Florida - First Degree Murder with 18 Aggravating Circumstances, and Drug Trafficking
Title XLVI, Ch. 775, Sec. 775.082, Title XLVI, Ch. 782, Sec. 782.04, Title XLVI, Ch. 921, Sec. 921.142


775.082 Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.—

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

(2) In the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment as provided in subsection (1). No sentence of death shall be reduced as a result of a determination that a method of execution is held to be unconstitutional under the State Constitution or the Constitution of the United States.

(3) A person who has been convicted of any other designated felony may be punished as follows:

     (a)1. For a life felony committed prior to October 1, 1983, by a term of imprisonment for life or for a term of years not less than 30.

          2. For a life felony committed on or after October 1, 1983, by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.
         
           3. Except as provided in subparagraph 4., for a life felony committed on or after July 1, 1995, by a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment.

          4.a. Except as provided in sub-subparagraph b., for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:

               (I) A term of imprisonment for life; or

               (II) A split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in s. 948.012(4).

          b. For a life felony committed on or after July 1, 2008, which is a person’s second or subsequent violation of s. 800.04(5)(b), by a term of imprisonment for life.

                    (b) For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.

                    (c) For a felony of the second degree, by a term of imprisonment not exceeding 15 years.

                    (d) For a felony of the third degree, by a term of imprisonment not exceeding 5 years.

(4) A person who has been convicted of a designated misdemeanor may be sentenced as follows:

     (a) For a misdemeanor of the first degree, by a definite term of imprisonment not exceeding 1 year;

     (b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.

(5) Any person who has been convicted of a noncriminal violation may not be sentenced to a term of imprisonment nor to any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided in chapter 316 or by ordinance of any city or county.

(6) Nothing in this section shall be construed to alter the operation of any statute of this state authorizing a trial court, in its discretion, to impose a sentence of imprisonment for an indeterminate period within minimum and maximum limits as provided by law, except as provided in subsection (1).

(7) This section does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence.

(8)(a) The sentencing guidelines that were effective October 1, 1983, and any revisions thereto, apply to all felonies, except capital felonies, committed on or after October 1, 1983, and before January 1, 1994, and to all felonies, except capital felonies and life felonies, committed before October 1, 1983, when the defendant affirmatively selects to be sentenced pursuant to such provisions.

      (b) The 1994 sentencing guidelines, that were effective January 1, 1994, and any revisions thereto, apply to all felonies, except capital felonies, committed on or after January 1, 1994, and before October 1, 1995.

     (c) The 1995 sentencing guidelines that were effective October 1, 1995, and any revisions thereto, apply to all felonies, except capital felonies, committed on or after October 1, 1995, and before October 1, 1998.

     (d) The Criminal Punishment Code applies to all felonies, except capital felonies, committed on or after October 1, 1998. Any revision to the Criminal Punishment Code applies to sentencing for all felonies, except capital felonies, committed on or after the effective date of the revision.

      (e) Felonies, except capital felonies, with continuing dates of enterprise shall be sentenced under the sentencing guidelines or the Criminal Punishment Code in effect on the beginning date of the criminal activity.

(9)(a)1. "Prison releasee reoffender” means any defendant who commits, or attempts to commit:

     a. Treason;

     b. Murder;

     c. Manslaughter;

     d. Sexual battery;

     e. Carjacking;

     f. Home-invasion robbery;

     g. Robbery;

     h. Arson;

     i. Kidnapping;

     j. Aggravated assault with a deadly weapon;

     k. Aggravated battery;

     l. Aggravated stalking;

     m. Aircraft piracy;

     n. Unlawful throwing, placing, or discharging of a destructive device or bomb;

     o. Any felony that involves the use or threat of physical force or violence against an individual;

     p. Armed burglary;

     q. Burglary of a dwelling or burglary of an occupied structure; or

     r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5);

within 3 years after being released from a state correctional facility operated by the Department of Corrections or a private vendor or within 3 years after being released from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

2. "Prison releasee reoffender” also means any defendant who commits or attempts to commit any offense listed in sub-subparagraphs (a)1.a.-r. while the defendant was serving a prison sentence or on escape status from a state correctional facility operated by the Department of Corrections or a private vendor or while the defendant was on escape status from a correctional institution of another state, the District of Columbia, the United States, any possession or territory of the United States, or any foreign jurisdiction, following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

3. If the state attorney determines that a defendant is a prison releasee reoffender as defined in subparagraph 1., the state attorney may seek to have the court sentence the defendant as a prison releasee reoffender. Upon proof from the state attorney that establishes by a preponderance of the evidence that a defendant is a prison releasee reoffender as defined in this section, such defendant is not eligible for sentencing under the sentencing guidelines and must be sentenced as follows:

      a. For a felony punishable by life, by a term of imprisonment for life;

      b. For a felony of the first degree, by a term of imprisonment of 30 years;

      c. For a felony of the second degree, by a term of imprisonment of 15 years; and

      d. For a felony of the third degree, by a term of imprisonment of 5 years.

