The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 1342
INTRODUCER: Rules Committee; Criminal Justice Committee; and Senator Martin and others
SUBJECT: Capital Sexual Battery
DATE: April 11, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Fav/CS
2. Cellon Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 1342 creates a new section of law to implement a death penalty sentencing procedure
for adult persons who commit sexual battery upon a child less than twelve years of age, or who
in an attempt to commit the sexual battery injures the sexual organs of the child. The bill creates
the same capital felony sentencing procedure for sexual battery upon a child less than twelve
years of age, or attempted sexual battery which causes injury to the sexual organs of the child,
committed by a person who is in a position of familial or custodial authority. Both of these
crimes are currently designated as capital felony offenses.
The bill provides a similar sentencing procedure as provided in ss. 921.141 and 921.142, F.S,
which apply in capital murder cases, but contains significant differences. Specifically, the bill
provides that:
A jury death recommendation of not less than eight jurors to sentence the capital sexual
battery defendant to death. If fewer than eight jurors recommend death, the jury’s
recommendation must be for life imprisonment without parole.
The court has the discretion to enter a death sentence or a sentence of life imprisonment
without the possibility of parole if the jury recommends death in the capital sexual battery
case.
There must be a finding of at least two aggravating factors beyond a reasonable doubt for the
jury to recommend a sentence of death. The bill creates aggravating factors and mitigating
circumstances that are customized to a capital sexual battery crime, for the jury’s
consideration in arriving at a sentencing recommendation.
REVISED: BILL: CS/CS/SB 1342 Page 2
The prosecutor must present evidence of two or more aggravating factors before victim
impact evidence may be introduced and argued by the prosecutor.
The court must enter a written sentencing order, regardless of whether the defendant has
waived a jury sentencing proceeding and regardless of the sentence imposed by the court.
The order must include the reasons for not accepting the jury’s recommended sentence, if
applicable.
The State may appeal if the circuit court fails to comply with the new sentencing procedures
for capital sexual battery.
The bill provides legislative findings and intent as follows:
A person who commits a sexual battery upon, or in an attempt to commit sexual battery
injures the sexual organs of, a person less than 12 years of age carries a great risk of death
and danger to vulnerable members of this state.
Such crimes destroy the innocence of a young child and violate all standards of decency held
by civilized society.
Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, Kennedy v.
Louisiana, 554 U.S. 407 (2008), was wrongly decided, and such cases are an egregious
infringement of the states’ power to punish the most heinous of crimes.
It is the intent of the Legislature that the procedure set forth in this s. 794.011, F.S., shall be
followed, and a prosecutor must file a notice, as provided in s. 794.011(2)(a), F.S., if he or
she intends to seek the death penalty.
The bill may have an indeterminate fiscal impact. See Section V. Fiscal Impact Statement.
The bill becomes effective October 1, 2023.
II. Present Situation:
Capital Felonies for Sexual Battery Cases and the Eighth Amendment
Section 794.011(2)(a), F.S., states that 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 as provided in ss. 775.082, F.S., and
921.141, F.S.
1
Section 794.011(8)(c), F.S., provides that a person who is in a position of familial or custodial
authority who engages in any act with a person less than 12 years of age which constitutes sexual
1
Section 775.082, F.S., provides that a person who has been convicted of a capital felony shall be punished by death if the
proceeding held to determine sentence according to the procedure set forth in s. 921.141, F.S., results in a determination that
such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible
for parole. Section 921.141, F.S., provides that upon conviction or adjudication of guilt of a defendant of a capital felony, the
court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life
imprisonment as authorized by s. 775.082, F.S. BILL: CS/CS/SB 1342 Page 3
battery, or in an attempt to commit sexual battery injures the sexual organs of such person
commits a capital or life felony, punishable as provided in ss. 775.082 and 921.141, F.S.
2
Sexual battery means 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; however,
sexual battery does not include an act done for a bona fide medical purpose.
3
No one has been executed for a non-murder offense in this country since 1964, although two
people were convicted in Louisiana of capital sexual battery of a child and sentenced to death.
One of those individuals, Patrick Kennedy, appealed his case to the U.S. Supreme Court, which
struck down Louisiana’s law.
4
Five other states have laws allowing the death penalty for sexual
battery against a minor, though no one has been sentenced to death in those states.
5
Historically, capital sexual battery has been punishable by up to a penalty of death in Florida.
Although the crimes found in ss. 794.011(2)(a) and (8)(c), F.S., are categorized as capital crimes,
life imprisonment without the possibility of parole is the current maximum sentence for these
crimes. This is largely due to a string of court cases from the seventies and early eighties ruling
on the constitutionality of the death penalty as applied by the states.
