Senate Bill sb1526c1

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    Florida Senate - 2005                           CS for SB 1526

    By the Committee on Criminal Justice; and Senator Baker





    591-1852-05

  1                      A bill to be entitled

  2         An act relating to homicide of an unborn quick

  3         child; amending s. 316.193, F.S.; including the

  4         death of an unborn quick child under DUI

  5         manslaughter; amending s. 782.09, F.S.;

  6         providing that killing an unborn quick child by

  7         injury to the mother which would be murder in

  8         any degree if it resulted in the death of the

  9         mother is murder in the same degree; providing

10         penalties; providing that the unlawful killing

11         of an unborn quick child by injury to the

12         mother which would be manslaughter if it

13         resulted in the death of the mother is

14         manslaughter; providing penalties; providing

15         that the death of the mother does not bar

16         prosecution under specified circumstances;

17         providing that the section does not authorize

18         prosecution of a person in connection with a

19         termination of pregnancy; amending ss. 435.03

20         and 435.04, F.S., to conform provisions to

21         changes made by the amendments to s. 782.09,

22         F.S.; reenacting s. 921.0022(3)(h) and (i),

23         F.S., relating to the Criminal Punishment Code

24         offense severity ranking chart, to incorporate

25         the amendment to s. 316.193, F.S., in

26         references thereto; reenacting s. 316.656(3),

27         F.S., relating to mandatory adjudication, to

28         incorporate the amendment to s. 316.193, F.S.,

29         in a reference thereto; reenacting s.

30         947.146(3)(j), F.S., relating to the Control

31         Release Authority, to incorporate the amendment

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 1         to s. 316.193, F.S., in a reference thereto;

 2         reenacting s. 960.03(3)(b), F.S., relating to

 3         the definition of "crime" under the Florida

 4         Crimes Compensation Act, to incorporate the

 5         amendment to s. 316.193, F.S., in a reference

 6         thereto; providing an effective date.

 7  

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

 9  

10         Section 1.  Subsection (3) of section 316.193, Florida

11  Statutes, is amended to read:

12         316.193  Driving under the influence; penalties.--

13         (3)  Any person:

14         (a)  Who is in violation of subsection (1);

15         (b)  Who operates a vehicle; and

16         (c)  Who, by reason of such operation, causes or

17  contributes to causing:

18         1.  Damage to the property or person of another commits

19  a misdemeanor of the first degree, punishable as provided in

20  s. 775.082 or s. 775.083.

21         2.  Serious bodily injury to another, as defined in s.

22  316.1933, commits a felony of the third degree, punishable as

23  provided in s. 775.082, s. 775.083, or s. 775.084.

24         3.  The death of any human being or unborn quick child

25  commits DUI manslaughter, and commits:

26         a.  A felony of the second degree, punishable as

27  provided in s. 775.082, s. 775.083, or s. 775.084.

28         b.  A felony of the first degree, punishable as

29  provided in s. 775.082, s. 775.083, or s. 775.084, if:

30         (I)  At the time of the crash, the person knew, or

31  should have known, that the crash occurred; and

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 1         (II)  The person failed to give information and render

 2  aid as required by s. 316.062.

 3         Section 2.  Section 782.09, Florida Statutes, is

 4  amended to read:

 5         782.09  Killing of unborn quick child by injury to

 6  mother.--

 7         (1)  The unlawful willful killing of an unborn quick

 8  child, by any injury to the mother of such child which would

 9  be murder if it resulted in the death of such mother, shall be

10  deemed murder in the same degree as that which would have been

11  committed against the mother. Any person, other than the

12  mother, who unlawfully kills an unborn quick child by any

13  injury to the mother:

14         (a)  Which would be murder in the first degree

15  constituting a capital felony if it resulted in the mother's

16  death commits murder in the first degree constituting a

17  capital felony, punishable as provided in s. 775.082.

18         (b)  Which would be murder in the second degree if it

19  resulted in the mother's death commits murder in the second

20  degree, a felony of the first degree, punishable as provided

21  in s. 775.082, s. 775.083, or s. 775.084.

22         (c)  Which would be murder in the third degree if it

23  resulted in the mother's death commits murder in the third

24  degree manslaughter, a felony of the second degree, punishable

25  as provided in s. 775.082, s. 775.083, or s. 775.084.

