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 Appropriations Committee on Criminal and Civil Justice
BILL: SB 1804
INTRODUCER: Senator Martin
SUBJECT: Capital Sex Trafficking
DATE: April 14, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Favorable
2. Atchley Harkness ACJ Pre-meeting
3. FP
I. Summary:
SB 1804 creates a new crime, Capital Sex Trafficking, in s. 787.062, F.S. A person
who knowingly engages in human trafficking by use of physical force for sexual violence upon a
child less than 12 years of age, or upon a person who is mentally defective or mentally
incapacitated commits capital sex trafficking, which is a capital felony.
A person younger than 18 years of age who commits capital sex trafficking commits a life
felony.
The bill may have a positive insignificant fiscal impact (unquantifiable increase in prison and jail
beds) on the Department of Correction and may increase workload for the state court system. See
Section V., Fiscal Impact Statement.
The bill takes effect October 1, 2025.
II. Present Situation:
“Human trafficking” is defined in s. 787.06(2)(d), F.S., as transporting, soliciting, recruiting,
harboring, providing, enticing, maintaining, purchasing, patronizing, procuring, or obtaining
another person for the purpose of exploitation of that person.
Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking,
attempts to engage in human trafficking, or benefits financially by receiving anything of value
from participation in a venture that has subjected a person to human trafficking:
• For commercial sexual activity who does so by the transfer or transport of any child younger
than 18 years of age or an adult believed by the person to be a child younger than 18 years of
REVISED: BILL: SB 1804 Page 2
age from outside this state to within this state commits a felony of the first degree, punishable
by imprisonment for a term of years not exceeding life.
• For commercial sexual activity in which any child younger than 18 years of age or an adult
believed by the person to be a child younger than 18 years of age, or in which any person
who is mentally defective or mentally incapacitated as those terms are defined in
s. 794.011(1), F.S., is involved commits a life felony, punishable as provided in
s. 775.082(3)(a)6., F.S., s. 775.083, F.S., or s. 775.084, F.S. For each instance of human
trafficking of any individual under this subsection, a separate crime is committed and a
separate punishment is authorized.
• Any parent, legal guardian, or other person having custody or control of a minor who sells or
otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer
custody of such minor, with knowledge or in reckless disregard of the fact that, as a
consequence of the sale or transfer, the minor will be subject to human trafficking commits a
life felony, punishable as provided in s. 775.082, F.S., s. 775.083, F.S., or s. 775.084, F.S.
• Any person who, for the purpose of committing or facilitating an offense under this section,
permanently brands, or directs to be branded, a victim of an offense under this section
commits a second degree felony, punishable as provided in s. 775.082, F.S., s. 775.083, F.S.,
or s. 775.084, F.S. For purposes of this subsection, the term “permanently branded” means a
mark on the individual's body that, if it can be removed or repaired at all, can only be
removed or repaired by surgical means, laser treatment, or other medical procedure.
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, 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
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
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.
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. BILL: SB 1804 Page 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 under the applicable case law. 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
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
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 28, 2025); 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 28, 2025).
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 28, 2025).
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).
11
Coker v. Georgia, 433 U.S. 584, 592 (1977).
12
Coker v. Georgia, 433 U.S. 584, 593-597 (1977).
13
Id. BILL: SB 1804 Page 4
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 s. 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
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,
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 FIVE allowed the death penalty for the crime of child rape. Kennedy v.
Louisiana, 554 U.S. 407, 418 (2008).
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).
22
U.S. CONST. Amend. VI. BILL: SB 1804 Page 5
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 jury
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
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
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).
29
Chapter 2017-1, L.O.F. (2017). BILL: SB 1804 Page 6
Subsequent to the Legislature’s 2016 amendments to the death penalty sentencing proceedings,
in an effort to comply with both Hurst v. Florida
30
and Hurst v. State,
31
the Florida Supreme
Court receded from its Hurst v. State opinion, eliminating the need for most of the statutory
changes made in 2016.
32
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.
33
The Poole court left intact only the requirement that a unanimous jury find a statutory
aggravating circumstance by a reasonable doubt standard of proof.
34
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.
35
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.”
36
The selection decision involves determining “whether a defendant eligible for the death penalty
should in fact receive that sentence.”
37
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.
38
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:
30
Hurst v. Florida, 577 U.S. 92 (2016).
31
Hurst v. State, 202 So.3d 40 (Fla. 2016), interpreting and applying Hurst v. Florida, 577 U.S. 92 (2016).
32
Poole v. State, 297 So. 3d 487 (Fla. 2020), receding from Hurst v. State, 202 So.3d 40 (Fla. 2016).
