Florida Senate - 2023                                    SB 1342
       
       
        
       By Senator Martin
       
       
       
       
       
       33-00739B-23                                          20231342__
    1                        A bill to be entitled                      
    2         An act relating to capital sexual battery; amending s.
    3         794.011, F.S.; revising how certain capital felonies
    4         are punished; requiring that specified procedures be
    5         followed to determine a sentence of death or life
    6         imprisonment without the possibility of parole in
    7         specified capital felony cases; requiring a prosecutor
    8         to give certain notice if he or she intends to seek
    9         the death penalty; providing notice requirements;
   10         creating s. 921.1425, F.S.; providing legislative
   11         findings and intent; requiring a court to conduct a
   12         separate sentencing proceeding to determine whether a
   13         defendant should be sentenced to death or life
   14         imprisonment without the possibility of parole upon
   15         the defendant’s conviction or adjudication of guilt
   16         for a capital felony; providing proceeding
   17         requirements; authorizing the presentation of certain
   18         evidence during such proceedings; requiring a jury to
   19         make specified determinations, findings, and
   20         recommendations; requiring a recommendation to the
   21         court of a sentence of death if at least eight jurors
   22         determine that the defendant should be sentenced to
   23         death; requiring a recommendation to the court of a
   24         sentence of life imprisonment without the possibility
   25         of parole if fewer than eight jurors determine that
   26         the defendant should be sentenced to death; requiring
   27         the court to impose the jury’s recommended sentence;
   28         requiring a finding of unanimity on at least one
   29         aggravating factor beyond a reasonable doubt for a
   30         court to impose a sentence of death; requiring a
   31         court, if a defendant waives his or her right to a
   32         sentencing proceeding by a jury and the court imposes
   33         a sentence of death, to enter a written order
   34         addressing specified information; specifying that a
   35         judgment of conviction and sentence of death is
   36         subject to automatic review by the Florida Supreme
   37         Court; specifying aggravating factors; specifying
   38         mitigating circumstances; authorizing the prosecution
   39         to introduce and argue victim impact evidence to the
   40         jury; providing construction; providing applicability;
   41         amending s. 921.141, F.S.; conforming a provision to
   42         changes made by the act; providing an effective date.
   43          
   44  Be It Enacted by the Legislature of the State of Florida:
   45  
   46         Section 1. Paragraph (a) of subsection (2) of section
   47  794.011, Florida Statutes, is amended, and paragraph (c) of
   48  subsection (8) of that section is republished, to read:
   49         794.011 Sexual battery.—
   50         (2)(a) A person 18 years of age or older who commits sexual
   51  battery upon, or in an attempt to commit sexual battery injures
   52  the sexual organs of, a person less than 12 years of age commits
   53  a capital felony, punishable as provided in ss. 775.082 and
   54  921.1425. In all capital felony cases under this section, the
   55  procedure set forth in s. 921.1425 must be followed in order to
   56  determine a sentence of death or life imprisonment without the
   57  possibility of parole. If the prosecutor intends to seek the
   58  death penalty, the prosecutor must give notice to the defendant
   59  and file the notice with the court within 45 days after
   60  arraignment. The notice must contain a list of the aggravating
   61  factors the state intends to prove and has reason to believe it
   62  can prove beyond a reasonable doubt. The court may allow the
   63  prosecutor to amend the notice upon a showing of good cause ss.
   64  775.082 and 921.141.
   65         (8) Without regard to the willingness or consent of the
   66  victim, which is not a defense to prosecution under this
   67  subsection, a person who is in a position of familial or
   68  custodial authority to a person less than 18 years of age and
   69  who:
   70         (c) Engages in any act with that person while the person is
   71  less than 12 years of age which constitutes sexual battery, or
   72  in an attempt to commit sexual battery injures the sexual organs
   73  of such person commits a capital or life felony, punishable
   74  pursuant to subsection (2).
   75         Section 2. Section 921.1425, Florida Statutes, is created
   76  to read:
   77         921.1425 Sentence of death or life imprisonment for capital
   78  sexual battery; further proceedings to determine sentence.—
   79         (1)LEGISLATIVE FINDINGS AND INTENT.—
   80         (a)The Legislature finds that a person who commits a
   81  sexual battery upon, or in an attempt to commit sexual battery
   82  injures the sexual organs of, a person less than 12 years of age
   83  carries a great risk of death and danger to vulnerable members
   84  of this state. Such crimes destroy the innocence of a young
   85  child and violate all standards of decency held by civilized
   86  society. The Legislature further finds that Buford v. State of
   87  Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, and
   88  that Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly
   89  decided, and that such cases are an egregious infringement of
   90  the states’ power to punish the most heinous of crimes.
   91         (b)It is the intent of the Legislature that the procedure
   92  set forth in this section shall be followed, and a prosecutor
   93  must file a notice, as provided in s. 794.011(2)(a), if he or
