Senate Bill 0524c1

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    Florida Senate - 1998                            CS for SB 524

    By the Committee on Criminal Justice and Senator Campbell





    307-942-98

  1                      A bill to be entitled

  2         An act relating to the offense of murder;

  3         amending s. 782.04, F.S.; redefining the

  4         offense of capital murder in the first degree

  5         to include the act of unlawfully killing a

  6         human being while perpetrating, or attempting

  7         to perpetrate, the murder of another human

  8         being; redefining the offense of second-degree

  9         felony murder to include the act of unlawfully

10         killing a human being while perpetrating or

11         attempting to perpetrate the murder of another

12         human being; adding murder to the list of

13         felony offenses which do not constitute

14         third-degree felony murder; reenacting ss.

15         39.464(1)(d), 435.03(2)(b), 435.04(2)(b),

16         775.0823(1) and (2), 921.0022(3)(i),

17         943.325(1), 947.146(3), F.S., relating to the

18         termination of parental rights, screening

19         standards, violent offenses against law

20         enforcement officers and others, the Criminal

21         Punishment Code, blood testing, and the Control

22         Release Authority, to incorporate the amendment

23         to 782.04, F.S., in references thereto;

24         providing an effective date.

25

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

27

28         Section 1.  Section 782.04, Florida Statutes, is

29  amended to read:

30         782.04  Murder.--

31         (1)(a)  The unlawful killing of a human being:

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  1         1.  When perpetrated from a premeditated design to

  2  effect the death of the person killed or any human being; or

  3         2.  When committed by a person engaged in the

  4  perpetration of, or in the attempt to perpetrate, any:

  5         a.  Trafficking offense prohibited by s. 893.135(1),

  6         b.  Arson,

  7         c.  Sexual battery,

  8         d.  Robbery,

  9         e.  Burglary,

10         f.  Kidnapping,

11         g.  Escape,

12         h.  Aggravated child abuse,

13         i.  Aggravated abuse of an elderly person or disabled

14  adult,

15         j.  Aircraft piracy,

16         k.  Unlawful throwing, placing, or discharging of a

17  destructive device or bomb,

18         l.  Carjacking,

19         m.  Home-invasion robbery,

20         n.  Aggravated stalking, or

21         o.  Murder of another human being; or

22         3.  Which resulted from the unlawful distribution of

23  any substance controlled under s. 893.03(1), cocaine as

24  described in s. 893.03(2)(a)4., or opium or any synthetic or

25  natural salt, compound, derivative, or preparation of opium by

26  a person 18 years of age or older, when such drug is proven to

27  be the proximate cause of the death of the user,

28

29  is murder in the first degree and constitutes a capital

30  felony, punishable as provided in s. 775.082.

31

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  1         (b)  In all cases under this section, the procedure set

  2  forth in s. 921.141 shall be followed in order to determine

  3  sentence of death or life imprisonment.

  4         (2)  The unlawful killing of a human being, when

  5  perpetrated by any act imminently dangerous to another and

  6  evincing a depraved mind regardless of human life, although

  7  without any premeditated design to effect the death of any

  8  particular individual, is murder in the second degree and

  9  constitutes a felony of the first degree, punishable by

10  imprisonment for a term of years not exceeding life or as

11  provided in s. 775.082, s. 775.083, or s. 775.084.

12         (3)  When a person is killed in the perpetration of, or

13  in the attempt to perpetrate, any:

14         (a)  Trafficking offense prohibited by s. 893.135(1),

15         (b)  Arson,

16         (c)  Sexual battery,

17         (d)  Robbery,

18         (e)  Burglary,

19         (f)  Kidnapping,

20         (g)  Escape,

21         (h)  Aggravated child abuse,

22         (i)  Aggravated abuse of an elderly person or disabled

23  adult,

24         (j)  Aircraft piracy,

25         (k)  Unlawful throwing, placing, or discharging of a

26  destructive device or bomb,

27         (l)  Carjacking,

28         (m)  Home-invasion robbery, or

29         (n)  Aggravated stalking, or

30         (o)  Murder of another human being,

31

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  1  by a person other than the person engaged in the perpetration

  2  of or in the attempt to perpetrate such felony, the person

  3  perpetrating or attempting to perpetrate such felony is guilty

  4  of murder in the second degree, which constitutes a felony of

  5  the first degree, punishable by imprisonment for a term of

  6  years not exceeding life or as provided in s. 775.082, s.