26         (2)  The unlawful killing of an unborn quick child by

27  any injury to the mother of such child which would be

28  manslaughter if it resulted in the death of such mother shall

29  be deemed manslaughter. A person who unlawfully kills an

30  unborn quick child by any injury to the mother which would be

31  manslaughter if it resulted in the mother's death commits

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 1  manslaughter, a felony of the second degree, punishable as

 2  provided in s. 775.082, s. 775.083, or s. 775.084.

 3         (3)  The death of the mother resulting from the same

 4  act or criminal episode that caused the death of the unborn

 5  quick child does not bar prosecution under this section.

 6         (4)  This section does not authorize the prosecution of

 7  any person in connection with a termination of pregnancy

 8  pursuant to chapter 390.

 9         Section 3.  Paragraph (g) of subsection (2) of section

10  435.03, Florida Statutes, is amended to read:

11         435.03  Level 1 screening standards.--

12         (2)  Any person for whom employment screening is

13  required by statute must not have been found guilty of,

14  regardless of adjudication, or entered a plea of nolo

15  contendere or guilty to, any offense prohibited under any of

16  the following provisions of the Florida Statutes or under any

17  similar statute of another jurisdiction:

18         (g)  Section 782.09, relating to killing of an unborn

19  quick child by injury to the mother.

20         Section 4.  Paragraph (g) of subsection (2) of section

21  435.04, Florida Statutes, is amended to read:

22         435.04  Level 2 screening standards.--

23         (2)  The security background investigations under this

24  section must ensure that no persons subject to the provisions

25  of this section have been found guilty of, regardless of

26  adjudication, or entered a plea of nolo contendere or guilty

27  to, any offense prohibited under any of the following

28  provisions of the Florida Statutes or under any similar

29  statute of another jurisdiction:

30         (g)  Section 782.09, relating to killing of an unborn

31  quick child by injury to the mother.

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 1         Section 5.  For the purpose of incorporating the

 2  amendment to s. 316.193, Florida Statutes, in a reference

 3  thereto, paragraphs (h) and (i) of subsection (3) of section

 4  921.0022, Florida Statutes, are reenacted to read:

 5         921.0022  Criminal Punishment Code; offense severity

 6  ranking chart.--

 7         (3)  OFFENSE SEVERITY RANKING CHART

 8  

 9  Florida           Felony

10  Statute           Degree             Description

11  

12                     

13                              (h)  LEVEL 8

14  316.193

15   (3)(c)3.a.        2nd      DUI manslaughter.

16  316.1935(4)(b)     1st      Aggravated fleeing or attempted

17                              eluding with serious bodily

18                              injury or death.

19  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

20  499.0051(7)        1st      Forgery of prescription or legend

21                              drug labels.

22  499.0052           1st      Trafficking in contraband legend

23                              drugs.

24  560.123(8)(b)2.    2nd      Failure to report currency or

25                              payment instruments totaling or

26                              exceeding $20,000, but less than

27                              $100,000 by money transmitter.

28  

29  

30  

31  

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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.

30  

31  

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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  812.014(2)(a)2.    1st      Property stolen; cargo valued at

20                              $50,000 or more, grand theft in

21                              1st degree.

22  812.13(2)(b)       1st      Robbery with a weapon.

23  812.135(2)(c)      1st      Home-invasion robbery, no

24                              firearm, deadly weapon, or other

25                              weapon.

26  817.568(6)         2nd      Fraudulent use of personal

27                              identification information of an

28                              individual under the age of 18.

29  825.102(2)         2nd      Aggravated abuse of an elderly

30                              person or disabled adult.

31  

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 1  825.1025(2)        2nd      Lewd or lascivious battery upon

 2                              an elderly person or disabled

 3                              adult.

 4  825.103(2)(a)      1st      Exploiting an elderly person or

 5                              disabled adult and property is

 6                              valued at $100,000 or more.

 7  837.02(2)          2nd      Perjury in official proceedings

 8                              relating to prosecution of a

 9                              capital felony.

10  837.021(2)         2nd      Making contradictory statements

11                              in official proceedings relating

12                              to prosecution of a capital

13                              felony.

