The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 450
INTRODUCER: Rules Committee; Criminal Justice Committee; and Senators Ingoglia and Martin
SUBJECT: Death Penalty
DATE: March 22, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Fav/CS
2. Cellon Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 450 amends the death penalty statutes found in ss. 921.141 and 921.142, F.S., to
clarify the judge and the jury’s role in death penalty sentencing proceedings. The bill makes the
following amendments to the current death penalty statutes by:
 Deleting current language requiring a unanimous jury recommendation for the imposition of
the death penalty and inserting a recommendation of at least 8 jurors.
 Providing that if fewer than 8 jurors vote to recommend the death penalty, the jury’s
sentencing recommendation must be for life without the possibility of parole and the court is
bound by that recommendation.
 Providing that if the jury recommends a sentence of death, the court may impose the
recommended sentence of death, or a sentence of life imprisonment without the possibility of
parole.
 Specifying that the death penalty may only be imposed if the jury unanimously finds at least
one aggravating factor beyond a reasonable doubt.
The court must enter a written order whether the sentence is for death or for life without the
possibility of parole and the court must include in its written order the reasons for not accepting
the jury’s recommended sentence, if applicable.
The bill may have an indeterminate fiscal impact. See Section V Fiscal Impact Statement.
The bill becomes effective upon becoming a law.
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II. Present Situation:
Case Law and Subsequent Statutory Changes Regarding the Death Penalty
The Sixth Amendment of the U.S. Constitution provides: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .”1 This right, in
conjunction with the Due Process Clause, requires that each element of a crime be proved to a
jury beyond a reasonable doubt.2
The U.S. Supreme Court in Ring v. Arizona, applied this right to Arizona’s capital sentencing
scheme, which required a judge to determine the presence of aggravating and mitigating factors
and to only sentence a defendant to death if the judge found at least one aggravating factor. 3 The
Court struck down the Arizona sentencing scheme, finding it to be a violation of the Sixth
Amendment because it permitted sentencing judges, without a jury, to find aggravating
circumstances justifying imposition of the death penalty.4
In 2016, the U.S. Supreme Court issued the Hurst v. Florida opinion finding that Florida’s death
penalty sentencing process was unconstitutional because “the Sixth Amendment requires a jury,
not a judge, to find each fact necessary to impose a sentence of death.”5 Thereafter, the
Legislature amended ss. 921.141 and 921.142, F.S., to incorporate the following statutory
changes:
 The jury is required to identify each aggravating factor found to exist by a unanimous vote in
order for a defendant to be eligible for a sentence of death;
 The jury is required to determine whether the aggravating factors outweigh the mitigating
circumstances in reaching its sentencing recommendation;
 If at least ten of the twelve members of the jury determine that the defendant should be
sentenced to death, the jury’s recommendation is a sentence of death;
 The jury is required to recommend a sentence of life imprisonment without the possibility of
parole if fewer than ten jurors determined that the defendant should be sentenced to death;
 The judge is permitted to impose a sentence of life imprisonment without the possibility of
parole when the jury recommends a sentence of death; and
 The judge is no longer permitted to “override” the jury’s recommendation of a sentence of
life imprisonment by imposing a sentence of death.6
Also in 2016, Hurst v. State, on remand from the U.S. Supreme Court, was decided by the
Florida Supreme Court. In addition to finding that the prior 2016 statutory amendments to the
death penalty sentencing provisions were constitutional, the court also held that “in order for the
1
U.S. CONST. Amend. VI.
2
United States v. Gaudin, 515 U.S. 506, 510 (1995).
3
Ring v. Arizona, 536 U.S. 584, 592 (2002).
4
Id. at 609 (emphasis added).
5
Hurst v. Florida, 577 U.S. 92 (2016) (emphasis added). The Hurst v. Florida decision was based on the Sixth Amendment
and the 2002 U.S. Supreme Court decision in Ring v. Arizona, which held that juries rather than judges acting alone must
make crucial factual determinations that subject a convicted murderer to the death penalty. Ring v. Arizona, 536 U.S. 584
(2002) (emphasis added).
6
Chapter 2016-13, L.O.F.
