CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    

                            CHAMBER ACTION
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11  Senator Saunders moved the following amendment:

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13         Senate Amendment (with title amendment) 

14         On page 5, between lines 24 and 25,

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16  insert:

17         Section 5.  Section 921.141, Florida Statutes, is

18  amended to read:

19         921.141  Sentence of death or life imprisonment for

20  capital felonies; further proceedings to determine sentence.--

21         (1)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon

22  conviction or adjudication of guilt of a defendant of a

23  capital felony, the court shall conduct a separate sentencing

24  proceeding to determine whether the defendant should be

25  sentenced to death or life imprisonment as authorized by s.

26  775.082. The proceeding shall be conducted by the trial judge

27  before the trial jury as soon as practicable.  If, through

28  impossibility or inability, the trial jury is unable to

29  reconvene for a hearing on the issue of penalty, having

30  determined the guilt of the accused, the trial judge may

31  summon a special juror or jurors as provided in chapter 913 to

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1  determine the issue of the imposition of the penalty.  If the

 2  trial jury has been waived, or if the defendant pleaded

 3  guilty, the sentencing proceeding shall be conducted before a

 4  jury impaneled for that purpose, unless waived by the

 5  defendant.  In the proceeding, evidence may be presented as to

 6  any matter that the court deems relevant to the nature of the

 7  crime and the character of the defendant and shall include

 8  matters relating to any of the aggravating or mitigating

 9  circumstances enumerated in subsections (5) and (6).  Any such

10  evidence which the court deems to have probative value may be

11  received, regardless of its admissibility under the

12  exclusionary rules of evidence, provided the defendant is

13  accorded a fair opportunity to rebut any hearsay statements.

14  However, this subsection shall not be construed to authorize

15  the introduction of any evidence secured in violation of the

16  Constitution of the United States or the Constitution of the

17  State of Florida.  The state and the defendant or the

18  defendant's counsel shall be permitted to present argument for

19  or against sentence of death.

20         (2)  ADVISORY SENTENCE BY THE JURY.--After hearing all

21  the evidence, the jury shall deliberate and render an advisory

22  sentence to the court, based upon the following matters:

23         (a)  Whether sufficient aggravating circumstances exist

24  as enumerated in subsection (5);

25         (b)  Whether sufficient mitigating circumstances exist

26  which outweigh the aggravating circumstances found to exist;

27  and

28         (c)  Based on these considerations, whether the

29  defendant should be sentenced to life imprisonment or death.

30         (3)  FINDINGS IN SUPPORT OF SENTENCE OF

31  DEATH.--Notwithstanding the recommendation of a majority of

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1  the jury, the court, after weighing the aggravating and

 2  mitigating circumstances, shall enter a sentence of life

 3  imprisonment or death, but if the court imposes a sentence of

 4  death, it shall set forth in writing its findings upon which

 5  the sentence of death is based as to the facts:

 6         (a)  That sufficient aggravating circumstances exist as

 7  enumerated in subsection (5), and

 8         (b)  That there are insufficient mitigating

 9  circumstances to outweigh the aggravating circumstances.

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11  In each case in which the court imposes the death sentence,

12  the determination of the court shall be supported by specific

13  written findings of fact based upon the circumstances in

14  subsections (5) and (6) and upon the records of the trial and

15  the sentencing proceedings. If the court does not make the

16  findings requiring the death sentence within 30 days after the

17  rendition of the judgment and sentence, the court shall impose

18  sentence of life imprisonment in accordance with s. 775.082.

19         (4)  REVIEW OF JUDGMENT AND SENTENCE.--The judgment of

20  conviction and sentence of death shall be subject to automatic

21  review by the Supreme Court of Florida and disposition

22  rendered within 2 years after the filing of a notice of

23  appeal.  Such review by the Supreme Court shall have priority

24  over all other cases and shall be heard in accordance with

25  rules promulgated by the Supreme Court.

26         (5)  AGGRAVATING CIRCUMSTANCES.--Aggravating

27  circumstances shall be limited to the following:

28         (a)  The capital felony was committed by a person

29  previously convicted of a felony and under sentence of

30  imprisonment or placed on community control or on felony

31  probation.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1         (b)  The defendant was previously convicted of another

 2  capital felony or of a felony involving the use or threat of

 3  violence to the person.

 4         (c)  The defendant knowingly created a great risk of

 5  death to many persons.

