Senate Bill sb0934c1
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Florida Senate - 2002 CS for SB 934
By the Committee on Criminal Justice; and Senator Wasserman
Schultz
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1 A bill to be entitled
2 An act relating to sexual offenses; amending s.
3 794.011, F.S.; authorizing the use of certain
4 expert witnesses when mental defect or mental
5 incapacity of the victim is at issue; amending
6 s. 825.1025, F.S.; providing for the crime of
7 lewd or lascivious offenses committed upon or
8 in the presence of an elderly person or
9 disabled person; providing penalties; amending
10 s. 921.0022, F.S., relating to the offense
11 severity ranking chart of the criminal
12 punishment code; revising punishment for lewd
13 or lascivious battery upon an elderly person or
14 disabled adult; providing an effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
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18 Section 1. Subsection (11) is added to section
19 794.011, Florida Statutes, to read:
20 794.011 Sexual battery.--
21 (11) When mental defect or mental incapacity of the
22 victim is at issue, an expert witness who is licensed pursuant
23 to chapter 490, chapter 458, or chapter 459 may be utilized.
24 Section 2. Section 825.1025, Florida Statutes, is
25 amended to read:
26 825.1025 Lewd or lascivious offenses committed upon or
27 in the presence of an elderly person or disabled person
28 adult.--
29 (1) As used in this section, "sexual activity" means
30 the oral, anal, or vaginal penetration by, or union with, the
31 sexual organ of another or the anal or vaginal penetration of
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1 another by any other object; however, sexual activity does not
2 include an act done for a bona fide medical purpose.
3 (2)(a) "Lewd or lascivious battery upon an elderly
4 person or disabled person adult" occurs when a person
5 encourages, forces, or entices an elderly person or disabled
6 person adult to engage in sadomasochistic abuse, sexual
7 bestiality, prostitution, or any other act involving sexual
8 activity, when the person knows or reasonably should know that
9 the elderly person or disabled person adult either lacks the
10 capacity to consent or fails to give consent.
11 (b) A person who commits lewd or lascivious battery
12 upon an elderly person or disabled person adult commits a
13 felony of the second degree, punishable as provided in s.
14 775.082, s. 775.083, or s. 775.084.
15 (3)(a) "Lewd or lascivious molestation of an elderly
16 person or disabled person adult" occurs when a person
17 intentionally touches in a lewd or lascivious manner the
18 breasts, genitals, genital area, or buttocks, or the clothing
19 covering them, of an elderly person or disabled person adult
20 when the person knows or reasonably should know that the
21 elderly person or disabled person adult either lacks the
22 capacity to consent or fails to give consent.
23 (b) A person who commits lewd or lascivious
24 molestation of an elderly person or disabled person adult
25 commits a felony of the third degree, punishable as provided
26 in s. 775.082, s. 775.083, or s. 775.084.
27 (4)(a) "Lewd or lascivious exhibition in the presence
28 of an elderly person or disabled person adult" occurs when a
29 person, in the presence of an elderly person or disabled
30 person adult:
31 1. Intentionally masturbates;
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1 2. Intentionally exposes his or her genitals in a lewd
2 or lascivious manner; or
3 3. Intentionally commits any other lewd or lascivious
4 act that does not involve actual physical or sexual contact
5 with the elderly person or disabled person adult, including
6 but not limited to, sadomasochistic abuse, sexual bestiality,
7 or the simulation of any act involving sexual activity,
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9 when the person knows or reasonably should know that the
10 elderly person or disabled person adult either lacks the
11 capacity to consent or fails to give consent to having such
12 act committed in his or her presence.
13 (b) A person who commits a lewd or lascivious
14 exhibition in the presence of an elderly person or disabled
15 person adult commits a felony of the third degree, punishable
16 as provided in s. 775.082, s. 775.083, or s. 775.084.
