Senate Bill 1496e1
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1 A bill to be entitled
2 An act relating to sentencing; amending s.
3 775.021, F.S., relating to rules of
4 construction; removing exceptions to a
5 construction rule regarding sentencing for
6 criminal offenses; amending s. 874.04, F.S.;
7 providing for enhanced penalties for commission
8 of a felony or misdemeanor, or a delinquent act
9 or violation of law that would be a felony or
10 misdemeanor if committed by an adult, under
11 specified circumstances when the defendant
12 committed the charged offense for the purpose
13 of furthering, benefiting, or promoting a
14 criminal street gang; amending s. 921.0022,
15 F.S., relating to the offense severity ranking
16 chart of the Criminal Punishment Code; ranking
17 the offense of knowingly transmitting or
18 disseminating by computer any notice or
19 advertisement for the purpose of facilitating,
20 encouraging, offering, or soliciting sexual
21 conduct of or with a minor, or visually
22 depicting such conduct; amending s. 921.0024,
23 F.S., relating to the Criminal Punishment Code
24 worksheet computations and scoresheets;
25 revising guidelines for application of a
26 specified sentence multiplier for offenses
27 related to criminal street gangs; conforming
28 terminology; amending s. 921.141, F.S.;
29 providing as an additional aggravating
30 circumstance for purposes of sentencing that
31 the capital felony was committed while the
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1 defendant was violating an injunction for
2 protection against domestic violence or repeat
3 violence, a foreign protection order, or any
4 other court-imposed prohibition of conduct
5 toward the victim; providing an effective date.
6
7 Be It Enacted by the Legislature of the State of Florida:
8
9 Section 1. Subsection (4) of section 775.021, Florida
10 Statutes, is amended to read:
11 775.021 Rules of construction.--
12 (4)(a) Whoever, in the course of one criminal
13 transaction or episode, commits an act or acts which
14 constitute one or more separate criminal offenses, upon
15 conviction and adjudication of guilt, shall be sentenced
16 separately for each criminal offense; and the sentencing judge
17 may order the sentences to be served concurrently or
18 consecutively. For the purposes of this subsection, offenses
19 are separate if each offense requires proof of an element that
20 the other does not, without regard to the accusatory pleading
21 or the proof adduced at trial.
22 (b) The intent of the Legislature is to convict and
23 sentence for each criminal offense committed in the course of
24 one criminal episode or transaction and not to allow the
25 principle of lenity as set forth in subsection (1) to
26 determine legislative intent. Exceptions to this rule of
27 construction are:
28 1. Offenses which require identical elements of proof.
29 2. Offenses which are degrees of the same offense as
30 provided by statute.
31
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1 3. Offenses which are lesser offenses the statutory
2 elements of which are subsumed by the greater offense.
3 Section 2. Section 874.04, Florida Statutes, is
4 amended to read:
5 874.04 Criminal street gang activity; enhanced
6 penalties.--Upon a finding by the court at sentencing that the
7 defendant committed the charged offense for the purpose of
8 furthering, benefiting, or promoting a criminal street gang is
9 a member of a criminal street gang, the penalty for any felony
10 or misdemeanor, or any delinquent act or violation of law
11 which would be a felony or misdemeanor if committed by an
12 adult, may be enhanced if the offender was a member of a
13 criminal street gang at the time of the commission of such
14 offense. Each of the findings required as a basis for such
15 sentence shall be found by a preponderance of the evidence.
16 The enhancement will be as follows:
17 (1)(a) A misdemeanor of the second degree may be
18 punished as if it were a misdemeanor of the first degree.
19 (b) A misdemeanor of the first degree may be punished
20 as if it were a felony of the third degree. For purposes of
21 sentencing under chapter 921 and determining incentive
22 gain-time eligibility under chapter 944, such offense is
23 ranked in level 1 of the offense severity ranking chart. The
24 criminal street gang multiplier in s. 921.0024 does not apply
25 to misdemeanors enhanced under this paragraph.
26 (2)(a) A felony of the third degree may be punished as
27 if it were a felony of the second degree.
28 (b) A felony of the second degree may be punished as
29 if it were a felony of the first degree.
30 (c) A felony of the first degree may be punished as if
31 it were a life felony.