14  860.121(2)(c)      1st      Shooting at or throwing any

15                              object in path of railroad

16                              vehicle resulting in great bodily

17                              harm.

18  860.16             1st      Aircraft piracy.

19  893.13(1)(b)       1st      Sell or deliver in excess of 10

20                              grams of any substance specified

21                              in s. 893.03(1)(a) or (b).

22  893.13(2)(b)       1st      Purchase in excess of 10 grams of

23                              any substance specified in s.

24                              893.03(1)(a) or (b).

25  893.13(6)(c)       1st      Possess in excess of 10 grams of

26                              any substance specified in s.

27                              893.03(1)(a) or (b).

28  893.135(1)(a)2.    1st      Trafficking in cannabis, more

29                              than 2,000 lbs., less than 10,000

30                              lbs.

31  

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 1  893.135

 2   (1)(b)1.b.        1st      Trafficking in cocaine, more than

 3                              200 grams, less than 400 grams.

 4  893.135

 5   (1)(c)1.b.        1st      Trafficking in illegal drugs,

 6                              more than 14 grams, less than 28

 7                              grams.

 8  893.135

 9   (1)(d)1.b.        1st      Trafficking in phencyclidine,

10                              more than 200 grams, less than

11                              400 grams.

12  893.135

13   (1)(e)1.b.        1st      Trafficking in methaqualone, more

14                              than 5 kilograms, less than 25

15                              kilograms.

16  893.135

17   (1)(f)1.b.        1st      Trafficking in amphetamine, more

18                              than 28 grams, less than 200

19                              grams.

20  893.135

21   (1)(g)1.b.        1st      Trafficking in flunitrazepam, 14

22                              grams or more, less than 28

23                              grams.

24  893.135

25   (1)(h)1.b.        1st      Trafficking in

26                              gamma-hydroxybutyric acid (GHB),

27                              5 kilograms or more, less than 10

28                              kilograms.

29  

30  

31  

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 1  893.135

 2   (1)(j)1.b.        1st      Trafficking in 1,4-Butanediol, 5

 3                              kilograms or more, less than 10

 4                              kilograms.

 5  893.135

 6   (1)(k)2.b.        1st      Trafficking in Phenethylamines,

 7                              200 grams or more, less than 400

 8                              grams.

 9  895.03(1)          1st      Use or invest proceeds derived

10                              from pattern of racketeering

11                              activity.

12  895.03(2)          1st      Acquire or maintain through

13                              racketeering activity any

14                              interest in or control of any

15                              enterprise or real property.

16  895.03(3)          1st      Conduct or participate in any

17                              enterprise through pattern of

18                              racketeering activity.

19  896.101(5)(b)      2nd      Money laundering, financial

20                              transactions totaling or

21                              exceeding $20,000, but less than

22                              $100,000.

23  896.104(4)(a)2.    2nd      Structuring transactions to evade

24                              reporting or registration

25                              requirements, financial

26                              transactions totaling or

27                              exceeding $20,000 but less than

28                              $100,000.

29                              (i)  LEVEL 9

30  

31  

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 1  316.193

 2   (3)(c)3.b.        1st      DUI manslaughter; failing to

 3                              render aid or give information.

 4  327.35(3)(c)3.b.   1st      BUI manslaughter; failing to

 5                              render aid or give information.

 6  499.0053           1st      Sale or purchase of contraband

 7                              legend drugs resulting in great

 8                              bodily harm.

 9  560.123(8)(b)3.    1st      Failure to report currency or

10                              payment instruments totaling or

11                              exceeding $100,000 by money

12                              transmitter.

13  560.125(5)(c)      1st      Money transmitter business by

14                              unauthorized person, currency, or

15                              payment instruments totaling or

16                              exceeding $100,000.

17  655.50(10)(b)3.    1st      Failure to report financial

18                              transactions totaling or

19                              exceeding $100,000 by financial

20                              institution.

21  775.0844           1st      Aggravated white collar crime.

22  782.04(1)          1st      Attempt, conspire, or solicit to

23                              commit premeditated murder.

24  782.04(3)          1st,PBL   Accomplice to murder in

25                              connection with arson, sexual

26                              battery, robbery, burglary, and

27                              other specified felonies.