17 Section 3. Paragraphs (g) and (h) of subsection (3) of
18 section 921.0022, Florida Statutes, as amended by section 2 of
19 chapter 2001-358, Laws of Florida, are amended to read:
20 921.0022 Criminal Punishment Code; offense severity
21 ranking chart.--
22 (3) OFFENSE SEVERITY RANKING CHART
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24 Florida Felony
25 Statute Degree Description
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28 (g) LEVEL 7
29 316.193(3)(c)2. 3rd DUI resulting in serious bodily
30 injury.
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1 327.35(3)(c)2. 3rd Vessel BUI resulting in serious
2 bodily injury.
3 402.319(2) 2nd Misrepresentation and negligence
4 or intentional act resulting in
5 great bodily harm, permanent
6 disfiguration, permanent
7 disability, or death.
8 409.920(2) 3rd Medicaid provider fraud.
9 456.065(2) 3rd Practicing a health care
10 profession without a license.
11 456.065(2) 2nd Practicing a health care
12 profession without a license
13 which results in serious bodily
14 injury.
15 458.327(1) 3rd Practicing medicine without a
16 license.
17 459.013(1) 3rd Practicing osteopathic medicine
18 without a license.
19 460.411(1) 3rd Practicing chiropractic medicine
20 without a license.
21 461.012(1) 3rd Practicing podiatric medicine
22 without a license.
23 462.17 3rd Practicing naturopathy without a
24 license.
25 463.015(1) 3rd Practicing optometry without a
26 license.
27 464.016(1) 3rd Practicing nursing without a
28 license.
29 465.015(2) 3rd Practicing pharmacy without a
30 license.
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1 466.026(1) 3rd Practicing dentistry or dental
2 hygiene without a license.
3 467.201 3rd Practicing midwifery without a
4 license.
5 468.366 3rd Delivering respiratory care
6 services without a license.
7 483.828(1) 3rd Practicing as clinical laboratory
8 personnel without a license.
9 483.901(9) 3rd Practicing medical physics
10 without a license.
11 484.013(1)(c) 3rd Preparing or dispensing optical
12 devices without a prescription.
13 484.053 3rd Dispensing hearing aids without a
14 license.
15 494.0018(2) 1st Conviction of any violation of
16 ss. 494.001-494.0077 in which the
17 total money and property
18 unlawfully obtained exceeded
19 $50,000 and there were five or
20 more victims.
21 560.123(8)(b)1. 3rd Failure to report currency or
22 payment instruments exceeding
23 $300 but less than $20,000 by
24 money transmitter.
25 560.125(5)(a) 3rd Money transmitter business by
26 unauthorized person, currency or
27 payment instruments exceeding
28 $300 but less than $20,000.
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1 655.50(10)(b)1. 3rd Failure to report financial
2 transactions exceeding $300 but
3 less than $20,000 by financial
4 institution.
5 782.051(3) 2nd Attempted felony murder of a
6 person by a person other than the
7 perpetrator or the perpetrator of
8 an attempted felony.
9 782.07(1) 2nd Killing of a human being by the
10 act, procurement, or culpable
11 negligence of another
12 (manslaughter).
13 782.071 2nd Killing of human being or viable
14 fetus by the operation of a motor
15 vehicle in a reckless manner
16 (vehicular homicide).
17 782.072 2nd Killing of a human being by the
18 operation of a vessel in a
19 reckless manner (vessel
20 homicide).
21 784.045(1)(a)1. 2nd Aggravated battery; intentionally
22 causing great bodily harm or
23 disfigurement.
24 784.045(1)(a)2. 2nd Aggravated battery; using deadly
25 weapon.
26 784.045(1)(b) 2nd Aggravated battery; perpetrator
27 aware victim pregnant.
28 784.048(4) 3rd Aggravated stalking; violation of
29 injunction or court order.
30 784.07(2)(d) 1st Aggravated battery on law
31 enforcement officer.
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1 784.074(1)(a) 1st Aggravated battery on sexually
2 violent predators facility staff.
3 784.08(2)(a) 1st Aggravated battery on a person 65
4 years of age or older.
5 784.081(1) 1st Aggravated battery on specified
6 official or employee.
