Senate Bill sb1666c1

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    Florida Senate - 2001                           CS for SB 1666

    By the Committee on Criminal Justice and Senator Laurent





    307-1788-01

  1                      A bill to be entitled

  2         An act relating to sex crimes; amending ss.

  3         794.011, 796.07, 800.04, 825.1025, 827.071,

  4         847.001, F.S., relating to sexual battery,

  5         prostitution, lewd or lascivious offenses,

  6         sexual performance by a child, and obscene

  7         literature and other material; defining the

  8         terms "vaginal" and "vagina" for purposes of

  9         laws defining certain prohibited sexual

10         activities; creating s. 775.251, F.S.; defining

11         the terms "dangerous sexual felony offender"

12         and "felony sexual offense"; creating s.

13         775.252, F.S.; requiring certain offenders

14         convicted of specified felony sexual offenses

15         to be sentenced as dangerous sexual felony

16         offenders; creating s. 775.253, F.S.; requiring

17         the court, prior to acceptance of a plea, to

18         advise a defendant convicted of a felony sexual

19         offense of sentencing as a dangerous sexual

20         felony offender; creating s. 775.254, F.S.;

21         establishing a separate proceeding for

22         determining whether an offender is a dangerous

23         sexual felony offender; setting forth

24         procedures and indicating what evidence may be

25         considered; authorizing direct appeal of

26         sentence; identifying factors used for making a

27         determination of whether an offender is a

28         dangerous sexual felony offender; creating s.

29         775.255, F.S.; providing penalties; providing

30         that the determination that an offender is not

31         a dangerous sexual felony offender does not

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    Florida Senate - 2001                           CS for SB 1666
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  1         preclude a future determination that the

  2         offender is a sexually violent predator under

  3         ch. 394, F.S.; creating s. 775.256, F.S.;

  4         providing for release of otherwise confidential

  5         records to a state attorney or state experts

  6         for use in determining whether the offender is

  7         a dangerous sexual felony offender; providing

  8         effective dates.

  9

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

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12         Section 1.  Present paragraphs (i) and (j) of

13  subsection (1) of section 794.011, Florida Statutes, are

14  redesignated as paragraphs (j) and (k), respectively, and a

15  new paragraph (i) is added to that subsection, to read:

16         794.011  Sexual battery.--

17         (1)  As used in this chapter:

18         (i)  "Vaginal" or "vagina" refers to the internal or

19  external parts of the sexual organ of a female.

20         Section 2.  Paragraph (e) is added to subsection (1) of

21  section 796.07, Florida Statutes, to read:

22         796.07  Prohibiting prostitution, etc.; evidence;

23  penalties; definitions.--

24         (1)  As used in this section:

25         (e)  "Vaginal" or "vagina" refers to the internal or

26  external parts of the sexual organ of a female.

27         Section 3.  Paragraph (e) is added to subsection (1) of

28  section 800.04, Florida Statutes, to read:

29         800.04  Lewd or lascivious offenses committed upon or

30  in the presence of persons less than 16 years of age.--

31         (1)  DEFINITIONS.--As used in this section:

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    Florida Senate - 2001                           CS for SB 1666
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  1         (e)  "Vaginal" or "vagina" refers to the internal or

  2  external parts of the sexual organ of a female.

  3         Section 4.  Subsection (1) of section 825.1025, Florida

  4  Statutes, is amended to read:

  5         825.1025  Lewd or lascivious offenses committed upon or

  6  in the presence of an elderly person or disabled adult.--

  7         (1)  As used in this section, the term:

  8         (a)  "Sexual activity" means the oral, anal, or vaginal

  9  penetration by, or union with, the sexual organ of another or

10  the anal or vaginal penetration of another by any other

11  object; however, sexual activity does not include an act done

12  for a bona fide medical purpose.

13         (b)  "Vaginal" or "vagina" refers to the internal or

14  external parts of the sexual organ of a female.

15         Section 5.  Paragraph (j) is added to subsection (1) of

16  section 827.071, Florida Statutes, to read:

17         827.071  Sexual performance by a child; penalties.--

18         (1)  As used in this section, the following definitions

19  shall apply:

20         (j)  "Vaginal" or "vagina" refers to the internal or

21  external parts of the sexual organ of a female.

22         Section 6.  Subsection (14) is added to section

23  847.001, Florida Statutes, to read:

24         847.001  Definitions.--When used in this chapter:

25         (14)  "Vaginal" or "vagina" refers to the internal or

26  external parts of the sexual organ of a female.

27         Section 7.  Effective upon becoming law, section

28  775.251, Florida Statutes, is created to read:

29         775.251  Definitions.--As used in ss. 775.251-775.256,

30  the term:

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  1         (1)  "Dangerous sexual felony offender" means a person

  2  who is convicted of a felony sexual offense and who has been

  3  determined by a jury or the court as being likely to commit

  4  one or more future felony sexual offenses, and based on that

  5  likelihood, would present a threat to others if released from

  6  prison within the foreseeable future.

