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.