   94  she intends to seek the death penalty.
   95         (2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon
   96  conviction or adjudication of guilt of a defendant of a capital
   97  felony under s. 794.011, the court must conduct a separate
   98  sentencing proceeding to determine whether the defendant should
   99  be sentenced to death or life imprisonment as authorized by s.
  100  775.082. The proceeding must be conducted by the trial judge
  101  before the trial jury as soon as practicable. If, through
  102  impossibility or inability, the trial jury is unable to
  103  reconvene for a hearing on the issue of penalty, having
  104  determined the guilt of the accused, the trial judge may summon
  105  a special juror or jurors as provided in chapter 913 to
  106  determine the issue of the imposition of the penalty. If the
  107  trial jury has been waived, or if the defendant pleads guilty,
  108  the sentencing proceeding shall be conducted before a jury
  109  impaneled for that purpose, unless waived by the defendant. In
  110  the proceeding, evidence may be presented as to any matter that
  111  the court deems relevant to the nature of the crime and the
  112  character of the defendant and must include matters relating to
  113  any of the aggravating factors enumerated in subsection (7) and
  114  for which notice has been provided pursuant to s. 794.011(2)(a)
  115  or relating to any of the mitigating circumstances enumerated in
  116  subsection (8). Any such evidence that the court deems to have
  117  probative value may be received, regardless of its admissibility
  118  under the exclusionary rules of evidence, provided the defendant
  119  is accorded a fair opportunity to rebut any hearsay statements.
  120  However, this subsection may not be construed to authorize the
  121  introduction of any evidence secured in violation of the United
  122  States Constitution or the State Constitution. The state and the
  123  defendant or the defendant’s counsel must be permitted to
  124  present arguments for or against a sentence of death.
  125         (3) FINDINGS AND RECOMMENDED SENTENCE BY THE JURY.—This
  126  subsection applies only if the defendant has not waived his or
  127  her right to a sentencing proceeding by a jury.
  128         (a) After hearing all of the evidence presented regarding
  129  aggravating factors and mitigating circumstances, the jury must
  130  deliberate and determine if the state has proven, beyond a
  131  reasonable doubt, the existence of at least one aggravating
  132  factor set forth in subsection (7).
  133         (b) The jury must return findings identifying each
  134  aggravating factor found to exist. A finding that an aggravating
  135  factor exists must be unanimous. If the jury:
  136         1. Does not unanimously find at least one aggravating
  137  factor, the defendant is ineligible for a sentence of death.
  138         2. Unanimously finds at least one aggravating factor, the
  139  defendant is eligible for a sentence of death and the jury must
  140  make a recommendation to the court as to whether the defendant
  141  must be sentenced to life imprisonment without the possibility
  142  of parole or to death. The recommendation must be based on a
  143  weighing of all of the following:
  144         a. Whether sufficient aggravating factors exist.
  145         b. Whether aggravating factors exist which outweigh the
  146  mitigating circumstances found to exist.
  147         c. Based on the considerations in sub-subparagraphs a. and
  148  b., whether the defendant should be sentenced to life
  149  imprisonment without the possibility of parole or to death.
  150         (c) If at least eight jurors determine that the defendant
  151  should be sentenced to death, the jury’s recommendation to the
  152  court must be a sentence of death. If fewer than eight jurors
  153  determine that the defendant should be sentenced to death, the
  154  jury’s recommendation to the court must be a sentence of life
  155  imprisonment without the possibility of parole.
  156         (4) IMPOSITION OF SENTENCE OF LIFE IMPRISONMENT OR DEATH.—
  157         (a) If the jury has recommended a sentence of:
  158         1. Life imprisonment without the possibility of parole, the
  159  court must impose the recommended sentence of life imprisonment
  160  without the possibility of parole.
  161         2. Death, the court must impose the recommended sentence of
  162  death. The court may impose a sentence of death only if the jury
  163  unanimously found at least one aggravating factor to have been
  164  proven beyond a reasonable doubt.
  165         (b) If the defendant waives his or her right to a
  166  sentencing proceeding by a jury, the court, after considering
  167  all aggravating factors and mitigating circumstances, may impose
  168  a sentence of life imprisonment without the possibility of
  169  parole or a sentence of death. The court may impose a sentence
  170  of death only if the court finds that at least one aggravating
  171  factor has been proven to exist beyond a reasonable doubt.
  172         (5) ORDER OF THE COURT IN SUPPORT OF SENTENCE OF DEATH.—If
  173  a defendant waives his or her right to a sentencing proceeding
  174  by a jury and the court imposes a sentence of death under
  175  paragraph (4)(b), the court must, considering the records of the
  176  trial and the sentencing proceedings, enter a written order
  177  addressing the aggravating factors set forth in subsection (7)
  178  found to exist, the mitigating circumstances in subsection (8)
  179  reasonably established by the evidence, whether there are
  180  sufficient aggravating factors to warrant the death penalty, and
  181  whether the aggravating factors outweigh the mitigating
  182  circumstances reasonably established by the evidence. If the
  183  court does not issue its order requiring a sentence of death
  184  within 30 days after the rendition of the judgment and sentence,
  185  the court must impose a sentence of life imprisonment without
  186  the possibility of parole in accordance with s. 775.082.
