Florida Senate - 2016                          SENATOR AMENDMENT
       Bill No. CS for SB 7068
       
       
       
       
       
       
                                Ì804220bÎ804220                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/F/2R          .                                
             03/02/2016 10:49 AM       .                                
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       Senator Clemens moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 155 - 389
    4  and insert:
    5         (c)If a unanimous jury determines that the defendant
    6  should be sentenced to death, the jury’s recommendation to the
    7  court shall be a sentence of death. If the jury is not unanimous
    8  in determining that the defendant should be sentenced to death,
    9  the jury’s recommendation to the court shall be a sentence of
   10  life imprisonment without the possibility of parole.
   11         (3)IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
   12         (a)If the jury has recommended a sentence of:
   13         1.Life imprisonment without the possibility of parole, the
   14  court shall impose the recommended sentence.
   15         2.Death, the court, after considering each aggravating
   16  factor found by the jury and all mitigating circumstances, may
   17  impose a sentence of life imprisonment without the possibility
   18  of parole or a sentence of death. The court may consider only an
   19  aggravating factor that was unanimously found to exist by the
   20  jury.
   21         (b)If the defendant waived his or her right to a
   22  sentencing proceeding by a jury, the court, after considering
   23  all aggravating factors and mitigating circumstances, may impose
   24  a sentence of life imprisonment without the possibility of
   25  parole or a sentence of death. The court may impose a sentence
   26  of death only if the court finds that at least one aggravating
   27  factor has been proven to exist beyond a reasonable doubt.
   28         (4)ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.—In
   29  each case in which the court imposes a sentence of death, the
   30  court shall, considering the records of the trial and the
   31  sentencing proceedings, enter a written order addressing the
   32  aggravating factors set forth in subsection (6) found to exist,
   33  the mitigating circumstances in subsection (7) reasonably
   34  established by the evidence, whether there are sufficient
   35  aggravating factors to warrant the death penalty, and whether
   36  the aggravating factors outweigh the mitigating circumstances
   37  reasonably established by the evidence. If the court does not
   38  issue its order requiring the death sentence within 30 days
   39  after the rendition of the judgment and sentence, the court
   40  shall impose a sentence of life imprisonment without the
   41  possibility of parole in accordance with s. 775.082.
   42         (2)ADVISORY SENTENCE BY THE JURY.—After hearing all the
   43  evidence, the jury shall deliberate and render an advisory
   44  sentence to the court, based upon the following matters:
   45         (a)Whether sufficient aggravating circumstances exist as
   46  enumerated in subsection (5);
   47         (b)Whether sufficient mitigating circumstances exist which
   48  outweigh the aggravating circumstances found to exist; and
   49         (c)Based on these considerations, whether the defendant
   50  should be sentenced to life imprisonment or death.
   51         (3)FINDINGS IN SUPPORT OF SENTENCE OF DEATH.
   52  Notwithstanding the recommendation of a majority of the jury,
   53  the court, after weighing the aggravating and mitigating
   54  circumstances, shall enter a sentence of life imprisonment or
   55  death, but if the court imposes a sentence of death, it shall
   56  set forth in writing its findings upon which the sentence of
   57  death is based as to the facts:
   58         (a)That sufficient aggravating circumstances exist as
   59  enumerated in subsection (5), and
   60         (b)That there are insufficient mitigating circumstances to
   61  outweigh the aggravating circumstances.
   62  
   63  In each case in which the court imposes the death sentence, the
   64  determination of the court shall be supported by specific
   65  written findings of fact based upon the circumstances in
   66  subsections (5) and (6) and upon the records of the trial and
   67  the sentencing proceedings. If the court does not make the
   68  findings requiring the death sentence within 30 days after the
   69  rendition of the judgment and sentence, the court shall impose
   70  sentence of life imprisonment in accordance with s. 775.082.
   71         (5)(4) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
   72  conviction and sentence of death shall be subject to automatic
   73  review by the Supreme Court of Florida and disposition rendered
   74  within 2 years after the filing of a notice of appeal. Such
   75  review by the Supreme Court shall have priority over all other
   76  cases and shall be heard in accordance with rules adopted
   77  promulgated by the Supreme Court.
