injures the sexual organs 81 of such person commits a capital or life felony, punishable 82 pursuant to subsection (2). 83 Section 2.Section 921.1425, Florida Statutes, is created 84 to read: 85 921.1425Sentence of death or life imprisonment for capital 86 sexual battery; further proceedings to determine sentence. 87 (1)LEGISLATIVE FINDINGS AND INTENT. 88 (a)The Legislature finds that a person who commits a 89 sexual battery upon, or in an attempt to commit sexual battery 90 injures the sexual organs of, a person less than 12 years of age 91 carries a great risk of death and danger to vulnerable members 92 of this state. Such crimes destroy the innocence of a young 93 child and violate all standards of decency held by civilized 94 society. The Legislature further finds that Buford v. State of 95 Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and 96 that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly 97 decided, and that such cases are an egregious infringement of 98 the states power to punish the most heinous of crimes. 99 (b)It is the intent of the Legislature that the procedure 100 set forth in this section shall be followed, and a prosecutor 101 must file a notice, as provided in s. 794.011(2)(a), if he or 102 she intends to seek the death penalty. 103 (2)SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.Upon 104 conviction or adjudication of guilt of a defendant of a capital 105 felony under s. 794.011, the court must conduct a separate 106 sentencing proceeding to determine whether the defendant should 107 be sentenced to death or life imprisonment as authorized by s. 108 775.082. The proceeding must be conducted by the trial judge 109 before the trial jury as soon as practicable. If, through 110 impossibility or inability, the trial jury is unable to 111 reconvene for a hearing on the issue of penalty, having 112 determined the guilt of the accused, the trial judge may summon 113 a special juror or jurors as provided in chapter 913 to 114 determine the issue of the imposition of the penalty. If the 115 trial jury has been waived, or if the defendant pleads guilty, 116 the sentencing proceeding shall be conducted before a jury 117 impaneled for that purpose, unless waived by the defendant. In 118 the proceeding, evidence may be presented as to any matter that 119 the court deems relevant to the nature of the crime and the 120 character of the defendant and must include matters relating to 121 any of the aggravating factors enumerated in subsection (7) and 122 for which notice has been provided pursuant to s. 794.011(2)(a) 123 or relating to any of the mitigating circumstances enumerated in 124 subsection (8). Any such evidence that the court deems to have 125 probative value may be received, regardless of its admissibility 126 under the exclusionary rules of evidence, provided the defendant 127 is accorded a fair opportunity to rebut any hearsay statements. 128 However, this subsection may not be construed to authorize the 129 introduction of any evidence secured in violation of the United 130 States Constitution or the State Constitution. The state and the 131 defendant or the defendants counsel must be permitted to 132 present arguments for or against a sentence of death. 133 (3)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.This 134 subsection applies only if the defendant has not waived his or 135 her right to a sentencing proceeding by a jury. 136 (a)After hearing all of the evidence presented regarding 137 aggravating factors and mitigating circumstances, the jury must 138 deliberate and determine if the state has proven, beyond a 139 reasonable doubt, the existence of at least two aggravating 140 factors set forth in subsection (7). 141 (b)The jury must return findings identifying each 142 aggravating factor found to exist. A finding that two 143 aggravating factors exist must be unanimous. If the jury: 144 1.Does not unanimously find at least two aggravating 145 factors, the defendant is ineligible for a sentence of death. 146 2.Unanimously finds at least two aggravating factors, the 147 defendant is eligible for a sentence of death and the jury must 148 make a recommendation to the court as to whether the defendant 149 must be sentenced to life imprisonment without the possibility 150 of parole or to death. The recommendation must be based on a 151 weighing of all of the following: 152 a.Whether sufficient aggravating factors exist. 153 b.Whether aggravating factors exist which outweigh the 154 mitigating circumstances found to exist. 155 c.Based on the considerations in sub-subparagraphs a. and 156 b., whether the defendant should be sentenced to life 157 imprisonment without the possibility of parole or to death. 158 (c)If at least eight jurors determine that the defendant 159 should be sentenced to death, the jurys recommendation to the 160 court must be a sentence of death. If fewer than eight jurors 161 determine that the defendant should be sentenced to death, the 162 jurys recommendation to the court must be a sentence of life 163 imprisonment without the possibility of parole. 