Florida Senate - 2009 SB 994
By Senator Aronberg
27-00407-09 2009994__
1 A bill to be entitled
2 An act relating to the offense of sexual battery on a
3 minor; amending s. 95.11, F.S.; tolling the time
4 period in which civil actions based on sexual battery
5 of a minor must be commenced under certain
6 circumstances; amending s. 775.15, F.S.; providing
7 that the time period for commencing a prosecution for
8 sexual battery upon a minor does not run during
9 certain specified time periods; providing an effective
10 date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 95.11, Florida Statutes, is amended to
15 read:
16 95.11 Limitations other than for the recovery of real
17 property.—Actions other than for recovery of real property shall
18 be commenced as follows:
19 (1) WITHIN TWENTY YEARS.—An action on a judgment or decree
20 of a court of record in this state.
21 (2) WITHIN FIVE YEARS.—
22 (a) An action on a judgment or decree of any court, not of
23 record, of this state or any court of the United States, any
24 other state or territory in the United States, or a foreign
25 country.
26 (b) A legal or equitable action on a contract, obligation,
27 or liability founded on a written instrument, except for an
28 action to enforce a claim against a payment bond, which shall be
29 governed by the applicable provisions of ss. 255.05(10) and
30 713.23(1)(e).
31 (c) An action to foreclose a mortgage.
32 (d) An action alleging a willful violation of s. 448.110.
33 (3) WITHIN FOUR YEARS.—
34 (a) An action founded on negligence.
35 (b) An action relating to the determination of paternity,
36 with the time running from the date the child reaches the age of
37 majority.
38 (c) An action founded on the design, planning, or
39 construction of an improvement to real property, with the time
40 running from the date of actual possession by the owner, the
41 date of the issuance of a certificate of occupancy, the date of
42 abandonment of construction if not completed, or the date of
43 completion or termination of the contract between the
44 professional engineer, registered architect, or licensed
45 contractor and his or her employer, whichever date is latest;
46 except that, when the action involves a latent defect, the time
47 runs from the time the defect is discovered or should have been
48 discovered with the exercise of due diligence. In any event, the
49 action must be commenced within 10 years after the date of
50 actual possession by the owner, the date of the issuance of a
51 certificate of occupancy, the date of abandonment of
52 construction if not completed, or the date of completion or
53 termination of the contract between the professional engineer,
54 registered architect, or licensed contractor and his or her
55 employer, whichever date is latest.
56 (d) An action to recover public money or property held by a
57 public officer or employee, or former public officer or
58 employee, and obtained during, or as a result of, his or her
59 public office or employment.
60 (e) An action for injury to a person founded on the design,
61 manufacture, distribution, or sale of personal property that is
62 not permanently incorporated in an improvement to real property,
63 including fixtures.
64 (f) An action founded on a statutory liability.
65 (g) An action for trespass on real property.
66 (h) An action for taking, detaining, or injuring personal
67 property.
68 (i) An action to recover specific personal property.
69 (j) A legal or equitable action founded on fraud.
70 (k) A legal or equitable action on a contract, obligation,
71 or liability not founded on a written instrument, including an
72 action for the sale and delivery of goods, wares, and
73 merchandise, and on store accounts.
74 (l) An action to rescind a contract.
75 (m) An action for money paid to any governmental authority
76 by mistake or inadvertence.
77 (n) An action for a statutory penalty or forfeiture.
78 (o) An action for assault, battery, false arrest, malicious
79 prosecution, malicious interference, false imprisonment, or any
80 other intentional tort, except as provided in subsections (4),
81 (5), and (7).
82 (p) Any action not specifically provided for in these
83 statutes.
84 (q) An action alleging a violation, other than a willful
85 violation, of s. 448.110.
86 (4) WITHIN TWO YEARS.—
87 (a) An action for professional malpractice, other than
88 medical malpractice, whether founded on contract or tort;
89 provided that the period of limitations shall run from the time
90 the cause of action is discovered or should have been discovered
91 with the exercise of due diligence. However, the limitation of
92 actions herein for professional malpractice shall be limited to
93 persons in privity with the professional.