  7         (2)  "Felony sexual offense" means any of the following

  8  felonies:

  9         (a)  Murder of a human being while engaged in sexual

10  battery in violation of s. 782.04(1)(a)2.;

11         (b)  Kidnapping of a child under the age of 13 and, in

12  the course of that offense, committing:

13         1.  Sexual battery; or

14         2.  Lewd, lascivious, or indecent assault or act upon

15  or in the presence of the child;

16         (c)  False imprisonment upon a child under the age of

17  13 and, in the course of that offense, committing:

18         1.  Sexual battery; or

19         2.  Lewd, lascivious, or indecent assault or act upon

20  or in the presence of the child;

21         (d)  Sexual battery in violation of s. 794.011;

22         (e)  Lewd, lascivious, or indecent assault or act upon

23  or in the presence of a child in violation of s. 800.04;

24         (f)  Attempt, criminal solicitation, or conspiracy to

25  commit any offense described in this subsection, if the

26  attempt, criminal solicitation, or conspiracy is a felony

27  offense; or

28         (g)  A felony offense in effect at any time on or after

29  the date this section takes effect which is comparable to any

30  offense under paragraphs (a)-(f).

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  1         Section 8.  Effective upon becoming law, section

  2  775.252, Florida Statutes, is created to read:

  3         775.252  Alternative sentencing.--In accordance with

  4  ss. 775.253, 775.254, and 775.255, after a person's conviction

  5  of, adjudication of guilt for, or plea of guilty or nolo

  6  contendere to a felony sexual offense, the circuit court

  7  having jurisdiction, upon motion of the state attorney or upon

  8  the court's own motion, shall, if any sentence otherwise

  9  provided by law is less than 25 years in state prison,

10  sentence the person as a dangerous sexual felony offender.

11  This section shall not apply in any case in which an offender

12  must be sentenced to a mandatory term of imprisonment of 25

13  years in state prison or longer, or in which the offender must

14  be sentenced to death.

15         Section 9.  Effective upon becoming law, section

16  775.253, Florida Statutes, is created to read:

17         775.253  Plea requirements.--Prior to acceptance of a

18  plea of guilty or nolo contendere to a felony sexual offense,

19  the court shall advise the defendant that he or she may be

20  sentenced as provided in s. 775.255.

21         Section 10.  Effective upon becoming law, section

22  775.254, Florida Statutes, is created to read:

23         775.254  Procedures, evidence, appeals of dangerous

24  sexual felony offenders.--The procedure for determining

25  whether a defendant is a dangerous sexual felony offender

26  shall be as follows:

27         (1)  Upon a defendant's conviction of, adjudication of

28  guilt for, or plea of guilty or nolo contendere to a felony

29  sexual offense, the court shall conduct a separate sentencing

30  proceeding to determine whether the defendant is a dangerous

31  sexual felony offender. If the court or the jury finds the

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    Florida Senate - 2001                           CS for SB 1666
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  1  defendant to be a dangerous sexual felony offender, the court

  2  shall sentence the defendant to a minimum term of imprisonment

  3  of not less than 25 years and not more than a term of

  4  imprisonment for life, as authorized by s. 775.255.

  5         (2)  The proceeding shall be conducted by the trial

  6  judge before the trial jury as soon as practicable. If,

  7  through impossibility or inability, the trial jury is unable

  8  to reconvene for a hearing on the issue, having determined the

  9  guilt of the defendant, the trial judge may summon special

10  jurors as provided in chapter 913 to determine the issue of

11  the imposition of the penalty. If the jury trial has been

12  waived, or if the defendant pleaded guilty, the determination

13  proceeding shall be conducted before a jury impaneled for that

14  purpose unless waived by the defendant. In the proceeding,

15  evidence may be presented as to any matter that the court

16  deems relevant to the nature of the crime and the character of

17  the defendant, including previous felony sexual offenses

18  committed by the defendant, which shall be considered by the

19  jury or the court. Any such evidence that the court deems to

20  have probative value may be received, regardless of its

21  admissibility under the exclusionary rules of evidence,

22  provided that the defendant is accorded a fair opportunity to

23  rebut any hearsay statements. However, this subsection shall

24  not be construed to authorize the introduction of any evidence

25  secured in violation of the Constitution of the United States

26  or the State Constitution. The state and the defendant or the

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

28  or against a determination that the defendant is a dangerous

29  sexual felony offender.

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    Florida Senate - 2001                           CS for SB 1666
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  1         (3)  All evidence presented shall be presented in open

  2  court with full rights of confrontation, cross-examination,

  3  and representation by counsel.