6
In 1977, the U.S. Supreme Court decided Coker v. Georgia, a case involving a death sentence for
the sexual battery of an adult female.
7
Relying heavily on the Gregg v. Georgia
8
decision from
the prior term of court, the Coker court explained that the Eighth Amendment
9
bars excessive
punishment in relation to the offense committed. Therefore, a particular punishment can be
excessive if it “is grossly out of proportion to the severity of the crime.”
10
In applying an Eighth Amendment analysis, the Coker court said that “judgment should be
informed by objective factors to the maximum possible extent...attention must be given to the
public attitudes concerning a particular sentence history and precedent, legislative attitudes, and
2
Id.; and see s. 775.082(3), F.S., setting forth the sentence for a life felony, in general, as: for a life felony committed on or
after July 1, 1995, by a term of imprisonment for life or by imprisonment for a term of years not exceeding life
imprisonment.
3
Section 794.011(1)(j), F.S.
4
Death Penalty Information Center, Death Penalty for Offenses Other than Murder, available at
https://deathpenaltyinfo.org/facts-and-research/crimes-punishable-by-death/death-penalty-for-offenses-other-than-murder
(last visited March 13, 2023); Death Penalty Information Center, Kennedy v. Louisiana Resource Page, available at
https://deathpenaltyinfo.org/facts-and-research/united-states-supreme-court/significant-supreme-court-opinions/kennedy-v-
louisiana-resource-page (last visited March 13, 2023).
5
Those states are Montana, South Carolina, Oklahoma, Georgia, and Texas. Death Penalty Information Center, Kennedy v.
Louisiana Resource Page, available at https://deathpenaltyinfo.org/facts-and-research/united-states-supreme-court/significant-
supreme-court-opinions/kennedy-v-louisiana-resource-page (last visited March 13, 2023).
6
Gibson v. State, 721 So.2d 363 (Fla. 2nd DCA, 1998).
7
Coker v. Georgia, 433 U.S. 584, (1977).
8
Gregg v. Georgia, 428 U.S. 153 (1976), (finding that the Georgia death penalty scheme satisfied the requirements of the
Eighth Amendment when imposed for the crime of murder. In a footnote, the Gregg court specified: “We do not address here
the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life for
example, when capital punishment is imposed for rape, kidnapping, or armed robbery that does not result in the death of any
human being.” at footnote 35).
9
The Eighth Amendment to the U.S. Constitution states, “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S. CONST. Amend VIII.
10
Coker v. Georgia, 433 U.S. 584, 592 (1977). BILL: CS/CS/SB 1342 Page 4
the response of juries reflected in their sentencing decisions.”
11
After performing such a
review,
12
the court found that “in the light of the legislative decisions in almost all of the States
and in most of the countries around the world, it would be difficult to support a claim that the
death penalty for rape is an indispensable part of the States’ criminal justice system.”
13
The court
held that a death sentence is disproportionate punishment for the rape of an adult woman, and is
therefore cruel and unusual punishment within the meaning of the Eighth Amendment.
14
In 1981, the Florida Supreme Court, in Buford v. State,
15
held that a death sentence for sexual
battery by an adult upon a child, is constitutionally prohibited.
16
The court stated that “[t]he
reasoning of the justices 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.”
17
Three years after Buford, the Florida Supreme Court recognized in Rusaw v. State that while the
death penalty as punishment for the capital crime of sexual battery of a child is not a
constitutional sentence, “[t]he legislature, by setting sexual battery of a child apart from other
sexual batteries, has obviously found that crime to be of special concern. Just because death is no
longer a possible punishment for the crime described in subsection 794.011(2), F.S., does not
mean that the alternative penalty suffers from any defect.”
18
In 2008, the U.S. Supreme Court, in Kennedy v. Louisiana, a child sexual battery case for which
the defendant was sentenced to death, also began its Eighth Amendment analysis by examining
existing statutes and legislation, and statistics on executions for child sexual battery.
19
Like the Coker court, the Kennedy court found that there is a national consensus against the
death penalty for child sexual battery.
20
This finding led the court to conclude that the death
penalty is not a proportional punishment for the sexual battery of a child.
21
11
Coker v. Georgia, 433 U.S. 584, 592 (1977).
12
Coker v. Georgia, 433 U.S. 584, 593-597 (1977).
13
Id.
14
“We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’... is an
excessive penalty for the rapist who, as such, does not take human life.” Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 286, 153
L.Ed.2d 982 (1977); [internal citation: Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)].
15
Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).
16
Id.
17
Id.
18
Rusaw v. State, 451 So.2d 469 (Fla. 1984), referring to life imprisonment without the possibility of parole, ss. 775.082 and
921.141, F.S.
