Bill Summary – FastDemocracy

       Florida Senate - 2021                                     SB 478
       
       
        
       By Senator Bracy
       
       
       
       
       
       11-00082-21                                            2021478__
                      A bill to be entitled                      
       An act relating to murder; amending s. 782.04, F.S.;
       revising the elements that constitute murder in the
       first degree and murder in the second degree; revising
       the elements that constitute felony murder, for murder
       in the second degree; deleting provisions relating to
       felony murder, for murder in the third degree;
       creating s. 782.041, F.S.; authorizing a person
       convicted under certain murder provisions to file a
       petition with the sentencing court to have his or her
       murder conviction vacated or to be resentenced, as
       applicable, on or after a specified date; amending ss.
       27.401, 394.912, 775.0823, 782.065, 921.0022, 944.275,
       947.146, and 948.012, F.S.; conforming provisions to
       changes made by the act; amending s. 921.0024, F.S.;
       conforming cross-references; providing an effective
       date.

       WHEREAS, there is a need for statutory changes to more
equitably sentence offenders in accordance with their level of
involvement in homicides, and
       WHEREAS, it is a bedrock principle of the law and of equity
that a person should be punished for his or her actions
according to his or her level of individual culpability, and
       WHEREAS, it is necessary to amend Floridaâs felony murder
law to limit convictions and subsequent sentencing so that the
laws of this state fairly address the culpability of the
individual and assist in the reduction of prison overcrowding,
which partially results from lengthy sentences that are not
commensurate with the culpability of the individual, NOW,
THEREFORE,

Be It Enacted by the Legislature of the State of Florida:

       Section 1.âSection 782.04, Florida Statutes, is amended to
read:
       782.04âMurder.â
       (1)(a)âThe unlawful killing of a human being:
       1.âWhen perpetrated from a premeditated design to effect
the death of the person killed or any human being;
       2.âWhen committed by a person engaged in the perpetration
of, or in the attempt to perpetrate, any:
       a.âTrafficking offense prohibited by s. 893.135(1),
       b.âArson,
       c.âSexual battery,
       d.âRobbery,
       e.âBurglary,
       f.âKidnapping,
       g.âEscape,
       h.âAggravated child abuse,
       i.âAggravated abuse of an elderly person or disabled adult,
       j.âAircraft piracy,
       k.âUnlawful throwing, placing, or discharging of a
destructive device or bomb,
       l.âCarjacking,
       m.âHome-invasion robbery,
       n.âAggravated stalking,
       o.âMurder of another human being,
       p.âResisting an officer with violence to his or her person,
       q.âAggravated fleeing or eluding with serious bodily injury
or death,
       r.âFelony that is an act of terrorism or is in furtherance
of an act of terrorism, including a felony under s. 775.30, s.
775.32, s. 775.33, s. 775.34, or s. 775.35, or
       s.âHuman trafficking; or
       2.3.âWhich resulted from the unlawful distribution by a
person 18 years of age or older of any of the following
substances, or mixture containing any of the following
substances, when such substance or mixture is proven to be the
proximate cause of the death of the user:
       a.âA substance controlled under s. 893.03(1);
       b.âCocaine, as described in s. 893.03(2)(a)4.;
       c.âOpium or any synthetic or natural salt, compound,
derivative, or preparation of opium;
       d.âMethadone;
       e.âAlfentanil, as described in s. 893.03(2)(b)1.;
       f.âCarfentanil, as described in s. 893.03(2)(b)6.;
       g.âFentanyl, as described in s. 893.03(2)(b)9.;
       h.âSufentanil, as described in s. 893.03(2)(b)30.; or
       i.âA controlled substance analog, as described in s.
893.0356, of any substance specified in sub-subparagraphs a.-h.,