7 784.082(1) 1st Aggravated battery by detained
8 person on visitor or other
9 detainee.
10 784.083(1) 1st Aggravated battery on code
11 inspector.
12 790.07(4) 1st Specified weapons violation
13 subsequent to previous conviction
14 of s. 790.07(1) or (2).
15 790.16(1) 1st Discharge of a machine gun under
16 specified circumstances.
17 790.166(3) 2nd Possessing, selling, using, or
18 attempting to use a hoax weapon
19 of mass destruction.
20 796.03 2nd Procuring any person under 16
21 years for prostitution.
22 800.04(5)(c)1. 2nd Lewd or lascivious molestation;
23 victim less than 12 years of age;
24 offender less than 18 years.
25 800.04(5)(c)2. 2nd Lewd or lascivious molestation;
26 victim 12 years of age or older
27 but less than 16 years; offender
28 18 years or older.
29 806.01(2) 2nd Maliciously damage structure by
30 fire or explosive.
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1 810.02(3)(a) 2nd Burglary of occupied dwelling;
2 unarmed; no assault or battery.
3 810.02(3)(b) 2nd Burglary of unoccupied dwelling;
4 unarmed; no assault or battery.
5 810.02(3)(d) 2nd Burglary of occupied conveyance;
6 unarmed; no assault or battery.
7 812.014(2)(a) 1st Property stolen, valued at
8 $100,000 or more; cargo stolen
9 valued at $50,000, or more;
10 property stolen while causing
11 other property damage; 1st degree
12 grand theft.
13 812.014(2)(b)2. 2nd Property stolen, emergency
14 medical equipment; 2nd degree
15 grand theft.
16 812.019(2) 1st Stolen property; initiates,
17 organizes, plans, etc., the theft
18 of property and traffics in
19 stolen property.
20 812.131(2)(a) 2nd Robbery by sudden snatching.
21 812.133(2)(b) 1st Carjacking; no firearm, deadly
22 weapon, or other weapon.
23 817.234(11)(c) 1st Insurance fraud; property value
24 $100,000 or more.
25 825.102(3)(b) 2nd Neglecting an elderly person or
26 disabled adult causing great
27 bodily harm, disability, or
28 disfigurement.
29 825.1025(2) 2nd Lewd or lascivious battery upon
30 an elderly person or disabled
31 adult.
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1 825.103(2)(b) 2nd Exploiting an elderly person or
2 disabled adult and property is
3 valued at $20,000 or more, but
4 less than $100,000.
5 827.03(3)(b) 2nd Neglect of a child causing great
6 bodily harm, disability, or
7 disfigurement.
8 827.04(3) 3rd Impregnation of a child under 16
9 years of age by person 21 years
10 of age or older.
11 837.05(2) 3rd Giving false information about
12 alleged capital felony to a law
13 enforcement officer.
14 872.06 2nd Abuse of a dead human body.
15 893.13(1)(c)1. 1st Sell, manufacture, or deliver
16 cocaine (or other drug prohibited
17 under s. 893.03(1)(a), (1)(b),
18 (1)(d), (2)(a), (2)(b), or
19 (2)(c)4.) within 1,000 feet of a
20 child care facility or school.
21 893.13(1)(e)1. 1st Sell, manufacture, or deliver
22 cocaine or other drug prohibited
23 under s. 893.03(1)(a), (1)(b),
24 (1)(d), (2)(a), (2)(b), or
25 (2)(c)4., within 1,000 feet of
26 property used for religious
27 services or a specified business
28 site.
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1 893.13(4)(a) 1st Deliver to minor cocaine (or
2 other s. 893.03(1)(a), (1)(b),
3 (1)(d), (2)(a), (2)(b), or
4 (2)(c)4. drugs).
5 893.135(1)(a)1. 1st Trafficking in cannabis, more
6 than 25 lbs., less than 2,000
7 lbs.
8 893.135
9 (1)(b)1.a. 1st Trafficking in cocaine, more than
10 28 grams, less than 200 grams.