19
The state court in Kennedy explained that since 1993, four more States—Oklahoma, South Carolina, Montana, and
Georgia—had capitalized the crime of child rape, and at least eight States had authorized capital punishment for other
nonhomicide crimes. By its count, 14 of the then–38 States permitting capital punishment, plus the Federal Government,
allowed the death penalty for nonhomicide crimes and 5 allowed the death penalty for the crime of child rape. Kennedy v.
Louisiana, 554 U.S. 407, 418 (2008). See also footnotes 3 and 4 above for recent statistics.
20
After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and
other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude
there is a national consensus against capital punishment for the crime of child rape. Kennedy v. Louisiana, 554 U.S. 407, 434
(2008).
21
Kennedy v. Louisiana, 554 U.S. 407, 422 (2008). BILL: CS/CS/SB 1342 Page 5
Case Law and Subsequent Statutory Changes Regarding Death Penalty Sentencing
Procedure
The Sixth Amendment of the U.S. Constitution provides: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”
22
This right,
in conjunction with the Due Process Clause, requires that each element of a crime be proved to a
jury beyond a reasonable doubt.
23
The U.S. Supreme Court in Ring v. Arizona, applied this right to Arizona’s capital sentencing
scheme, which required a judge to determine the presence of aggravating and mitigating factors
and to only sentence a defendant to death if the judge found at least one aggravating factor.
24
The
Court struck down the Arizona sentencing scheme, finding it to be a violation of the Sixth
Amendment because it permitted sentencing judges, without a jury, to find aggravating
circumstances justifying imposition of the death penalty.
25
In 2016, the U.S. Supreme Court issued the Hurst v. Florida opinion finding that Florida’s death
penalty sentencing process was unconstitutional because “the Sixth Amendment requires a jury,
not a judge, to find each fact necessary to impose a sentence of death.”
26
Thereafter, the
Legislature amended ss. 921.141 and 921.142, F.S., to incorporate the following statutory
changes:
The jury is required to identify each aggravating factor found to exist by a unanimous vote in
order for a defendant to be eligible for a sentence of death;
The jury is required to determine whether the aggravating factors outweigh the mitigating
circumstances in reaching its sentencing recommendation;
If at least ten of the twelve members of the jury determine that the defendant should be
sentenced to death, the jury’s recommendation is a sentence of death;
The jury is required to recommend a sentence of life imprisonment without the possibility of
parole if fewer than ten jurors determined that the defendant should be sentenced to death;
The judge is permitted to impose a sentence of life imprisonment without the possibility of
parole when the jury recommends a sentence of death; and
The judge is no longer permitted to “override” the jury’s recommendation of a sentence of
life imprisonment by imposing a sentence of death.
27
Also in 2016, Hurst v. State, on remand from the U.S. Supreme Court, was decided by the
Florida Supreme Court. In addition to finding that the prior 2016 statutory amendments to the
death penalty sentencing provisions were constitutional, the court also held that “in order for the
trial court to impose a sentence of death, the jury’s recommended sentence of death must be
unanimous.”
28
22
U.S. CONST. Amend. VI.
23
United States v. Gaudin, 515 U.S. 506, 510 (1995).
24
Ring v. Arizona, 536 U.S. 584, 592 (2002).
25
Id. at 609.
26
Hurst v. Florida, 577 U.S. 92 (2016). The Hurst v. Florida decision was based on the Sixth Amendment and the 2002 U.S.
Supreme Court decision in Ring v. Arizona, which held that juries rather than judges acting alone must make crucial factual
determinations that subject a convicted murderer to the death penalty. Ring v. Arizona, 536 U.S. 584 (2002).
27
Chapter 2016-13, L.O.F. (2016).
28
Hurst v. State, 202 So.3d 40, 44, (Fla. 2016), cert. den., 137 S.Ct. 2161 (2017). BILL: CS/CS/SB 1342 Page 6
After the Hurst v. State decision in 2016, the Legislature again amended ss. 921.141 and
921.142, F.S., this time to require a unanimous vote of the jury for a sentencing recommendation
of death.
29
The current sentencing proceeding statutes in murder cases are more fully set forth below.
Florida’s Current Sentencing Proceedings in Capital Cases
The statutes governing the proceedings to determine a sentence of either death or life
imprisonment without the possibility of parole
30
in capital cases are set forth in ss. 921.141 and
921.142, F.S.
31
The court conducts a sentencing proceeding upon conviction or adjudication of
guilt of a defendant in a capital felony.
32
Typically, the proceeding is conducted by the trial judge
before the trial jury as soon as practicable.
33
Aggravating Factors and Mitigating Circumstances
During the sentencing proceeding, the jury (or the judge if the jury is waived by the defendant)
considers evidence that is relevant to the nature of the crime and the character of the defendant.
