Bill Text: FL S1294 | 2016 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Victim and Witness Protection
Spectrum:
Status: (Passed) 2016-04-06 - Chapter No. 2016-199 [S1294 Detail]
Download: Florida-2016-S1294-Introduced.html
Bill Title: Victim and Witness Protection
Spectrum:
Status: (Passed) 2016-04-06 - Chapter No. 2016-199 [S1294 Detail]
Download: Florida-2016-S1294-Introduced.html
Florida Senate - 2016 SB 1294 By Senator Grimsley 21-01365-16 20161294__ 1 A bill to be entitled 2 An act relating to offenses involving minors and 3 vulnerable persons; amending s. 92.54, F.S.; 4 increasing the maximum age at which a victim or 5 witness may be allowed to testify via closed circuit 6 television rather than in a courtroom in certain 7 circumstances; amending s. 782.04, F.S.; including 8 human trafficking as an underlying felony offense to 9 support a felony murder conviction; amending s. 10 787.06, F.S.; providing increased criminal penalties 11 for human trafficking offenses if the victim suffers 12 great bodily harm, permanent disability, or permanent 13 disfigurement; specifying that penalties for branding 14 must be for the purpose of committing the offense of 15 human trafficking; prohibiting certain defense to 16 prosecution; amending s. 794.022, F.S.; including 17 human trafficking and lewd and lascivious offenses in 18 the rules of evidence applicable to sexually-related 19 offenses; amending ss. 90.404, 775.21, 943.0435, 20 944.606, and 944.607, F.S.; conforming provisions to 21 changes made by the act; providing an effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1. Section 92.54, Florida Statutes, is amended to 26 read: 27 92.54 Use of closed circuit television in proceedings 28 involving a victim or witness under the age of 1816or who has 29 an intellectual disability.— 30 (1) Upon motion and hearing in camera and upon a finding 31 that there is a substantial likelihood that a victim or witness 32 under the age of 1816or who has an intellectual disability 33 will suffer at least moderate emotional or mental harm due to 34 the presence of the defendant if such victim or witness is 35 required to testify in open court, or is unavailable as defined 36 in s. 90.804(1), the trial court may order that the testimony of 37 the victim or witness be taken outside of the courtroom and 38 shown by means of closed circuit television. 39 (2) The motion may be filed by the victim or witness; the 40 attorney, parent, legal guardian, or guardian ad litem of the 41 victim or witness; the prosecutor; the defendant or the 42 defendant’s counsel; or the trial judge on his or her own 43 motion. 44 (3) Only the judge, the prosecutor, the defendant, the 45 attorney for the defendant, the operators of the videotape 46 equipment, an interpreter, and some other person who, in the 47 opinion of the court, contributes to the well-being of the child 48 or the person who has an intellectual disability and who will 49 not be a witness in the case may be in the room during the 50 recording of the testimony. 51 (4) During the victim’s or witness’s testimony by closed 52 circuit television, the court may require the defendant to view 53 the testimony from the courtroom. In such a case, the court 54 shall permit the defendant to observe and hear the testimony of 55 the victim or witness, but must ensure that the victim or 56 witness cannot hear or see the defendant. The defendant’s right 57 to assistance of counsel, which includes the right to immediate 58 and direct communication with counsel conducting cross 59 examination, must be protected and, upon the defendant’s 60 request, such communication must be provided by any appropriate 61 electronic method. 62 (5) The court shall make specific findings of fact, on the 63 record, as to the basis for its ruling under this section. 64 Section 2. Subsections (1), (3), and (4) of section 782.04, 65 Florida Statutes, are amended to read: 66 782.04 Murder.