  4         (4)  Each of the findings required as the basis for

  5  such sentence shall be found to exist by a preponderance of

  6  the evidence. A person sentenced as a dangerous sexual felony

  7  offender under s. 775.255 has the right of direct appeal.

  8         (5)  In the determination hearing, the jury or the

  9  court shall consider factors pertaining to the issue of

10  whether the defendant is likely to commit one or more future

11  felony sexual offenses and, based on that likelihood, would

12  present a threat to others if released from prison within the

13  foreseeable future.

14         (6)  The jury or the court shall, at a minimum,

15  consider the following factors, and the jury shall be

16  instructed to consider the following factors:

17         (a)  Whether before committing the felony sexual

18  offense, the defendant was unknown to the victim.

19         (b)  Whether the defendant became known to the victim

20  for purposes of committing a felony sexual offense.

21         (c)  Whether the prior record includes any convictions

22  for any felony sexual offense.

23         (d)  Whether the prior record indicates a pattern of

24  escalating criminality.

25         (e)  The length and severity of the offender's prior

26  record.

27         (f)  Whether in the defendant's prior record the

28  defendant committed a felony sexual offense involving a victim

29  who was previously unknown to the defendant.

30         (g)  Whether in the defendant's prior record, the

31  defendant committed a felony sexual offense in which the

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    Florida Senate - 2001                           CS for SB 1666
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  1  defendant became known to the victim for purposes of

  2  committing the offense.

  3         (7)  Neither the state nor the defense is precluded

  4  from providing expert testimony for the jury's consideration.

  5         (8)  The jury, through evaluation of one or more of the

  6  factors listed in this section or in consideration of other

  7  factors presented by the state, may reach a determination that

  8  the defendant is a dangerous sexual felony offender. The jury

  9  determination that a defendant is a dangerous sexual felony

10  offender must be unanimous.

11         Section 11.  Effective upon becoming law, section

12  775.255, Florida Statutes, is created to read:

13         775.255  Sentencing of dangerous sexual felony

14  offenders.--

15         (1)  The court shall sentence the defendant as a

16  dangerous sexual felony offender if the jury or court

17  determines that the defendant is likely to commit one or more

18  future felony sexual offenses and, based on that likelihood,

19  would present a threat to others if released in the

20  foreseeable future. Notwithstanding the provisions of s.

21  775.082, the dangerous sexual felony offender shall be

22  sentenced to a minimum term of imprisonment of not less than

23  25 years and not more than a term of life imprisonment. The

24  court may not sentence the defendant to a term of imprisonment

25  of less than 25 years, notwithstanding any other provision of

26  law. The court shall not impose a sentence under this section

27  if the defendant is convicted of a capital offense defined in

28  chapter 921.

29         (2)  If the jury or the court determines that the

30  defendant is not a dangerous sexual felony offender, the

31  defendant shall be sentenced as otherwise provided by law,

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    Florida Senate - 2001                           CS for SB 1666
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  1  including any mandatory term of imprisonment as otherwise

  2  provided.

  3         (3)  A determination by the court or the jury that a

  4  person is not a dangerous sexual felony offender does not

  5  preclude a future determination that the defendant is a

  6  sexually violent predator as provided in part V of chapter

  7  394.

  8         Section 12.  Effective upon becoming law, section

  9  775.256, Florida Statutes, is created to read:

10         775.256  Release of records.--In order to protect the

11  public, relevant information and records that are otherwise

12  confidential or privileged shall be released to the state

13  attorney or experts testifying for the state for purposes of

14  evaluating a defendant to determine whether the defendant is a

15  dangerous sexual felony offender. Such information does not

16  lose its confidential status due to its release under this

17  section.

18         Section 13.  Except as otherwise expressly provided in

19  this act, this act shall take effect July 1, 2001.

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    Florida Senate - 2001                           CS for SB 1666
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1666

  3

  4  -     Defines "dangerous sexual felony offender" and "felony
          sexual offense."
  5
    -     Requires certain defendants convicted of a felony sexual
  6        offense to be sentenced as dangerous sexual felony
          offenders, subject to a separate hearing to make that
  7        determination.

  8  -     Sets forth procedures and evidence that may be
          considered at this determination hearing as well as
  9        factors relevant to the determination that a defendant
          is a dangerous sexual felony offender.
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    -     Provides that sentencing is subject to direct appeal.
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    -     Provides that a dangerous sexual felony offender shall
12        be sentenced to a minimum term of imprisonment of not
          less than 25 years and not more than a term of
13        imprisonment for life.

14  -     Provides for the release of otherwise confidential
          records to the state attorney and state experts to
15        determine if a defendant is a dangerous sexual felony
          offender.
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