The evidence includes matters relating to any of the aggravating factors enumerated in
s. 921.141(6). F.S., or mitigating circumstances enumerated in s. 921.141(7), F.S.
34
The aggravating factors are limited to the following:
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.
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.
29
Chapter 2017-1, L.O.F. (2017).
30
Section 775.082(1)(a), F.S.
31
The sentencing proceedings in s. 921.142, F.S., are virtually identical to the sentencing proceedings found in s. 921.141,
F.S., except that s. 921.142, F.S., only applies in capital drug trafficking cases, which contains certain aggravating factors
relevant to drug trafficking cases.
32
Sections 921.141(1) and 921.142(2), F.S.
33
Id.
34
Notice of the prosecutor’s intent to present evidence of particular aggravating factors must be served within 45 days after
arraignment. Section 782.04(1)(b), F.S. There are 16 different aggravating factors in s. 921.141(6)(a)-(p), F.S., and eight
statutory mitigating circumstances in s. 921.141(7), F.S. BILL: CS/CS/SB 1342 Page 7
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 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
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.
35
Mitigating circumstances are 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.
Jury Findings and Recommended Sentence
After hearing all of the evidence presented regarding aggravating factors and mitigating
circumstances, the jury deliberates and determines if the state has proven, beyond a reasonable
doubt, the existence of at least one aggravating factor set forth in s. 921.141(6), F.S.
36
35
Section 921.141(6)(a)-(p), F.S. See s. 921.142(7)(a)-(j), F.S., for the aggravating factors in a capital drug trafficking felony
case.
36
Section 921.141(2)(a), F.S.; See s. 921.142(3)(a), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case. BILL: CS/CS/SB 1342 Page 8
The jury shall return findings identifying each aggravating factor found to exist. A finding that
an aggravating factor exists must be unanimous. 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 shall make a recommendation to the court as to whether the defendant
shall be sentenced to life imprisonment without the possibility of parole or to death. The
recommendation shall be based on a weighing of all of the following:
o Whether sufficient aggravating factors exist.
o Whether aggravating factors exist which outweigh the mitigating circumstances found to
exist.
o Based on these considerations, whether the defendant should be sentenced to life
imprisonment without the possibility of parole or to death.
37
If a unanimous jury determines that the defendant should be sentenced to death, the jury’s
recommendation to the court shall be a sentence of death. If a unanimous jury does not determine
that the defendant should be sentenced to death, the jury’s recommendation to the court shall be
a sentence of life imprisonment without the possibility of parole.
38
Imposition of Sentence
If the jury has recommended a sentence of:
Life imprisonment without the possibility of parole, the court shall impose the recommended
sentence.
Death, the court, after considering each aggravating factor found by the jury and all
mitigating circumstances, may impose a sentence of life imprisonment without the possibility
of parole or a sentence of death. The court may consider only an aggravating factor that was
unanimously found to exist by the jury.
If the defendant waived his or her right to a sentencing proceeding by a jury, the court, after
considering all aggravating factors and mitigating circumstances, may impose a sentence of life
imprisonment without the possibility of parole or a sentence of death. The court may impose a
sentence of death only if the court finds that at least one aggravating factor has been proven to
exist beyond a reasonable doubt.
39
Order of the Court and Automatic Review of the Case
In each case in which the court imposes a sentence of death, the court shall, considering the
records of the trial and the sentencing proceedings, enter a written order addressing the
aggravating factors found to exist, the mitigating circumstances reasonably established by the
evidence, whether there are sufficient aggravating factors to warrant the death penalty, and
whether the aggravating factors outweigh the mitigating circumstances reasonably established by
37
Section 921.141(2)(b), F.S.; See s. 921.142(3)(b), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case.
38
Section 921.141(2)(c), F.S.; See s. 921.142(3)(c), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case.
39
Section 921.141(3), F.S.; See s. 921.141(4), F.S., for provisions relating to the imposition of sentence in a capital drug
trafficking case. BILL: CS/CS/SB 1342 Page 9
the evidence. If the court does not issue its order requiring the death sentence within 30 days
after the rendition of the judgment and sentence, the court shall impose a sentence of life
imprisonment without the possibility of parole in accordance with s. 775.082, F.S.
40
A judgment of conviction and sentence of death shall be subject to automatic review by the
Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of
appeal. Such review by the Supreme Court shall have priority over all other cases and shall be
heard in accordance with rules adopted by the Supreme Court.
41
Case Law Interpreting Current Death Penalty Proceeding Requirements in Florida
Death Eligibility Decision is Jury’s Only Role in Death Penalty Sentencing Under Poole v.
State
Subsequent to the Legislature’s 2016 amendments to the death penalty sentencing proceedings in
an effort to comply with both Hurst v. Florida
42
and Hurst v. State
43
the Florida Supreme Court
receded from its Hurst v. State opinion, eliminating the need for most of the statutory changes
made in 2016.