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1
2 For purposes of sentencing under chapter 921 and determining
3 incentive gain-time eligibility under chapter 944, such felony
4 offense is ranked as provided in s. 921.0022 or s. 921.0023,
5 and without regard to the penalty enhancement in this
6 subsection. For purposes of this section, penalty enhancement
7 affects the applicable statutory maximum penalty only.
8 Section 3. Paragraph (f) of subsection (3) of section
9 921.0022, Florida Statutes, 1998 Supplement, is amended to
10 read:
11 921.0022 Criminal Punishment Code; offense severity
12 ranking chart.--
13 (3) OFFENSE SEVERITY RANKING CHART
14
15 Florida Felony
16 Statute Degree Description
17
18
19 (f) LEVEL 6
20 316.027(1)(b) 2nd Accident involving death, failure
21 to stop; leaving scene.
22 316.193(2)(b) 3rd Felony DUI, 4th or subsequent
23 conviction.
24 775.0875(1) 3rd Taking firearm from law
25 enforcement officer.
26 775.21(9) 3rd Sexual predators; failure to
27 register; failure to renew
28 driver's license or
29 identification card.
30 784.021(1)(a) 3rd Aggravated assault; deadly weapon
31 without intent to kill.
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1 784.021(1)(b) 3rd Aggravated assault; intent to
2 commit felony.
3 784.041 3rd Felony battery.
4 784.048(3) 3rd Aggravated stalking; credible
5 threat.
6 784.048(5) 3rd Aggravated stalking of person
7 under 16.
8 784.07(2)(c) 2nd Aggravated assault on law
9 enforcement officer.
10 784.08(2)(b) 2nd Aggravated assault on a person 65
11 years of age or older.
12 784.081(2) 2nd Aggravated assault on specified
13 official or employee.
14 784.082(2) 2nd Aggravated assault by detained
15 person on visitor or other
16 detainee.
17 784.083(2) 2nd Aggravated assault on code
18 inspector.
19 787.02(2) 3rd False imprisonment; restraining
20 with purpose other than those in
21 s. 787.01.
22 790.115(2)(d) 2nd Discharging firearm or weapon on
23 school property.
24 790.161(2) 2nd Make, possess, or throw
25 destructive device with intent to
26 do bodily harm or damage
27 property.
28 790.164(1) 2nd False report of deadly explosive
29 or act of arson or violence to
30 state property.
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1 790.19 2nd Shooting or throwing deadly
2 missiles into dwellings, vessels,
3 or vehicles.
4 794.011(8)(a) 3rd Solicitation of minor to
5 participate in sexual activity by
6 custodial adult.
7 794.05(1) 2nd Unlawful sexual activity with
8 specified minor.
9 806.031(2) 2nd Arson resulting in great bodily
10 harm to firefighter or any other
11 person.
12 810.02(3)(c) 2nd Burglary of occupied structure;
13 unarmed; no assault or battery.
14 812.014(2)(b) 2nd Property stolen $20,000 or more,
15 but less than $100,000, grand
16 theft in 2nd degree.
17 812.13(2)(c) 2nd Robbery, no firearm or other
18 weapon (strong-arm robbery).
19 817.034(4)(a)1. 1st Communications fraud, value
20 greater than $50,000.
21 817.4821(5) 2nd Possess cloning paraphernalia
22 with intent to create cloned
23 cellular telephones.
24 825.102(1) 3rd Abuse of an elderly person or
25 disabled adult.
26 825.102(3)(c) 3rd Neglect of an elderly person or
27 disabled adult.
28 825.1025(3) 3rd Lewd or lascivious molestation of
29 an elderly person or disabled
30 adult.
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1 825.103(2)(c) 3rd Exploiting an elderly person or
2 disabled adult and property is
3 valued at less than $20,000.
4 827.03(1) 3rd Abuse of a child.
5 827.03(3)(c) 3rd Neglect of a child.
6 827.071(2)&(3) 2nd Use or induce a child in a sexual
7 performance, or promote or direct
8 such performance.
9 836.05 2nd Threats; extortion.
10 836.10 2nd Written threats to kill or do
11 bodily injury.
12 843.12 3rd Aids or assists person to escape.
13 847.0135(2) 3rd Use of computer to facilitate or
14 solicit sexual conduct of or with
15 a minor.