is murder in the first degree and constitutes a capital felony,
punishable as provided in s. 775.082.
       (b)âIn all cases under this section, the procedure set
forth in s. 921.141 shall be followed in order to determine
sentence of death or life imprisonment. If the prosecutor
intends to seek the death penalty, the prosecutor must give
notice to the defendant and file the notice with the court
within 45 days after arraignment. The notice must contain a list
of the aggravating factors the state intends to prove and has
reason to believe it can prove beyond a reasonable doubt. The
court may allow the prosecutor to amend the notice upon a
showing of good cause.
       (2)âThe unlawful killing of a human being, when perpetrated
by any act imminently dangerous to another and evincing a
depraved mind regardless of human life, although without any
premeditated design to effect the death of any particular
individual, is murder in the second degree and constitutes a
felony of the first degree, punishable by imprisonment for a
term of years not exceeding life or as provided in s. 775.082,
s. 775.083, or s. 775.084.
       (3)(a)âThe unlawful killing of a human being, when
committed by a person or a participant engaged in the
perpetration of, or in the attempt to perpetrate, any of the
violations listed in paragraph (b), is murder in the second
degree, a felony of the first degree punishable by imprisonment
for a term of years not exceeding life or as provided in s.
775.082, s. 775.083, or s. 775.084, only if one of the following
is proven:
       1.âThe person was the actual killer.
       2.âThe person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder.
       3.âThe person was a major participant in the underlying
felony and acted with reckless indifference to human life.
       (b)âThe violations referenced in paragraph (a) include:
       1.âA trafficking offense prohibited by s. 893.135(1).
       2.âArson.
       3.âSexual battery.
       4.âRobbery.
       5.âBurglary.
       6.âKidnapping.
       7.âEscape.
       8.âAggravated child abuse.
       9.âAggravated abuse of an elderly person or a disabled
adult.
       10.âAircraft piracy.
       11.âUnlawful throwing, placing, or discharging of a
destructive device or bomb.
       12.âCarjacking.
       13.âHome-invasion robbery.
       14.âAggravated stalking.
       15.âMurder of another human being.
       16.âResisting an officer with violence to his or her
person.
       17.âAggravated fleeing or eluding with serious bodily
injury or death.
       18.âA felony that is an act of terrorism or is in
furtherance of an act of terrorism, including a felony under s.
775.30, s. 775.32, s. 775.33, s. 775.34, or s. 775.35.
       19.âHuman trafficking.
       (3)âWhen a human being is killed during the perpetration
of, or during the attempt to perpetrate, any:
       (a)âTrafficking offense prohibited by s. 893.135(1),
       (b)âArson,
       (c)âSexual battery,
       (d)âRobbery,
       (e)âBurglary,
       (f)âKidnapping,
       (g)âEscape,
       (h)âAggravated child abuse,
       (i)âAggravated abuse of an elderly person or disabled
adult,
       (j)âAircraft piracy,
       (k)âUnlawful throwing, placing, or discharging of a
destructive device or bomb,
       (l)âCarjacking,
       (m)âHome-invasion robbery,
       (n)âAggravated stalking,
       (o)âMurder of another human being,
       (p)âAggravated fleeing or eluding with serious bodily
injury or death,
       (q)âResisting an officer with violence to his or her
person, or
       (r)âFelony that is an act of terrorism or is in furtherance
of an act of terrorism, including a felony under s. 775.30, s.
775.32, s. 775.33, s. 775.34, or s. 775.35,

by a person other than the person engaged in the perpetration of
or in the attempt to perpetrate such felony, the person
perpetrating or attempting to perpetrate such felony commits
murder in the second degree, which constitutes a felony of the
first degree, punishable by imprisonment for a term of years not
exceeding life or as provided in s. 775.082, s. 775.083, or s.
775.084.
       (4)âThe unlawful killing of a human being, when perpetrated
without any design to effect death, by a person engaged in the
perpetration of, or in the attempt to perpetrate, any felony
other than any:
       (a)âTrafficking offense prohibited by s. 893.135(1),
       (b)âArson,
       (c)âSexual battery,
       (d)âRobbery,
       (e)âBurglary,
       (f)âKidnapping,
       (g)âEscape,
       (h)âAggravated child abuse,
       (i)âAggravated abuse of an elderly person or disabled
adult,
       (j)âAircraft piracy,
       (k)âUnlawful throwing, placing, or discharging of a
destructive device or bomb,
       (l)âUnlawful distribution of any substance controlled under
s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or
opium or any synthetic or natural salt, compound, derivative, or
preparation of opium by a person 18 years of age or older, when
such drug is proven to be the proximate cause of the death of
the user,
       (m)âCarjacking,
       (n)âHome-invasion robbery,
       (o)âAggravated stalking,
       (p)âMurder of another human being,
       (q)âAggravated fleeing or eluding with serious bodily
injury or death,
       (r)âResisting an officer with violence to his or her
person, or
       (s)âFelony that is an act of terrorism or is in furtherance
of an act of terrorism, including a felony under s. 775.30, s.
775.32, s. 775.33, s. 775.34, or s. 775.35,