BILL: CS/CS/SB 450 Page 3
trial court to impose a sentence of death, the jury’s recommended sentence of death must be
unanimous.”7
After the Hurst v. State decision in 2016, the Legislature again amended ss. 921.141 and
921.142, F.S., this time to require a unanimous vote of the jury for a sentencing recommendation
of death.8
The current sentencing proceeding statutes are more fully set forth below.
Florida’s Current Sentencing Proceedings in Capital Cases
The statutes governing the proceedings to determine a sentence of either death or life
imprisonment without the possibility of parole9 in capital cases are set forth in ss. 921.141 and
921.142, F.S.10 The court conducts a sentencing proceeding upon conviction or adjudication of
guilt of a defendant in a capital felony.11 Typically, the proceeding is conducted by the trial judge
before the trial jury as soon as practicable.12
Aggravating Factors and Mitigating Circumstances
During the sentencing proceeding, the jury (or the judge if the jury is waived by the defendant)
considers evidence that is relevant to the nature of the crime and the character of the defendant.
The evidence includes matters relating to any of the aggravating factors enumerated in
s. 921.141(6). F.S., or mitigating circumstances enumerated in s. 921.141 (7), F.S.13
The aggravating factors are limited to the following:
 The capital felony was committed by a person previously convicted of a felony and under
sentence of imprisonment or placed on community control or on felony probation.
 The defendant was previously convicted of another capital felony or of a felony involving the
use or threat of violence to the person.
 The defendant knowingly created a great risk of death to many persons.
 The capital felony was committed while the defendant was engaged, or was an accomplice,
in the commission of, or an attempt to commit, or flight after committing or attempting to
commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or
disabled adult resulting in great bodily harm, permanent disability, or permanent
disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or
discharging of a destructive device or bomb.
7
Hurst v. State, 202 So.3d 40, 44, (Fla. 2016), cert. den., 137 S.Ct. 2161 (2017) (emphasis added).
8
Chapter 2017-1, L.O.F.
9
Section 775.082(1)(a), F.S.
10
The sentencing proceedings in s. 921.142, F.S., are virtually identical to the sentencing proceedings found in s. 921.141,
F.S., except that s. 921.142, F.S., only applies in capital drug trafficking cases, which contains certain aggravating factors
relevant to drug trafficking cases.
11
Sections 921.141(1) and 921.142(2), F.S.
12
Id.
13
Notice of the prosecutor’s intent to present evidence of particular aggravating factors must be served within 45 days after
arraignment. Section 782.04(1)(b), F.S. There are 16 different aggravating factors in s. 921.141(6)(a)-(p), F.S., and eight
statutory mitigating circumstances in s. 921.141(7), F.S.
BILL: CS/CS/SB 450 Page 4
 The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody.
 The capital felony was committed for pecuniary gain.
 The capital felony was committed to disrupt or hinder the lawful exercise of any
governmental function or the enforcement of laws.
 The capital felony was especially heinous, atrocious, or cruel.
 The capital felony was a homicide and was committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal justification.
 The victim of the capital felony was a law enforcement officer engaged in the performance of
his or her official duties.
 The victim of the capital felony was an elected or appointed public official engaged in the
performance of his or her official duties if the motive for the capital felony was related, in
whole or in part, to the victim’s official capacity.
 The victim of the capital felony was a person less than 12 years of age.
 The victim of the capital felony was particularly vulnerable due to advanced age or disability,
or because the defendant stood in a position of familial or custodial authority over the victim.
 The capital felony was committed by a criminal gang member, as defined in s. 874.03, F.S.
 The capital felony was committed by a person designated as a sexual predator pursuant to
s. 775.21, F.S., or a person previously designated as a sexual predator who had the sexual
predator designation removed.
 The capital felony was committed by a person subject to an injunction issued pursuant to
s. 741.30, F.S., or s. 784.046, F.S., or a foreign protection order accorded full faith and credit
pursuant to s. 741.315, F.S., and was committed against the petitioner who obtained the
injunction or protection order or any spouse, child, sibling, or parent of the petitioner.14
Mitigating circumstances are the following:
 The defendant has no significant history of prior criminal activity.
 The capital felony was committed while the defendant was under the influence of extreme
mental or emotional disturbance.
 The victim was a participant in the defendant’s conduct or consented to the act.
 The defendant was an accomplice in the capital felony committed by another person and his
or her participation was relatively minor.