16 847.0135(3) 3rd Solicitation of a child, via a
17 computer service, to commit an
18 unlawful sex act.
19 914.23 2nd Retaliation against a witness,
20 victim, or informant, with bodily
21 injury.
22 943.0435(6) 3rd Sex offenders; failure to comply
23 with reporting requirements.
24 944.35(3)(a)2. 3rd Committing malicious battery upon
25 or inflicting cruel or inhuman
26 treatment on an inmate or
27 offender on community
28 supervision, resulting in great
29 bodily harm.
30 944.40 2nd Escapes.
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1 944.46 3rd Harboring, concealing, aiding
2 escaped prisoners.
3 944.47(1)(a)5. 2nd Introduction of contraband
4 (firearm, weapon, or explosive)
5 into correctional facility.
6 951.22(1) 3rd Intoxicating drug, firearm, or
7 weapon introduced into county
8 facility.
9 Section 4. Subsection (1) of section 921.0024, Florida
10 Statutes, 1998 Supplement, is amended to read:
11 921.0024 Criminal Punishment Code; worksheet
12 computations; scoresheets.--
13 (1)(a) The Criminal Punishment Code worksheet is used
14 to compute the subtotal and total sentence points as follows:
15
16 FLORIDA CRIMINAL PUNISHMENT CODE
17 WORKSHEET
18
19 OFFENSE SCORE
20
21 Primary Offense
22 Level Sentence Points Total
23 ..............................................................
24 10 116 = ....
25 9 92 = ....
26 8 74 = ....
27 7 56 = ....
28 6 36 = ....
29 5 28 = ....
30 4 22 = ....
31 3 16 = ....
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1 2 10 = ....
2 1 4 = ....
3
4 ..............................................................
5 Total
6
7 Additional Offenses
8 Level Sentence Points Counts Total
9 ..............................................................
10 10 58 x .... = ....
11 9 46 x .... = ....
12 8 37 x .... = ....
13 7 28 x .... = ....
14 6 18 x .... = ....
15 5 5.4 x .... = ....
16 4 3.6 x .... = ....
17 3 2.4 x .... = ....
18 2 1.2 x .... = ....
19 1 0.7 x .... = ....
20 M 0.2 x .... = ....
21
22 ..............................................................
23 Total
24
25 Victim Injury
26 Level Sentence Points Number Total
27 ..............................................................
28 2nd degree
29 murder-
30 death 240 x .... = ....
31 Death 120 x .... = ....
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1 Severe 40 x .... = ....
2 Moderate 18 x .... = ....
3 Slight 4 x .... = ....
4 Sexual
5 penetration 80 x .... = ....
6 Sexual
7 contact 40 x .... = ....
8
9 ..............................................................
10 Total
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12 Primary Offense + Additional Offenses + Victim Injury =
13 TOTAL OFFENSE SCORE
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15 PRIOR RECORD SCORE
16
17 Prior Record
18 Level Sentence Points Number Total
19 ..............................................................
20 10 29 x .... = ....
21 9 23 x .... = ....
22 8 19 x .... = ....
23 7 14 x .... = ....
24 6 9 x .... = ....
25 5 3.6 x .... = ....
26 4 2.4 x .... = ....
27 3 1.6 x .... = ....
28 2 0.8 x .... = ....
29 1 0.5 x .... = ....
30 M 0.2 x .... = ....
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1
2 ..............................................................
3 Total
4
5 TOTAL OFFENSE SCORE........................................
6 TOTAL PRIOR RECORD SCORE...................................
7
8 LEGAL STATUS...............................................
9 COMMUNITY SANCTION VIOLATION...............................
10 PRIOR SERIOUS FELONY.......................................
11 PRIOR CAPITAL FELONY.......................................
12 FIREARM OR SEMIAUTOMATIC WEAPON............................
13 SUBTOTAL........
14
15 PRISON RELEASEE REOFFENDER (no)(yes).......................
16 VIOLENT CAREER CRIMINAL (no)(yes)..........................
17 HABITUAL VIOLENT OFFENDER (no)(yes)........................
18 HABITUAL OFFENDER (no)(yes)................................
19 DRUG TRAFFICKER (no)(yes) (x multiplier)...................
20 LAW ENF. PROTECT. (no)(yes) (x multiplier).................
21 MOTOR VEHICLE THEFT (no)(yes) (x multiplier)...............
22 CRIMINAL STREET GANG OFFENSE MEMBER (no)(yes) (x
23 multiplier)...................................................