28  782.051(1)         1st      Attempted felony murder while

29                              perpetrating or attempting to

30                              perpetrate a felony enumerated in

31                              s. 782.04(3).

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 1  782.07(2)          1st      Aggravated manslaughter of an

 2                              elderly person or disabled adult.

 3  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

 4                              reward or as a shield or hostage.

 5  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

 6                              or facilitate commission of any

 7                              felony.

 8  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

 9                              interfere with performance of any

10                              governmental or political

11                              function.

12  787.02(3)(a)       1st      False imprisonment; child under

13                              age 13; perpetrator also commits

14                              aggravated child abuse, sexual

15                              battery, or lewd or lascivious

16                              battery, molestation, conduct, or

17                              exhibition.

18  790.161            1st      Attempted capital destructive

19                              device offense.

20  790.166(2)         1st,PBL  Possessing, selling, using, or

21                              attempting to use a weapon of

22                              mass destruction.

23  794.011(2)         1st      Attempted sexual battery; victim

24                              less than 12 years of age.

25  794.011(2)         Life     Sexual battery; offender younger

26                              than 18 years and commits sexual

27                              battery on a person less than 12

28                              years.

29  794.011(4)         1st      Sexual battery; victim 12 years

30                              or older, certain circumstances.

31  

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 1  794.011(8)(b)      1st      Sexual battery; engage in sexual

 2                              conduct with minor 12 to 18 years

 3                              by person in familial or

 4                              custodial authority.

 5  800.04(5)(b)       1st      Lewd or lascivious molestation;

 6                              victim less than 12 years;

 7                              offender 18 years or older.

 8  812.13(2)(a)       1st,PBL  Robbery with firearm or other

 9                              deadly weapon.

10  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

11                              deadly weapon.

12  812.135(2)(b)      1st      Home-invasion robbery with

13                              weapon.

14  817.568(7)         2nd,PBL  Fraudulent use of personal

15                              identification information of an

16                              individual under the age of 18 by

17                              his or her parent, legal

18                              guardian, or person exercising

19                              custodial authority.

20  827.03(2)          1st      Aggravated child abuse.

21  847.0145(1)        1st      Selling, or otherwise

22                              transferring custody or control,

23                              of a minor.

24  847.0145(2)        1st      Purchasing, or otherwise

25                              obtaining custody or control, of

26                              a minor.

27  

28  

29  

30  

31  

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 1  859.01             1st      Poisoning or introducing

 2                              bacteria, radioactive materials,

 3                              viruses, or chemical compounds

 4                              into food, drink, medicine, or

 5                              water with intent to kill or

 6                              injure another person.

 7  893.135            1st      Attempted capital trafficking

 8                              offense.

 9  893.135(1)(a)3.    1st      Trafficking in cannabis, more

10                              than 10,000 lbs.

11  893.135

12   (1)(b)1.c.        1st      Trafficking in cocaine, more than

13                              400 grams, less than 150

14                              kilograms.

15  893.135

16   (1)(c)1.c.        1st      Trafficking in illegal drugs,

17                              more than 28 grams, less than 30

18                              kilograms.

19  893.135

20   (1)(d)1.c.        1st      Trafficking in phencyclidine,

21                              more than 400 grams.

22  893.135

23   (1)(e)1.c.        1st      Trafficking in methaqualone, more

24                              than 25 kilograms.

25  893.135

26   (1)(f)1.c.        1st      Trafficking in amphetamine, more

27                              than 200 grams.

28  893.135

29   (1)(h)1.c.        1st      Trafficking in

30                              gamma-hydroxybutyric acid (GHB),

31                              10 kilograms or more.

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 1  893.135

 2   (1)(j)1.c.        1st      Trafficking in 1,4-Butanediol, 10

 3                              kilograms or more.

 4  893.135

 5   (1)(k)2.c.        1st      Trafficking in Phenethylamines,

 6                              400 grams or more.

 7  896.101(5)(c)      1st      Money laundering, financial

 8                              instruments totaling or exceeding

 9                              $100,000.

10  896.104(4)(a)3.    1st      Structuring transactions to evade

11                              reporting or registration

12                              requirements, financial

13                              transactions totaling or

14                              exceeding $100,000.

