House Bill 3033e1

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                                       CS/HB 3033, First Engrossed



  1                      A bill to be entitled

  2         An act relating to execution of the death

  3         sentence; creating s. 922.105, F.S.; providing

  4         for execution of the death sentence by means of

  5         lethal injection if electrocution is declared

  6         invalid by any one of specified courts, unless

  7         overruled; providing that a person authorized

  8         by state law to prescribe medication, when

  9         designated by the Department of Corrections,

10         may prescribe the drugs necessary to compound a

11         lethal injection; providing that a person

12         authorized by state law to prepare, compound,

13         or dispense medication, when designated by the

14         Department of Corrections, may prepare,

15         compound, or dispense the lethal injection;

16         providing that the prescription, preparation,

17         compounding, dispensing, or administration of a

18         lethal injection does not constitute practicing

19         medicine, nursing, or pharmacy; providing for

20         execution of the death sentence by other means

21         not declared unconstitutional by the United

22         States Supreme Court, if lethal injection is

23         declared invalid; providing for determination

24         and supervision of execution procedure by the

25         Secretary of Corrections or the secretary's

26         designee, under specified circumstances when

27         execution by means of electrocution or lethal

28         injection has been declared invalid; providing

29         an exemption from ch. 120, F.S., for the

30         policies and procedures of the Department of

31         Corrections for execution; prohibiting


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                                       CS/HB 3033, First Engrossed



  1         reduction of a sentence of death as the result

  2         of a method of execution being declared

  3         invalid; prohibiting health care provider or

  4         employee of the Department of Corrections from

  5         being required to assist in an execution

  6         contrary to the person's moral or ethical

  7         beliefs; amending s. 775.082, F.S., relating to

  8         penalties and mandatory minimum sentences for

  9         certain reoffenders previously released from

10         prison; conforming provisions to changes made

11         by the act; prohibiting reduction of a sentence

12         of death as the result of a method of execution

13         being declared invalid; amending s. 790.161,

14         F.S., relating to the offense of making,

15         possessing, throwing, projecting, placing, or

16         discharging a destructive device, or attempt so

17         to do, and penalties; conforming provisions to

18         changes made by the act; prohibiting reduction

19         of a sentence of death as the result of a

20         method of execution being declared invalid;

21         providing an effective date.

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23         WHEREAS, the existing method of carrying out a sentence

24  of death in this state is by electrocution, and

25         WHEREAS, the Legislature has previously determined that

26  death by electrocution is the preferred method of carrying out

27  the death penalty, and the death penalty should be carried out

28  in a swift and sure manner, and

29         WHEREAS, the Florida Supreme Court, in Jones v. State,

30  701 So.2d 76, has held death by electrocution to be a

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                                       CS/HB 3033, First Engrossed



  1  constitutional method of imposing the death penalty in this

  2  state, and

  3         WHEREAS, the Legislature intends to ensure that the

  4  lawful punishment of death imposed on persons in this state is

  5  carried out, and considers it to be appropriate to provide

  6  alternative methods for imposing death only if legally

  7  required to do so, and

  8         WHEREAS, changing the method of carrying out the death

  9  penalty both for those previously sentenced and for those who

10  will be sentenced in the future is merely procedural and does

11  not increase the quantum of punishment imposed upon a

12  defendant and therefore does not violate the prohibition

13  against ex post facto laws under the Constitution of the

14  United States, Malloy v. South Carolina, 237 U.S. 180 (1915),

15  and Ex Parte Kenneth Granviel, 561 S.W.2d 503 (Tex. App.

16  1978), and

17         WHEREAS, the United States Supreme Court has previously

18  declared, in the case of Dobbert v. Florida, 432 U.S. 282

19  (1977), that changing the practices and procedures of the

20  application of the death penalty statute does not violate the

21  ex post facto clauses of the State Constitution or the

22  Constitution of the United States, and

23         WHEREAS, the Florida Supreme Court has previously held

24  a claim under Article X, Section 9 of the State Constitution

25  against retroactive changes in death penalty procedures to be

26  without merit, in the case of Dobbert v. State, 375 So.2d 1069

27  (Fla. 1979), NOW, THEREFORE,

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29  Be It Enacted by the Legislature of the State of Florida:

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                                       CS/HB 3033, First Engrossed



  1         Section 1.  Section 922.105, Florida Statutes, is

  2  created to read:

  3         922.105  Execution of death sentence by lethal

  4  injection or other method of execution if death by

  5  electrocution is declared invalid; prohibition against

  6  reduction of death sentence as a result of determination that

  7  a method of execution is invalid.--

  8         (1)  If death by electrocution pursuant to s. 922.10 is

  9  declared invalid by the Florida Supreme Court, the United

10  States Supreme Court, or a final decision of the United States

11  Court of Appeal, Eleventh Circuit, unless overruled in any

12  manner, then the method of execution shall be by lethal

13  injection of a substance or substances in lethal quantity

14  sufficient to cause death.  The execution procedure is to be

15  determined and supervised by the Secretary of Corrections or

16  the secretary's designee.

