CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Crady offered the following:

12

13         Amendment (with title amendment) 

14         On page 15, lines 14 and 15,

15  remove from the bill:  all of said lines

16

17  and insert in lieu thereof:

18         Section 9.  Sections 9 and 10 of this act may be cited

19  as the "Jeff Mitchell Act."

20         Section 10.  Subsections (4) and (5) of section

21  921.141, Florida Statutes, are amended to read:

22         921.141  Sentence of death or life imprisonment for

23  capital felonies; further proceedings to determine sentence.--

24         (1)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon

25  conviction or adjudication of guilt of a defendant of a

26  capital felony, the court shall conduct a separate sentencing

27  proceeding to determine whether the defendant should be

28  sentenced to death or life imprisonment as authorized by s.

29  775.082. The proceeding shall be conducted by the trial judge

30  before the trial jury as soon as practicable.  If, through

31  impossibility or inability, the trial jury is unable to

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  reconvene for a hearing on the issue of penalty, having

 2  determined the guilt of the accused, the trial judge may

 3  summon a special juror or jurors as provided in chapter 913 to

 4  determine the issue of the imposition of the penalty.  If the

 5  trial jury has been waived, or if the defendant pleaded

 6  guilty, the sentencing proceeding shall be conducted before a

 7  jury impaneled for that purpose, unless waived by the

 8  defendant.  In the proceeding, evidence may be presented as to

 9  any matter that the court deems relevant to the nature of the

10  crime and the character of the defendant and shall include

11  matters relating to any of the aggravating or mitigating

12  circumstances enumerated in subsections (5) and (6).  Any such

13  evidence which the court deems to have probative value may be

14  received, regardless of its admissibility under the

15  exclusionary rules of evidence, provided the defendant is

16  accorded a fair opportunity to rebut any hearsay statements.

17  However, this subsection shall not be construed to authorize

18  the introduction of any evidence secured in violation of the

19  Constitution of the United States or the Constitution of the

20  State of Florida.  The state and the defendant or the

21  defendant's counsel shall be permitted to present argument for

22  or against sentence of death.

23         (2)  ADVISORY SENTENCE BY THE JURY.--After hearing all

24  the evidence, the jury shall deliberate and render an advisory

25  sentence to the court, based upon the following matters:

26         (a)  Whether sufficient aggravating circumstances exist

27  as enumerated in subsection (5);

28         (b)  Whether sufficient mitigating circumstances exist

29  which outweigh the aggravating circumstances found to exist;

30  and

31         (c)  Based on these considerations, whether the

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  defendant should be sentenced to life imprisonment or death.

 2         (3)  FINDINGS IN SUPPORT OF SENTENCE OF

 3  DEATH.--Notwithstanding the recommendation of a majority of

 4  the jury, the court, after weighing the aggravating and

 5  mitigating circumstances, shall enter a sentence of life

 6  imprisonment or death, but if the court imposes a sentence of

 7  death, it shall set forth in writing its findings upon which

 8  the sentence of death is based as to the facts:

 9         (a)  That sufficient aggravating circumstances exist as

10  enumerated in subsection (5), and

11         (b)  That there are insufficient mitigating

12  circumstances to outweigh the aggravating circumstances.

13

14  In each case in which the court imposes the death sentence,

15  the determination of the court shall be supported by specific

16  written findings of fact based upon the circumstances in

17  subsections (5) and (6) and upon the records of the trial and

18  the sentencing proceedings. If the court does not make the

19  findings requiring the death sentence within 30 days after the

20  rendition of the judgment and sentence, the court shall impose

21  sentence of life imprisonment in accordance with s. 775.082.

22         (4)  REVIEW OF JUDGMENT AND SENTENCE.--The judgment of

23  conviction and sentence of death shall be subject to automatic

24  review by the Supreme Court of Florida and disposition

25  rendered within 2 years after the filing of a notice of

26  appeal.  Such review by the Supreme Court shall have priority

27  over all other cases and shall be heard in accordance with

28  rules promulgated by the Supreme Court.