94 (b) An action for medical malpractice shall be commenced
95 within 2 years from the time the incident giving rise to the
96 action occurred or within 2 years from the time the incident is
97 discovered, or should have been discovered with the exercise of
98 due diligence; however, in no event shall the action be
99 commenced later than 4 years from the date of the incident or
100 occurrence out of which the cause of action accrued, except that
101 this 4-year period shall not bar an action brought on behalf of
102 a minor on or before the child's eighth birthday. An “action for
103 medical malpractice” is defined as a claim in tort or in
104 contract for damages because of the death, injury, or monetary
105 loss to any person arising out of any medical, dental, or
106 surgical diagnosis, treatment, or care by any provider of health
107 care. The limitation of actions within this subsection shall be
108 limited to the health care provider and persons in privity with
109 the provider of health care. In those actions covered by this
110 paragraph in which it can be shown that fraud, concealment, or
111 intentional misrepresentation of fact prevented the discovery of
112 the injury the period of limitations is extended forward 2 years
113 from the time that the injury is discovered or should have been
114 discovered with the exercise of due diligence, but in no event
115 to exceed 7 years from the date the incident giving rise to the
116 injury occurred, except that this 7-year period shall not bar an
117 action brought on behalf of a minor on or before the child's
118 eighth birthday. This paragraph shall not apply to actions for
119 which ss. 766.301-766.316 provide the exclusive remedy.
120 (c) An action to recover wages or overtime or damages or
121 penalties concerning payment of wages and overtime.
122 (d) An action for wrongful death.
123 (e) An action founded upon a violation of any provision of
124 chapter 517, with the period running from the time the facts
125 giving rise to the cause of action were discovered or should
126 have been discovered with the exercise of due diligence, but not
127 more than 5 years from the date such violation occurred.
128 (f) An action for personal injury caused by contact with or
129 exposure to phenoxy herbicides while serving either as a
130 civilian or as a member of the Armed Forces of the United States
131 during the period January 1, 1962, through May 7, 1975; the
132 period of limitations shall run from the time the cause of
133 action is discovered or should have been discovered with the
134 exercise of due diligence.
135 (g) An action for libel or slander.
136 (5) WITHIN ONE YEAR.—
137 (a) An action for specific performance of a contract.
138 (b) An action to enforce an equitable lien arising from the
139 furnishing of labor, services, or material for the improvement
140 of real property.
141 (c) An action to enforce rights under the Uniform
142 Commercial Code—Letters of Credit, chapter 675.
143 (d) An action against any guaranty association and its
144 insured, with the period running from the date of the deadline
145 for filing claims in the order of liquidation.
146 (e) An action to enforce any claim against a payment bond
147 on which the principal is a contractor, subcontractor, or sub
148 subcontractor as defined in s. 713.01, for private work as well
149 as public work, from the last furnishing of labor, services, or
150 materials or from the last furnishing of labor, services, or
151 materials by the contractor if the contractor is the principal
152 on a bond on the same construction project, whichever is later.
153 (f) Except for actions described in subsection (8), a
154 petition for extraordinary writ, other than a petition
155 challenging a criminal conviction, filed by or on behalf of a
156 prisoner as defined in s. 57.085.
157 (g) Except for actions described in subsection (8), an
158 action brought by or on behalf of a prisoner, as defined in s.
159 57.085, relating to the conditions of the prisoner's
160 confinement.
161 (6) LACHES.—Laches shall bar any action unless it is
162 commenced within the time provided for legal actions concerning
163 the same subject matter regardless of lack of knowledge by the
164 person sought to be held liable that the person alleging
165 liability would assert his or her rights and whether the person
166 sought to be held liable is injured or prejudiced by the delay.
167 This subsection shall not affect application of laches at an
168 earlier time in accordance with law.
169 (7) FOR INTENTIONAL TORTS BASED ON ABUSE.—An action founded
170 on alleged abuse, as defined in s. 39.01, s. 415.102, or s.
171 984.03, or incest, as defined in s. 826.04, may be commenced at
172 any time within 7 years after the age of majority, or within 4
173 years after the injured person leaves the dependency of the
174 abuser, or within 4 years from the time of discovery by the
175 injured party of both the injury and the causal relationship
176 between the injury and the abuse, whichever occurs later.
177 (8) FOR INTENTIONAL TORTS BASED UPON SEXUAL BATTERY OF A
178 MINOR.—The time period for commencing an action based on an act
179 upon a victim younger than 18 years of age which constitutes
180 what is described as sexual battery in s. 794.011 shall be
181 tolled until the victim becomes 18 years of age or during any
182 period of time in which it is determined by a medical
183 practitioner licensed under chapter 458 or chapter 459, a
184 psychotherapist licensed under chapter 491, or a psychologist
185 licensed under chapter 490, that the victim should not yet:
186 (a) Disclose information concerning the incident from which
187 the action arises outside a clinical setting;
188 (b) Confront the alleged perpetrator of the act; or
189 (c) Publicly disclose the incident from which the action
190 arises.
