House Bill hb1399

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    Florida House of Representatives - 2002                HB 1399

        By the Council for Healthy Communities and Representatives
    Fasano and Kyle





  1                      A bill to be entitled

  2         An act relating to sentencing; reenacting

  3         sections 2, 7, 8, and 12 of chapter 99-188,

  4         Laws of Florida; amending s. 775.082, F.S.;

  5         redefining the term "prison releasee

  6         reoffender"; revising legislative intent;

  7         creating s. 794.0115, F.S.; defining "repeat

  8         sexual batterer"; providing within the

  9         definition a category of enumerated felony

10         offenses in violation of s. 794.011, F.S.,

11         relating to sexual battery; requiring the court

12         to sentence a defendant as a repeat sexual

13         batterer and impose a 10-year mandatory minimum

14         term of imprisonment under specified

15         circumstances when the defendant is to be

16         sentenced for committing or attempting to

17         commit any of the enumerated felony violations

18         of s. 794.011, F.S., and the defendant has

19         previously been convicted of committing or

20         attempting to commit any one of certain

21         enumerated felony offenses involving sexual

22         battery; providing penalties; providing

23         procedures and criteria for court determination

24         if the defendant is a repeat sexual batterer;

25         providing for sentencing as a repeat sexual

26         batterer; providing for construction; amending

27         s. 794.011, F.S., to conform references to

28         changes made by the act; requiring the Governor

29         to place public service announcements

30         explaining the provisions of this act; further

31         amending s. 775.082, F.S., to incorporate the

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  1         amendments provided in chapter 2001-239, Laws

  2         of Florida, which redefined the term "prison

  3         releasee reoffender" to include a defendant who

  4         commits certain felonies within a specified

  5         period after being released from a correctional

  6         institution outside the state or while escaped

  7         from a correctional institution outside the

  8         state; providing requirements for sentencing a

  9         defendant if the state attorney proves by a

10         preponderance of the evidence that the

11         defendant is a prison releasee reoffender;

12         providing for retroactive application of the

13         reenacted provisions; providing effective

14         dates.

15

16         WHEREAS, in 1999 the Legislature adopted chapter

17  99-188, Laws of Florida, with the primary motivation of

18  reducing crime in this state and to protect the public from

19  violent criminals through the adoption of enhanced and

20  mandatory sentences for violent and repeat offenders, for

21  persons involved in drug-related crimes, committing aggravated

22  battery or aggravated assault on law enforcement personnel or

23  the elderly, and for persons committing criminal acts while in

24  prison or while having escaped from prison, and

25         WHEREAS, a three-judge panel of the District Court of

26  Appeal of Florida, Second District, has issued a nonfinal

27  opinion declaring chapter 99-188, Laws of Florida,

28  unconstitutional as a violation of the requirement in Section

29  6, Article III of the Florida Constitution that "every law

30  shall embrace but one subject and matter properly connected

31  therewith. . .", finding that the addition of two minor

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  1  provisions relating to burglary of railroad vehicles and the

