Senate Bill sb0934c1

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    Florida Senate - 2002                            CS for SB 934

    By the Committee on Criminal Justice; and Senator Wasserman
    Schultz




    307-1946A-02

  1                      A bill to be entitled

  2         An act relating to sexual offenses; amending s.

  3         794.011, F.S.; authorizing the use of certain

  4         expert witnesses when mental defect or mental

  5         incapacity of the victim is at issue; amending

  6         s. 825.1025, F.S.; providing for the crime of

  7         lewd or lascivious offenses committed upon or

  8         in the presence of an elderly person or

  9         disabled person; providing penalties; amending

10         s. 921.0022, F.S., relating to the offense

11         severity ranking chart of the criminal

12         punishment code; revising punishment for lewd

13         or lascivious battery upon an elderly person or

14         disabled adult; providing an effective date.

15

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

17

18         Section 1.  Subsection (11) is added to section

19  794.011, Florida Statutes, to read:

20         794.011  Sexual battery.--

21         (11)  When mental defect or mental incapacity of the

22  victim is at issue, an expert witness who is licensed pursuant

23  to chapter 490, chapter 458, or chapter 459 may be utilized.

24         Section 2.  Section 825.1025, Florida Statutes, is

25  amended to read:

26         825.1025  Lewd or lascivious offenses committed upon or

27  in the presence of an elderly person or disabled person

28  adult.--

29         (1)  As used in this section, "sexual activity" means

30  the oral, anal, or vaginal penetration by, or union with, the

31  sexual organ of another or the anal or vaginal penetration of

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    Florida Senate - 2002                            CS for SB 934
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  1  another by any other object; however, sexual activity does not

  2  include an act done for a bona fide medical purpose.

  3         (2)(a)  "Lewd or lascivious battery upon an elderly

  4  person or disabled person adult" occurs when a person

  5  encourages, forces, or entices an elderly person or disabled

  6  person adult to engage in sadomasochistic abuse, sexual

  7  bestiality, prostitution, or any other act involving sexual

  8  activity, when the person knows or reasonably should know that

  9  the elderly person or disabled person adult either lacks the

10  capacity to consent or fails to give consent.

11         (b)  A person who commits lewd or lascivious battery

12  upon an elderly person or disabled person adult commits a

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

14  775.082, s. 775.083, or s. 775.084.

15         (3)(a)  "Lewd or lascivious molestation of an elderly

16  person or disabled person adult" occurs when a person

17  intentionally touches in a lewd or lascivious manner the

18  breasts, genitals, genital area, or buttocks, or the clothing

19  covering them, of an elderly person or disabled person adult

20  when the person knows or reasonably should know that the

21  elderly person or disabled person adult either lacks the

22  capacity to consent or fails to give consent.

23         (b)  A person who commits lewd or lascivious

24  molestation of an elderly person or disabled person adult

25  commits a felony of the third degree, punishable as provided

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

27         (4)(a)  "Lewd or lascivious exhibition in the presence

28  of an elderly person or disabled person adult" occurs when a

29  person, in the presence of an elderly person or disabled

30  person adult:

31         1.  Intentionally masturbates;

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    Florida Senate - 2002                            CS for SB 934
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  1         2.  Intentionally exposes his or her genitals in a lewd

  2  or lascivious manner; or

  3         3.  Intentionally commits any other lewd or lascivious

  4  act that does not involve actual physical or sexual contact

  5  with the elderly person or disabled person adult, including

  6  but not limited to, sadomasochistic abuse, sexual bestiality,

  7  or the simulation of any act involving sexual activity,

  8

  9  when the person knows or reasonably should know that the

10  elderly person or disabled person adult either lacks the

11  capacity to consent or fails to give consent to having such

12  act committed in his or her presence.

13         (b)  A person who commits a lewd or lascivious

14  exhibition in the presence of an elderly person or disabled

15  person adult commits a felony of the third degree, punishable

16  as provided in s. 775.082, s. 775.083, or s. 775.084.

17         Section 3.  Paragraphs (g) and (h) of subsection (3) of

18  section 921.0022, Florida Statutes, as amended by section 2 of

19  chapter 2001-358, Laws of Florida, are amended to read:

20         921.0022  Criminal Punishment Code; offense severity

21  ranking chart.--

22         (3)  OFFENSE SEVERITY RANKING CHART

23

24  Florida           Felony

25  Statute           Degree             Description

26

27

28                              (g)  LEVEL 7

29  316.193(3)(c)2.    3rd      DUI resulting in serious bodily

30                              injury.