29         (a)  In any case in which the court has imposed the

30  death sentence, the judgment of conviction and sentence of

31  death shall not be held invalid, overturned, reduced, or

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  otherwise affected because a codefendant in the same case

 2  accepted a plea offer from the state in exchange for trial

 3  testimony, or an agreement to testify, and was not sentenced

 4  to death.

 5         (b)  No criteria for review by the court regarding

 6  aggravating or mitigating circumstances shall be utilized

 7  except as authorized in this section. The court shall not

 8  engage in any form of proportionality review of a death

 9  sentence, including, but not limited to, review of a capital

10  case based on comparable aggravating or mitigating

11  circumstances in other capital cases, based on comparable

12  factors in the defendant's background in other capital cases,

13  or based on the rate of imposition or execution of the death

14  sentence in other capital cases.

15         (5)  AGGRAVATING CIRCUMSTANCES.--Aggravating

16  circumstances shall be limited to the following:

17         (a)  The capital felony was committed by a person

18  previously convicted of a felony and under sentence of

19  imprisonment or placed on community control or on felony

20  probation.

21         (b)  The defendant was previously convicted of another

22  capital felony or of a felony involving the use or threat of

23  violence to the person.

24         (c)  The defendant knowingly created a great risk of

25  death to many persons.

26         (d)  The capital felony was committed while the

27  defendant was engaged, or was an accomplice, in the commission

28  of, or an attempt to commit, or flight after committing or

29  attempting to commit, any: robbery; sexual battery; aggravated

30  child abuse; abuse of an elderly person or disabled adult

31  resulting in great bodily harm, permanent disability, or

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  permanent disfigurement; arson; burglary; kidnapping; aircraft

 2  piracy; or unlawful throwing, placing, or discharging of a

 3  destructive device or bomb.

 4         (e)  The capital felony was committed for the purpose

 5  of avoiding or preventing a lawful arrest or effecting an

 6  escape from custody.

 7         (f)  The capital felony was committed for pecuniary

 8  gain.

 9         (g)  The capital felony was committed to disrupt or

10  hinder the lawful exercise of any governmental function or the

11  enforcement of laws.

12         (h)  The capital felony was especially heinous,

13  atrocious, or cruel.

14         (i)  The capital felony was a homicide and was

15  committed in a cold, calculated, and premeditated manner

16  without any pretense of moral or legal justification.

17         (j)  During the course of committing the capital

18  felony, the defendant inflicted multiple physical injuries

19  upon the victim.

20         (k)  The defendant mutilated, dismembered, or sexually

21  abused the victim's body, during or after commission of the

22  capital felony.

23         (l)(j)  The victim of the capital felony was a law

24  enforcement officer engaged in the performance of his or her

25  official duties.

26         (m)(k)  The victim of the capital felony was an elected

27  or appointed public official engaged in the performance of his

28  or her official duties if the motive for the capital felony

29  was related, in whole or in part, to the victim's official

30  capacity.

31         (n)(l)  The victim of the capital felony was a person

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  less than 12 years of age.

 2         (o)(m)  The victim of the capital felony was

 3  particularly vulnerable due to advanced age or disability, or

 4  because the defendant stood in a position of familial or

 5  custodial authority over the victim.

 6         (p)  The victim had an injunction for protection in

 7  effect against the defendant when the capital felony was

 8  committed.

 9         (q)  The victim was aware of the impending homicide and

10  asked that his or her life be spared or otherwise requested

11  that the homicide not occur.

12         (r)(n)  The capital felony was committed by a criminal

13  street gang member, as defined in s. 874.03.

14         (6)  MITIGATING CIRCUMSTANCES.--Mitigating

15  circumstances shall be the following:

16         (a)  The defendant has no significant history of prior

17  criminal activity.

18         (b)  The capital felony was committed while the

19  defendant was under the influence of extreme mental or

20  emotional disturbance.

21         (c)  The victim was a participant in the defendant's

22  conduct or consented to the act.

23         (d)  The defendant was an accomplice in the capital

24  felony committed by another person and his or her

25  participation was relatively minor.

26         (e)  The defendant acted under extreme duress or under

27  the substantial domination of another person.