  187         (6) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of
  188  conviction and sentence of death shall be subject to automatic
  189  review by the Florida Supreme Court and disposition rendered
  190  within 2 years after the filing of a notice of appeal. Such
  191  review by the Florida Supreme Court must have priority over all
  192  other cases and must be heard in accordance with rules adopted
  193  by the Florida Supreme Court.
  194         (7) AGGRAVATING FACTORS.—Aggravating factors are limited to
  195  the following:
  196         (a) The capital felony was committed by a person who was
  197  previously convicted of a felony violation of s. 794.011, and
  198  was under a sentence of imprisonment or was placed on community
  199  control or on felony probation.
  200         (b) The defendant was previously convicted of another
  201  capital felony or of a felony involving the use or threat of
  202  violence.
  203         (c) The capital felony was committed by a person designated
  204  as a sexual predator pursuant to s. 775.21 or a person
  205  previously designated as a sexual predator who had the sexual
  206  predator designation removed.
  207         (d)The capital felony was committed by a sexual offender
  208  who is required to register pursuant to s. 943.0435 or a person
  209  previously required to register as a sexual offender who had
  210  such requirement removed.
  211         (e) The defendant knowingly created a great risk of death
  212  to one or more persons such that participation in the offense
  213  constituted reckless indifference or disregard for human life.
  214         (f) The defendant used a firearm or knowingly directed,
  215  advised, authorized, or assisted another to use a firearm to
  216  threaten, intimidate, assault, or injure a person in committing
  217  the offense or in furtherance of the offense.
  218         (g) The capital felony was committed for pecuniary gain.
  219         (h) The capital felony was especially heinous, atrocious,
  220  or cruel.
  221         (i)The victim of the capital felony was particularly
  222  vulnerable due to age or disability, or because the defendant
  223  was in a position of familial or custodial authority in relation
  224  to the victim.
  225         (j) The capital felony was committed by a person subject to
  226  an injunction issued pursuant to s. 741.30 or s. 784.046, or a
  227  foreign protection order accorded full faith and credit pursuant
  228  to s. 741.315, and was committed against the petitioner who
  229  obtained the injunction or protection order or any spouse,
  230  child, sibling, or parent of the petitioner.
  231         (k) The victim of the capital felony sustained serious
  232  bodily injury.
  233         (8) MITIGATING CIRCUMSTANCES.—Mitigating circumstances are
  234  the following:
  235         (a) The defendant has no significant history of prior
  236  criminal activity.
  237         (b) The capital felony was committed while the defendant
  238  was under the influence of extreme mental or emotional
  239  disturbance.
  240         (c) The defendant was an accomplice in the capital felony
  241  committed by another person and his or her participation was
  242  relatively minor.
  243         (d) The defendant acted under extreme duress or under the
  244  substantial domination of another person.
  245         (e) The capacity of the defendant to appreciate the
  246  criminality of his or her conduct or to conform his or her
  247  conduct to the requirements of law was substantially impaired.
  248         (f) The age of the defendant at the time of the crime.
  249         (g) The existence of any other factors in the defendant’s
  250  background that would mitigate against imposition of the death
  251  penalty.
  252         (9) VICTIM IMPACT EVIDENCE.—Once the prosecution has
  253  provided evidence of the existence of one or more aggravating
  254  factors as described in subsection (7), the prosecution may
  255  introduce, and subsequently argue, victim impact evidence to the
  256  jury. Such evidence must be designed to demonstrate the victim’s
  257  uniqueness as an individual human being and the physical and
  258  psychological harm to the victim. Characterizations and opinions
  259  about the crime, the defendant, and the appropriate sentence may
  260  not be permitted as a part of victim impact evidence.
  261         (10)CONSTITUTIONALITY.—Notwithstanding s. 775.082(2), s.
  262  775.15, or any other provision of law, a sentence of death must
  263  be imposed under this section notwithstanding existing case law
  264  that holds such a sentence to be unconstitutional under the
  265  United States Constitution or the State Constitution. In any
  266  case for which the Florida Supreme Court or the United States
  267  Supreme Court reviews a sentence of death imposed pursuant to
  268  this section, and in making such a review reconsiders the prior
  269  holdings in Buford v. State and Kennedy v. Louisiana, and
  270  determines a sentence of death remains unconstitutional, the
  271  court having jurisdiction over the person previously sentenced
  272  to death must cause such person to be brought before the court,
  273  and the court must sentence such person to life imprisonment
  274  without the possibility of parole as provided in s. 775.082(1).
  275         (11)APPLICABILITY.—This section applies to any capital
  276  felony under s. 794.011 that is committed on or after October 1,
  277  2023.
  278         Section 3. Subsection (9) of section 921.141, Florida
  279  Statutes, is amended to read:
  280         921.141 Sentence of death or life imprisonment for capital
  281  felonies; further proceedings to determine sentence.—
  282         (9) APPLICABILITY.—This section does not apply to a person
  283  convicted or adjudicated guilty of a capital sexual battery
  284  offense under s. 794.011 or a capital drug trafficking felony
  285  under s. 893.135.
  286         Section 4. This act shall take effect October 1, 2023.