— 67 (1)(a) The unlawful killing of a human being: 68 1. When perpetrated from a premeditated design to effect 69 the death of the person killed or any human being; 70 2. When committed by a person engaged in the perpetration 71 of, or in the attempt to perpetrate, any: 72 a. Trafficking offense prohibited by s. 893.135(1), 73 b. Arson, 74 c. Sexual battery, 75 d. Robbery, 76 e. Burglary, 77 f. Kidnapping, 78 g. Escape, 79 h. Aggravated child abuse, 80 i. Aggravated abuse of an elderly person or disabled adult, 81 j. Aircraft piracy, 82 k. Unlawful throwing, placing, or discharging of a 83 destructive device or bomb, 84 l. Carjacking, 85 m. Home-invasion robbery, 86 n. Aggravated stalking, 87 o. Murder of another human being, 88 p. Resisting an officer with violence to his or her person, 89 q. Aggravated fleeing or eluding with serious bodily injury 90 or death, 91 r. Felony that is an act of terrorism or is in furtherance 92 of an act of terrorism,;or93 s. Human trafficking; or 94 3. Which resulted from the unlawful distribution of any 95 substance controlled under s. 893.03(1), cocaine as described in 96 s. 893.03(2)(a)4., opium or any synthetic or natural salt, 97 compound, derivative, or preparation of opium, or methadone by a 98 person 18 years of age or older, when such drug is proven to be 99 the proximate cause of the death of the user, 100 101 is murder in the first degree and constitutes a capital felony, 102 punishable as provided in s. 775.082. 103 (b) In all cases under this section, the procedure set 104 forth in s. 921.141 shall be followed in order to determine 105 sentence of death or life imprisonment. 106 (3) When a human being is killed during the perpetration 107 of, or during the attempt to perpetrate, any: 108 (a) Trafficking offense prohibited by s. 893.135(1), 109 (b) Arson, 110 (c) Sexual battery, 111 (d) Robbery, 112 (e) Burglary, 113 (f) Kidnapping, 114 (g) Escape, 115 (h) Aggravated child abuse, 116 (i) Aggravated abuse of an elderly person or disabled 117 adult, 118 (j) Aircraft piracy, 119 (k) Unlawful throwing, placing, or discharging of a 120 destructive device or bomb, 121 (l) Carjacking, 122 (m) Home-invasion robbery, 123 (n) Aggravated stalking, 124 (o) Murder of another human being, 125 (p) Aggravated fleeing or eluding with serious bodily 126 injury or death, 127 (q) Resisting an officer with violence to his or her 128 person,or129 (r) Felony that is an act of terrorism or is in furtherance 130 of an act of terrorism, or 131 (s) Human trafficking, 132 133 by a person other than the person engaged in the perpetration of 134 or in the attempt to perpetrate such felony, the person 135 perpetrating or attempting to perpetrate such felony commits 136 murder in the second degree, which constitutes a felony of the 137 first degree, punishable by imprisonment for a term of years not 138 exceeding life or as provided in s. 775.082, s. 775.083, or s. 139 775.084. 140 (4) The unlawful killing of a human being, when perpetrated 141 without any design to effect death, by a person engaged in the 142 perpetration of, or in the attempt to perpetrate, any felony 143 other than any: 144 (a) Trafficking offense prohibited by s. 893.135(1), 145 (b) Arson, 146 (c) Sexual battery, 147 (d) Robbery, 148 (e) Burglary, 149 (f) Kidnapping, 150 (g) Escape, 151 (h) Aggravated child abuse, 152 (i) Aggravated abuse of an elderly person or disabled 153 adult, 154 (j) Aircraft piracy, 155 (k) Unlawful throwing, placing, or discharging of a 156 destructive device or bomb, 157 (l) Unlawful distribution of any substance controlled under 158 s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or 159 opium or any synthetic or natural salt, compound, derivative, or 160 preparation of opium by a person 18 years of age or older, when 161 such drug is proven to be the proximate cause of the death of 162 the user, 163 (m) Carjacking, 164 (n) Home-invasion robbery, 165 (o) Aggravated stalking, 166 (p) Murder of another human being, 167 (q) Aggravated fleeing or eluding with serious bodily 168 injury or death, 169 (r) Resisting an officer with violence to his or her 170 person,or171 (s) Felony that is an act of terrorism or is in furtherance 172 of an act of terrorism, or 173 (t) Human trafficking, 174 175 is murder in the third degree and constitutes a felony of the 176 second degree, punishable as provided in s. 775.082, s. 775.083, 177 or s. 775.084. 