  7  775.083, or s. 775.084.

  8         (4)  The unlawful killing of a human being, when

  9  perpetrated without any design to effect death, by a person

10  engaged in the perpetration of, or in the attempt to

11  perpetrate, any felony other than any:

12         (a)  Trafficking offense prohibited by s. 893.135(1),

13         (b)  Arson,

14         (c)  Sexual battery,

15         (d)  Robbery,

16         (e)  Burglary,

17         (f)  Kidnapping,

18         (g)  Escape,

19         (h)  Aggravated child abuse,

20         (i)  Aggravated abuse of an elderly person or disabled

21  adult,

22         (j)  Aircraft piracy,

23         (k)  Unlawful throwing, placing, or discharging of a

24  destructive device or bomb,

25         (l)  Unlawful distribution of any substance controlled

26  under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4.,

27  or opium or any synthetic or natural salt, compound,

28  derivative, or preparation of opium by a person 18 years of

29  age or older, when such drug is proven to be the proximate

30  cause of the death of the user,

31         (m)  Carjacking,

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  1         (n)  Home-invasion robbery, or

  2         (o)  Aggravated stalking, or

  3         (p)  Murder of another human being,

  4

  5  is murder in the third degree and constitutes a felony of the

  6  second degree, punishable as provided in s. 775.082, s.

  7  775.083, or s. 775.084.

  8         Section 2.  For the purpose of incorporating the

  9  amendment made by this act to section 782.04, Florida

10  Statutes, in references thereto, paragraph (d) of subsection

11  (1) of section 39.464, Florida Statutes, is reenacted to read:

12         39.464  Grounds for termination of parental rights.--

13         (1)  The department, the guardian ad litem, a licensed

14  child-placing agency, or any person who has knowledge of the

15  facts alleged or who is informed of said facts and believes

16  that they are true, may petition for the termination of

17  parental rights under any of the following circumstances:

18         (d)  When the parent of a child is incarcerated in a

19  state or federal correctional institution and:

20         1.  The period of time for which the parent is expected

21  to be incarcerated will constitute a substantial portion of

22  the period of time before the child will attain the age of 18

23  years;

24         2.  The incarcerated parent has been determined by the

25  court to be a violent career criminal as defined in s.

26  775.084, a habitual violent felony offender as defined in s.

27  775.084, or a sexual predator as defined in s. 775.21; has

28  been convicted of first degree or second degree murder in

29  violation of s. 782.04 or a sexual battery that constitutes a

30  capital, life, or first degree felony violation of s. 794.011;

31  or has been convicted of an offense in another jurisdiction

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  1  which is substantially similar to one of the offenses listed

  2  in this paragraph.  As used in this section, the term

  3  "substantially similar offense" means any offense that is

  4  substantially similar in elements and penalties to one of

  5  those listed in this paragraph, and that is in violation of a

  6  law of any other jurisdiction, whether that of another state,

  7  the District of Columbia, the United States or any possession

  8  or territory thereof, or any foreign jurisdiction; and

  9         3.  The court determines by clear and convincing

10  evidence that continuing the parental relationship with the

11  incarcerated parent would be harmful to the child and, for

12  this reason, that termination of the parental rights of the

13  incarcerated parent is in the best interest of the child.

14         Section 3.  For the purpose of incorporating the

15  amendment made by this act to section 782.04, Florida

16  Statutes, in references thereto, paragraph (b) of subsection

17  (2) of section 435.03, Florida Statutes, is reenacted to read:

18         435.03  Level 1 screening standards.--

19         (2)  Any person for whom employment screening is

20  required by statute must not have been found guilty of,

21  regardless of adjudication, or entered a plea of nolo

22  contendere or guilty to, any offense prohibited under any of

23  the following provisions of the Florida Statutes or under any

24  similar statute of another jurisdiction:

25         (b)  Section 782.04, relating to murder.

26         Section 4.  For the purpose of incorporating the

27  amendment made by this act to section 782.04, Florida

28  Statutes, in references thereto, paragraph (b) of subsection

29  (2) of section 435.04, Florida Statutes, is reenacted to read:

30         435.04  Level 2 screening standards.--

31

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  1         (2)  The security background investigations under this

  2  section must ensure that no persons subject to the provisions

  3  of this section have been found guilty of, regardless of

  4  adjudication, or entered a plea of nolo contendere or guilty

  5  to, any offense prohibited under any of the following

  6  provisions of the Florida Statutes or under any similar

  7  statute of another jurisdiction:

  8         (b)  Section 782.04, relating to murder.

