HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1297 Capital Sexual Battery
SPONSOR(S): Judiciary Committee, Criminal Justice Subcommittee, Baker and others
TIED BILLS: IDEN./SIM. BILLS: SB 1342
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 14 Y, 3 N, As CS Hall Hall
2) Judiciary Committee 16 Y, 7 N, As CS Hall Kramer
SUMMARY ANALYSIS
A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the
sexual organs of, a person less than 12 years of age commits a capital felony. Under s. 775.082(1), F.S., a capital felony
is punishable by a sentence of death or life imprisonment without the possibility of parole.
In Buford v. State, 403 So.2d 943 (Fla. 1981), the Florida Supreme Court (FSC) examined the constitutionality of a death
sentence for capital sexual battery, holding that “a sentence of death is grossly disproportionate and excessive
punishment for the crime of sexual assault and is therefore forbidden by the Eighth Amendment as cruel and unusual
punishment.” Later, in 2008, the United States Supreme Court (USSC) considered the same question in Kennedy v.
Louisiana, 554 U.S. 407 (2008), and held that in their “independent judgment” the death penalty was not a proportional
punishment for child rape.
CS/CS/HB 1297 amends s. 794.011, F.S., to authorize a death sentence for capital sexual battery. The bill creates s.
921.1425, F.S., to require a court to conduct a separate sentencing proceeding to determine whether a defendant
convicted of a capital sexual battery offense for which the state is seeking the death penalty should be sentenced to death
or life imprisonment. The bill establishes statutory aggravating factors and mitigating circumstances specific to capital
sexual battery. Under the bill, a jury must determine if the state has proven, beyond a reasonable doubt, the existence of
at least two aggravating factors. If the jury does not unanimously find at least two aggravating factors exist, the defendant
is ineligible for a death sentence. If the jury unanimously finds the existence of at least two aggravating factors, the
defendant is eligible for death and the jury must recommend to the court whether the defendant should be sentenced to
life imprisonment or to death.
Under the bill, if at least eight jurors determine the defendant should be sentenced to death, the jury’s recommendation to
the court must be a sentence of death, and the court after considering specified sentencing factors may impose a
sentence of life imprisonment or a death sentence. If fewer than eight jurors determine the defendant should be
sentenced to death, the jury’s recommendation to the court must be a sentence of life imprisonment and the court must
impose a life sentence. The bill requires the court to enter a written order, after imposing sentence, addressing specified
sentencing factors and, when applicable, including the reasons the court did not accept a jury’s recommended sentence.
The bill provides legislative findings that: a person who commits capital sexual batt ery carries a great risk of death and
danger to vulnerable members of the state; such crimes destroy the innocence of a young child and violate all standards
of decency held by a civilized society; and both Buford v. State and Kennedy v. Louisiana were wrongly decided and an
egregious infringement of the state’s power to punish the most heinous of crimes.
The bill requires a court to impose a death sentence notwithstanding existing case law which holds such a sentence
unconstitutional under the Florida Constitution and the United States Constitution. However, in any case for which the
FSC or the USSC reviews a death sentence imposed for a capital sexual battery offense, and in making such a review
reconsiders the holdings in Buford and Kennedy, and determines a sentence of death remains unconstitutional, the court
having jurisdiction over the person previously sentenced to death must resentence the person to life imprisonment. The
bill authorizes the state to appeal a sentence of life imprisonment that resulted from a court’s failure to comply with the
sentencing procedures in s. 921.1425, F.S.
The bill specifies it is applicable to crimes committed on or after October 1, 2023. The bill may have a positive
indeterminate impact on state expenditures to the extent the bill results in death sentences being imposed for capital
sexual battery and a greater number of death sentences being subject to automatic review by the FSC.
The bill provides an effective date of October 1, 2023.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Capital Sexual Battery
Section 794.011, F.S., criminalizes sexual battery offenses and defines “sexual battery” as oral, anal, or
female genital penetration by, or union with, the sexual organ of another or the anal or female genital
penetration of another by any other object.1
A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual
battery injures the sexual organs of, a person less than 12 years of age commits a capital felony,
punishable by death or life imprisonment.2 Additionally, without regard to the willingness or consent of
the victim, which is not a defense to prosecution, a person who is in a position of familial or custodial
authority to a person less than 18 years of age and who engages in any act with that person while the
person is less than 12 years of age which constitutes sexual battery, or in an attempt to commit sexual
battery injures the sexual organs of such person, commits a capital felony if the offender is 18 years of
age or older.3
Capital Sentencing
Section 775.082(1), F.S., requires a person who has been convicted of a capital felony to be punished
by death if a proceeding held to determine sentence under s. 921.141, F.S., results in a determination
that such person shall be punished by death, otherwise the person shall be punished by life
imprisonment and is not eligible for parole.
Under s. 921.141, F.S.,4 to sentence a defendant to death when he or she has not waived the right to a
sentencing proceeding by a jury, a jury must unanimously find:
 The existence of at least one aggravating factor and that any aggravating factors found to exist
were proven beyond a reasonable doubt;
 The aggravating factors are sufficient to impose death;
 The aggravating factors outweigh the mitigating circumstances found to exist; and
 That, based on the prior considerations, the defendant should be sentenced to death. 5
If a jury does not unanimously determine the defendant should be sentenced to death, the jury’s
recommendation must be a sentence of life imprisonment and the court must impose the recommended
sentence. If, however, a jury unanimously determines a death sentence is appropriate, it must
recommend a sentence of death. Thereafter, the judge must consider each aggravating factor found by
the jury and all mitigating circumstances, and may impose a sentence of life imprisonment or a death
sentence.6
The aggravating factors a jury may consider are limited by statute. Section 921.141(6), F.S., provides
for the following aggravating factors:
 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.