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    Florida Senate - 2002                            CS for SB 934
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  1  327.35(3)(c)2.     3rd      Vessel BUI resulting in serious

  2                              bodily injury.

  3  402.319(2)         2nd      Misrepresentation and negligence

  4                              or intentional act resulting in

  5                              great bodily harm, permanent

  6                              disfiguration, permanent

  7                              disability, or death.

  8  409.920(2)         3rd      Medicaid provider fraud.

  9  456.065(2)         3rd      Practicing a health care

10                              profession without a license.

11  456.065(2)         2nd      Practicing a health care

12                              profession without a license

13                              which results in serious bodily

14                              injury.

15  458.327(1)         3rd      Practicing medicine without a

16                              license.

17  459.013(1)         3rd      Practicing osteopathic medicine

18                              without a license.

19  460.411(1)         3rd      Practicing chiropractic medicine

20                              without a license.

21  461.012(1)         3rd      Practicing podiatric medicine

22                              without a license.

23  462.17             3rd      Practicing naturopathy without a

24                              license.

25  463.015(1)         3rd      Practicing optometry without a

26                              license.

27  464.016(1)         3rd      Practicing nursing without a

28                              license.

29  465.015(2)         3rd      Practicing pharmacy without a

30                              license.

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    Florida Senate - 2002                            CS for SB 934
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  1  466.026(1)         3rd      Practicing dentistry or dental

  2                              hygiene without a license.

  3  467.201            3rd      Practicing midwifery without a

  4                              license.

  5  468.366            3rd      Delivering respiratory care

  6                              services without a license.

  7  483.828(1)         3rd      Practicing as clinical laboratory

  8                              personnel without a license.

  9  483.901(9)         3rd      Practicing medical physics

10                              without a license.

11  484.013(1)(c)      3rd      Preparing or dispensing optical

12                              devices without a prescription.

13  484.053            3rd      Dispensing hearing aids without a

14                              license.

15  494.0018(2)        1st      Conviction of any violation of

16                              ss. 494.001-494.0077 in which the

17                              total money and property

18                              unlawfully obtained exceeded

19                              $50,000 and there were five or

20                              more victims.

21  560.123(8)(b)1.    3rd      Failure to report currency or

22                              payment instruments exceeding

23                              $300 but less than $20,000 by

24                              money transmitter.

25  560.125(5)(a)      3rd      Money transmitter business by

26                              unauthorized person, currency or

27                              payment instruments exceeding

28                              $300 but less than $20,000.

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    Florida Senate - 2002                            CS for SB 934
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  1  655.50(10)(b)1.    3rd      Failure to report financial

  2                              transactions exceeding $300 but

  3                              less than $20,000 by financial

  4                              institution.

  5  782.051(3)         2nd      Attempted felony murder of a

  6                              person by a person other than the

  7                              perpetrator or the perpetrator of

  8                              an attempted felony.

  9  782.07(1)          2nd      Killing of a human being by the

10                              act, procurement, or culpable

11                              negligence of another

12                              (manslaughter).

13  782.071            2nd      Killing of human being or viable

14                              fetus by the operation of a motor

15                              vehicle in a reckless manner

16                              (vehicular homicide).

17  782.072            2nd      Killing of a human being by the

18                              operation of a vessel in a

19                              reckless manner (vessel

20                              homicide).

21  784.045(1)(a)1.    2nd      Aggravated battery; intentionally

22                              causing great bodily harm or

23                              disfigurement.

24  784.045(1)(a)2.    2nd      Aggravated battery; using deadly

25                              weapon.

26  784.045(1)(b)      2nd      Aggravated battery; perpetrator

27                              aware victim pregnant.

28  784.048(4)         3rd      Aggravated stalking; violation of

29                              injunction or court order.

30  784.07(2)(d)       1st      Aggravated battery on law

31                              enforcement officer.

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    Florida Senate - 2002                            CS for SB 934
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  1  784.074(1)(a)      1st      Aggravated battery on sexually

  2                              violent predators facility staff.

  3  784.08(2)(a)       1st      Aggravated battery on a person 65

  4                              years of age or older.