  9         Section 5.  For the purpose of incorporating the

10  amendment made by this act to section 782.04, Florida

11  Statutes, in references thereto, subsections (1) and (2) of

12  section 775.0823, Florida Statutes, as amended by section 11

13  of chapter 97-194, Laws of Florida, are reenacted to read:

14         775.0823  Violent offenses committed against law

15  enforcement officers, correctional officers, state attorneys,

16  assistant state attorneys, justices, or judges.--Any provision

17  of law to the contrary notwithstanding, the Legislature does

18  hereby provide for an increase and certainty of penalty for

19  any person convicted of a violent offense against any law

20  enforcement or correctional officer, as defined in s.

21  943.10(1), (2), (3), (6), (7), (8), or (9); against any state

22  attorney elected pursuant to s. 27.01 or assistant state

23  attorney appointed under s. 27.181; or against any justice or

24  judge of a court described in Art. V of the State

25  Constitution, which offense arises out of or in the scope of

26  the officer's duty as a law enforcement or correctional

27  officer, the state attorney's or assistant state attorney's

28  duty as a prosecutor or investigator, or the justice's or

29  judge's duty as a judicial officer, as follows:

30

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  1         (1)  For murder in the first degree as described in s.

  2  782.04(1), if the death sentence is not imposed, a sentence of

  3  imprisonment for life without eligibility for release.

  4         (2)  For attempted murder in the first degree as

  5  described in s. 782.04(1), a sentence pursuant to the Criminal

  6  Punishment Code.

  7

  8  Notwithstanding the provisions of s. 948.01, with respect to

  9  any person who is found to have violated this section,

10  adjudication of guilt or imposition of sentence shall not be

11  suspended, deferred, or withheld.

12         Section 6.  For the purpose of incorporating the

13  amendment made by this act to section 782.04, Florida

14  Statutes, in references thereto, paragraph (i) of subsection

15  (3) of section 921.0022, Florida Statutes, as created by

16  section 5 of chapter 97-194, Laws of Florida, is reenacted to

17  read:

18         921.0022  Criminal Punishment Code; offense severity

19  ranking chart.--

20         (3)  OFFENSE SEVERITY RANKING CHART

21

22  Florida           Felony

23  Statute           Degree             Description

24

25                              (i)  LEVEL 9

26  316.193

27   (3)(c)3.b.        1st      DUI manslaughter; failing to

28                              render aid or give information.

29  782.04(1)          1st      Attempt, conspire, or solicit to

30                              commit premeditated murder.

31

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  1  782.04(3)          1st,PBL  Accomplice to murder in

  2                              connection with arson, sexual

  3                              battery, robbery, burglary, and

  4                              other specified felonies.

  5  782.07(2)          1st      Aggravated manslaughter of an

  6                              elderly person or disabled adult.

  7  782.07(3)          1st      Aggravated manslaughter of a

  8                              child.

  9  787.01(1)(a)1.     1st,PBL  Kidnapping; hold for ransom or

10                              reward or as a shield or hostage.

11  787.01(1)(a)2.     1st,PBL  Kidnapping with intent to commit

12                              or facilitate commission of any

13                              felony.

14  787.01(1)(a)4.     1st,PBL  Kidnapping with intent to

15                              interfere with performance of any

16                              governmental or political

17                              function.

18  787.02(3)(a)       1st      False imprisonment; child under

19                              age 13; perpetrator also commits

20                              child abuse, sexual battery,

21                              lewd, or lascivious act, etc.

22  790.161            1st      Attempted capital destructive

23                              device offense.

24  794.011(2)         1st      Attempted sexual battery; victim

25                              less than 12 years of age.

26  794.011(2)         Life     Sexual battery; offender younger

27                              than 18 years and commits sexual

28                              battery on a person less than 12

29                              years.

30  794.011(4)         1st      Sexual battery; victim 12 years

31                              or older, certain circumstances.

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  1  794.011(8)(b)      1st      Sexual battery; engage in sexual

  2                              conduct with minor 12 to 18 years

  3                              by person in familial or

  4                              custodial authority.