   78         (6)(5) AGGRAVATING FACTORS CIRCUMSTANCES.—Aggravating
   79  factors circumstances shall be limited to the following:
   80         (a) The capital felony was committed by a person previously
   81  convicted of a felony and under sentence of imprisonment or
   82  placed on community control or on felony probation.
   83         (b) The defendant was previously convicted of another
   84  capital felony or of a felony involving the use or threat of
   85  violence to the person.
   86         (c) The defendant knowingly created a great risk of death
   87  to many persons.
   88         (d) The capital felony was committed while the defendant
   89  was engaged, or was an accomplice, in the commission of, or an
   90  attempt to commit, or flight after committing or attempting to
   91  commit, any: robbery; sexual battery; aggravated child abuse;
   92  abuse of an elderly person or disabled adult resulting in great
   93  bodily harm, permanent disability, or permanent disfigurement;
   94  arson; burglary; kidnapping; aircraft piracy; or unlawful
   95  throwing, placing, or discharging of a destructive device or
   96  bomb.
   97         (e) The capital felony was committed for the purpose of
   98  avoiding or preventing a lawful arrest or effecting an escape
   99  from custody.
  100         (f) The capital felony was committed for pecuniary gain.
  101         (g) The capital felony was committed to disrupt or hinder
  102  the lawful exercise of any governmental function or the
  103  enforcement of laws.
  104         (h) The capital felony was especially heinous, atrocious,
  105  or cruel.
  106         (i) The capital felony was a homicide and was committed in
  107  a cold, calculated, and premeditated manner without any pretense
  108  of moral or legal justification.
  109         (j) The victim of the capital felony was a law enforcement
  110  officer engaged in the performance of his or her official
  111  duties.
  112         (k) The victim of the capital felony was an elected or
  113  appointed public official engaged in the performance of his or
  114  her official duties if the motive for the capital felony was
  115  related, in whole or in part, to the victim’s official capacity.
  116         (l) The victim of the capital felony was a person less than
  117  12 years of age.
  118         (m) The victim of the capital felony was particularly
  119  vulnerable due to advanced age or disability, or because the
  120  defendant stood in a position of familial or custodial authority
  121  over the victim.
  122         (n) The capital felony was committed by a criminal gang
  123  member, as defined in s. 874.03.
  124         (o) The capital felony was committed by a person designated
  125  as a sexual predator pursuant to s. 775.21 or a person
  126  previously designated as a sexual predator who had the sexual
  127  predator designation removed.
  128         (p) The capital felony was committed by a person subject to
  129  an injunction issued pursuant to s. 741.30 or s. 784.046, or a
  130  foreign protection order accorded full faith and credit pursuant
  131  to s. 741.315, and was committed against the petitioner who
  132  obtained the injunction or protection order or any spouse,
  133  child, sibling, or parent of the petitioner.
  134         (7)(6) MITIGATING CIRCUMSTANCES.—Mitigating circumstances
  135  shall be the following:
  136         (a) The defendant has no significant history of prior
  137  criminal activity.
  138         (b) The capital felony was committed while the defendant
  139  was under the influence of extreme mental or emotional
  140  disturbance.
  141         (c) The victim was a participant in the defendant’s conduct
  142  or consented to the act.
  143         (d) The defendant was an accomplice in the capital felony
  144  committed by another person and his or her participation was
  145  relatively minor.
  146         (e) The defendant acted under extreme duress or under the
  147  substantial domination of another person.
  148         (f) The capacity of the defendant to appreciate the
  149  criminality of his or her conduct or to conform his or her
  150  conduct to the requirements of law was substantially impaired.
  151         (g) The age of the defendant at the time of the crime.
  152         (h) The existence of any other factors in the defendant’s
  153  background that would mitigate against imposition of the death
  154  penalty.
  155         (8)(7) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  156  provided evidence of the existence of one or more aggravating
  157  factors circumstances as described in subsection (6) (5), the
  158  prosecution may introduce, and subsequently argue, victim impact
  159  evidence to the jury. Such evidence shall be designed to
  160  demonstrate the victim’s uniqueness as an individual human being
  161  and the resultant loss to the community’s members by the
  162  victim’s death. Characterizations and opinions about the crime,
  163  the defendant, and the appropriate sentence shall not be
  164  permitted as a part of victim impact evidence.