  5  784.081(1)         1st      Aggravated battery on specified

  6                              official or employee.

  7  784.082(1)         1st      Aggravated battery by detained

  8                              person on visitor or other

  9                              detainee.

10  784.083(1)         1st      Aggravated battery on code

11                              inspector.

12  790.07(4)          1st      Specified weapons violation

13                              subsequent to previous conviction

14                              of s. 790.07(1) or (2).

15  790.16(1)          1st      Discharge of a machine gun under

16                              specified circumstances.

17  790.166(3)         2nd      Possessing, selling, using, or

18                              attempting to use a hoax weapon

19                              of mass destruction.

20  796.03             2nd      Procuring any person under 16

21                              years for prostitution.

22  800.04(5)(c)1.     2nd      Lewd or lascivious molestation;

23                              victim less than 12 years of age;

24                              offender less than 18 years.

25  800.04(5)(c)2.     2nd      Lewd or lascivious molestation;

26                              victim 12 years of age or older

27                              but less than 16 years; offender

28                              18 years or older.

29  806.01(2)          2nd      Maliciously damage structure by

30                              fire or explosive.

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    Florida Senate - 2002                            CS for SB 934
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  1  810.02(3)(a)       2nd      Burglary of occupied dwelling;

  2                              unarmed; no assault or battery.

  3  810.02(3)(b)       2nd      Burglary of unoccupied dwelling;

  4                              unarmed; no assault or battery.

  5  810.02(3)(d)       2nd      Burglary of occupied conveyance;

  6                              unarmed; no assault or battery.

  7  812.014(2)(a)      1st      Property stolen, valued at

  8                              $100,000 or more; cargo stolen

  9                              valued at $50,000, or more;

10                              property stolen while causing

11                              other property damage; 1st degree

12                              grand theft.

13  812.014(2)(b)2.    2nd      Property stolen, emergency

14                              medical equipment; 2nd degree

15                              grand theft.

16  812.019(2)         1st      Stolen property; initiates,

17                              organizes, plans, etc., the theft

18                              of property and traffics in

19                              stolen property.

20  812.131(2)(a)      2nd      Robbery by sudden snatching.

21  812.133(2)(b)      1st      Carjacking; no firearm, deadly

22                              weapon, or other weapon.

23  817.234(11)(c)     1st      Insurance fraud; property value

24                              $100,000 or more.

25  825.102(3)(b)      2nd      Neglecting an elderly person or

26                              disabled adult causing great

27                              bodily harm, disability, or

28                              disfigurement.

29  825.1025(2)        2nd      Lewd or lascivious battery upon

30                              an elderly person or disabled

31                              adult.

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    Florida Senate - 2002                            CS for SB 934
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  1  825.103(2)(b)      2nd      Exploiting an elderly person or

  2                              disabled adult and property is

  3                              valued at $20,000 or more, but

  4                              less than $100,000.

  5  827.03(3)(b)       2nd      Neglect of a child causing great

  6                              bodily harm, disability, or

  7                              disfigurement.

  8  827.04(3)          3rd      Impregnation of a child under 16

  9                              years of age by person 21 years

10                              of age or older.

11  837.05(2)          3rd      Giving false information about

12                              alleged capital felony to a law

13                              enforcement officer.

14  872.06             2nd      Abuse of a dead human body.

15  893.13(1)(c)1.     1st      Sell, manufacture, or deliver

16                              cocaine (or other drug prohibited

17                              under s. 893.03(1)(a), (1)(b),

18                              (1)(d), (2)(a), (2)(b), or

19                              (2)(c)4.) within 1,000 feet of a

20                              child care facility or school.

21  893.13(1)(e)1.     1st      Sell, manufacture, or deliver

22                              cocaine or other drug prohibited

23                              under s. 893.03(1)(a), (1)(b),

24                              (1)(d), (2)(a), (2)(b), or

25                              (2)(c)4., within 1,000 feet of

26                              property used for religious

27                              services or a specified business

28                              site.

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  1  893.13(4)(a)       1st      Deliver to minor cocaine (or

  2                              other s. 893.03(1)(a), (1)(b),

  3                              (1)(d), (2)(a), (2)(b), or

  4                              (2)(c)4. drugs).

  5  893.135(1)(a)1.    1st      Trafficking in cannabis, more

  6                              than 25 lbs., less than 2,000

  7                              lbs.