  5  812.13(2)(a)       1st,PBL  Robbery with firearm or other

  6                              deadly weapon.

  7  812.133(2)(a)      1st,PBL  Carjacking; firearm or other

  8                              deadly weapon.

  9  847.0145(1)        1st      Selling, or otherwise

10                              transferring custody or control,

11                              of a minor.

12  847.0145(2)        1st      Purchasing, or otherwise

13                              obtaining custody or control, of

14                              a minor.

15  859.01             1st      Poisoning food, drink, medicine,

16                              or water with intent to kill or

17                              injure another person.

18  893.135            1st      Attempted capital trafficking

19                              offense.

20  893.135(1)(a)3.    1st      Trafficking in cannabis, more

21                              than 10,000 lbs.

22  893.135

23   (1)(b)1.c.        1st      Trafficking in cocaine, more than

24                              400 grams, less than 150

25                              kilograms.

26  893.135

27   (1)(c)1.c.        1st      Trafficking in illegal drugs,

28                              more than 28 grams, less than 30

29                              kilograms.

30

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  1  893.135

  2   (1)(d)1.c.        1st      Trafficking in phencyclidine,

  3                              more than 400 grams.

  4  893.135

  5   (1)(e)1.c.        1st      Trafficking in methaqualone, more

  6                              than 25 kilograms.

  7  893.135

  8   (1)(f)1.c.        1st      Trafficking in amphetamine, more

  9                              than 200 grams.

10         Section 7.  For the purpose of incorporating the

11  amendment made by this act to section 782.04, Florida

12  Statutes, in references thereto, subsection (1) of section

13  943.325, Florida Statutes, is reenacted to read:

14         943.325  Blood specimen testing for DNA analysis.--

15         (1)(a)  Any person convicted, or who was previously

16  convicted and is still incarcerated, in this state for any

17  offense or attempted offense defined in chapter 794, chapter

18  800, s. 782.04, s. 784.045, s. 812.133, or s. 812.135, and who

19  is within the confines of the legal state boundaries, shall be

20  required to submit two specimens of blood to a Department of

21  Law Enforcement designated testing facility as directed by the

22  department.

23         (b)  For the purpose of this section, the term "any

24  person" shall include both juveniles and adults committed to

25  or under the supervision of the Department of Corrections or

26  the Department of Juvenile Justice.

27         Section 8.  For the purpose of incorporating the

28  amendment made by this act to section 782.04, Florida

29  Statutes, in references thereto, subsection (3) of section

30  947.146, Florida Statutes, as amended by section 31 of chapter

31  97-194, Laws of Florida, is reenacted to read:

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  1         947.146  Control Release Authority.--

  2         (3)  Within 120 days prior to the date the state

  3  correctional system is projected pursuant to s. 216.136 to

  4  exceed 99 percent of total capacity, the authority shall

  5  determine eligibility for and establish a control release date

  6  for an appropriate number of parole ineligible inmates

  7  committed to the department and incarcerated within the state

  8  who have been determined by the authority to be eligible for

  9  discretionary early release pursuant to this section.  In

10  establishing control release dates, it is the intent of the

11  Legislature that the authority prioritize consideration of

12  eligible inmates closest to their tentative release date.  The

13  authority shall rely upon commitment data on the offender

14  information system maintained by the department to initially

15  identify inmates who are to be reviewed for control release

16  consideration.  The authority may use a method of objective

17  risk assessment in determining if an eligible inmate should be

18  released.  Such assessment shall be a part of the department's

19  management information system. However, the authority shall

20  have sole responsibility for determining control release

21  eligibility, establishing a control release date, and

22  effectuating the release of a sufficient number of inmates to

23  maintain the inmate population between 99 percent and 100

24  percent of total capacity.  Inmates who are ineligible for

25  control release are inmates who are parole eligible or inmates

26  who:

27         (a)  Are serving a sentence that includes a mandatory

28  minimum provision for a capital offense or drug trafficking

29  offense and have not served the number of days equal to the

30  mandatory minimum term less any jail-time credit awarded by

31  the court;

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  1         (b)  Are serving the mandatory minimum portion of a

  2  sentence enhanced under s. 775.087(2) or (3), or s. 784.07(3);

  3         (c)  Are convicted, or have been previously convicted,

  4  of committing or attempting to commit sexual battery, incest,

  5  or any of the following lewd or indecent assaults or acts:

  6  masturbating in public; exposing the sexual organs in a

  7  perverted manner; or nonconsensual handling or fondling of the

  8  sexual organs of another person;

  9         (d)  Are convicted, or have been previously convicted,

10  of committing or attempting to commit assault, aggravated

11  assault, battery, or aggravated battery, and a sex act was

12  attempted or completed during commission of such offense;

13         (e)  Are convicted, or have been previously convicted,

14  of committing or attempting to commit kidnapping, burglary, or

15  murder, and the offense was committed with the intent to

16  commit sexual battery or a sex act was attempted or completed

17  during commission of the offense;

18         (f)  Are convicted, or have been previously convicted,

19  of committing or attempting to commit false imprisonment upon

20  a child under the age of 13 and, in the course of committing

21  the offense, the inmate committed aggravated child abuse,

22  sexual battery against the child, or a lewd, lascivious, or

23  indecent assault or act upon or in the presence of the child;

24         (g)  Are sentenced, have previously been sentenced, or

25  have been sentenced at any time under s. 775.084, or have been

26  sentenced at any time in another jurisdiction as a habitual

27  offender;

28         (h)  Are convicted, or have been previously convicted,

29  of committing or attempting to commit assault, aggravated

30  assault, battery, aggravated battery, kidnapping,

31  manslaughter, or murder against an officer as defined in s.

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  1  943.10(1), (2), (3), (6), (7), (8), or (9); against a state

  2  attorney or assistant state attorney; or against a justice or

  3  judge of a court described in Art. V of the State

  4  Constitution; or against an officer, judge, or state attorney

  5  employed in a comparable position by any other jurisdiction;

  6  or

  7         (i)  Are convicted, or have been previously convicted,

  8  of committing or attempting to commit murder in the first,

  9  second, or third degree under s. 782.04(1), (2), (3), or (4),

10  or have ever been convicted of any degree of murder or

11  attempted murder in another jurisdiction;

12         (j)  Are convicted, or have been previously convicted,

13  of DUI manslaughter under s. 316.193(3)(c)3., and are

14  sentenced, or have been sentenced at any time, as a habitual

15  offender for such offense, or have been sentenced at any time

16  in another jurisdiction as a habitual offender for such

17  offense;

18         (k)1.  Are serving a sentence for an offense committed

19  on or after January 1, 1994, for a violation of the Law

20  Enforcement Protection Act under s. 775.0823(2), (3), (4), or

21  (5), and the subtotal of the offender's sentence points is

22  multiplied pursuant to former s. 921.0014 or s. 921.0024;

23         2.  Are serving a sentence for an offense committed on

24  or after October 1, 1995, for a violation of the Law

25  Enforcement Protection Act under s. 775.0823(2), (3), (4),

26  (5), (6), (7), or (8), and the subtotal of the offender's

27  sentence points is multiplied pursuant to former s. 921.0014

28  or s. 921.0024;

29         (l)  Are serving a sentence for an offense committed on

30  or after January 1, 1994, for possession of a firearm,

31  semiautomatic firearm, or machine gun in which additional

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  1  points are added to the subtotal of the offender's sentence

  2  points pursuant to former s. 921.0014 or s. 921.0024; or

  3         (m)  Are convicted, or have been previously convicted,

  4  of committing or attempting to commit manslaughter,

  5  kidnapping, robbery, carjacking, home-invasion robbery, or a

  6  burglary under s. 810.02(2).

  7

  8  In making control release eligibility determinations under

  9  this subsection, the authority may rely on any document

10  leading to or generated during the course of the criminal

11  proceedings, including, but not limited to, any presentence or

12  postsentence investigation or any information contained in

13  arrest reports relating to circumstances of the offense.

14         Section 9.  This act shall take effect October 1, 1998.

15

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                         Senate Bill 524

18

19  The CS moves "murder of another human being" from subparagraph
    "4" to the list of offenses which may constitute first degree
20  felony murder.

21  The CS adds a provision which will allow prosecution of an
    offender for second degree felony murder when a third party
22  kills a person during the offender's perpetration of, or
    attempt to perpetrate, any murder of another human being.
23
    The CS adds "murder of another human being" to the list of
24  offenses which do not constitute third degree felony murder as
    defined in section 782.04(4), F.S.
25

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