33
Poole v. State, 297 So. 3d 487 (Fla. 2020).
34
Poole v. State, 297 So. 3d 487 (Fla. 2020).
35
Poole v. State, 297 So. 3d 487, 501 (Fla. 2020).
36
Poole v. State, 297 So. 3d 487, 501 (Fla. 2020), quoting Tuilaepa v. California, 512 U.S. 967, 971-972 (U.S. 1994)
(emphasis added).
37
Id.
38
Poole v. State, 297 So. 3d 487, 504 (Fla. 2020). BILL: SB 1804 Page 7
• Unanimous jury findings as to all of the aggravating factors that were proven beyond a
reasonable doubt;
• That the aggravating factors are sufficient
39
to impose a death sentence;
• That the aggravating factors outweigh the mitigating factors;
40
and
• A unanimous jury recommendation of a sentence of death.
41
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.
42
Florida’s Current Death Penalty Statutes
In 2023, the Legislature again amended the death penalty procedure in homicide cases to clarify
the judge’s and the jury’s role. Specifically, ss. 921.14 and 921.142, F.S., were amended to:
• Delete the requirement of a unanimous jury recommendation for the imposition of the death
penalty replacing it with a recommendation of at least eight jurors recommending the death
penalty.
• Provide that if fewer than eight jurors vote to recommend the death penalty, the jury’s
sentencing recommendation must be for life without the possibility of parole and the court is
bound by that recommendation.
• Provide that if the jury recommends a sentence of death, the court may impose the
recommended sentence of death, or a sentence of life imprisonment without the possibility of
parole.
• Specify that the death penalty may only be imposed if the jury unanimously finds at least one
aggravating factor beyond a reasonable doubt.
• Require that the court enter a written order whether the sentence is for death or for life
without the possibility of parole and the court must include in its written order the reasons for
not accepting the jury’s recommended sentence, if applicable.
43
39
[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).
40
“The role of the s. 921.141(3)(b), F.S., 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).
41
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).
42
“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 s. 941.121(3)(b), F.S., selection finding or that the
jury recommend a sentence of death.”
43
Sections 921.141 and 921.142, F.S. BILL: SB 1804 Page 8
In an additional 2023 amendment to the death penalty procedure, s. 921.1425, F.S., was created,
which provides for a death sentence or life imprisonment without the possibility of parole for the
crime of sexual battery by an adult upon a child under the age of 12, or the attempt to commit the
crime, and the adult injures the child’s sexual organs.
44
The procedure in s. 921.1425, F.S., as it
differs from s. 921.141, (2013), F.S., is that the jury must unanimously find at least two
aggravating factors for the defendant to receive the death penalty.
On December 14, 2023, Lake County, prosecutors announced they would seek the first death
sentence for a man accused of committing sexual battery of a minor under the age of 12. A state-
ment from the office of State Attorney William Gladson said the decision reflects the “severity
of the crime and its impact on the community.” In February 2024, the defendant pled guilty and
was sentenced to life in prison without the possibility of parole.
45
III. Effect of Proposed Changes:
Capital Sex Trafficking
The crime created in s. 787.062, F.S., Capital Sex Trafficking, provides that a person who
knowingly engages in human trafficking by use of physical force for sexual violence upon a
child less than 12 years of age, or upon a person who is mentally defective
46
or mentally
incapacitated
47
as those terms are defined in the bill, commits a capital felony.
48
This new capital
felony can result in a sentence of death or life without the possibility of parole. A person younger
than 18 years of age who violates s. 787.062, F.S., commits a life felony.
49
The bill defines “physical force” as the touching, striking, causing of bodily harm, confining, or
restraining of another.
As provided in the bill, “sexual violence” means an act of any of the following:
• Sexual battery, as defined in s. 794.011(1), F.S.
50
;
44
Other states have introduced similar legislation since the Florida law was changed. Death Penalty Information Center,
Death Penalty for Child Sexual Abuse that Does Not Result in Death, available at Death Penalty for Child Sexual Abuse that
Does Not Result in Death | Death Penalty Information Center, (last visited March 27, 2025).
45
Id.
46
“Mentally defective” means a mental disease or defect which renders a person temporarily or permanently incapable of
appraising the nature of his or her conduct. Section 794.011(1)(c), F.S.
47
“Mentally incapacitated” means temporarily incapable of appraising or controlling a person's own conduct due to the
influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act
committed upon that person without his or her consent. Section 794.011(1)(d), F.S.
48
As provided in ss. 775.082 and 921.1427, F.S.