  8  893.135

  9   (1)(b)1.a.        1st      Trafficking in cocaine, more than

10                              28 grams, less than 200 grams.

11  893.135

12   (1)(c)1.a.        1st      Trafficking in illegal drugs,

13                              more than 4 grams, less than 14

14                              grams.

15  893.135

16   (1)(d)1.          1st      Trafficking in phencyclidine,

17                              more than 28 grams, less than 200

18                              grams.

19  893.135(1)(e)1.    1st      Trafficking in methaqualone, more

20                              than 200 grams, less than 5

21                              kilograms.

22  893.135(1)(f)1.    1st      Trafficking in amphetamine, more

23                              than 14 grams, less than 28

24                              grams.

25  893.135

26   (1)(g)1.a.        1st      Trafficking in flunitrazepam, 4

27                              grams or more, less than 14

28                              grams.

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  1  893.135

  2   (1)(h)1.a.        1st      Trafficking in

  3                              gamma-hydroxybutyric acid (GHB),

  4                              1 kilogram or more, less than 5

  5                              kilograms.

  6  893.135

  7   (1)(i)1.a.        1st      Trafficking in 1,4-Butanediol, 1

  8                              kilogram or more, less than 5

  9                              kilograms.

10  893.135

11   (1)(j)2.a.        1st      Trafficking in Phenethylamines,

12                              10 grams or more, less than 200

13                              grams.

14  896.101(5)(a)      3rd      Money laundering, financial

15                              transactions exceeding $300 but

16                              less than $20,000.

17  896.104(4)(a)1.    3rd      Structuring transactions to evade

18                              reporting or registration

19                              requirements, financial

20                              transactions exceeding $300 but

21                              less than $20,000.

22                              (h)  LEVEL 8

23  316.193

24   (3)(c)3.a.        2nd      DUI manslaughter.

25  327.35(3)(c)3.     2nd      Vessel BUI manslaughter.

26  560.123(8)(b)2.    2nd      Failure to report currency or

27                              payment instruments totaling or

28                              exceeding $20,000, but less than

29                              $100,000 by money transmitter.

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  1  560.125(5)(b)      2nd      Money transmitter business by

  2                              unauthorized person, currency or

  3                              payment instruments totaling or

  4                              exceeding $20,000, but less than

  5                              $100,000.

  6  655.50(10)(b)2.    2nd      Failure to report financial

  7                              transactions totaling or

  8                              exceeding $20,000, but less than

  9                              $100,000 by financial

10                              institutions.

11  777.03(2)(a)       1st      Accessory after the fact, capital

12                              felony.

13  782.04(4)          2nd      Killing of human without design

14                              when engaged in act or attempt of

15                              any felony other than arson,

16                              sexual battery, robbery,

17                              burglary, kidnapping, aircraft

18                              piracy, or unlawfully discharging

19                              bomb.

20  782.051(2)         1st      Attempted felony murder while

21                              perpetrating or attempting to

22                              perpetrate a felony not

23                              enumerated in s. 782.04(3).

24  782.071(1)(b)      1st      Committing vehicular homicide and

25                              failing to render aid or give

26                              information.

27  782.072(2)         1st      Committing vessel homicide and

28                              failing to render aid or give

29                              information.

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  1  790.161(3)         1st      Discharging a destructive device

  2                              which results in bodily harm or

  3                              property damage.

  4  794.011(5)         2nd      Sexual battery, victim 12 years

  5                              or over, offender does not use

  6                              physical force likely to cause

  7                              serious injury.

  8  800.04(4)          2nd      Lewd or lascivious battery.

  9  806.01(1)          1st      Maliciously damage dwelling or

10                              structure by fire or explosive,

11                              believing person in structure.

12  810.02(2)(a)       1st,PBL  Burglary with assault or battery.

13  810.02(2)(b)       1st,PBL  Burglary; armed with explosives

14                              or dangerous weapon.

15  810.02(2)(c)       1st      Burglary of a dwelling or

16                              structure causing structural

17                              damage or $1,000 or more property

18                              damage.

19  812.13(2)(b)       1st      Robbery with a weapon.

20  812.135(2)         1st      Home-invasion robbery.

21  825.102(2)         2nd      Aggravated abuse of an elderly

22                              person or disabled adult.

23  825.1025(2)        2nd      Lewd or lascivious battery upon

24                              an elderly person or disabled

25                              adult.