11 893.135
12 (1)(c)1.a. 1st Trafficking in illegal drugs,
13 more than 4 grams, less than 14
14 grams.
15 893.135
16 (1)(d)1. 1st Trafficking in phencyclidine,
17 more than 28 grams, less than 200
18 grams.
19 893.135(1)(e)1. 1st Trafficking in methaqualone, more
20 than 200 grams, less than 5
21 kilograms.
22 893.135(1)(f)1. 1st Trafficking in amphetamine, more
23 than 14 grams, less than 28
24 grams.
25 893.135
26 (1)(g)1.a. 1st Trafficking in flunitrazepam, 4
27 grams or more, less than 14
28 grams.
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1 893.135
2 (1)(h)1.a. 1st Trafficking in
3 gamma-hydroxybutyric acid (GHB),
4 1 kilogram or more, less than 5
5 kilograms.
6 893.135
7 (1)(i)1.a. 1st Trafficking in 1,4-Butanediol, 1
8 kilogram or more, less than 5
9 kilograms.
10 893.135
11 (1)(j)2.a. 1st Trafficking in Phenethylamines,
12 10 grams or more, less than 200
13 grams.
14 896.101(5)(a) 3rd Money laundering, financial
15 transactions exceeding $300 but
16 less than $20,000.
17 896.104(4)(a)1. 3rd Structuring transactions to evade
18 reporting or registration
19 requirements, financial
20 transactions exceeding $300 but
21 less than $20,000.
22 (h) LEVEL 8
23 316.193
24 (3)(c)3.a. 2nd DUI manslaughter.
25 327.35(3)(c)3. 2nd Vessel BUI manslaughter.
26 560.123(8)(b)2. 2nd Failure to report currency or
27 payment instruments totaling or
28 exceeding $20,000, but less than
29 $100,000 by money transmitter.
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1 560.125(5)(b) 2nd Money transmitter business by
2 unauthorized person, currency or
3 payment instruments totaling or
4 exceeding $20,000, but less than
5 $100,000.
6 655.50(10)(b)2. 2nd Failure to report financial
7 transactions totaling or
8 exceeding $20,000, but less than
9 $100,000 by financial
10 institutions.
11 777.03(2)(a) 1st Accessory after the fact, capital
12 felony.
13 782.04(4) 2nd Killing of human without design
14 when engaged in act or attempt of
15 any felony other than arson,
16 sexual battery, robbery,
17 burglary, kidnapping, aircraft
18 piracy, or unlawfully discharging
19 bomb.
20 782.051(2) 1st Attempted felony murder while
21 perpetrating or attempting to
22 perpetrate a felony not
23 enumerated in s. 782.04(3).
24 782.071(1)(b) 1st Committing vehicular homicide and
25 failing to render aid or give
26 information.
27 782.072(2) 1st Committing vessel homicide and
28 failing to render aid or give
29 information.
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1 790.161(3) 1st Discharging a destructive device
2 which results in bodily harm or
3 property damage.
4 794.011(5) 2nd Sexual battery, victim 12 years
5 or over, offender does not use
6 physical force likely to cause
7 serious injury.
8 800.04(4) 2nd Lewd or lascivious battery.
9 806.01(1) 1st Maliciously damage dwelling or
10 structure by fire or explosive,
11 believing person in structure.
12 810.02(2)(a) 1st,PBL Burglary with assault or battery.
13 810.02(2)(b) 1st,PBL Burglary; armed with explosives
14 or dangerous weapon.
15 810.02(2)(c) 1st Burglary of a dwelling or
16 structure causing structural
17 damage or $1,000 or more property
18 damage.
19 812.13(2)(b) 1st Robbery with a weapon.
20 812.135(2) 1st Home-invasion robbery.
21 825.102(2) 2nd Aggravated abuse of an elderly
22 person or disabled adult.
23 825.1025(2) 2nd Lewd or lascivious battery upon
24 an elderly person or disabled
25 adult.