178 Section 3. Paragraph (h) is added to subsection (3) of 179 section 787.06, Florida Statutes, paragraph (b) of subsection 180 (4) is amended, subsections (5) through (9) are renumbered as 181 subsections (6) through (10), respectively, and a new subsection 182 (5) is added to that section, to read: 183 787.06 Human trafficking.— 184 (3) Any person who knowingly, or in reckless disregard of 185 the facts, engages in human trafficking, or attempts to engage 186 in human trafficking, or benefits financially by receiving 187 anything of value from participation in a venture that has 188 subjected a person to human trafficking: 189 (h) And during the commission or attempt to commit the 190 offense of human trafficking causes great bodily harm, permanent 191 disability, or permanent disfigurement to the victim of the 192 human trafficking offense or attempted offense commits a felony 193 of the first degree, punishable for a term of years not 194 exceeding life, as provided in s. 775.082, s. 775.083, or s. 195 775.084. 196 197 For each instance of human trafficking of any individual under 198 this subsection, a separate crime is committed and a separate 199 punishment is authorized. 200 (4) 201 (b) Any person who permanently brands, or directs to be 202 permanently branded, for the purpose of committing an offense 203 under this section, a victim of an offense under this section 204 commits a second degree felony, punishable as provided in s. 205 775.082, s. 775.083, or s. 775.084. For purposes of this 206 subsection, the term “permanently branded” means a mark on the 207 individual’s body that, if it can be removed or repaired at all, 208 can only be removed or repaired by surgical means, laser 209 treatment, or other medical procedure. 210 (5) A victim’s lack of chastity or the willingness or 211 consent of a victim is not a defense to prosecution under this 212 section if the victim was under 18 years of age at the time of 213 the offense. 214 Section 4. Section 794.022, Florida Statutes, is amended to 215 read: 216 794.022 Rules of evidence.— 217 (1) The testimony of the victim need not be corroborated in 218 a prosecution under s. 787.06, s. 794.011, or s. 800.04. 219 (2) Specific instances of prior consensual sexual activity 220 between the victim and any person other than the offender may 221shallnot be admitted into evidence in a prosecution under s. 222 787.06, s. 794.011, or s. 800.04. However, such evidence may be 223 admitted if it is first established to the court in a proceeding 224 in camera that such evidence may prove that the defendant was 225 not the source of the semen, pregnancy, injury, or disease; or, 226 when consent by the victim is at issue, such evidence may be 227 admitted if it is first established to the court in a proceeding 228 in camera that such evidence tends to establish a pattern of 229 conduct or behavior on the part of the victim which is so 230 similar to the conduct or behavior in the case that it is 231 relevant to the issue of consent. 232 (3) Notwithstanding any other provision of law, reputation 233 evidence relating to a victim’s prior sexual conduct or evidence 234 presented for the purpose of showing that manner of dress of the 235 victim at the time of the offense incited the sexual battery may 236shallnot be admitted into evidence in a prosecution under s. 237 787.06, s. 794.011, or s. 800.04. 238 (4) When consent of the victim is a defense to prosecution 239 under s. 787.06, s. 794.011, or s. 800.04, evidence of the 240 victim’s mental incapacity or defect is admissible to prove that 241 the consent was not intelligent, knowing, or voluntary; and the 242 court shall instruct the jury accordingly. 243 (5) An offender’s use of a prophylactic device, or a 244 victim’s request that an offender use a prophylactic device, is 245 not, by itself, relevant to either the issue of whether or not 246 the offense was committed or the issue of whether or not the 247 victim consented. 248 Section 5. Paragraphs (b) and (c) of subsection (2) of 249 section 90.404, Florida Statutes, are amended to read: 250 90.404 Character evidence; when admissible.