  2  provision of sentencing documents relative to aliens to the

  3  Immigration and Naturalization Service were not matters

  4  properly connected with the subject of the 1999 act, which was

  5  "sentencing," and

  6         WHEREAS, the nonfinal ruling on this matter was issued

  7  while the Legislature was in session, and

  8         WHEREAS, the Attorney General, on behalf of the people

  9  of the State of Florida, has indicated a determination to seek

10  rehearing, en banc, of this matter, and

11         WHEREAS, a final opinion by the District Court of

12  Appeal of Florida, Second District, declaring chapter 99-188,

13  Laws of Florida, to have been in violation of Section 6,

14  Article III of the Florida Constitution would be subject to

15  appeal by the state to the Florida Supreme Court, and

16         WHEREAS, in its nonfinal ruling, the panel of the

17  District Court of Appeal of Florida, Second District, has

18  certified its decision as passing on two questions of great

19  public importance with respect to chapter 99-188, Laws of

20  Florida, further invoking the jurisdiction of the Florida

21  Supreme Court, and

22         WHEREAS, the final resolution as to the

23  constitutionality of chapter 99-188, Laws of Florida, remains

24  uncertain, and is unlikely to be finally determined by the

25  judicial system, while the 2002 legislative session is in

26  progress, and

27         WHEREAS, the legislative action to correct the effect

28  of this ruling forthwith is essential to public safety and

29  cannot await a final resolution by the District Court of

30  Appeal and the Florida Supreme Court, and

31

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  1         WHEREAS, the Legislature, only out of an abundance of

  2  caution due to tentative posture of the law while it awaits

  3  final resolution by the District Court of Appeal and the

  4  Florida Supreme Court, has prepared five separate bills to

  5  reenact selected provisions of chapter 99-188, Laws of

  6  Florida, all of which relate to the single general issue of

  7  sentencing in criminal cases, and

  8         WHEREAS, the Legislature does not intend the division

  9  of these bills relating to sentencing as any kind of

10  legislative acknowledgement that said bills could not or

11  should not be joined together in a single bill in full

12  compliance with Section 6, Article III of the Florida

13  Constitution, NOW THEREFORE,

14

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

16

17         Section 1.  Sections 2, 7, 8, and 12 of chapter 99-188,

18  Laws of Florida, are reenacted to read:

19         Section 2.  Paragraphs (a) and (d) of subsection (9) of

20  section 775.082, Florida Statutes, 1998 Supplement, are

21  amended to read.

22         775.082  Penalties; applicability of sentencing

23  structures; mandatory minimum sentences for certain

24  reoffenders previously released from prison.--

25         (9)(a)1.  "Prison releasee reoffender" means any

26  defendant who commits, or attempts to commit:

27         a.  Treason;

28         b.  Murder;

29         c.  Manslaughter;

30         d.  Sexual battery;

31         e.  Carjacking;

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  1         f.  Home-invasion robbery;

  2         g.  Robbery;

  3         h.  Arson;

  4         i.  Kidnapping;

  5         j.  Aggravated assault with a deadly weapon;

  6         k.  Aggravated battery;

  7         l.  Aggravated stalking;

  8         m.  Aircraft piracy;

  9         n.  Unlawful throwing, placing, or discharging of a

10  destructive device or bomb;

11         o.  Any felony that involves the use or threat of

12  physical force or violence against an individual;

13         p.  Armed burglary;

14         q.  Burglary of an occupied structure or dwelling; or

15         r.  Any felony violation of s. 790.07, s. 800.04, s.

16  827.03, or s. 827.071;

17

18  within 3 years of being released from a state correctional

19  facility operated by the Department of Corrections or a

20  private vendor.

21         2.  "Prison releasee reoffender" also means any

22  defendant who commits or attempts to commit any offense listed

23  in subparagraph (a)1.a.-r. while the defendant was serving a

24  prison sentence or on escape status from a state correctional

25  facility operated by the Department of Corrections or a

26  private vendor.

27         3.2.  If the state attorney determines that a defendant

28  is a prison releasee reoffender as defined in subparagraph 1.,

29  the state attorney may seek to have the court sentence the

30  defendant as a prison releasee reoffender. Upon proof from the

31  state attorney that establishes by a preponderance of the

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  1  evidence that a defendant is a prison releasee reoffender as

  2  defined in this section, such defendant is not eligible for

  3  sentencing under the sentencing guidelines and must be

  4  sentenced as follows:

  5         a.  For a felony punishable by life, by a term of

  6  imprisonment for life;

  7         b.  For a felony of the first degree, by a term of

  8  imprisonment of 30 years;

  9         c.  For a felony of the second degree, by a term of

10  imprisonment of 15 years; and

11         d.  For a felony of the third degree, by a term of

12  imprisonment of 5 years.

