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 1342
INTRODUCER: Rules Committee; Criminal Justice Committee; and Senator Martin and others
SUBJECT: Capital Sexual Battery
DATE: April 11, 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 1342 creates a new section of law to implement a death penalty sentencing procedure
for adult persons who commit sexual battery upon a child less than twelve years of age, or who
in an attempt to commit the sexual battery injures the sexual organs of the child. The bill creates
the same capital felony sentencing procedure for sexual battery upon a child less than twelve
years of age, or attempted sexual battery which causes injury to the sexual organs of the child,
committed by a person who is in a position of familial or custodial authority. Both of these
crimes are currently designated as capital felony offenses.
The bill provides a similar sentencing procedure as provided in ss. 921.141 and 921.142, F.S,
which apply in capital murder cases, but contains significant differences. Specifically, the bill
provides that:
 A jury death recommendation of not less than eight jurors to sentence the capital sexual
battery defendant to death. If fewer than eight jurors recommend death, the jury’s
recommendation must be for life imprisonment without parole.
 The court has the discretion to enter a death sentence or a sentence of life imprisonment
without the possibility of parole if the jury recommends death in the capital sexual battery
case.
 There must be a finding of at least two aggravating factors beyond a reasonable doubt for the
jury to recommend a sentence of death. The bill creates aggravating factors and mitigating
circumstances that are customized to a capital sexual battery crime, for the jury’s
consideration in arriving at a sentencing recommendation.
BILL: CS/CS/SB 1342 Page 2
 The prosecutor must present evidence of two or more aggravating factors before victim
impact evidence may be introduced and argued by the prosecutor.
 The court must enter a written sentencing order, regardless of whether the defendant has
waived a jury sentencing proceeding and regardless of the sentence imposed by the court.
The order must include the reasons for not accepting the jury’s recommended sentence, if
applicable.
 The State may appeal if the circuit court fails to comply with the new sentencing procedures
for capital sexual battery.
The bill provides legislative findings and intent as follows:
 A person who commits a sexual battery upon, or in an attempt to commit sexual battery
injures the sexual organs of, a person less than 12 years of age carries a great risk of death
and danger to vulnerable members of this state.
 Such crimes destroy the innocence of a young child and violate all standards of decency held
by civilized society.
 Buford v. State of Florida, 403 So. 2d 943 (Fla. 1981), was wrongly decided, Kennedy v.
Louisiana, 554 U.S. 407 (2008), was wrongly decided, and such cases are an egregious
infringement of the states’ power to punish the most heinous of crimes.
 It is the intent of the Legislature that the procedure set forth in this s. 794.011, F.S., shall be
followed, and a prosecutor must file a notice, as provided in s. 794.011(2)(a), F.S., if he or
she intends to seek the death penalty.
The bill may have an indeterminate fiscal impact. See Section V. Fiscal Impact Statement.
The bill becomes effective October 1, 2023.
II. Present Situation:
Capital Felonies for Sexual Battery Cases and the Eighth Amendment
Section 794.011(2)(a), F.S., states that 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 as provided in ss. 775.082, F.S., and
921.141, F.S.1
Section 794.011(8)(c), F.S., provides that a person who is in a position of familial or custodial
authority who engages in any act with a person less than 12 years of age which constitutes sexual
1
Section 775.082, F.S., provides that a person who has been convicted of a capital felony shall be punished by death if the
proceeding held to determine sentence according to the procedure set forth in s. 921.141, F.S., results in a determination that
such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible
for parole. Section 921.141, F.S., provides that upon conviction or adjudication of guilt of a defendant of a capital felony, the
court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life
imprisonment as authorized by s. 775.082, F.S.
BILL: CS/CS/SB 1342 Page 3
battery, or in an attempt to commit sexual battery injures the sexual organs of such person
commits a capital or life felony, punishable as provided in ss. 775.082 and 921.141, F.S.2
Sexual battery means 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; however,
sexual battery does not include an act done for a bona fide medical purpose.3
No one has been executed for a non-murder offense in this country since 1964, although two
people were convicted in Louisiana of capital sexual battery of a child and sentenced to death.
One of those individuals, Patrick Kennedy, appealed his case to the U.S. Supreme Court, which
struck down Louisiana’s law.4 Five other states have laws allowing the death penalty for sexual
battery against a minor, though no one has been sentenced to death in those states.5
Historically, capital sexual battery has been punishable by up to a penalty of death in Florida.
Although the crimes found in ss. 794.011(2)(a) and (8)(c), F.S., are categorized as capital crimes,
life imprisonment without the possibility of parole is the current maximum sentence for these
crimes. This is largely due to a string of court cases from the seventies and early eighties ruling
on the constitutionality of the death penalty as applied by the states.6
In 1977, the U.S. Supreme Court decided Coker v. Georgia, a case involving a death sentence for
the sexual battery of an adult female.7 Relying heavily on the Gregg v. Georgia8 decision from
the prior term of court, the Coker court explained that the Eighth Amendment9 bars excessive
punishment in relation to the offense committed. Therefore, a particular punishment can be
excessive if it “is grossly out of proportion to the severity of the crime.”10
In applying an Eighth Amendment analysis, the Coker court said that “judgment should be
informed by objective factors to the maximum possible extent...attention must be given to the
public attitudes concerning a particular sentence history and precedent, legislative attitudes, and
2
Id.; and see s. 775.082(3), F.S., setting forth the sentence for a life felony, in general, as: for a life felony committed on or
after July 1, 1995, by a term of imprisonment for life or by imprisonment for a term of years not exceeding life
imprisonment.
