The Florida Senate

921.142  Sentence of death or life imprisonment for capital drug trafficking felonies; further proceedings to determine sentence.--

(1)  FINDINGS.--The Legislature finds that trafficking in cocaine or opiates carries a grave risk of death or danger to the public; that a reckless disregard for human life is implicit in knowingly trafficking in cocaine or opiates; and that persons who traffic in cocaine or opiates may be determined by the trier of fact to have a culpable mental state of reckless indifference or disregard for human life.

(2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon conviction or adjudication of guilt of a defendant of a capital felony under s. 893.135, 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 The proceeding shall 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 chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded 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 shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which 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, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant's counsel shall be permitted to present argument for or against sentence of death.

(3)  ADVISORY SENTENCE BY THE JURY.--After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

(a)  Whether sufficient aggravating circumstances exist as enumerated in subsection (6);

(b)  Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and

(c)  Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

(4)  FINDINGS IN SUPPORT OF SENTENCE OF DEATH.--Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

(a)  That sufficient aggravating circumstances exist as enumerated in subsection (6), and

(b)  That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (6) and (7) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082, and that person shall be ineligible for parole.

(5)  REVIEW OF JUDGMENT AND SENTENCE.--The judgment of conviction and sentence of death shall be subject to automatic review and disposition rendered by the Supreme Court of Florida 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 promulgated by the Supreme Court.

(6)  AGGRAVATING CIRCUMSTANCES.--Aggravating circumstances shall be limited to the following:

(a)  The capital felony was committed by a person under a sentence of imprisonment.

(b)  The defendant was previously convicted of another capital felony or of a state or federal offense involving the distribution of a controlled substance that is punishable by a sentence of at least 1 year of imprisonment.

(c)  The defendant knowingly created grave risk of death to one or more persons such that participation in the offense constituted reckless indifference or disregard for human life.

(d)  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.

(e)  The offense involved the distribution of controlled substances to persons under the age of 18 years, the distribution of controlled substances within school zones, or the use or employment of persons under the age of 18 years in aid of distribution of controlled substances.

(f)  The offense involved distribution of controlled substances known to contain a potentially lethal adulterant.

(g)  The defendant:

1.  Intentionally killed the victim;

2.  Intentionally inflicted serious bodily injury which resulted in the death of the victim; or

3.  Intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim.

(h)  The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

(i)  The defendant committed the offense after planning and premeditation.

(j)  The defendant committed the offense in a heinous, cruel, or depraved manner in that the offense involved torture or serious physical abuse to the victim.

(7)  MITIGATING CIRCUMSTANCES.--Mitigating circumstances shall include the following:

(a)  The defendant has no significant history of prior criminal activity.

(b)  The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c)  The defendant was an accomplice in the capital felony committed by another person, and the defendant's participation was relatively minor.

(d)  The defendant was under extreme duress or under the substantial domination of another person.

(e)  The capacity of the defendant to appreciate the criminality of her or his conduct or to conform her or his conduct to the requirements of law was substantially impaired.

(f)  The age of the defendant at the time of the offense.

(g)  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.

(h)  The existence of any other factors in the defendant's background that would mitigate against imposition of the death penalty.

(8)  VICTIM IMPACT EVIDENCE.--Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (6), the prosecution may introduce, and subsequently argue, victim impact evidence. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.

History.--s. 2, ch. 90-112; s. 2, ch. 92-81; s. 6, ch. 96-290; s. 1837, ch. 97-102; s. 10, ch. 99-188; s. 26, ch. 2000-320; s. 1, ch. 2002-212.