          (b) A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.

          (c) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.

          (d)1. It is the intent of the Legislature that offenders previously released from prison who meet the criteria in paragraph (a) be punished to the fullest extent of the law and as provided in this subsection, unless the state attorney determines that extenuating circumstances exist which preclude the just prosecution of the offender, including whether the victim recommends that the offender not be sentenced as provided in this subsection.

           2.For every case in which the offender meets the criteria in paragraph (a) and does not receive the mandatory minimum prison sentence, the state attorney must explain the sentencing deviation in writing and place such explanation in the case file maintained by the state attorney.

      (10) If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

      (11) The purpose of this section is to provide uniform punishment for those crimes made punishable under this section and, to this end, a reference to this section constitutes a general reference under the doctrine of incorporation by reference.

History.—s. 3, ch. 71-136; ss. 1, 2, ch. 72-118; s. 2, ch. 72-724; s. 5, ch. 74-383; s. 1, ch. 77-174; s. 1, ch. 83-87; s. 1, ch. 94-228; s. 16, ch. 95-184; s. 4, ch. 95-294; s. 2, ch. 97-239; s. 2, ch. 98-3; s. 10, ch. 98-204; s. 2, ch. 99-188; s. 3, ch. 2000-246; s. 1, ch. 2001-239; s. 2, ch. 2002-70; ss. 1, 2, ch. 2002-211; s. 4, ch. 2005-28; s. 13, ch. 2008-172; s. 1, ch. 2008-182; s. 1, ch. 2009-63; s. 2, ch. 2011-200.


782.04 Murder.—(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;

2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

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

     b. Arson,

     c. Sexual battery,

     d. Robbery,

     e. Burglary,

     f. Kidnapping,

     g. Escape,

     h. Aggravated child abuse,

     i. Aggravated abuse of an elderly person or disabled adult,

     j. Aircraft piracy,

     k. Unlawful throwing, placing, or discharging of a destructive device or bomb,

     l. Carjacking,

     m. Home-invasion robbery,

     n. Aggravated stalking,

     o. Murder of another human being,

     p. Resisting an officer with violence to his or her person,

     q. Aggravated fleeing or eluding with serious bodily injury or death,

     r. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or

          3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.

               (b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed in order to determine sentence of death or life imprisonment.

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) When a human being is killed during the perpetration of, or during the attempt to perpetrate, any:

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

      (b) Arson,

      (c) Sexual battery,

      (d) Robbery,

      (e) Burglary,

      (f) Kidnapping,

      (g) Escape,

      (h) Aggravated child abuse,

      (i) Aggravated abuse of an elderly person or disabled adult,

      (j) Aircraft piracy,

      (k) Unlawful throwing, placing, or discharging of a destructive device or bomb,

      (l) Carjacking,

      (m) Home-invasion robbery,

      (n) Aggravated stalking,

      (o) Murder of another human being,

      (p) Aggravated fleeing or eluding with serious bodily injury or death,

      (q) Resisting an officer with violence to his or her person, or

      (r) Felony that is an act of terrorism or is in furtherance of an act of terrorism,

by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony commits murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.

(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any:
      (a) Trafficking offense prohibited by s. 893.135(1),

      (b)Arson,

      (c) Sexual battery,

      (d) Robbery,

      (e) Burglary,

      (f) Kidnapping,

      (g) Escape,

      (h) Aggravated child abuse,

      (i) Aggravated abuse of an elderly person or disabled adult,

      (j) Aircraft piracy,

      (k) Unlawful throwing, placing, or discharging of a destructive device or bomb,

      (l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user,

      (m) Carjacking,

      (n) Home-invasion robbery,

      (o) Aggravated stalking,

      (p) Murder of another human being,

      (q) Aggravated fleeing or eluding with serious bodily injury or death,

      (r)Resisting an officer with violence to his or her person, or

      (s) Felony that is an act of terrorism or is in furtherance of an act of terrorism,
is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(5) As used in this section, the term "terrorism” means an activity that:

      (a)1. Involves a violent act or an act dangerous to human life which is a violation of the criminal laws of this state or of the United States; or

           2. Involves a violation of s. 815.06; and

      (b) Is intended to:

           1. Intimidate, injure, or coerce a civilian population;

           2. Influence the policy of a government by intimidation or coercion; or

           3. Affect the conduct of government through destruction of property, assassination, murder, kidnapping, or aircraft piracy.