44
In Poole v. State, the Florida Supreme Court opined that the Hurst v. State court had gone
beyond where the U.S. Supreme Court required in order to bring Florida’s death penalty
proceedings into compliance with constitutional standards.
45
The Poole court left intact only the requirement that a unanimous jury find a statutory
aggravating circumstance by a reasonable doubt standard of proof.
46
This particular part of
Florida’s death penalty sentencing proceeding is necessary, as the Poole court explained, because
there are two components to the death penalty sentencing decision-making process: the eligibility
decision which is the trier of fact’s responsibility, and the selection decision which is the
sentencing judge’s responsibility.
47
As to the eligibility decision, the U.S. Supreme Court has required that the death penalty be
reserved for only a subset of those who commit murder. “To render a defendant eligible for the
death penalty in a homicide case, [the Supreme Court has] indicated that the trier of fact must
convict the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at
either the guilt or penalty phase.”
48
40
Section 921.141(4), F.S.; See s. 921.142(5), F.S., for provisions relating to the order of the court in capital drug trafficking
cases.
41
Section 921.141(5), F.S.; See s. 921.142(6), F.S., for provisions relating to the automatic review by the Florida Supreme
Court in capital drug trafficking cases.
42
Hurst v. Florida, 577 U.S. 92 (2016).
43
Hurst v. State, 202 So.3d 40 (Fla. 2016), interpreting and applying Hurst v. Florida, 577 U.S. 92 (2016).
44
Poole v. State, 297 So. 3d 487 (Fla. 2020), receding from Hurst v. State, 202 So.3d 40 (Fla. 2016).
45
Poole v. State, 297 So. 3d 487 (Fla. 2020).
46
Poole v. State, 297 So. 3d 487 (Fla. 2020).
47
Poole v. State, 297 So. 3d 487, 501 (Fla. 2020).
48
Poole v. State, 297 So. 3d 487, 501 (Fla. 2020), quoting Tuilaepa v. California, 512 U.S. 967, 971-972 (U.S. 1994). BILL: CS/CS/SB 1342 Page 10
The selection decision involves determining “whether a defendant eligible for the death penalty
should in fact receive that sentence.”
49
The selection decision is a subjective determination to be
made by the court. It is not a “fact” or “element” of the offense for the fact-finder to decide.
50
According to the Poole court, the Hurst v. State court misinterpreted the Hurst v. Florida
decision on this key point: the Hurst v. Florida decision is about death penalty eligibility.
Post-Poole if a jury unanimously finds at least one aggravating circumstance exists in a murder
case, the defendant is death-eligible.
According to Poole, the Hurst v. State court had a “mistaken view” of what constitutes an
element of an offense which is a fact that a jury must determine exists beyond a reasonable doubt
for a defendant to be death eligible. Hurst v. State, therefore, mistakenly decided that the Sixth
Amendment right to trial by a jury required:
Unanimous jury findings as to all of the aggravating factors that were proven beyond a
reasonable doubt;
That the aggravating factors are sufficient
51
to impose a death sentence;
That the aggravating factors outweigh the mitigating factors;
52
and
A unanimous jury recommendation of a sentence of death.
53
In sum, the Poole court rejected the Hurst v. State court’s view of a capital jury’s role that goes
beyond the “fact-finding” required to determine whether a defendant is death eligible.
54
Other States’ Death Penalty Sentencing
Twenty-seven states have death penalty statutes, however there are only 22 states with an active
death penalty. Three states have governor-issued moratoriums in place (Oregon, California, and
49
Id.
50
Poole v. State, 297 So. 3d 487, 504 (Fla. 2020).
51
[F]or purposes of complying with s. 921.141(3)(a), F.S., “sufficient aggravating circumstances” means “one or more.” See
Miller v. State, 42 So. 3d 204, 219 (Fla. 2010) (“sufficient aggravating circumstances” means “one or more such
circumstances.” For purposes of complying with s. 921.141(3)(a), F.S., “sufficient aggravating circumstances” means “one
or more.” See Miller v. State, 42 So. 3d 204, 219 (Fla. 2010) (“sufficient aggravating circumstances” means “one or more
such circumstances”). Poole v. State, 297 So. 3d 487, 502 (Fla. 2020).
52
“The role of the section 921.141(3)(b) selection finding is to give the defendant an opportunity for mercy if it is justified by
the relevant mitigating circumstances and by the facts surrounding his crime.” Poole v. State, 297 So. 3d 487, 503 (Fla.
2020). See also Rogers v. State, 285 So.3d 872, 886 (Fla. 2019).