24 DOMESTIC VIOLENCE IN THE PRESENCE OF RELATED CHILD
25 (no)(yes) (x multiplier)......................................
26 ..............................................................
27 TOTAL SENTENCE POINTS........
28
29 (b) WORKSHEET KEY:
30
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1 Legal status points are assessed when any form of legal status
2 existed at the time the offender committed an offense before
3 the court for sentencing. Four (4) sentence points are
4 assessed for an offender's legal status.
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6 Community sanction violation points are assessed when a
7 community sanction violation is before the court for
8 sentencing. Six (6) sentence points are assessed for each
9 community sanction violation, and each successive community
10 sanction violation; however, if the community sanction
11 violation includes a new felony conviction before the
12 sentencing court, twelve (12) community sanction violation
13 points are assessed for such violation, and for each
14 successive community sanction violation involving a new felony
15 conviction. Multiple counts of community sanction violations
16 before the sentencing court shall not be a basis for
17 multiplying the assessment of community sanction violation
18 points.
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20 Prior serious felony points: If the offender has a primary
21 offense or any additional offense ranked in level 8, level 9,
22 or level 10, and one or more prior serious felonies, a single
23 assessment of 30 points shall be added. For purposes of this
24 section, a prior serious felony is an offense in the
25 offender's prior record that is ranked in level 8, level 9, or
26 level 10 under s. 921.0022 or s. 921.0023 and for which the
27 offender is serving a sentence of confinement, supervision, or
28 other sanction or for which the offender's date of release
29 from confinement, supervision, or other sanction, whichever is
30 later, is within 3 years before the date the primary offense
31 or any additional offense was committed.
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1
2 Prior capital felony points: If the offender has one or more
3 prior capital felonies in the offender's criminal record,
4 points shall be added to the subtotal sentence points of the
5 offender equal to twice the number of points the offender
6 receives for the primary offense and any additional offense.
7 A prior capital felony in the offender's criminal record is a
8 previous capital felony offense for which the offender has
9 entered a plea of nolo contendere or guilty or has been found
10 guilty; or a felony in another jurisdiction which is a capital
11 felony in that jurisdiction, or would be a capital felony if
12 the offense were committed in this state.
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14 Possession of a firearm, semiautomatic firearm, or machine
15 gun: If the offender is convicted of committing or attempting
16 to commit any felony other than those enumerated in s.
17 775.087(2) while having in his possession: a firearm as
18 defined in s. 790.001(6), an additional 18 sentence points are
19 assessed; or if the offender is convicted of committing or
20 attempting to commit any felony other than those enumerated in
21 s. 775.087(3) while having in his possession a semiautomatic
22 firearm as defined in s. 775.087(3) or a machine gun as
23 defined in s. 790.001(9), an additional 25 sentence points are
24 assessed.
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26 Sentencing multipliers:
27
28 Drug trafficking: If the primary offense is drug trafficking
29 under s. 893.135, the subtotal sentence points are multiplied,
30 at the discretion of the court, for a level 7 or level 8
31 offense, by 1.5. The state attorney may move the sentencing
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1 court to reduce or suspend the sentence of a person convicted
2 of a level 7 or level 8 offense, if the offender provides
3 substantial assistance as described in s. 893.135(4).
4
5 Law enforcement protection: If the primary offense is a
6 violation of the Law Enforcement Protection Act under s.
7 775.0823(2), the subtotal sentence points are multiplied by
8 2.5. If the primary offense is a violation of s. 775.0823(3),
9 (4), (5), (6), (7), or (8), the subtotal sentence points are
10 multiplied by 2.0. If the primary offense is a violation of s.
11 784.07(3) or s. 775.0875(1), or of the Law Enforcement
12 Protection Act under s. 775.0823(9) or (10), the subtotal
13 sentence points are multiplied by 1.5.
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15 Grand theft of a motor vehicle: If the primary offense is
16 grand theft of the third degree involving a motor vehicle and
17 in the offender's prior record, there are three or more grand
18 thefts of the third degree involving a motor vehicle, the
19 subtotal sentence points are multiplied by 1.5.