— 251 (2) OTHER CRIMES, WRONGS, OR ACTS.— 252 (b)1. In a criminal case in which the defendant is charged 253 with a crime involving child molestation, evidence of the 254 defendant’s commission of other crimes, wrongs, or acts of child 255 molestation is admissible and may be considered for its bearing 256 on any matter to which it is relevant. 257 2. For the purposes of this paragraph, the term “child 258 molestation” means conduct proscribed by s. 787.025(2)(c), s. 259 787.06(3)(g),formers. 787.06(3)(h), Florida Statutes 2012, s. 260 794.011, excluding s. 794.011(10), s. 794.05, former s. 796.03, 261 former s. 796.035, s. 800.04, s. 827.071, s. 847.0135(5), s. 262 847.0145, or s. 985.701(1) when committed against a person 16 263 years of age or younger. 264 (c)1. In a criminal case in which the defendant is charged 265 with a sexual offense, evidence of the defendant’s commission of 266 other crimes, wrongs, or acts involving a sexual offense is 267 admissible and may be considered for its bearing on any matter 268 to which it is relevant. 269 2. For the purposes of this paragraph, the term “sexual 270 offense” means conduct proscribed by s. 787.025(2)(c), s. 271 787.06(3)(b), (d), (f), or (g),formers. 787.06(3)(h), Florida 272 Statutes 2012, s. 794.011, excluding s. 794.011(10), s. 794.05, 273 former s. 796.03, former s. 796.035, s. 825.1025(2)(b), s. 274 827.071, s. 847.0135(5), s. 847.0145, or s. 985.701(1). 275 Section 6. Paragraph (a) of subsection (4) of section 276 775.21, Florida Statutes, is amended to read: 277 775.21 The Florida Sexual Predators Act.— 278 (4) SEXUAL PREDATOR CRITERIA.— 279 (a) For a current offense committed on or after October 1, 280 1993, upon conviction, an offender shall be designated as a 281 “sexual predator” under subsection (5), and subject to 282 registration under subsection (6) and community and public 283 notification under subsection (7) if: 284 1. The felony is: 285 a. A capital, life, or first degree felony violation, or 286 any attempt thereof, of s. 787.01 or s. 787.02, where the victim 287 is a minor and the defendant is not the victim’s parent or 288 guardian, or s. 794.011, s. 800.04, or s. 847.0145, or a 289 violation of a similar law of another jurisdiction; or 290 b. Any felony violation, or any attempt thereof, of s. 291 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 292 787.025(2)(c), where the victim is a minor and the defendant is 293 not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f), 294 or (g);formers. 787.06(3)(h), Florida Statutes 2012; s. 295 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; 296 former s. 796.035; s. 800.04; s. 810.145(8)(b); s. 825.1025; s. 297 827.071; s. 847.0135, excluding s. 847.0135(6); s. 847.0145; s. 298 916.1075(2); or s. 985.701(1); or a violation of a similar law 299 of another jurisdiction, and the offender has previously been 300 convicted of or found to have committed, or has pled nolo 301 contendere or guilty to, regardless of adjudication, any 302 violation of s. 393.135(2); s. 394.4593(2); s. 787.01, s. 303 787.02, or s. 787.025(2)(c), where the victim is a minor and the 304 defendant is not the victim’s parent or guardian; s. 305 787.06(3)(b), (d), (f), or (g);formers. 787.06(3)(h), Florida 306 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05; 307 former s. 796.03; former s. 796.035; s. 800.04; s. 825.1025; s. 308 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 309 847.0145; s. 916.1075(2); or s. 985.701(1); or a violation of a 310 similar law of another jurisdiction; 311 2. The offender has not received a pardon for any felony or 312 similar law of another jurisdiction that is necessary for the 313 operation of this paragraph; and 314 3. A conviction of a felony or similar law of another 315 jurisdiction necessary to the operation of this paragraph has 316 not been set aside in any postconviction proceeding. 317 Section 7. Paragraph (a) of subsection (1) of section 318 943.0435, Florida Statutes, is amended to read: 319 943.0435 Sexual offenders required to register with the 320 department; penalty.