53
Hurst v. Florida does not require a unanimous jury recommendation—or any jury recommendation—before a death
sentence can be imposed. The Supreme Court in Spaziano “upheld the constitutionality under the Sixth Amendment of a
Florida judge imposing a death sentence even in the face of a jury recommendation of life—a jury override. It necessarily
follows that the Sixth Amendment, as interpreted in Spaziano, does not require any jury recommendation of death, much less
a unanimous one. And as we have also explained, the Court in Hurst v. Florida overruled Spaziano only to the extent it
allows a judge, rather than a jury, to find a necessary aggravating circumstance.” See Hurst v. Florida, 136 S. Ct. at 624. See
also Spaziano v. Florida, 468 U.S. 447 at 464-65, (1984) holding that the Eighth Amendment does not require a jury’s
favorable recommendation before a death penalty can be imposed. Poole v. State, 297 So. 3d 487, 505 (Fla. 2020).
54
“This Court clearly erred in Hurst v. State by requiring that the jury make any finding beyond the section 921.141(3)(a)
eligibility finding of one or more statutory aggravating circumstances. Neither Hurst v. Florida, nor the Sixth or Eighth
Amendment, nor the Florida Constitution mandates that the jury make the section 941.121(3)(b) selection finding or that the
jury recommend a sentence of death.” BILL: CS/CS/SB 1342 Page 11
Pennsylvania). The Delaware and Washington state courts have ruled their death penalties
unconstitutional. Twenty-three states have abolished the death penalty.
55
Of the 22 active death penalty states, only Alabama allows a judge to impose a death sentence
based upon a non-unanimous (10-2 jury vote) jury verdict for death. If the jury returns a verdict
of death, “the court shall sentence the defendant to death.”
56
Most states with the death penalty impose a life sentence if the jury makes a non-unanimous
death recommendation. However, in some instances, if the jury cannot reach a unanimous
decision:
5 states provide for the state to have another opportunity at a new sentencing hearing with a
different jury (Alabama, Arizona, California, Kentucky, and Nevada); and
Indiana and Missouri juries are considered to be “hung juries,” and the judge becomes the
decision-maker.
In Montana, the judge sentences based on a jury finding of aggravating factors.
In Nebraska, a panel of judges decides the sentence and if the panel is non-unanimous, the
sentence must be for life.
57
III. Effect of Proposed Changes:
Capital Sexual Battery Sentencing
The bill creates s. 921.1425, F.S., to implement a death penalty sentencing process for capital
felony offenses of sexual battery in s. 794.011, F.S. There are currently two sexual battery crimes
identified as capital offenses. They are:
Section 794.011(2)(a), F.S., which states that 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 as provided in
ss. 775.082, F.S., and 921.141, F.S.,
58
and
Section 794.011(8)(c), F.S., which provides that a person who is in a position of familial or
custodial authority who engages in any act with a person less than 12 years of age which
constitutes sexual battery, or in an attempt to commit sexual battery injures the sexual organs
55
States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums, Britannica ProCon.org, available at
https://deathpenalty.procon.org/states-with-the-death-penalty-and-states-with-death-penalty-bans/; (last visited March 17,
2023); Life Verdict or Hung Jury? How States Treat Non-Unanimous Jury Votes in Capital-Sentencing Proceedings, Death
Penalty Information Center, available at https://deathpenaltyinfo.org/stories/life-verdict-or-hung-jury-how-states-treat-non-
unanimous-jury-votes-in-capital-sentencing-proceedings (last visited March 17, 2023); and Map: These are the states that
allow the death penalty, Joe Murphy, NBC News, October 27, 2021, available at: https://www.nbcnews.com/news/all/map-
these-are-states-allow-death-penalty-n1282556 (last visited March 17, 2023).
56
Sections 13A-5-46, and.13A-5-47, A.C.
57
See supra note 36.
58
Section 775.082, F.S., provides that a person who has been convicted of a capital felony shall be punished by death if the
proceeding held to determine sentence according to the procedure set forth in s. 921.141, F.S., results in a determination that
such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible
for parole. Section 921.141, F.S., provides that upon conviction or adjudication of guilt of a defendant of a capital felony, the
court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life
imprisonment as authorized by s. 775.082, F.S. BILL: CS/CS/SB 1342 Page 12
of such person commits a capital or life felony, punishable as provided in ss. 775.082 and
921.141, F.S.
59
The bill amends s. 794.011(2)(a), F.S., providing that in all capital felony cases under s. 794.011,
F.S., the procedure set forth in s. 921.1425, F.S., must be followed in order to determine a
sentence of death or life imprisonment without the possibility of parole.
The bill provides that if a prosecutor intends to seek the death penalty, he or she must give notice
to the defendant and file the notice with the court within 45 days after arraignment in the case.