is murder in the third degree and constitutes a felony of the
second degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
       (4)(5)âAs used in this section, the term âterrorismâ means
an activity that:
       (a)1.âInvolves a violent act or an act dangerous to human
life which is a violation of the criminal laws of this state or
of the United States; or
       2.âInvolves a violation of s. 815.06; and
       (b)âIs intended to:
       1.âIntimidate, injure, or coerce a civilian population;
       2.âInfluence the policy of a government by intimidation or
coercion; or
       3.âAffect the conduct of government through destruction of
property, assassination, murder, kidnapping, or aircraft piracy.
       Section 2.âSection 782.041, Florida Statutes, is created to
read:
       782.041âRetroactive application relating to s. 782.04;
resentencing.âA person convicted and sentenced under s. 782.04
as it existed on or before June 30, 2021, may file a petition
with the court that sentenced the petitioner to have the
petitionerâs murder conviction vacated or to be resentenced, as
applicable, under the revised provisions of s. 782.04 on or
after July 1, 2021.
       Section 3.âSubsection (2) of section 27.401, Florida
Statutes, is amended to read:
       27.401âCross-Circuit Conflict Representation Pilot
Program.â
       (2)âNotwithstanding ss. 27.40 and 27.5305:
       (a)âIf the public defender in the Tenth Judicial Circuit is
unable to provide representation to an indigent defendant
charged with a crime under s. 782.04(2) or, (3), or (4) due to a
conflict of interest and the criminal conflict and civil
regional counsel of the Second Region is also unable to provide
representation for the case due to a conflict of interest, the
public defender in the Thirteenth Judicial Circuit shall be
appointed. If the public defender in the Thirteenth Judicial
Circuit is unable to provide representation for the case due to
a conflict of interest, the criminal conflict and civil regional
counsel in the Fifth Region shall be appointed. If the criminal
conflict and civil regional counsel in the Fifth Region is
unable to provide representation due to a conflict of interest,
private counsel shall be appointed.
       (b)âIf the public defender in the Thirteenth Judicial
Circuit is unable to provide representation to an indigent
defendant charged with a crime under s. 782.04(2) or, (3), or
(4) due to a conflict of interest and the criminal conflict and
civil regional counsel of the Second Region is also unable to
provide representation for the case due to a conflict of
interest, the public defender in the Tenth Judicial Circuit
shall be appointed. If the public defender in the Tenth Judicial
Circuit is unable to provide representation for the case due to
a conflict of interest, the criminal conflict and civil regional
counsel in the Fifth Region shall be appointed. If the criminal
conflict and civil regional counsel in the Fifth Region is
unable to provide representation due to a conflict of interest,
private counsel shall be appointed.
       Section 4.âSubsection (9) of section 394.912, Florida
Statutes, is amended to read:
       394.912âDefinitions.âAs used in this part, the term:
       (9)ââSexually violent offenseâ means:
       (a)âMurder of a human being while engaged in sexual battery
in violation of s. 782.04(3)(b)3. s. 782.04(1)(a)2.;
       (b)âKidnapping of a child under the age of 13 and, in the
course of that offense, committing:
       1.âSexual battery; or
       2.âA lewd, lascivious, or indecent assault or act upon or
in the presence of the child;
       (c)âCommitting the offense of false imprisonment upon a
child under the age of 13 and, in the course of that offense,
committing:
       1.âSexual battery; or
       2.âA lewd, lascivious, or indecent assault or act upon or
in the presence of the child;
       (d)âSexual battery in violation of s. 794.011;
       (e)âLewd, lascivious, or indecent assault or act upon or in
presence of the child in violation of s. 800.04 or s.
847.0135(5);
       (f)âAn attempt, criminal solicitation, or conspiracy, in
violation of s. 777.04, of a sexually violent offense;
       (g)âAny conviction for a felony offense in effect at any
time before October 1, 1998, which is comparable to a sexually
violent offense under paragraphs (a)-(f) or any federal
conviction or conviction in another state for a felony offense
that in this state would be a sexually violent offense;
       (h)âAny criminal act that, either at the time of sentencing
for the offense or subsequently during civil commitment
proceedings under this part, has been determined beyond a
reasonable doubt to have been sexually motivated; or
       (i)âA criminal offense in which the state attorney refers a
person to the department for civil commitment proceedings
pursuant to s. 394.9125.
       Section 5.âSubsections (6) and (7) of section 775.0823,
Florida Statutes, are amended to read:
       775.0823âViolent offenses committed against law enforcement
officers, correctional officers, state attorneys, assistant
state attorneys, justices, or judges.âThe Legislature does
hereby provide for an increase and certainty of penalty for any
person convicted of a violent offense against any law
enforcement or correctional officer, as defined in s. 943.10(1),
(2), (3), (6), (7), (8), or (9); against any state attorney
elected pursuant to s. 27.01 or assistant state attorney
appointed under s. 27.181; or against any justice or judge of a
court described in Art. V of the State Constitution, which
offense arises out of or in the scope of the officerâs duty as a
law enforcement or correctional officer, the state attorneyâs or
assistant state attorneyâs duty as a prosecutor or invest