13         (d)1.  It is the intent of the Legislature that

14  offenders previously released from prison who meet the

15  criteria in paragraph (a) be punished to the fullest extent of

16  the law and as provided in this subsection, unless the state

17  attorney determines that any of the following circumstances

18  exist:

19         a.  The prosecuting attorney does not have sufficient

20  evidence to prove the highest charge available;

21         b.  The testimony of a material witness cannot be

22  obtained;

23         c.  The victim does not want the offender to receive

24  the mandatory prison sentence and provides a written statement

25  to that effect; or

26         d.  other extenuating circumstances exist which

27  preclude the just prosecution of the offender, including

28  whether the victim recommends that the offender not be

29  sentenced as provided in this subsection.

30         2.  For every case in which the offender meets the

31  criteria in paragraph (a) and does not receive the mandatory

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  1  minimum prison sentence, the state attorney must explain the

  2  sentencing deviation in writing and place such explanation in

  3  the case file maintained by the state attorney. On a quarterly

  4  basis, each state attorney shall submit copies of deviation

  5  memoranda regarding offenses committed on or after the

  6  effective date of this subsection, to the president of the

  7  Florida Prosecuting Attorneys Association, Inc.  The

  8  association must maintain such information, and make such

  9  information available to the public upon request, for at least

10  a 10-year period.

11         Section 7.  Section 794.0115, Florida Statutes, is

12  created to read:

13         794.0115  Repeat sexual batterers; definition;

14  procedure; enhanced penalties.--

15         (1)  As used in this act, "repeat sexual batterer"

16  means a defendant for whom the court must impose a mandatory

17  minimum term of imprisonment, as provided in subsection (3),

18  if it finds that:

19         (a)  The defendant has previously been convicted of a

20  felony or an attempt or conspiracy to commit a felony and one

21  or more of such convictions was for:

22         1.  Any felony offense in violation of s.

23  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

24  to commit the felony offense.

25         2.  A qualified offense as defined in s. 775.084(1)(e),

26  if the elements of the qualified offense are substantially

27  similar to the elements of a felony offense in violation of s.

28  794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy

29  to commit the felony offense.

30

31

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  1         (b)  The felony for which the defendant is to be

  2  sentenced is one of the felonies enumerated in subparagraph

  3  (a)1. or 2. and was committed:

  4         1.  While the defendant was serving a prison sentence

  5  or other sentence imposed as a result of a prior conviction

  6  for any offense enumerated in subparagraph (a)1. or 2.; or

  7         2.  Within 10 years after the date of the conviction of

  8  the last prior offense enumerated in subparagraph (a)1. or 2.,

  9  or within 10 years after the defendant's release from a prison

10  sentence, probation, community control, or other sentence

11  imposed as a result of a prior conviction for any offense

12  enumerated in subparagraph (a)1. or 2., whichever is later.

13         (c)  The defendant has not received a pardon on the

14  ground of innocence for any crime that is necessary for the

15  operation of this subsection.

16         (d)  A conviction of a crime necessary to the operation

17  of this subsection has not been set aside in any

18  postconviction proceeding.

19         (2)  In a separate proceeding, the court shall

20  determine if the defendant is a repeat sexual batterer. The

21  procedure shall be as follows:

22         (a)  The court shall obtain and consider a presentence

23  investigation prior to the imposition of a sentence as a

24  repeat sexual batterer.

25         (b)  Written notice shall be served on the defendant

26  and the defendant's attorney a sufficient time prior to the

27  entry of a plea or prior to the imposition of sentence in

28  order to allow the preparation of a submission on behalf of

29  the defendant.

30         (c)  Except as provided in paragraph (a), all evidence

31  presented shall be presented in open court with full rights of

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  1  confrontation, cross-examination, and representation by

  2  counsel.

  3         (d)  Each of the findings required as the basis for

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

  5  the evidence and shall be appealable to the extent normally

  6  applicable to similar findings.