 6         (d)  The capital felony was committed while the

 7  defendant was engaged, or was an accomplice, in the commission

 8  of, or an attempt to commit, or flight after committing or

 9  attempting to commit, any: robbery; sexual battery; aggravated

10  child abuse; abuse of an elderly person or disabled adult

11  resulting in great bodily harm, permanent disability, or

12  permanent disfigurement; arson; burglary; kidnapping; aircraft

13  piracy; or unlawful throwing, placing, or discharging of a

14  destructive device or bomb.

15         (e)  The capital felony was committed for the purpose

16  of avoiding or preventing a lawful arrest or effecting an

17  escape from custody.

18         (f)  The capital felony was committed for pecuniary

19  gain.

20         (g)  The capital felony was committed to disrupt or

21  hinder the lawful exercise of any governmental function or the

22  enforcement of laws.

23         (h)  The capital felony was especially heinous,

24  atrocious, or cruel.

25         (i)  The capital felony was a homicide and was

26  committed in a cold, calculated, and premeditated manner

27  without any pretense of moral or legal justification.

28         (j)  The victim of the capital felony was a law

29  enforcement officer engaged in the performance of his or her

30  official duties.

31         (k)  The victim of the capital felony was an elected or

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1  appointed public official engaged in the performance of his or

 2  her official duties if the motive for the capital felony was

 3  related, in whole or in part, to the victim's official

 4  capacity.

 5         (l)  The victim of the capital felony was a person less

 6  than 12 years of age.

 7         (m)  The victim of the capital felony was particularly

 8  vulnerable due to advanced age or disability, or because the

 9  defendant stood in a position of familial or custodial

10  authority over the victim.

11         (n)  The capital felony was committed by a criminal

12  street gang member, as defined in s. 874.03.

13         (o)  The capital felony was committed while the

14  defendant was engaged in willfully violating an injunction for

15  protection against domestic violence issued pursuant to s.

16  741.30, a foreign protection order accorded full faith and

17  credit pursuant to s. 741.315, an injunction for protection

18  against repeat violence pursuant to s. 784.046, or after any

19  other court-imposed prohibition of conduct toward the victim.

20         (6)  MITIGATING CIRCUMSTANCES.--Mitigating

21  circumstances shall be the following:

22         (a)  The defendant has no significant history of prior

23  criminal activity.

24         (b)  The capital felony was committed while the

25  defendant was under the influence of extreme mental or

26  emotional disturbance.

27         (c)  The victim was a participant in the defendant's

28  conduct or consented to the act.

29         (d)  The defendant was an accomplice in the capital

30  felony committed by another person and his or her

31  participation was relatively minor.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1         (e)  The defendant acted under extreme duress or under

 2  the substantial domination of another person.

 3         (f)  The capacity of the defendant to appreciate the

 4  criminality of his or her conduct or to conform his or her

 5  conduct to the requirements of law was substantially impaired.

 6         (g)  The age of the defendant at the time of the crime.

 7         (h)  The existence of any other factors in the

 8  defendant's background that would mitigate against imposition

 9  of the death penalty.

10         (7)  VICTIM IMPACT EVIDENCE.--Once the prosecution has

11  provided evidence of the existence of one or more aggravating

12  circumstances as described in subsection (5), the prosecution

13  may introduce, and subsequently argue, victim impact evidence.

14  Such evidence shall be designed to demonstrate the victim's

15  uniqueness as an individual human being and the resultant loss

16  to the community's members by the victim's death.

17  Characterizations and opinions about the crime, the defendant,

18  and the appropriate sentence shall not be permitted as a part

19  of victim impact evidence.

20         (8)  APPLICABILITY.--This section does not apply to a

21  person convicted or adjudicated guilty of a capital drug

22  trafficking felony under s. 893.135.

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24  (Redesignate subsequent sections.)

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27  ================ T I T L E   A M E N D M E N T ===============

28  And the title is amended as follows:

29         On page 1, line 28, after the semicolon

30

31  insert:

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 1496

    Amendment No.    





 1         amending s. 921.141, F.S.; providing as an

 2         additional aggravating circumstance for

 3         purposes of sentencing that the capital felony

 4         was committed while the defendant was violating

 5         an injunction for protection against domestic

 6         violence or repeat violence, a foreign

 7         protection order, or any other court-imposed

 8         prohibition of conduct toward the victim;

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