— 321 (1) As used in this section, the term: 322 (a)1. “Sexual offender” means a person who meets the 323 criteria in sub-subparagraph a., sub-subparagraph b., sub 324 subparagraph c., or sub-subparagraph d., as follows: 325 a.(I) Has been convicted of committing, or attempting, 326 soliciting, or conspiring to commit, any of the criminal 327 offenses proscribed in the following statutes in this state or 328 similar offenses in another jurisdiction: s. 393.135(2); s. 329 394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where 330 the victim is a minor and the defendant is not the victim’s 331 parent or guardian; s. 787.06(3)(b), (d), (f), or (g);formers. 332 787.06(3)(h), Florida Statutes 2012; s. 794.011, excluding s. 333 794.011(10); s. 794.05; former s. 796.03; former s. 796.035; s. 334 800.04; s. 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 335 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138; s. 336 847.0145; s. 916.1075(2); or s. 985.701(1); or any similar 337 offense committed in this state which has been redesignated from 338 a former statute number to one of those listed in this sub-sub 339 subparagraph; and 340 (II) Has been released on or after October 1, 1997, from 341 the sanction imposed for any conviction of an offense described 342 in sub-sub-subparagraph (I). For purposes of sub-sub 343 subparagraph (I), a sanction imposed in this state or in any 344 other jurisdiction includes, but is not limited to, a fine, 345 probation, community control, parole, conditional release, 346 control release, or incarceration in a state prison, federal 347 prison, private correctional facility, or local detention 348 facility; 349 b. Establishes or maintains a residence in this state and 350 who has not been designated as a sexual predator by a court of 351 this state but who has been designated as a sexual predator, as 352 a sexually violent predator, or by another sexual offender 353 designation in another state or jurisdiction and was, as a 354 result of such designation, subjected to registration or 355 community or public notification, or both, or would be if the 356 person were a resident of that state or jurisdiction, without 357 regard to whether the person otherwise meets the criteria for 358 registration as a sexual offender; 359 c. Establishes or maintains a residence in this state who 360 is in the custody or control of, or under the supervision of, 361 any other state or jurisdiction as a result of a conviction for 362 committing, or attempting, soliciting, or conspiring to commit, 363 any of the criminal offenses proscribed in the following 364 statutes or similar offense in another jurisdiction: s. 365 393.135(2); s. 394.4593(2); s. 787.01, s. 787.02, or s. 366 787.025(2)(c), where the victim is a minor and the defendant is 367 not the victim’s parent or guardian; s. 787.06(3)(b), (d), (f), 368 or (g);formers. 787.06(3)(h), Florida Statutes 2012; s. 369 794.011, excluding s. 794.011(10); s. 794.05; former s. 796.03; 370 former s. 796.035; s. 800.04; s. 810.145(8); s. 825.1025; s. 371 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 372 847.0137; s. 847.0138; s. 847.0145; s. 916.1075(2); or s. 373 985.701(1); or any similar offense committed in this state which 374 has been redesignated from a former statute number to one of 375 those listed in this sub-subparagraph; or 376 d. On or after July 1, 2007, has been adjudicated 377 delinquent for committing, or attempting, soliciting, or 378 conspiring to commit, any of the criminal offenses proscribed in 379 the following statutes in this state or similar offenses in 380 another jurisdiction when the juvenile was 14 years of age or 381 older at the time of the offense: 382 (I) Section 794.011, excluding s. 794.011(10); 383 (II) Section 800.04(4)(a)2. where the victim is under 12 384 years of age or where the court finds sexual activity by the use 385 of force or coercion; 386 (III) Section 800.04(5)(c)1. where the court finds 387 molestation involving unclothed genitals; or 388 (IV) Section 800.04(5)(d) where the court finds the use of 389 force or coercion and unclothed genitals. 