164 (4)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH. 165 (a)If the jury has recommended a sentence of: 166 1.Life imprisonment without the possibility of parole, the 167 court must impose the recommended sentence of life imprisonment 168 without the possibility of parole. 169 2.Death, the court, after considering each aggravating 170 factor found by the jury and all mitigating circumstances, may 171 impose a sentence of life imprisonment without the possibility 172 of parole or a sentence of death. The court may consider only an 173 aggravating factor that was unanimously found to exist by the 174 jury. The court may impose a sentence of death only if the jury 175 unanimously finds at least two aggravating factors beyond a 176 reasonable doubt. 177 (b)If the defendant waives his or her right to a 178 sentencing proceeding by a jury, the court, after considering 179 all aggravating factors and mitigating circumstances, may impose 180 a sentence of life imprisonment without the possibility of 181 parole or a sentence of death. The court may impose a sentence 182 of death only if the court finds that at least two aggravating 183 factors have been proven to exist beyond a reasonable doubt. 184 (5)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF LIFE 185 IMPRISONMENT OR DEATH.In each case in which the court imposes a 186 sentence of life imprisonment without the possibility of parole 187 or death, the court must, considering the records of the trial 188 and the sentencing proceedings, enter a written order addressing 189 the aggravating factors set forth in subsection (7) found to 190 exist, the mitigating circumstances in subsection (8) reasonably 191 established by the evidence, whether there are sufficient 192 aggravating factors to warrant the death penalty, and whether 193 the aggravating factors outweigh the mitigating circumstances 194 reasonably established by the evidence. The court must include 195 in its written order the reasons for not accepting the jurys 196 recommended sentence, if applicable. If the court does not issue 197 its order requiring a sentence of death within 30 days after the 198 rendition of the judgment and sentence, the court must impose a 199 sentence of life imprisonment without the possibility of parole 200 in accordance with s. 775.082. 201 (6)REVIEW OF JUDGMENT AND SENTENCE.The judgment of 202 conviction and sentence of death shall be subject to automatic 203 review by the Florida Supreme Court and disposition rendered 204 within 2 years after the filing of a notice of appeal. Such 205 review by the Florida Supreme Court must have priority over all 206 other cases and must be heard in accordance with rules adopted 207 by the Florida Supreme Court. 208 (7)AGGRAVATING FACTORS.Aggravating factors are limited to 209 the following: 210 (a)The capital felony was committed by a person who was 211 previously convicted of a felony violation of s. 794.011, and 212 was under a sentence of imprisonment or was placed on community 213 control or on felony probation. 214 (b)The defendant was previously convicted of another 215 capital felony or of a felony involving the use or threat of 216 violence. 217 (c)The capital felony was committed by a person designated 218 as a sexual predator pursuant to s. 775.21 or a person 219 previously designated as a sexual predator who had the sexual 220 predator designation removed. 221 (d)The capital felony was committed by a sexual offender 222 who is required to register pursuant to s. 943.0435 or a person 223 previously required to register as a sexual offender who had 224 such requirement removed. 225 (e)The defendant knowingly created a great risk of death 226 to one or more persons such that participation in the offense 227 constituted reckless indifference or disregard for human life. 228 (f)The defendant used a firearm or knowingly directed, 229 advised, authorized, or assisted another to use a firearm to 230 threaten, intimidate, assault, or injure a person in committing 231 the offense or in furtherance of the offense. 232 (g)The capital felony was committed for pecuniary gain. 233 (h)The capital felony was especially heinous, atrocious, 234 or cruel. 235 (i)The victim of the capital felony was particularly 236 vulnerable due to age or disability, or because the defendant 237 was in a position of familial or custodial authority in relation 238 to the victim. 239 (j)The capital felony was committed by a person subject to 240 an injunction issued pursuant to s. 741.30 or s. 784.046, or a 241 foreign protection order accorded full faith and credit pursuant 242 to s. 741.315, and was committed against the petitioner who 243 obtained the injunction or protection order or any spouse, 244 child, sibling, or parent of the petitioner. 245 (k)The victim of the capital felony sustained serious 246 bodily injury. 247 (8)MITIGATING CIRCUMSTANCES.Mitigating circumstances are 248 the following: 249 (a)The defendant has no significant history of prior 250 criminal activity. 