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. The court may allow the prosecutor to amend
the notice upon a showing of good cause.
Section 921.1425, F.S., which creates a death penalty sentencing process for ss. 794.011(2)(a)
and (8)(c), F.S., contains legislative findings and intent, as follows:
A person who commits a sexual battery upon, or in an attempt to commit sexual battery
injures the sexual organs of, a person less than 12 years of age carries a great risk of death
and danger to vulnerable members of this state.
Such crimes destroy the innocence of a young child and violate all standards of decency held
by civilized society.
Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, Kennedy v.
Louisiana, 554 U.S. 407 (2008), was wrongly decided, and such cases are an egregious
infringement of the states’ power to punish the most heinous of crimes.
It is the intent of the Legislature that the procedure set forth in this s. 794.011, F.S., shall be
followed, and a prosecutor must file a notice, as provided in s. 794.011(2)(a), F.S., if he or
she intends to seek the death penalty.
The bill requires the court to conduct a separate sentencing proceeding upon the conviction or
adjudication of guilt of a defendant of a capital felony under s. 794.011, F.S., to determine
whether the defendant should be sentenced to death or life imprisonment as authorized by
s. 775.082, F.S.
The proceeding must be conducted by the trial judge before the trial jury as soon as practicable.
If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the
issue of penalty, having determined the guilt of the accused, the trial judge may summon a
special juror or jurors as provided in ch. 913, F.S., to determine the issue of the imposition of the
penalty. If the trial jury has been waived, or if the defendant pleads guilty, the sentencing
proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the
defendant.
In the proceeding, evidence may be presented as to any matter that the court deems relevant to
the nature of the crime and the character of the defendant and must include matters relating to
59
Id.; and see s. 775.082(3), F.S., setting forth the sentence for a life felony, in general, as: for a life felony committed on or
after July 1, 1995, by a term of imprisonment for life or by imprisonment for a term of years not exceeding life
imprisonment. BILL: CS/CS/SB 1342 Page 13
any of the aggravating factors and for which notice has been provided pursuant to
s. 794.011(2)(a) F.S., or relating to any of the mitigating circumstances.
Any such evidence that the court deems to have probative value may be received, regardless of
its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a
fair opportunity to rebut any hearsay statements. However, subsection (2) of s. 941.1425, F.S.,
may not be construed to authorize the introduction of any evidence secured in violation of the
United States Constitution or the State Constitution. The state and the defendant or the
defendant’s counsel must be permitted to present arguments for or against a sentence of death.
If a defendant has not waived his or her right to a sentencing proceeding by a jury, the jury will
hear all of the evidence presented regarding aggravating factors and mitigating circumstances.
The jury must deliberate and determine if the state has proven, beyond a reasonable doubt, the
existence of at least two aggravating factors.
The jury must return findings identifying each aggravating factor found to exist. A finding that
an aggravating factor exists must be unanimous. If the jury:
Does not unanimously find at least two aggravating factors, the defendant is ineligible for a
sentence of death.
Unanimously finds at least two aggravating factors, the defendant is eligible for a sentence of
death and the jury must make a recommendation to the court as to whether the defendant
must be sentenced to life imprisonment without the possibility of parole or to death. The
recommendation must be based on a weighing of all of the following:
o Whether sufficient aggravating factors exist.
o Whether aggravating factors exist which outweigh the mitigating circumstances found to
exist.
o Based on these considerations, whether the defendant should be sentenced to life
imprisonment without the possibility of parole or to death.
If at least eight jurors determine that 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
that 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.
If the jury has recommended a sentence of:
Life imprisonment without the possibility of parole, the court must impose the recommended
sentence of life imprisonment without the possibility of parole.
Death, the court may impose the recommended sentence of death or a sentence of life
imprisonment without the possibility of parole. The court may impose a sentence of death
only if the jury unanimously found at least two aggravating factors to have been proven
beyond a reasonable doubt.
If the defendant waives his or her right to a sentencing proceeding by a jury, the court, after
considering all aggravating factors and mitigating circumstances, may impose a sentence of life
imprisonment without the possibility of parole or a sentence of death. The court may impose a
sentence of death only if the court finds that at least two aggravating factors have been proven to
exist beyond a reasonable doubt. BILL: CS/CS/SB 1342 Page 14
Regardless of the sentence, the court must enter a written sentencing order considering the
records of the trial and the sentencing proceedings, and addressing:
The aggravating factors found to exist;
The mitigating circumstances reasonably established by the evidence;
Whether there are sufficient aggravating factors to warrant the death penalty; and
Whether the aggravating factors outweigh the mitigating circumstances reasonably
established by the evidence.
The court must include in its written order the reasons for not accepting the jury’s recommended
sentence, if applicable.