28         (f)  The capacity of the defendant to appreciate the

29  criminality of his or her conduct or to conform his or her

30  conduct to the requirements of law was substantially impaired.

31         (g)  The age of the defendant at the time of the crime.

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1         (h)  The existence of any other factors in the

 2  defendant's background that would mitigate against imposition

 3  of the death penalty.

 4

 5  However, the court shall not engage in any form of

 6  proportionality review of a death sentence, as prohibited in

 7  subsection (4).

 8         (7)  VICTIM IMPACT EVIDENCE.--Once the prosecution has

 9  provided evidence of the existence of one or more aggravating

10  circumstances as described in subsection (5), the prosecution

11  may introduce, and subsequently argue, victim impact evidence.

12  Such evidence shall be designed to demonstrate the victim's

13  uniqueness as an individual human being and the resultant loss

14  to the community's members by the victim's death.

15  Characterizations and opinions about the crime, the defendant,

16  and the appropriate sentence shall not be permitted as a part

17  of victim impact evidence.

18         (8)  APPLICABILITY.--This section does not apply to a

19  person convicted or adjudicated guilty of a capital drug

20  trafficking felony under s. 893.135.

21         Section 11.  If any provision of this act or the

22  application thereof to any person or circumstance is held

23  invalid, the invalidity shall not affect other provisions or

24  applications of the act which can be given effect without the

25  invalid provision or application, and to this end the

26  provisions of this act are declared severable.

27         Section 12.  This act shall take effect October 1 of

28  the year in which enacted.

29

30

31

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3  remove from the title of the bill:  the entire title

 4

 5  and insert in lieu thereof:

 6                      A bill to be entitled

 7         An act relating capital offenses; amending s.

 8         782.04, F.S.; redefining the offense of capital

 9         murder in the first degree to include the act

10         of unlawfully killing a human being while

11         perpetrating, or attempting to perpetrate, the

12         murder of another human being; providing

13         penalties; providing that a person who

14         perpetrates or attempts to perpetrate a murder

15         commits felony murder in the second degree when

16         a person is killed by someone other than the

17         perpetrator; providing penalties; adding murder

18         to the list of felony offenses which do not

19         constitute third-degree felony murder;

20         reenacting ss. 39.464(1)(d), 435.03(2)(b),

21         435.04(2)(b), 775.0823(1) and (2),

22         921.0022(3)(i), 943.325(1), and 947.146(3),

23         F.S., relating to the termination of parental

24         rights, screening standards, violent offenses

25         against law enforcement officers and others,

26         the Criminal Punishment Code, blood testing,

27         and the Control Release Authority, to

28         incorporate the amendment to 782.04, F.S., in

29         references thereto; creating the "Jeff Mitchell

30         Act"; amending s. 921.141, F.S., relating to

31         further proceedings to determine sentence of

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                                                   HOUSE AMENDMENT

    209-214XA-38                                  Bill No. HB 4233

    Amendment No.     (for drafter's use only)





 1         death or life imprisonment for capital

 2         felonies; providing that the judgment of

 3         conviction and sentence of death imposed in a

 4         capital case are not subject to being held

 5         invalid, overturned, reduced, or otherwise

 6         affected because a codefendant in the same case

 7         accepted a plea offer in exchange for trial

 8         testimony, or an agreement to testify, and was

 9         not sentenced to death; prohibiting the Florida

10         Supreme Court from engaging in any form of

11         proportionality review of a death sentence;

12         providing that criteria for review regarding

13         aggravating or mitigating circumstances shall

14         not be utilized except as authorized under

15         specified provisions; providing additional

16         aggravating circumstances to be weighed by the

17         court; providing for an aggravating

18         circumstance that the capital felony was

19         committed when the victim had an injunction for

20         protection in effect against the defendant;

21         providing for an aggravating circumstance that

22         the defendant inflicted multiple physical

23         injuries upon the victim; providing for an

24         aggravating circumstance that the defendant

25         mutilated, dismembered, or sexually abused the

26         victim's body, during or after commission of

27         the capital felony; providing for an

28         aggravating circumstance that the victim of a

29         homicide had asked that his or her life be

30         spared; providing for severability; providing

31         an effective date.

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