  7         (e)  For the purpose of identification of a repeat

  8  sexual batterer, the court shall fingerprint the defendant

  9  pursuant to s. 921.241.

10         (f)  For an offense committed on or after the effective

11  date of this act, if the state attorney pursues a repeat

12  sexual batterer sanction against the defendant and the court,

13  in a separate proceeding pursuant to this subsection,

14  determines that the defendant meets the criteria under

15  subsection (1) for imposing such sanction, the court must

16  sentence the defendant as a repeat sexual batterer, subject to

17  imprisonment pursuant to this section as provided in

18  subsection (3).

19         (3)(a)  The court, in conformity with the procedure

20  established in subsection (2), must sentence the repeat sexual

21  batterer to a mandatory minimum term of 10 years'

22  imprisonment.

23         (b)  Nothing in this subsection shall prevent a court

24  from imposing a greater sentence of incarceration as

25  authorized by law.

26         Section 8.  Section 794.011, Florida Statutes, is

27  amended to read:

28         794.011  Sexual battery.--

29         (1)  As used in this chapter:

30         (a)  "Consent" means intelligent, knowing, and

31  voluntary consent and does not include coerced submission.

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  1  "Consent" shall not be deemed or construed to mean the failure

  2  by the alleged victim to offer physical resistance to the

  3  offender.

  4         (b)  "Mentally defective" means a mental disease or

  5  defect which renders a person temporarily or permanently

  6  incapable of appraising the nature of his or her conduct.

  7         (c)  "Mentally incapacitated" means temporarily

  8  incapable of appraising or controlling a person's own conduct

  9  due to the influence of a narcotic, anesthetic, or

10  intoxicating substance administered without his or her consent

11  or due to any other act committed upon that person without his

12  or her consent.

13         (d)  "Offender" means a person accused of a sexual

14  offense in violation of a provision of this chapter.

15         (e)  "Physically helpless" means unconscious, asleep,

16  or for any other reason physically unable to communicate

17  unwillingness to an act.

18         (f)  "Retaliation" includes, but is not limited to,

19  threats of future physical punishment, kidnapping, false

20  imprisonment or forcible confinement, or extortion.

21         (g)  "Serious personal injury" means great bodily harm

22  or pain, permanent disability, or permanent disfigurement.

23         (h)  "Sexual battery" means oral, anal, or vaginal

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

25  the anal or vaginal penetration of another by any other

26  object; however, sexual battery does not include an act done

27  for a bona fide medical purpose.

28         (i)  "Victim" means a person who has been the object of

29  a sexual offense.

30

31

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  1         (j)  "Physically incapacitated" means bodily impaired

  2  or handicapped and substantially limited in ability to resist

  3  or flee.

  4         (2)(a)  A person 18 years of age or older who commits

  5  sexual battery upon, or in an attempt to commit sexual battery

  6  injures the sexual organs of, a person less than 12 years of

  7  age commits a capital felony, punishable as provided in ss.

  8  775.082 and 921.141.

  9         (b)  A person less than 18 years of age who commits

10  sexual battery upon, or in an attempt to commit sexual battery

11  injures the sexual organs of, a person less than 12 years of

12  age commits a life felony, punishable as provided in s.

13  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

14         (3)  A person who commits sexual battery upon a person

15  12 years of age or older, without that person's consent, and

16  in the process thereof uses or threatens to use a deadly

17  weapon or uses actual physical force likely to cause serious

18  personal injury commits a life felony, punishable as provided

19  in s. 775.082, s. 775.083, or s. 775.084, or s. 794.0115.

20         (4)  A person who commits sexual battery upon a person

21  12 years of age or older without that person's consent, under

22  any of the following circumstances, commits a felony of the

23  first degree, punishable as provided in s. 775.082, s.

24  775.083, or s. 775.084, or s. 794.0115:

25         (a)  When the victim is physically helpless to resist.