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21 Offense related to criminal street gang member: If the
22 offender is convicted of the primary offense and committed
23 that offense for the purpose of furthering, benefiting, or
24 promoting a criminal street gang is found to have been a
25 member of a criminal street gang at the time of the commission
26 of the primary offense pursuant to s. 874.04, the subtotal
27 sentence points shall be are multiplied by 1.5.
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29 Domestic violence in the presence of a child: If the offender
30 is convicted of the primary offense and the primary offense is
31 a crime of domestic violence, as defined in s. 741.28, which
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1 was committed in the presence of a child under 16 years of age
2 who is a family household member as defined in s. 741.28(2)
3 with the victim or perpetrator, the subtotal sentence points
4 are multiplied, at the discretion of the court, by 1.5.
5 Section 5. Section 921.141, Florida Statutes, is
6 amended to read:
7 921.141 Sentence of death or life imprisonment for
8 capital felonies; further proceedings to determine sentence.--
9 (1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon
10 conviction or adjudication of guilt of a defendant of a
11 capital felony, the court shall conduct a separate sentencing
12 proceeding to determine whether the defendant should be
13 sentenced to death or life imprisonment as authorized by s.
14 775.082. The proceeding shall be conducted by the trial judge
15 before the trial jury as soon as practicable. If, through
16 impossibility or inability, the trial jury is unable to
17 reconvene for a hearing on the issue of penalty, having
18 determined the guilt of the accused, the trial judge may
19 summon a special juror or jurors as provided in chapter 913 to
20 determine the issue of the imposition of the penalty. If the
21 trial jury has been waived, or if the defendant pleaded
22 guilty, the sentencing proceeding shall be conducted before a
23 jury impaneled for that purpose, unless waived by the
24 defendant. In the proceeding, evidence may be presented as to
25 any matter that the court deems relevant to the nature of the
26 crime and the character of the defendant and shall include
27 matters relating to any of the aggravating or mitigating
28 circumstances enumerated in subsections (5) and (6). Any such
29 evidence which the court deems to have probative value may be
30 received, regardless of its admissibility under the
31 exclusionary rules of evidence, provided the defendant is
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1 accorded a fair opportunity to rebut any hearsay statements.
2 However, this subsection shall not be construed to authorize
3 the introduction of any evidence secured in violation of the
4 Constitution of the United States or the Constitution of the
5 State of Florida. The state and the defendant or the
6 defendant's counsel shall be permitted to present argument for
7 or against sentence of death.
8 (2) ADVISORY SENTENCE BY THE JURY.--After hearing all
9 the evidence, the jury shall deliberate and render an advisory
10 sentence to the court, based upon the following matters:
11 (a) Whether sufficient aggravating circumstances exist
12 as enumerated in subsection (5);
13 (b) Whether sufficient mitigating circumstances exist
14 which outweigh the aggravating circumstances found to exist;
15 and
16 (c) Based on these considerations, whether the
17 defendant should be sentenced to life imprisonment or death.
18 (3) FINDINGS IN SUPPORT OF SENTENCE OF
19 DEATH.--Notwithstanding the recommendation of a majority of
20 the jury, the court, after weighing the aggravating and
21 mitigating circumstances, shall enter a sentence of life
22 imprisonment or death, but if the court imposes a sentence of
23 death, it shall set forth in writing its findings upon which
24 the sentence of death is based as to the facts:
25 (a) That sufficient aggravating circumstances exist as
26 enumerated in subsection (5), and
27 (b) That there are insufficient mitigating
28 circumstances to outweigh the aggravating circumstances.
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30 In each case in which the court imposes the death sentence,
31 the determination of the court shall be supported by specific
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1 written findings of fact based upon the circumstances in
2 subsections (5) and (6) and upon the records of the trial and
3 the sentencing proceedings. If the court does not make the
4 findings requiring the death sentence within 30 days after the
5 rendition of the judgment and sentence, the court shall impose
6 sentence of life imprisonment in accordance with s. 775.082.
7 (4) REVIEW OF JUDGMENT AND SENTENCE.--The judgment of
8 conviction and sentence of death shall be subject to automatic
9 review by the Supreme Court of Florida and disposition
10 rendered within 2 years after the filing of a notice of
11 appeal. Such review by the Supreme Court shall have priority
12 over all other cases and shall be heard in accordance with
13 rules promulgated by the Supreme Court.