26 825.103(2)(a) 1st Exploiting an elderly person or
27 disabled adult and property is
28 valued at $100,000 or more.
29 837.02(2) 2nd Perjury in official proceedings
30 relating to prosecution of a
31 capital felony.
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1 837.021(2) 2nd Making contradictory statements
2 in official proceedings relating
3 to prosecution of a capital
4 felony.
5 860.121(2)(c) 1st Shooting at or throwing any
6 object in path of railroad
7 vehicle resulting in great bodily
8 harm.
9 860.16 1st Aircraft piracy.
10 893.13(1)(b) 1st Sell or deliver in excess of 10
11 grams of any substance specified
12 in s. 893.03(1)(a) or (b).
13 893.13(2)(b) 1st Purchase in excess of 10 grams of
14 any substance specified in s.
15 893.03(1)(a) or (b).
16 893.13(6)(c) 1st Possess in excess of 10 grams of
17 any substance specified in s.
18 893.03(1)(a) or (b).
19 893.135(1)(a)2. 1st Trafficking in cannabis, more
20 than 2,000 lbs., less than 10,000
21 lbs.
22 893.135
23 (1)(b)1.b. 1st Trafficking in cocaine, more than
24 200 grams, less than 400 grams.
25 893.135
26 (1)(c)1.b. 1st Trafficking in illegal drugs,
27 more than 14 grams, less than 28
28 grams.
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1 893.135
2 (1)(d)1.b. 1st Trafficking in phencyclidine,
3 more than 200 grams, less than
4 400 grams.
5 893.135
6 (1)(e)1.b. 1st Trafficking in methaqualone, more
7 than 5 kilograms, less than 25
8 kilograms.
9 893.135
10 (1)(f)1.b. 1st Trafficking in amphetamine, more
11 than 28 grams, less than 200
12 grams.
13 893.135
14 (1)(g)1.b. 1st Trafficking in flunitrazepam, 14
15 grams or more, less than 28
16 grams.
17 893.135
18 (1)(h)1.b. 1st Trafficking in
19 gamma-hydroxybutyric acid (GHB),
20 5 kilograms or more, less than 10
21 kilograms.
22 893.135
23 (1)(i)1.b. 1st Trafficking in 1,4-Butanediol, 5
24 kilograms or more, less than 10
25 kilograms.
26 893.135
27 (1)(j)2.b. 1st Trafficking in Phenethylamines,
28 200 grams or more, less than 400
29 grams.
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1 895.03(1) 1st Use or invest proceeds derived
2 from pattern of racketeering
3 activity.
4 895.03(2) 1st Acquire or maintain through
5 racketeering activity any
6 interest in or control of any
7 enterprise or real property.
8 895.03(3) 1st Conduct or participate in any
9 enterprise through pattern of
10 racketeering activity.
11 896.101(5)(b) 2nd Money laundering, financial
12 transactions totaling or
13 exceeding $20,000, but less than
14 $100,000.
15 896.104(4)(a)2. 2nd Structuring transactions to evade
16 reporting or registration
17 requirements, financial
18 transactions totaling or
19 exceeding $20,000 but less than
20 $100,000.
21 Section 4. This act shall take effect July 1, 2002.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 934
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4 - The offense of "lewd or lascivious battery of an elderly
person or disabled adult" is currently a second degree
5 felony and is ranked in level 7 of the offense severity
ranking chart of the Criminal Punishment Code. The CS
6 ranks the offense in level 8 of the offense severity
ranking chart. This ranking will correspond to the
7 ranking for the offense of sexual battery.
8 - Changes the term disabled adult to disabled person in s.
825.1025, F.S. This allows for the prosecution of
9 offenses under this statute which might otherwise be
precluded because the disabled person was under the age
10 of eighteen.
11 - Section 794.011, F.S., the sexual battery statute is
amended by the CS to provide that when mental defect or
12 mental incapacity of the victim is an issue, an expert
witness who is licensed under chapter 490 (psychological
13 services), chapter 458 (physicians), or chapter 459
(osteopathic medicine), may be utilized.
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