If the court does not issue its sentencing order requiring a sentence of death within 30 days after
the rendition of the judgment and sentence, the court must impose a sentence of life
imprisonment without the possibility of parole in accordance with s. 775.082, F.S.
The judgment of conviction and sentence of death shall be subject to automatic review by the
Florida Supreme Court and disposition rendered within 2 years after the filing of a notice of
appeal. Such review by the Florida Supreme Court must have priority over all other cases and
must be heard in accordance with rules adopted by the Florida Supreme Court.
Aggravating factors are limited to the following:
The capital felony was committed by a person who was previously convicted of a felony
violation of s. 794.011, F.S., and was under a sentence of imprisonment or was 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.
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 capital felony was particularly vulnerable due to age or disability, or
because the defendant was in a position of familial or custodial authority in relation to 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 BILL: CS/CS/SB 1342 Page 15
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.
Mitigating circumstances are 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 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.
Once the prosecution has provided evidence of the existence of two or more aggravating factors,
the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such
evidence must be designed to demonstrate the victim’s uniqueness as an individual human being
and the physical and psychological harm to the victim. Characterizations and opinions about the
crime, the defendant, and the appropriate sentence may not be permitted as a part of victim
impact evidence.
Notwithstanding s. 775.082(2), F.S., s. 775.15, F.S., or any other provision of law, a sentence of
death must be imposed under this section notwithstanding existing case law that holds such a
sentence to be unconstitutional under the United States Constitution or the State Constitution. In
any case for which the Florida Supreme Court or the United States Supreme Court reviews a
sentence of death imposed pursuant to this section, and in making such a review reconsiders the
prior holdings in Buford v. State and Kennedy v. Louisiana, and determines a sentence of death
remains unconstitutional, the court having jurisdiction over the person previously sentenced to
death must cause such person to be brought before the court, and the court must sentence such
person to life imprisonment without the possibility of parole as provided in s. 775.082(1), F.S.
Newly-created s. 921.1425, F.S., applies to any capital felony under s. 794.011, F.S., that is
committed on or after October 1, 2023.
The bill specifies that s. 921.141, F.S., does not apply to a person convicted or adjudicated guilty
of a capital sexual battery offense under s. 794.011, F.S.
The bill amends s. 921.137(4), F.S., to add a reference to newly created s. 921.1425, F.S., which
provides procedures for sentencing a person who gives notice of his or her intention to raise
intellectual disability as a bar to the death sentence. Section 921.137, F.S., prohibits the
imposition of the death penalty upon an intellectually disabled defendant.
BILL: CS/CS/SB 1342 Page 16
The bill amends s. 924.07, F.S., to create an appellate opportunity for the State if the sentence in
a case of capital sexual battery resulted from the circuit court’s failure to comply with sentencing
procedures under s. 921.1425, F.S., including by:
Striking the State’s notice of intent to seek the death penalty;
Refusing to impanel a capital jury; or
Otherwise granting relief that prevents the State from seeking the death penalty.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
There may be an indeterminate fiscal impact on the criminal trial courts, appellate courts,
prosecutors, defense attorneys, and appellate counsel as a result of the bill.
VI. Technical Deficiencies:
None. BILL: CS/CS/SB 1342 Page 17
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 794.011, 921.137,
921.141, and 924.07.
This bill creates section 921.1425 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Rules on April 11, 2023:
Provides that the prosecutor must present evidence of two or more aggravating factors
before victim impact evidence may be introduced and argued by the prosecutor.
Creates a reference to the new capital sexual battery statute (s. 921.1425, F.S.) for
procedural purposes in s. 921.137, F.S., which prohibits the imposition of the death
penalty upon an intellectually disabled defendant.
Creates an appellate opportunity for the State if the circuit court fails to comply with
sentencing procedures under s. 921.1425, F.S.
CS by Criminal Justice on March 20, 2023:
Gives the court discretion to impose a sentence of life imprisonment without the
possibility of parole or a sentence of death, if the jury recommends death. (The bill
had required the court to enter a sentence of death if the jury recommended death.)
Provides that at least two aggravating factors must be found beyond a reasonable
doubt for a person to be eligible to be sentenced to death. (The bill had required at
least one aggravating factor.)
Provides that the court must enter a written sentencing order, regardless of whether
the defendant has waived a jury sentencing proceeding and regardless of the sentence
imposed by the court. The order must include the reasons for not accepting the jury’s
recommended sentence, if applicable. (No sentencing order was required in the bill
unless the defendant had waived a jury sentencing procedure and the court imposed a
death sentence. Also, in the bill there was no requirement that the court’s sentencing
order include reasons for not accepting the jury’s recommended sentence, if
applicable.)
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.