  165         (9)(8) APPLICABILITY.—This section does not apply to a
  166  person convicted or adjudicated guilty of a capital drug
  167  trafficking felony under s. 893.135.
  168         Section 4. Section 921.142, Florida Statutes, is amended to
  169  read:
  170         921.142 Sentence of death or life imprisonment for capital
  171  drug trafficking felonies; further proceedings to determine
  172  sentence.—
  173         (1) FINDINGS.—The Legislature finds that trafficking in
  174  cocaine or opiates carries a grave risk of death or danger to
  175  the public; that a reckless disregard for human life is implicit
  176  in knowingly trafficking in cocaine or opiates; and that persons
  177  who traffic in cocaine or opiates may be determined by the trier
  178  of fact to have a culpable mental state of reckless indifference
  179  or disregard for human life.
  180         (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
  181  conviction or adjudication of guilt of a defendant of a capital
  182  felony under s. 893.135, the court shall conduct a separate
  183  sentencing proceeding to determine whether the defendant should
  184  be sentenced to death or life imprisonment as authorized by s.
  185  775.082. The proceeding shall be conducted by the trial judge
  186  before the trial jury as soon as practicable. If, through
  187  impossibility or inability, the trial jury is unable to
  188  reconvene for a hearing on the issue of penalty, having
  189  determined the guilt of the accused, the trial judge may summon
  190  a special juror or jurors as provided in chapter 913 to
  191  determine the issue of the imposition of the penalty. If the
  192  trial jury has been waived, or if the defendant pleaded guilty,
  193  the sentencing proceeding shall be conducted before a jury
  194  impaneled for that purpose, unless waived by the defendant. In
  195  the proceeding, evidence may be presented as to any matter that
  196  the court deems relevant to the nature of the crime and the
  197  character of the defendant and shall include matters relating to
  198  any of the aggravating factors enumerated in subsection (7) and
  199  for which notice has been provided pursuant to s. 782.04(1)(b)
  200  or mitigating circumstances enumerated in subsection (8)
  201  subsections (6) and (7). Any such evidence that which the court
  202  deems to have probative value may be received, regardless of its
  203  admissibility under the exclusionary rules of evidence, provided
  204  the defendant is accorded a fair opportunity to rebut any
  205  hearsay statements. However, this subsection shall not be
  206  construed to authorize the introduction of any evidence secured
  207  in violation of the Constitution of the United States or the
  208  Constitution of the State of Florida. The state and the
  209  defendant or the defendant’s counsel shall be permitted to
  210  present argument for or against sentence of death.
  211         (3)FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  212  subsection applies only if the defendant has not waived his or
  213  her right to a sentencing proceeding by a jury.
  214         (a)After hearing all of the evidence presented regarding
  215  aggravating factors and mitigating circumstances, the jury shall
  216  deliberate and determine if the state has proven, beyond a
  217  reasonable doubt, the existence of at least one aggravating
  218  factor set forth in subsection (7).
  219         (b)The jury shall return findings identifying each
  220  aggravating factor found to exist. A finding that an aggravating
  221  factor exists must be unanimous. If the jury:
  222         1. Does not unanimously find at least one aggravating
  223  factor, the defendant is ineligible for a sentence of death.
  224         2. Unanimously finds at least one aggravating factor, the
  225  defendant is eligible for a sentence of death and the jury shall
  226  make a recommendation to the court as to whether the defendant
  227  shall be sentenced to life imprisonment without the possibility
  228  of parole or to death. The recommendation shall be based on a
  229  weighing of all of the following:
  230         a.Whether sufficient aggravating factors exist.
  231         b.Whether aggravating factors exist which outweigh the
  232  mitigating circumstances found to exist.
  233         c.Based on the considerations in sub-subparagraphs a. and
  234  b., whether the defendant should be sentenced to life
  235  imprisonment without the possibility of parole or to death.
  236         (c)If a unanimous jury determines that the defendant
  237  should be sentenced to death, the jury’s recommendation to the
  238  court shall be a sentence of death. If the jury is not unanimous
  239  in determining that the defendant should be sentenced to death,
  240  the
  241  
  242  ================= T I T L E  A M E N D M E N T ================
  243  And the title is amended as follows:
  244         Delete lines 16 - 17
  245  and insert:
  246         such a recommendation; requiring a unanimous jury to
  247         support a