49
A person convicted of an offense that is not included in s. 782.04, F.S., but that is an offense that is a life felony or is
punishable by a term of imprisonment for life or by a term of years not exceeding life imprisonment, or an offense that was
reclassified as a life felony or an offense punishable by a term of imprisonment for life or by a term of years not exceeding
life imprisonment, which was committed before the person attained 18 years of age may be punished by a term of
imprisonment for life or a term of years equal to life imprisonment if the judge conducts a sentencing hearing in accordance
with s. 921.1401, F.S., and finds that life imprisonment or a term of years equal to life imprisonment is an appropriate
sentence. A person who is sentenced to a term of imprisonment of more than 20 years is entitled to a review of his or her
sentence in accordance with s. 921.1402(2)(d), F.S.
50
“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. Section 794.011(1)(j), F.S. BILL: SB 1804 Page 9
• Lewd or lascivious battery, as defined in s. 800.04(4), F.S.
51
;
• Lewd or lascivious molestation, as defined in s. 800.04(5), F.S.
52
;
• Lewd or lascivious conduct, as defined in s. 800.04(6), F.S.
53
; or
• Sadomasochistic abuse or sexual bestiality as those terms are defined in s. 827.071(1), F.S.
Death Penalty Procedure
The bill provides that in all capital cases under s. 787.062, F.S., the procedure in
s. 921.1427, F.S., must be followed to determine a sentence of death or life imprisonment. If the
prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and
file the notice with the court within 45 days after arraignment. 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.
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. 787.062(4), 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
any of the aggravating factors and for which notice has been provided pursuant to
s. 787.062(4), 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. 941.1427, F.S.,
may not be construed to authorize the introduction of any evidence secured in violation of the
51
A person commits lewd or lascivious battery by: engaging in sexual activity with a person 12 years of age or older but less
than 16 years of age; encouraging, forcing, or enticing any person less than 16 years of age to engage in sadomasochistic
abuse, sexual bestiality, prostitution, or any other act involving sexual activity. Section 800.04(4), F.S.
52
A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the
clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch
the perpetrator, commits lewd or lascivious molestation. Section 800.04(5), F.S.
53
A person who intentionally touches a person under 16 years of age in a lewd or lascivious manner or
solicits a person under 16 years of age to commit a lewd or lascivious act, commits lewd or lascivious conduct.
Section800.04(6), F.S. BILL: SB 1804 Page 10
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.
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 BILL: SB 1804 Page 11
• 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 two 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
• 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. BILL: SB 1804 Page 12
• 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 defendant could not have reasonably foreseen that her or his conduct in the course of the
commission of the offense would cause or would create a grave risk of death to one or more
persons.
• 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.
The bill specifies that s. 921.141, F.S., does not apply to a person convicted or adjudicated guilty
of a capital sex trafficking offense under s. 787.062, F.S.
The bill amends s. 924.07, F.S., to create an appellate opportunity for the State if the sentence in
a case of capital sex trafficking resulted from the circuit court’s failure to comply with
sentencing procedures under s. 921.1427, 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.
The bill amends s. 921.137(4), F.S., to add a reference to newly created s. 921.1427, 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: SB 1804 Page 13
The bill provides Legislative findings.
Newly created s. 921.1427, F.S., applies to any capital felony under s. 787.062, F.S., that is
committed on or after October 1, 2025.
The bill takes effect October 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
s. 18, of the State Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Pursuant to the U.S. and Florida Supreme Courts, a sentence of death is constitutionally
prohibited for a crime other than one which causes death. The Supreme Court of Florida
held in Buford v. State,
54
that a death sentence for sexual battery by an adult upon a child,
is constitutionally prohibited.
55
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.”
56
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
54
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).
55
Id.
56
Id. BILL: SB 1804 Page 14
B. Private Sector Impact:
None.
C. Government Sector Impact:
The Legislature’s Office of Economic and Demographic Research (EDR) and the
Criminal Justice Impact Conference, which provides the final, official estimate of the
prison bed impact, if any, of legislation, has provided a preliminary estimate that the bill
may have a positive insignificant prison bed impact on the Department of Corrections.
The EDR provides:
• Per DOC, in FY 23-24, there were 17 new commitments to prison for commercial
sexual activity of a child under 18 years of age. Four of these commitments
received life sentences, and three received sentences that would have them released
within the five-year forecast window. However, it is not known how many of these
offenders would fit the criteria described in the bill.
In addition, there may be an indeterminate workload impact on the criminal trial courts,
appellate courts, prosecutors, defense attorneys, and appellate counsel as a result of the
bill.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 924.07, 921.137,
921.141.
This bill creates the following sections of the Florida Statutes: 787.062, 921.1427,
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.