26         (b)  When the offender coerces the victim to submit by

27  threatening to use force or violence likely to cause serious

28  personal injury on the victim, and the victim reasonably

29  believes that the offender has the present ability to execute

30  the threat.

31

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  1         (c)  When the offender coerces the victim to submit by

  2  threatening to retaliate against the victim, or any other

  3  person, and the victim reasonably believes that the offender

  4  has the ability to execute the threat in the future.

  5         (d)  When the offender, without the prior knowledge or

  6  consent of the victim, administers or has knowledge of someone

  7  else administering to the victim any narcotic, anesthetic, or

  8  other intoxicating substance which mentally or physically

  9  incapacitates the victim.

10         (e)  When the victim is mentally defective and the

11  offender has reason to believe this or has actual knowledge of

12  this fact.

13         (f)  When the victim is physically incapacitated.

14         (g)  When the offender is a law enforcement officer,

15  correctional officer, or correctional probation officer as

16  defined by s. 943.10(1), (2), (3), (6), (7), (8), or (9), who

17  is certified under the provisions of s. 943.1395 or is an

18  elected official exempt from such certification by virtue of

19  s. 943.253, or any other person in a position of control or

20  authority in a probation, community control, controlled

21  release, detention, custodial, or similar setting, and such

22  officer, official, or person is acting in such a manner as to

23  lead the victim to reasonably believe that the offender is in

24  a position of control or authority as an agent or employee of

25  government.

26         (5)  A person who commits sexual battery upon a person

27  12 years of age or older, without that person's consent, and

28  in the process thereof does not use physical force and

29  violence likely to cause serious personal injury commits a

30  felony of the second degree, punishable as provided in s.

31  775.082, s. 775.083, or s. 775.084, or s. 794.0115.

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  1         (6)  The offense described in subsection (5) is

  2  included in any sexual battery offense charged under

  3  subsection (3) or subsection (4).

  4         (7)  A person who is convicted of committing a sexual

  5  battery on or after October 1, 1992, is not eligible for basic

  6  gain-time under s. 944.275. This subsection may be cited as

  7  the "Junny Rios-Martinez, Jr. Act of 1992."

  8         (8)  Without regard to the willingness or consent of

  9  the victim, which is not a defense to prosecution under this

10  subsection, a person who is in a position of familial or

11  custodial authority to a person less than 18 years of age and

12  who:

13         (a)  Solicits that person to engage in any act which

14  would constitute sexual battery under paragraph (1)(h) commits

15  a felony of the third degree, punishable as provided in s.

16  775.082, s. 775.083, or s. 775.084.

17         (b)  Engages in any act with that person while the

18  person is 12 years of age or older but less than 18 years of

19  age which constitutes sexual battery under paragraph (1)(h)

20  commits a felony of the first degree, punishable as provided

21  in s. 775.082, s. 775.083, or s. 775.084.

22         (c)  Engages in any act with that person while the

23  person is less than 12 years of age which constitutes sexual

24  battery under paragraph (1)(h), or in an attempt to commit

25  sexual battery injures the sexual organs of such person

26  commits a capital or life felony, punishable pursuant to

27  subsection (2).

28         (9)  For prosecution under paragraph (4)(g),

29  acquiescence to a person reasonably believed by the victim to

30  be in a position of authority or control does not constitute

31  consent, and it is not a defense that the perpetrator was not

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  1  actually in a position of control or authority if the

  2  circumstances were such as to lead the victim to reasonably

  3  believe that the person was in such a position.

  4         (10)  Any person who falsely accuses any person listed

  5  in paragraph (4)(g) or other person in a position of control

  6  or authority as an agent or employee of government of

  7  violating paragraph (4)(g) is guilty of a felony of the third

  8  degree, punishable as provided in s. 775.082, s. 775.083, or

  9  s. 775.084.