 The defendant acted under extreme duress or under the substantial domination of another
person.
 The capacity of the defendant to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of law was substantially impaired.
 The age of the defendant at the time of the crime.
 The existence of any other factors in the defendant’s background that would mitigate against
imposition of the death penalty.15
14
Section 921.141(6)(a)-(p), F.S. See s. 921.142(7)(a)-(j), F.S., for the aggravating factors in a capital drug trafficking felony
case.
15
Section 921.141(7)(a)-(h), F.S. See 921.142(7)(a)-(h), F.S., for the mitigating factors in a capital drug trafficking felony
case.
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Jury Findings and Recommended Sentence
After hearing all of the evidence presented regarding aggravating factors and mitigating
circumstances, the jury deliberates and determines if the state has proven, beyond a reasonable
doubt, the existence of at least one aggravating factor set forth in s. 921.141(6), F.S.16
The jury shall return findings identifying each aggravating factor found to exist. A finding that
an aggravating factor exists must be unanimous. If the jury:
 Does not unanimously find at least one aggravating factor, the defendant is ineligible for a
sentence of death.
 Unanimously finds at least one aggravating factor, the defendant is eligible for a sentence of
death and the jury shall make a recommendation to the court as to whether the defendant
shall be sentenced to life imprisonment without the possibility of parole or to death. The
recommendation shall be based on a weighing of all of the following:
o Whether sufficient aggravating factors exist.
o Whether aggravating factors exist which outweigh the mitigating circumstances found to
exist.
o Based on these considerations, whether the defendant should be sentenced to life
imprisonment without the possibility of parole or to death.17
If a unanimous jury determines that the defendant should be sentenced to death, the jury’s
recommendation to the court shall be a sentence of death. If a unanimous jury does not determine
that the defendant should be sentenced to death, the jury’s recommendation to the court shall be
a sentence of life imprisonment without the possibility of parole.18
Imposition of Sentence
If the jury has recommended a sentence of:
 Life imprisonment without the possibility of parole, the court shall impose the recommended
sentence.
 Death, the court, after considering each aggravating factor found by the jury and all
mitigating circumstances, may impose a sentence of life imprisonment without the possibility
of parole or a sentence of death. The court may consider only an aggravating factor that was
unanimously found to exist by the jury.
If the defendant waived his or her right to a sentencing proceeding by a jury, the court, after
considering all aggravating factors and mitigating circumstances, may impose a sentence of life
imprisonment without the possibility of parole or a sentence of death. The court may impose a
sentence of death only if the court finds that at least one aggravating factor has been proven to
exist beyond a reasonable doubt.19
16
Section 921.141(2)(a), F.S.; See s. 921.142(3)(a), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case.
17
Section 921.141(2)(b), F.S.; See s. 921.142(3)(b), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case.
18
Section 921.141(2)(c), F.S.; See s. 921.142(3)(c), F.S., for provisions relating to the findings and recommended sentence
by the jury in a capital drug trafficking case.
19
Section 921.141(3), F.S.; See s. 921.141(4), F.S., for provisions relating to the imposition of sentence in a capital drug
trafficking case.
BILL: CS/CS/SB 450 Page 6
Order of the Court and Automatic Review of the Case
In each case in which the court imposes a sentence of death, the court shall, considering the
records of the trial and the sentencing proceedings, enter a written order addressing the
aggravating factors found to exist, the mitigating circumstances reasonably established by the
evidence, whether there are sufficient aggravating factors to warrant the death penalty, and
whether the aggravating factors outweigh the mitigating circumstances reasonably established by
the evidence. If the court does not issue its order requiring the death sentence within 30 days
after the rendition of the judgment and sentence, the court shall impose a sentence of life
imprisonment without the possibility of parole in accordance with s. 775.082, F.S.20
A judgment of conviction and sentence of death shall be subject to automatic review by the
Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of
appeal. Such review by the Supreme Court shall have priority over all other cases and shall be
heard in accordance with rules adopted by the Supreme Court.21
Case Law Interpreting Current Death Penalty Proceeding Requirements in Florida
Death Eligibility Decision is Jury’s Only Role in Death Penalty Sentencing Under Poole v.
State
Subsequent to the Legislature’s 2016 amendments to the death penalty sentencing proceedings in<