390 2. For all qualifying offenses listed in sub-subparagraph 391 (1)(a)1.d., the court shall make a written finding of the age of 392 the offender at the time of the offense. 393 394 For each violation of a qualifying offense listed in this 395 subsection, except for a violation of s. 794.011, the court 396 shall make a written finding of the age of the victim at the 397 time of the offense. For a violation of s. 800.04(4), the court 398 shall also make a written finding indicating whether the offense 399 involved sexual activity and indicating whether the offense 400 involved force or coercion. For a violation of s. 800.04(5), the 401 court shall also make a written finding that the offense did or 402 did not involve unclothed genitals or genital area and that the 403 offense did or did not involve the use of force or coercion. 404 Section 8. Paragraph (b) of subsection (1) of section 405 944.606, Florida Statutes, is amended to read: 406 944.606 Sexual offenders; notification upon release.— 407 (1) As used in this section: 408 (b) “Sexual offender” means a person who has been convicted 409 of committing, or attempting, soliciting, or conspiring to 410 commit, any of the criminal offenses proscribed in the following 411 statutes in this state or similar offenses in another 412 jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s. 413 787.02, or s. 787.025(2)(c), where the victim is a minor and the 414 defendant is not the victim’s parent or guardian; s. 415 787.06(3)(b), (d), (f), or (g);formers. 787.06(3)(h), Florida 416 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05; 417 former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8); 418 s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 419 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s. 420 916.1075(2); or s. 985.701(1); or any similar offense committed 421 in this state which has been redesignated from a former statute 422 number to one of those listed in this subsection, when the 423 department has received verified information regarding such 424 conviction; an offender’s computerized criminal history record 425 is not, in and of itself, verified information. 426 Section 9. Paragraph (a) of subsection (1) of section 427 944.607, Florida Statutes, is amended to read: 428 944.607 Notification to Department of Law Enforcement of 429 information on sexual offenders.— 430 (1) As used in this section, the term: 431 (a) “Sexual offender” means a person who is in the custody 432 or control of, or under the supervision of, the department or is 433 in the custody of a private correctional facility: 434 1. On or after October 1, 1997, as a result of a conviction 435 for committing, or attempting, soliciting, or conspiring to 436 commit, any of the criminal offenses proscribed in the following 437 statutes in this state or similar offenses in another 438 jurisdiction: s. 393.135(2); s. 394.4593(2); s. 787.01, s. 439 787.02, or s. 787.025(2)(c), where the victim is a minor and the 440 defendant is not the victim’s parent or guardian; s. 441 787.06(3)(b), (d), (f), or (g);formers. 787.06(3)(h), Florida 442 Statutes 2012; s. 794.011, excluding s. 794.011(10); s. 794.05; 443 former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8); 444 s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 445 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; s. 446 916.1075(2); or s. 985.701(1); or any similar offense committed 447 in this state which has been redesignated from a former statute 448 number to one of those listed in this paragraph; or 449 2. Who establishes or maintains a residence in this state 450 and who has not been designated as a sexual predator by a court 451 of this state but who has been designated as a sexual predator, 452 as a sexually violent predator, or by another sexual offender 453 designation in another state or jurisdiction and was, as a 454 result of such designation, subjected to registration or 455 community or public notification, or both, or would be if the 456 person were a resident of that state or jurisdiction, without 457 regard as to whether the person otherwise meets the criteria for 458 registration as a sexual offender. 459 Section 10. This act shall take effect July 1, 2016.