10         Section 12.  In order to inform the public and to deter

11  and prevent crime in the state, the Executive Office of the

12  Governor shall place public service announcements in visible

13  local media throughout the state explaining the penalties

14  provided in this act.

15         Section 2.  Effective July 1, 2001, paragraph (a) of

16  subsection (9) of section 775.082, Florida Statutes, as

17  amended by section 2 of chapter 99-188, Laws of Florida, and

18  as reenacted by section 1 of this act, is further amended to

19  read:

20         775.082  Penalties; applicability of sentencing

21  structures; mandatory minimum sentences for certain

22  reoffenders previously released from prison.--

23         (9)(a)1.  "Prison releasee reoffender" means any

24  defendant who commits, or attempts to commit:

25         a.  Treason;

26         b.  Murder;

27         c.  Manslaughter;

28         d.  Sexual battery;

29         e.  Carjacking;

30         f.  Home-invasion robbery;

31         g.  Robbery;

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  1         h.  Arson;

  2         i.  Kidnapping;

  3         j.  Aggravated assault with a deadly weapon;

  4         k.  Aggravated battery;

  5         l.  Aggravated stalking;

  6         m.  Aircraft piracy;

  7         n.  Unlawful throwing, placing, or discharging of a

  8  destructive device or bomb;

  9         o.  Any felony that involves the use or threat of

10  physical force or violence against an individual;

11         p.  Armed burglary;

12         q.  Burglary of a dwelling or burglary of an occupied

13  structure or dwelling; or

14         r.  Any felony violation of s. 790.07, s. 800.04, s.

15  827.03, or s. 827.071;

16

17  within 3 years after of being released from a state

18  correctional facility operated by the Department of

19  Corrections or a private vendor or within 3 years after being

20  released from a correctional institution of another state, the

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

22  territory of the United States, or any foreign jurisdiction,

23  following incarceration for an offense for which the sentence

24  is punishable by more than 1 year in this state.

25         2.  "Prison releasee reoffender" also means any

26  defendant who commits or attempts to commit any offense listed

27  in subparagraph (a)1.a.-r. while the defendant was serving a

28  prison sentence or on escape status from a state correctional

29  facility operated by the Department of Corrections or a

30  private vendor or while the defendant was on escape status

31  from a correctional institution of another state, the District

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  1  of Columbia, the United States, any possession or territory of

  2  the United States, or any foreign jurisdiction, following

  3  incarceration for an offense for which the sentence is

  4  punishable by more than 1 year in this state.

  5         3.  If the state attorney determines that a defendant

  6  is a prison releasee reoffender as defined in subparagraph 1.,

  7  the state attorney may seek to have the court sentence the

  8  defendant as a prison releasee reoffender. Upon proof from the

  9  state attorney that establishes by a preponderance of the

10  evidence that a defendant is a prison releasee reoffender as

11  defined in this section, such defendant is not eligible for

12  sentencing under the sentencing guidelines and must be

13  sentenced as follows:

14         a.  For a felony punishable by life, by a term of

15  imprisonment for life;

16         b.  For a felony of the first degree, by a term of

17  imprisonment of 30 years;

18         c.  For a felony of the second degree, by a term of

19  imprisonment of 15 years; and

20         d.  For a felony of the third degree, by a term of

21  imprisonment of 5 years.

22         Section 3.  Except as otherwise specifically provided

23  in this act, the provisions reenacted by this act shall be

24  applied retroactively to July 1, 1999, or as soon thereafter

25  as the Constitution of the State of Florida and the

26  Constitution of the United States may permit.

27         Section 4.  Except as otherwise provided herein, this

28  act shall take effect upon becoming a law.

29

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Reenacts provisions of chapter 99-188, Laws of Florida,
  4    relating to the sentencing of certain repeat offenders,
      which provide a minimum mandatory sentence for repeat
  5    sexual offenders and for persons committing crimes while
      in prison or while having escaped from prison. See bill
  6    for details.

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