251 (b)The capital felony was committed while the defendant 252 was under the influence of extreme mental or emotional 253 disturbance. 254 (c)The defendant was an accomplice in the capital felony 255 committed by another person and his or her participation was 256 relatively minor. 257 (d)The defendant acted under extreme duress or under the 258 substantial domination of another person. 259 (e)The capacity of the defendant to appreciate the 260 criminality of his or her conduct or to conform his or her 261 conduct to the requirements of law was substantially impaired. 262 (f)The age of the defendant at the time of the crime. 263 (g)The existence of any other factors in the defendants 264 background that would mitigate against imposition of the death 265 penalty. 266 (9)VICTIM IMPACT EVIDENCE.Once the prosecution has 267 provided evidence of the existence of two or more aggravating 268 factors as described in subsection (7), the prosecution may 269 introduce, and subsequently argue, victim impact evidence to the 270 jury. Such evidence must be designed to demonstrate the victims 271 uniqueness as an individual human being and the physical and 272 psychological harm to the victim. Characterizations and opinions 273 about the crime, the defendant, and the appropriate sentence may 274 not be permitted as a part of victim impact evidence. 275 (10)CONSTITUTIONALITY.Notwithstanding s. 775.082(2), s. 276 775.15, or any other provision of law, a sentence of death must 277 be imposed under this section notwithstanding existing case law 278 that holds such a sentence to be unconstitutional under the 279 United States Constitution or the State Constitution. In any 280 case for which the Florida Supreme Court or the United States 281 Supreme Court reviews a sentence of death imposed pursuant to 282 this section, and in making such a review reconsiders the prior 283 holdings in Buford v. State and Kennedy v. Louisiana, and 284 determines a sentence of death remains unconstitutional, the 285 court having jurisdiction over the person previously sentenced 286 to death must cause such person to be brought before the court, 287 and the court must sentence such person to life imprisonment 288 without the possibility of parole as provided in s. 775.082(1). 289 (11)APPLICABILITY.This section applies to any capital 290 felony under s. 794.011 that is committed on or after October 1, 291 2023. 292 Section 3.Paragraph (n) is added to subsection (1) of 293 section 924.07, Florida Statutes, to read: 294 924.07Appeal by state. 295 (1)The state may appeal from: 296 (n)The sentence in a case of capital sexual battery on the 297 ground that it resulted from the circuit courts failure to 298 comply with sentencing procedures under s. 921.1425, including 299 by striking a notice of intent to seek the death penalty, 300 refusing to impanel a capital jury, or otherwise granting relief 301 that prevents the state from seeking a sentence of death. 302 Section 4.Subsection (4) of section 921.137, Florida 303 Statutes, is amended to read: 304 921.137Imposition of the death sentence upon an 305 intellectually disabled defendant prohibited. 306 (4)After a defendant who has given notice of his or her 307 intention to raise intellectual disability as a bar to the death 308 sentence is convicted of a capital felony and an advisory jury 309 has returned a recommended sentence of death, the defendant may 310 file a motion to determine whether the defendant is 311 intellectually disabled. Upon receipt of the motion, the court 312 shall appoint two experts in the field of intellectual 313 disabilities who shall evaluate the defendant and report their 314 findings to the court and all interested parties prior to the 315 final sentencing hearing. Notwithstanding s. 921.141, or s. 316 921.142, or s. 921.1425, the final sentencing hearing shall be 317 held without a jury. At the final sentencing hearing, the court 318 shall consider the findings of the court-appointed experts and 319 consider the findings of any other expert which is offered by 320 the state or the defense on the issue of whether the defendant 321 has an intellectual disability. If the court finds, by clear and 322 convincing evidence, that the defendant has an intellectual 323 disability as defined in subsection (1), the court may not 324 impose a sentence of death and shall enter a written order that 325 sets forth with specificity the findings in support of the 326 determination. 327 Section 5.Subsection (9) of section 921.141, Florida 328 Statutes, is amended to read: 329 921.141Sentence of death or life imprisonment for capital 330 felonies; further proceedings to determine sentence. 331 (9)APPLICABILITY.This section does not apply to a person 332 convicted or adjudicated guilty of a capital sexual battery 333 offense under s. 794.011 or a capital drug trafficking felony 334 under s. 893.135. 335 Section 6.This act shall take effect October 1, 2023.