1 S. 794.011(1)(j), F.S.
2 Punishable as provided in ss. 775.082 and 921.141, F.S.
3 S. 794.011(8)(c), F.S.
4 Section 921.142, F.S., governs sentencing for defendants convicted of capital drug trafficking crimes. The statute substantia lly mirrors
s. 921.141, F.S., but differs in the aggravating factors and mitigating circumstances eligible for consideration in a sentencing
determination. This bill analysis primarily discusses s. 921.141, F.S., as it is the primary statute governing the imposition of the death
penalty, however, the same discussion is applicable to s. 921.142, F.S.
5 S. 921.141(2), F.S.
6 S. 921.141(3), F.S.
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  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.
 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 specified injunctions or foreign
protection orders and was committed against the petitioner who obtained the injunction or
protection order or any spouse, child, sibling, or parent of the petitioner.
Mitigating circumstances are not limited by statute. Section 921.141(7), F.S., specifies that mitigating
circumstances for a capital offense include 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.
Section 775.082(2), F.S., sets out the procedure to be followed in the event the death penalty in a
capital felony is held to be unconstitutional by the Florida Supreme Court (FSC) or the United States
Supreme Court (USSC). The court which has jurisdiction over a person previously sentenced to death
for a capital felony must cause the person to be brought before the court and must sentence such a
person to life imprisonment. A death sentence cannot be reduced as a result of a determination that a
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 method of execution has been held to be unconstitutional under the Florida Constitution or the U.S.
Constitution.7
Jury Unanimity Requirements in Capital Sentencing
Florida’s Capital Sentencing Scheme (Before 2016)
Under s. 921.141, F.S. (2015), if a defendant was convicted of a capital felony, a separate sentencing
proceeding (typically referred to as the “penalty phase”) was conducted before the trial jury or, if the
defendant pled guilty, before a jury impaneled for only that purpose. During the penalty phase, the jury
was required to recommend whether the defendant should be sentenced to death or to life
imprisonment. After hearing all the evidence, the jury was required to render an advisory sentence to
the judge based on the following factors:
 Whether sufficient aggravating circumstances existed;
 Whether sufficient mitigating circumstances existed which outweighed the aggravating
circumstances; and
 Based on these considerations, whether the defendant should be sentenced to life
imprisonment or death.
The law required a simple majority vote of the jury to recommend a death sentence, meaning that a jury
could recommend the punishment when at least seven jurors were in favor of death. The jury was not
required to list any aggravating factors or mitigating circumstances it found or to disclose the number of
jurors making such findings; however, the jury was required to find any aggravating circumstances were
proven beyond a reasonable doubt.
The judge was not required to sentence a defendant as recommended by the jury. Under this
framework, the judge conducted an independent analysis of the aggravating factors and mitigating
circumstances. In rendering the sentence, the judge was required to give great weight to the jury’s
sentencing recommendation, however, he or she was permitted to sentence the defendant as he or she
determined was appropriate, notwithstanding the jury’s recommendation. If the judge sentenced a
person to death, he or she was required to make written findings that sufficient aggravating factors
existed and that any mitigating circumstances were insufficient to outweigh the aggravating factors.
Each death sentence was subject to automatic review by the FSC.
Ring v. Arizona, 536 U.S. 584 (2002)
In June 2002, the USSC examined Arizona’s capital sentencing scheme in Ring v. Arizona.8 Arizona’s
law required a judge to determine the presence of aggravating factors and mitigating circumstances
and authorized the judge to sentence a defendant to death only if the judge found at least one
aggravating factor. The USSC struck down Arizona’s law, holding it violated the Sixth Amendment9 by
permitting the sentencing judge alone, without a jury, to find aggravating circumstances justifying the
imposition of the death penalty.
In the years following Ring, the FSC repeatedly held that Florida’s capital sentencing scheme did not
violate the Sixth Amendment under Ring because s. 921.141, F.S., was distinguishable from Arizona’s
scheme in that it allowed the jury to make an advisory sentencing recommendation and the judge to
impose the sentence.10
7 Section 775.15(1), F.S., sets forth the time limitations to initiate prosecutions for a capital felony. A capital felony may be commenced
at any time. Further, if the death penalty is held to be unconstitutional by the Florida Supreme Court or the U.S. Su preme Court, all
crimes designated as capital felonies shall be considered life felonies, and prosecution for such crimes may be commenced at any time.
8 536 U.S. 584 (2002).
9 The Sixth Amendment in part provides: “In all criminal prosecutions, the accus ed shall enjoy the right to a speedy and public trial, by
an impartial jury . . .” U.S. CONST. amend VI. This right, in conjunction with the Due Process Clause, requires each element of a crime to
be proven to a jury beyond a reasonable doubt. Applying thi s right, the USSC held in Apprendi v. New Jersey, 530 U.S. 466 (2000), that
any facts increasing the penalty for a defendant must be submitted to a jury and proved beyond a reasonable doubt.
10 See, e.g., Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) cert. denied, 537 U.S. 1070 (2002); King v. Moore, 831 So. 2d 143 (Fla.
2002) cert. denied, 537 U.S. 1067 (2002); State v. Steele, 921 So. 2d 538, 548 (Fla. 2005).
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