14 (5) AGGRAVATING CIRCUMSTANCES.--Aggravating
15 circumstances shall be limited to the following:
16 (a) The capital felony was committed by a person
17 previously convicted of a felony and under sentence of
18 imprisonment or placed on community control or on felony
19 probation.
20 (b) The defendant was previously convicted of another
21 capital felony or of a felony involving the use or threat of
22 violence to the person.
23 (c) The defendant knowingly created a great risk of
24 death to many persons.
25 (d) The capital felony was committed while the
26 defendant was engaged, or was an accomplice, in the commission
27 of, or an attempt to commit, or flight after committing or
28 attempting to commit, any: robbery; sexual battery; aggravated
29 child abuse; abuse of an elderly person or disabled adult
30 resulting in great bodily harm, permanent disability, or
31 permanent disfigurement; arson; burglary; kidnapping; aircraft
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1 piracy; or unlawful throwing, placing, or discharging of a
2 destructive device or bomb.
3 (e) The capital felony was committed for the purpose
4 of avoiding or preventing a lawful arrest or effecting an
5 escape from custody.
6 (f) The capital felony was committed for pecuniary
7 gain.
8 (g) The capital felony was committed to disrupt or
9 hinder the lawful exercise of any governmental function or the
10 enforcement of laws.
11 (h) The capital felony was especially heinous,
12 atrocious, or cruel.
13 (i) The capital felony was a homicide and was
14 committed in a cold, calculated, and premeditated manner
15 without any pretense of moral or legal justification.
16 (j) The victim of the capital felony was a law
17 enforcement officer engaged in the performance of his or her
18 official duties.
19 (k) The victim of the capital felony was an elected or
20 appointed public official engaged in the performance of his or
21 her official duties if the motive for the capital felony was
22 related, in whole or in part, to the victim's official
23 capacity.
24 (l) The victim of the capital felony was a person less
25 than 12 years of age.
26 (m) The victim of the capital felony was particularly
27 vulnerable due to advanced age or disability, or because the
28 defendant stood in a position of familial or custodial
29 authority over the victim.
30 (n) The capital felony was committed by a criminal
31 street gang member, as defined in s. 874.03.
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1 (o) The capital felony was committed while the
2 defendant was engaged in willfully violating an injunction for
3 protection against domestic violence issued pursuant to s.
4 741.30, a foreign protection order accorded full faith and
5 credit pursuant to s. 741.315, an injunction for protection
6 against repeat violence pursuant to s. 784.046, or after any
7 other court-imposed prohibition of conduct toward the victim.
8 (6) MITIGATING CIRCUMSTANCES.--Mitigating
9 circumstances shall be the following:
10 (a) The defendant has no significant history of prior
11 criminal activity.
12 (b) The capital felony was committed while the
13 defendant was under the influence of extreme mental or
14 emotional disturbance.
15 (c) The victim was a participant in the defendant's
16 conduct or consented to the act.
17 (d) The defendant was an accomplice in the capital
18 felony committed by another person and his or her
19 participation was relatively minor.
20 (e) The defendant acted under extreme duress or under
21 the substantial domination of another person.
22 (f) The capacity of the defendant to appreciate the
23 criminality of his or her conduct or to conform his or her
24 conduct to the requirements of law was substantially impaired.
25 (g) The age of the defendant at the time of the crime.
26 (h) The existence of any other factors in the
27 defendant's background that would mitigate against imposition
28 of the death penalty.
29 (7) VICTIM IMPACT EVIDENCE.--Once the prosecution has
30 provided evidence of the existence of one or more aggravating
31 circumstances as described in subsection (5), the prosecution
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1 may introduce, and subsequently argue, victim impact evidence.
2 Such evidence shall be designed to demonstrate the victim's
3 uniqueness as an individual human being and the resultant loss
4 to the community's members by the victim's death.
5 Characterizations and opinions about the crime, the defendant,
6 and the appropriate sentence shall not be permitted as a part
7 of victim impact evidence.
8 (8) APPLICABILITY.--This section does not apply to a
9 person convicted or adjudicated guilty of a capital drug
10 trafficking felony under s. 893.135.
11 Section 6. This act shall take effect July 1, 1999.
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