17           (2)  Notwithstanding any law to the contrary, a

18  person authorized by state law to prescribe medication and

19  designated by the Department of Corrections may prescribe the

20  drug or drugs necessary to compound a lethal injection.

21  Notwithstanding any law to the contrary, a person authorized

22  by state law to prepare, compound, or dispense medication and

23  designated by the Department of Corrections may prepare,

24  compound, or dispense a lethal injection.  For purposes of

25  this section, prescription, preparation, compounding,

26  dispensing, and administration of a lethal injection does not

27  constitute the practice of medicine, nursing, or pharmacy.

28         (3)  If the imposition of death by lethal injection is

29  declared invalid by the Florida Supreme Court, the United

30  States Supreme Court, or a final decision of the United States

31  Court of Appeal, Eleventh Circuit, unless overruled in any


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                                       CS/HB 3033, First Engrossed



  1  manner, then the method of execution in that case shall be

  2  carried out by any other method of execution not declared

  3  unconstitutional by the United States Supreme Court.  The

  4  execution procedure for imposing a death sentence pursuant to

  5  this subsection is to be determined and supervised by the

  6  Secretary of Corrections or the secretary's designee.

  7         (4)  The policies and procedures of the Department of

  8  Corrections for execution of persons sentenced to death shall

  9  be exempt from chapter 120.

10         (5)  Notwithstanding s. 775.082(2), s. 790.161(4), or

11  s. 775.15(1)(a), or any other provision to the contrary, no

12  sentence of death shall be reduced as a result of a

13  determination that a method of execution is invalid under the

14  State Constitution or the Constitution of the United States.

15  In any case in which an execution method is declared invalid,

16  the death sentence shall remain in force until the sentence

17  can be lawfully executed by any valid method of execution.

18         (6)  Nothing contained in this chapter is intended to

19  require any physician, nurse, health care provider or employee

20  of the Department of Corrections to assist in any aspect of an

21  execution which is contrary to the person's moral or ethical

22  beliefs.

23         Section 2.  Subsection (2) of section 775.082, Florida

24  Statutes, is amended to read:

25         775.082  Penalties; mandatory minimum sentences for

26  certain reoffenders previously released from prison.--

27         (1)  A person who has been convicted of a capital

28  felony shall be punished by death if the proceeding held to

29  determine sentence according to the procedure set forth in s.

30  921.141 results in findings by the court that such person

31  shall be punished by death, otherwise such person shall be


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                                       CS/HB 3033, First Engrossed



  1  punished by life imprisonment and shall be ineligible for

  2  parole.

  3         (2)  In the event the death penalty in a capital felony

  4  is held to be unconstitutional by the Florida Supreme Court or

  5  the United States Supreme Court, the court having jurisdiction

  6  over a person previously sentenced to death for a capital

  7  felony shall cause such person to be brought before the court,

  8  and the court shall sentence such person to life imprisonment

  9  as provided in subsection (1). No sentence of death shall be

10  reduced as a result of a determination that a method of

11  execution is invalid under the State Constitution or the

12  Constitution of the United States.

13         Section 3.  Subsection (4) of section 790.161, Florida

14  Statutes, is amended to read:

15         790.161  Making, possessing, throwing, projecting,

16  placing, or discharging any destructive device or attempt so

17  to do, felony; penalties.--A person who willfully and

18  unlawfully makes, possesses, throws, projects, places,

19  discharges, or attempts to make, possess, throw, project,

20  place, or discharge any destructive device:

21         (4)  If the act results in the death of another person,

22  commits a capital felony, punishable as provided in s.

23  775.082. In the event the death penalty in a capital felony is

24  held to be unconstitutional by the Florida Supreme Court or

25  the United States Supreme Court, the court having jurisdiction

26  over a person previously sentenced to death for a capital

27  felony shall cause such person to be brought before the court,

28  and the court shall sentence such person to life imprisonment

29  if convicted of murder in the first degree or of a capital

30  felony under this subsection, and such person shall be

31  ineligible for parole. No sentence of death shall be reduced


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                                       CS/HB 3033, First Engrossed



  1  as a result of a determination that a method of execution is

  2  invalid under the State Constitution or the Constitution of

  3  the United States.

  4         Section 4.  This act shall take effect upon becoming a

  5  law.

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