191 (9)(8) WITHIN 30 DAYS FOR ACTIONS CHALLENGING CORRECTIONAL
192 DISCIPLINARY PROCEEDINGS.—Any court action challenging prisoner
193 disciplinary proceedings conducted by the Department of
194 Corrections pursuant to s. 944.28(2) must be commenced within 30
195 days after final disposition of the prisoner disciplinary
196 proceedings through the administrative grievance process under
197 chapter 33, Florida Administrative Code. Any action challenging
198 prisoner disciplinary proceedings shall be barred by the court
199 unless it is commenced within the time period provided by this
200 section.
201 Section 2. Section 775.15, Florida Statutes, is amended to
202 read:
203 775.15 Time limitations; general time limitations;
204 exceptions.—
205 (1) A prosecution for a capital felony, a life felony, or a
206 felony that resulted in a death may be commenced at any time. If
207 the death penalty is held to be unconstitutional by the Florida
208 Supreme Court or the United States Supreme Court, all crimes
209 designated as capital felonies shall be considered life felonies
210 for the purposes of this section, and prosecution for such
211 crimes may be commenced at any time.
212 (2) Except as otherwise provided in this section,
213 prosecutions for other offenses are subject to the following
214 periods of limitation:
215 (a) A prosecution for a felony of the first degree must be
216 commenced within 4 years after it is committed.
217 (b) A prosecution for any other felony must be commenced
218 within 3 years after it is committed.
219 (c) A prosecution for a misdemeanor of the first degree
220 must be commenced within 2 years after it is committed.
221 (d) A prosecution for a misdemeanor of the second degree or
222 a noncriminal violation must be commenced within 1 year after it
223 is committed.
224 (3) An offense is committed either when every element has
225 occurred or, if a legislative purpose to prohibit a continuing
226 course of conduct plainly appears, at the time when the course
227 of conduct or the defendant's complicity therein is terminated.
228 Time starts to run on the day after the offense is committed.
229 (4)(a) Prosecution on a charge on which the defendant has
230 previously been arrested or served with a summons is commenced
231 by the filing of an indictment, information, or other charging
232 document.
233 (b) A prosecution on a charge on which the defendant has
234 not previously been arrested or served with a summons is
235 commenced when either an indictment or information is filed,
236 provided the capias, summons, or other process issued on such
237 indictment or information is executed without unreasonable
238 delay. In determining what is reasonable, inability to locate
239 the defendant after diligent search or the defendant's absence
240 from the state shall be considered. The failure to execute
241 process on or extradite a defendant in another state who has
242 been charged by information or indictment with a crime in this
243 state shall not constitute an unreasonable delay.
244 (c) If, however, an indictment or information has been
245 filed within the time period prescribed in this section and the
246 indictment or information is dismissed or set aside because of a
247 defect in its content or form after the time period has elapsed,
248 the period for commencing prosecution shall be extended 3 months
249 from the time the indictment or information is dismissed or set
250 aside.
251 (5) The period of limitation does not run during any time
252 when the defendant is continuously absent from the state or has
253 no reasonably ascertainable place of abode or work within the
254 state. This provision shall not extend the period of limitation
255 otherwise applicable by more than 3 years, but shall not be
256 construed to limit the prosecution of a defendant who has been
257 timely charged by indictment or information or other charging
258 document and who has not been arrested due to his or her absence
259 from this state or has not been extradited for prosecution from
260 another state.
261 (6) A prosecution for perjury in an official proceeding
262 that relates to the prosecution of a capital felony may be
263 commenced at any time.
264 (7) A prosecution for a felony that resulted in injury to
265 any person, when such felony arises from the use of a
266 “destructive device,” as defined in s. 790.001, may be commenced
267 within 10 years.
268 (8) A prosecution for a felony violation of chapter 517 or
269 s. 409.920 must be commenced within 5 years after the violation
270 is committed.
271 (9) A prosecution for a felony violation of chapter 403
272 must be commenced within 5 years after the date of discovery of
273 the violation.
274 (10) A prosecution for a felony violation of s. 825.102 or
275 s. 825.103 must be commenced within 5 years after it is
276 committed.
277 (11) A prosecution for a felony violation of ss. 440.105
278 and 817.234 must be commenced within 5 years after the violation
279 is committed.
280 (12) If the period prescribed in subsection (2), subsection
281 (8), subsection (9), subsection (10), or subsection (11) has
282 expired, a prosecution may nevertheless be commenced for:
283 (a) Any offense, a material element of which is either
284 fraud or a breach of fiduciary obligation, within 1 year after
285 discovery of the offense by an aggrieved party or by a person
286 who has a legal duty to represent an aggrieved party and who is
287 himself or herself not a party to the offense, but in no case
288 shall this provision extend the period of limitation otherwise
289 applicable by more than 3 years.