26  825.103(2)(a)      1st      Exploiting an elderly person or

27                              disabled adult and property is

28                              valued at $100,000 or more.

29  837.02(2)          2nd      Perjury in official proceedings

30                              relating to prosecution of a

31                              capital felony.

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  1  837.021(2)         2nd      Making contradictory statements

  2                              in official proceedings relating

  3                              to prosecution of a capital

  4                              felony.

  5  860.121(2)(c)      1st      Shooting at or throwing any

  6                              object in path of railroad

  7                              vehicle resulting in great bodily

  8                              harm.

  9  860.16             1st      Aircraft piracy.

10  893.13(1)(b)       1st      Sell or deliver in excess of 10

11                              grams of any substance specified

12                              in s. 893.03(1)(a) or (b).

13  893.13(2)(b)       1st      Purchase in excess of 10 grams of

14                              any substance specified in s.

15                              893.03(1)(a) or (b).

16  893.13(6)(c)       1st      Possess in excess of 10 grams of

17                              any substance specified in s.

18                              893.03(1)(a) or (b).

19  893.135(1)(a)2.    1st      Trafficking in cannabis, more

20                              than 2,000 lbs., less than 10,000

21                              lbs.

22  893.135

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

24                              200 grams, less than 400 grams.

25  893.135

26   (1)(c)1.b.        1st      Trafficking in illegal drugs,

27                              more than 14 grams, less than 28

28                              grams.

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  1  893.135

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

  3                              more than 200 grams, less than

  4                              400 grams.

  5  893.135

  6   (1)(e)1.b.        1st      Trafficking in methaqualone, more

  7                              than 5 kilograms, less than 25

  8                              kilograms.

  9  893.135

10   (1)(f)1.b.        1st      Trafficking in amphetamine, more

11                              than 28 grams, less than 200

12                              grams.

13  893.135

14   (1)(g)1.b.        1st      Trafficking in flunitrazepam, 14

15                              grams or more, less than 28

16                              grams.

17  893.135

18   (1)(h)1.b.        1st      Trafficking in

19                              gamma-hydroxybutyric acid (GHB),

20                              5 kilograms or more, less than 10

21                              kilograms.

22  893.135

23   (1)(i)1.b.        1st      Trafficking in 1,4-Butanediol, 5

24                              kilograms or more, less than 10

25                              kilograms.

26  893.135

27   (1)(j)2.b.        1st      Trafficking in Phenethylamines,

28                              200 grams or more, less than 400

29                              grams.

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  1  895.03(1)          1st      Use or invest proceeds derived

  2                              from pattern of racketeering

  3                              activity.

  4  895.03(2)          1st      Acquire or maintain through

  5                              racketeering activity any

  6                              interest in or control of any

  7                              enterprise or real property.

  8  895.03(3)          1st      Conduct or participate in any

  9                              enterprise through pattern of

10                              racketeering activity.

11  896.101(5)(b)      2nd      Money laundering, financial

12                              transactions totaling or

13                              exceeding $20,000, but less than

14                              $100,000.

15  896.104(4)(a)2.    2nd      Structuring transactions to evade

16                              reporting or registration

17                              requirements, financial

18                              transactions totaling or

19                              exceeding $20,000 but less than

20                              $100,000.

21         Section 4.  This act shall take effect July 1, 2002.

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    Florida Senate - 2002                            CS for SB 934
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 934

  3

  4  -     The offense of "lewd or lascivious battery of an elderly
          person or disabled adult" is currently a second degree
  5        felony and is ranked in level 7 of the offense severity
          ranking chart of the Criminal Punishment Code. The CS
  6        ranks the offense in level 8 of the offense severity
          ranking chart. This ranking will correspond to the
  7        ranking for the offense of sexual battery.

  8  -     Changes the term disabled adult to disabled person in s.
          825.1025, F.S. This allows for the prosecution of
  9        offenses under this statute which might otherwise be
          precluded because the disabled person was under the age
10        of eighteen.

11  -     Section 794.011, F.S., the sexual battery statute is
          amended by the CS to provide that when mental defect or
12        mental incapacity of the victim is an issue, an expert
          witness who is licensed under chapter 490 (psychological
13        services), chapter 458 (physicians), or chapter 459
          (osteopathic medicine), may be utilized.
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