3
Section 794.011(1)(j), F.S.
4
Death Penalty Information Center, Death Penalty for Offenses Other than Murder, available at
https://deathpenaltyinfo.org/facts-and-research/crimes-punishable-by-death/death-penalty-for-offenses-other-than-murder
(last visited March 13, 2023); Death Penalty Information Center, Kennedy v. Louisiana Resource Page, available at
https://deathpenaltyinfo.org/facts-and-research/united-states-supreme-court/significant-supreme-court-opinions/kennedy-v-
louisiana-resource-page (last visited March 13, 2023).
5
Those states are Montana, South Carolina, Oklahoma, Georgia, and Texas. Death Penalty Information Center, Kennedy v.
Louisiana Resource Page, available at https://deathpenaltyinfo.org/facts-and-research/united-states-supreme-court/significant-
supreme-court-opinions/kennedy-v-louisiana-resource-page (last visited March 13, 2023).
6
Gibson v. State, 721 So.2d 363 (Fla. 2nd DCA, 1998).
7
Coker v. Georgia, 433 U.S. 584, (1977).
8
Gregg v. Georgia, 428 U.S. 153 (1976), (finding that the Georgia death penalty scheme satisfied the requirements of the
Eighth Amendment when imposed for the crime of murder. In a footnote, the Gregg court specified: “We do not address here
the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life for
example, when capital punishment is imposed for rape, kidnapping, or armed robbery that does not result in the death of any
human being.” at footnote 35).
9
The Eighth Amendment to the U.S. Constitution states, “Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” U.S. CONST. Amend VIII.
10
Coker v. Georgia, 433 U.S. 584, 592 (1977).
BILL: CS/CS/SB 1342 Page 4
the response of juries reflected in their sentencing decisions.”11 After performing such a
review,12 the court found that “in the light of the legislative decisions in almost all of the States
and in most of the countries around the world, it would be difficult to support a claim that the
death penalty for rape is an indispensable part of the States’ criminal justice system.”13 The court
held that a death sentence is disproportionate punishment for the rape of an adult woman, and is
therefore cruel and unusual punishment within the meaning of the Eighth Amendment.14
In 1981, the Florida Supreme Court, in Buford v. State,15 held that a death sentence for sexual
battery by an adult upon a child, is constitutionally prohibited.16 The court stated that “[t]he
reasoning of the justices in Coker v. Georgia compels us to hold 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.”17
Three years after Buford, the Florida Supreme Court recognized in Rusaw v. State that while the
death penalty as punishment for the capital crime of sexual battery of a child is not a
constitutional sentence, “[t]he legislature, by setting sexual battery of a child apart from other
sexual batteries, has obviously found that crime to be of special concern. Just because death is no
longer a possible punishment for the crime described in subsection 794.011(2), F.S., does not
mean that the alternative penalty suffers from any defect.” 18
In 2008, the U.S. Supreme Court, in Kennedy v. Louisiana, a child sexual battery case for which
the defendant was sentenced to death, also began its Eighth Amendment analysis by examining
existing statutes and legislation, and statistics on executions for child sexual battery.19
Like the Coker court, the Kennedy court found that there is a national consensus against the
death penalty for child sexual battery.20 This finding led the court to conclude that the death
penalty is not a proportional punishment for the sexual battery of a child.21
11
Coker v. Georgia, 433 U.S. 584, 592 (1977).
12
Coker v. Georgia, 433 U.S. 584, 593-597 (1977).
13
Id.
14
“We have the abiding conviction that the death penalty, which ‘is unique in its severity and irrevocability,’... is an
excessive penalty for the rapist who, as such, does not take human life.” Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 286, 153
L.Ed.2d 982 (1977); [internal citation: Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)].
15
Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).
16
Id.
17
Id.
18
Rusaw v. State, 451 So.2d 469 (Fla. 1984), referring to life imprisonment without the possibility of parole, ss. 775.082 and
921.141, F.S.
19
The state court in Kennedy explained that since 1993, four more States—Oklahoma, South Carolina, Montana, and
Georgia—had capitalized the crime of child rape, and at least eight States had authorized capital punishment for other
nonhomicide crimes. By its count, 14 of the then–38 States permitting capital punishment, plus the Federal Government,
allowed the death penalty for nonhomicide crimes and 5 allowed the death penalty for the crime of child rape. Kennedy v.
Louisiana, 554 U.S. 407, 418 (2008). See also footnotes 3 and 4 above for recent statistics.
20
After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and
other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude
there is a national consensus against capital punishment for the crime of child rape. Kennedy v. Louisiana, 554 U.S. 407, 434
(2008).
21
Kennedy v. Louisiana, 554 U.S. 407, 422 (2008).
BILL: CS/CS/SB 1342 Page 5
Case Law and Subsequent Statutory Changes Regarding Death Penalty Sentencing
Procedure
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. . . .”22 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.23
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.24 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.25
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.”26 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.27
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
trial court to impose a sentence of death, the jury’s recommended sentence of death must be
unanimous.”28
22
U.S. CONST. Amend. VI.
23
United States v. Gaudin, 515 U.S. 506, 510 (1995).
24
Ring v. Arizona, 536 U.S. 584, 592 (2002).
25
Id. at 609.
26
Hurst v. Florida, 577 U.S. 92 (2016). 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).
27
Chapter 2016-13, L.O.F. (2016).
28
Hurst v. State, 202 So.3d 40, 44, (Fla. 2016), cert. den., 137 S.Ct. 2161 (2017).