290 (b) Any offense based upon misconduct in office by a public
291 officer or employee at any time when the defendant is in public
292 office or employment, within 2 years from the time he or she
293 leaves public office or employment, or during any time permitted
294 by any other part of this section, whichever time is greater.
295 (13)(a) If the victim of a violation of s. 794.011, former
296 s. 794.05, Florida Statutes 1995, s. 800.04, s. 826.04, or s.
297 847.0135(5) is under the age of 18, the applicable period of
298 limitation, if any, does not begin to run until the victim has
299 reached the age of 18 or the violation is reported to a law
300 enforcement agency or other governmental agency, whichever
301 occurs earlier. Such law enforcement agency or other
302 governmental agency shall promptly report such allegation to the
303 state attorney for the judicial circuit in which the alleged
304 violation occurred. If the offense is a first-degree first or
305 second-degree second degree felony violation of s. 794.011, and
306 the offense is reported within 72 hours after its commission,
307 the prosecution for such offense may be commenced at any time.
308 This paragraph applies to any such offense except an offense the
309 prosecution of which would have been barred by subsection (2) on
310 or before December 31, 1984.
311 (b) If the offense is a first-degree first degree felony
312 violation of s. 794.011 and the victim was under 18 years of age
313 at the time the offense was committed, a prosecution of the
314 offense may be commenced at any time. This paragraph applies to
315 any such offense except an offense the prosecution of which
316 would have been barred by subsection (2) on or before October 1,
317 2003.
318 (c)1. If the offense is a second-degree felony violation of
319 s. 794.011 and the victim was younger than 18 years of age at
320 the time the offense was committed, the period of limitation
321 does not run during the time the victim is younger than 18 years
322 of age or during any period of time in which it is determined by
323 a medical practitioner licensed under chapter 458 or chapter
324 459, a psychotherapist licensed under chapter 491, or
325 psychologist licensed under chapter 490, that the victim should
326 not yet:
327 a. Disclose information concerning the incident from which
328 the action arises outside of a clinical setting;
329 b. Confront the alleged perpetrator of the act; or
330 c. Publicly disclose the incident from which the action
331 arises.
332 2. This paragraph applies to any such offense except an
333 offense the prosecution of which would have been barred on or
334 before July 1, 2009.
335 (14) A prosecution for a first-degree first or second
336 degree second degree felony violation of s. 794.011, if the
337 victim is 18 years of age or older at the time of the offense
338 and the offense is reported to a law enforcement agency within
339 72 hours after commission of the offense, may be commenced at
340 any time. If the offense is not reported within 72 hours after
341 the commission of the offense, the prosecution must be commenced
342 within the time periods prescribed in subsection (2).
343 (15)(a) In addition to the time periods prescribed in this
344 section, a prosecution for any of the following offenses may be
345 commenced within 1 year after the date on which the identity of
346 the accused is established, or should have been established by
347 the exercise of due diligence, through the analysis of
348 deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
349 the evidence collected at the time of the original investigation
350 and tested for DNA is preserved and available for testing by the
351 accused:
352 1. An offense of sexual battery under chapter 794.
353 2. A lewd or lascivious offense under s. 800.04 or s.
354 825.1025.
355 (b) This subsection applies to any offense that is not
356 otherwise barred from prosecution between July 1, 2004, and June
357 30, 2006.
358 (16)(a) In addition to the time periods prescribed in this
359 section, a prosecution for any of the following offenses may be
360 commenced at any time after the date on which the identity of
361 the accused is established, or should have been established by
362 the exercise of due diligence, through the analysis of
363 deoxyribonucleic acid (DNA) evidence, if a sufficient portion of
364 the evidence collected at the time of the original investigation
365 and tested for DNA is preserved and available for testing by the
366 accused:
367 1. Aggravated battery or any felony battery offense under
368 chapter 784.
369 2. Kidnapping under s. 787.01 or false imprisonment under
370 s. 787.02.
371 3. An offense of sexual battery under chapter 794.
372 4. A lewd or lascivious offense under s. 800.04, s.
373 825.1025, or s. 847.0135(5).
374 5. A burglary offense under s. 810.02.
375 6. A robbery offense under s. 812.13, s. 812.131, or s.
376 812.135.
377 7. Carjacking under s. 812.133.
378 8. Aggravated child abuse under s. 827.03.
379 (b) This subsection applies to any offense that is not
380 otherwise barred from prosecution on or after July 1, 2006.
381 Section 3. This act shall take effect July 1, 2009.