15         Section 6.  For the purpose of incorporating the

16  amendment to section 316.193, Florida Statutes, in a reference

17  thereto, subsection (1) of section 316.656, Florida Statutes,

18  is reenacted to read:

19         316.656  Mandatory adjudication; prohibition against

20  accepting plea to lesser included offense.--

21         (1)  Notwithstanding the provisions of s. 948.01, no

22  court may suspend, defer, or withhold adjudication of guilt or

23  imposition of sentence for any violation of s. 316.193, for

24  manslaughter resulting from the operation of a motor vehicle,

25  or for vehicular homicide.

26         Section 7.  For the purpose of incorporating the

27  amendment to section 316.193, Florida Statutes, in a reference

28  thereto, paragraph (j) of subsection (3) of section 947.146,

29  Florida Statutes, is reenacted to read:

30         947.146  Control Release Authority.--

31  

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 1         (3)  Within 120 days prior to the date the state

 2  correctional system is projected pursuant to s. 216.136 to

 3  exceed 99 percent of total capacity, the authority shall

 4  determine eligibility for and establish a control release date

 5  for an appropriate number of parole ineligible inmates

 6  committed to the department and incarcerated within the state

 7  who have been determined by the authority to be eligible for

 8  discretionary early release pursuant to this section. In

 9  establishing control release dates, it is the intent of the

10  Legislature that the authority prioritize consideration of

11  eligible inmates closest to their tentative release date. The

12  authority shall rely upon commitment data on the offender

13  information system maintained by the department to initially

14  identify inmates who are to be reviewed for control release

15  consideration. The authority may use a method of objective

16  risk assessment in determining if an eligible inmate should be

17  released. Such assessment shall be a part of the department's

18  management information system. However, the authority shall

19  have sole responsibility for determining control release

20  eligibility, establishing a control release date, and

21  effectuating the release of a sufficient number of inmates to

22  maintain the inmate population between 99 percent and 100

23  percent of total capacity. Inmates who are ineligible for

24  control release are inmates who are parole eligible or inmates

25  who:

26         (j)  Are convicted, or have been previously convicted,

27  of DUI manslaughter under s. 316.193(3)(c)3., and are

28  sentenced, or have been sentenced at any time, as a habitual

29  offender for such offense, or have been sentenced at any time

30  in another jurisdiction as a habitual offender for such

31  offense;

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 1  

 2  In making control release eligibility determinations under

 3  this subsection, the authority may rely on any document

 4  leading to or generated during the course of the criminal

 5  proceedings, including, but not limited to, any presentence or

 6  postsentence investigation or any information contained in

 7  arrest reports relating to circumstances of the offense.

 8         Section 8.  For the purpose of incorporating the

 9  amendment to section 316.193, Florida Statutes, in a reference

10  thereto, paragraph (b) of subsection (3) of section 960.03,

11  Florida Statutes, is reenacted to read:

12         960.03  Definitions; ss. 960.01-960.28.--As used in ss.

13  960.01-960.28, unless the context otherwise requires, the

14  term:

15         (3)  "Crime" means:

16         (b)  A violation of s. 316.193, s. 316.027(1), s.

17  327.35(1), s. 782.071(1)(b), or s. 860.13(1)(a) which results

18  in physical injury or death; however, no other act involving

19  the operation of a motor vehicle, boat, or aircraft which

20  results in injury or death shall constitute a crime for the

21  purpose of this chapter unless the injury or death was

22  intentionally inflicted through the use of such vehicle, boat,

23  or aircraft or unless such vehicle, boat, or aircraft is an

24  implement of a crime to which this act applies.

25         Section 9.  This act shall take effect October 1, 2005,

26  and shall apply to offenses committed on or after that date.

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    Florida Senate - 2005                           CS for SB 1526
    591-1852-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1526

 3                                 

 4  -    The Committee Substitute omits the definition of "unborn
         quick child" that was contained in the bill. This has the
 5       effect of retaining current law.

 6  -    The Committee Substitute reinstates current law with
         regard to the killing of a "viable fetus" in the
 7       Vehicular Manslaughter statute, and deletes the bill's
         corresponding amendment of the Criminal Punishment Code.
 8  

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                                  18

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