History.—s. 2, ch. 1637, 1868; RS 2380; GS 3205; RGS 5035; s. 1, ch. 8470, 1921; CGL 7137; s. 1, ch. 28023, 1953; s. 712, ch. 71-136; s. 3, ch. 72-724; s. 14, ch. 74-383; s. 6, ch. 75-298; s. 1, ch. 76-141; s. 290, ch. 79-400; s. 1, ch. 82-4; s. 1, ch. 82-69; s. 1, ch. 84-16; s. 6, ch. 87-243; ss. 2, 4, ch. 89-281; s. 4, ch. 90-112; s. 3, ch. 93-212; s. 11, ch. 95-195; s. 18, ch. 96-322; s. 1, ch. 98-417; s. 10, ch. 99-188; s. 16, ch. 2000-320; s. 2, ch. 2001-236; s. 2, ch. 2001-357; s. 1, ch. 2002-212; s. 12, ch. 2005-128; s. 1, ch. 2010-121; s. 2, ch. 2012-21.


Title XLVII

CRIMINAL PROCEDURE AND CORRECTIONS Chapter 921

SENTENCE

921.142 Sentence of death or life imprisonment for capital drug trafficking felonies; further proceedings to determine sentence.—

(1) FINDINGS.—The Legislature finds that trafficking in cocaine or opiates carries a grave risk of death or danger to the public; that a reckless disregard for human life is implicit in knowingly trafficking in cocaine or opiates; and that persons who traffic in cocaine or opiates may be determined by the trier of fact to have a culpable mental state of reckless indifference or disregard for human life.

(2) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.—Upon conviction or adjudication of guilt of a defendant of a capital felony under s. 893.135, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant’s counsel shall be permitted to present argument for or against sentence of death.

(3) ADVISORY SENTENCE BY THE JURY.—After hearing all the evidence, the jury shall deliberate and render an advisory sentence to the court, based upon the following matters:

      (a) Whether sufficient aggravating circumstances exist as enumerated in subsection (6);

      (b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and

      (c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

(4) FINDINGS IN SUPPORT OF SENTENCE OF DEATH.—Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:

      (a) That sufficient aggravating circumstances exist as enumerated in subsection (6), and

      (b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.

In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (6) and (7) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082, and that person shall be ineligible for parole.

(5) REVIEW OF JUDGMENT AND SENTENCE.—The judgment of conviction and sentence of death shall be subject to automatic review and disposition rendered by the Supreme Court of Florida within 2 years after the filing of a notice of appeal. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.

(6) AGGRAVATING CIRCUMSTANCES.—Aggravating circumstances shall be limited to the following:

      (a) The capital felony was committed by a person under a sentence of imprisonment.

      (b) The defendant was previously convicted of another capital felony or of a state or federal offense involving the distribution of a controlled substance that is punishable by a sentence of at least 1 year of imprisonment.

      (c) The defendant knowingly created grave risk of death to one or more persons such that participation in the offense constituted reckless indifference or disregard for human life.

      (d) The defendant used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to threaten, intimidate, assault, or injure a person in committing the offense or in furtherance of the offense.

      (e) The offense involved the distribution of controlled substances to persons under the age of 18 years, the distribution of controlled substances within school zones, or the use or employment of persons under the age of 18 years in aid of distribution of controlled substances.

      (f) The offense involved distribution of controlled substances known to contain a potentially lethal adulterant.

      (g) The defendant:

            1. Intentionally killed the victim;

            2. Intentionally inflicted serious bodily injury which resulted in the death of the victim; or

            3. Intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim.

      (h) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

      (i) The defendant committed the offense after planning and premeditation.

      (j) The defendant committed the offense in a heinous, cruel, or depraved manner in that the offense involved torture or serious physical abuse to the victim.

(7) MITIGATING CIRCUMSTANCES.—Mitigating circumstances shall include the following:

      (a) The defendant has no significant history of prior criminal activity.

      (b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

      (c) The defendant was an accomplice in the capital felony committed by another person, and the defendant’s participation was relatively minor.

      (d) The defendant was under extreme duress or under the substantial domination of another person.

      (e) The capacity of the defendant to appreciate the criminality of her or his conduct or to conform her or his conduct to the requirements of law was substantially impaired.

      (f) The age of the defendant at the time of the offense.

      (g) The defendant could not have reasonably foreseen that her or his conduct in the course of the commission of the offense would cause or would create a grave risk of death to one or more persons.

      (h) The existence of any other factors in the defendant’s background that would mitigate against imposition of the death penalty.

(8) VICTIM IMPACT EVIDENCE.—Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (6), the prosecution may introduce, and subsequently argue, victim impact evidence. Such evidence shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.

History.—s. 2, ch. 90-112; s. 2, ch. 92-81; s. 6, ch. 96-290; s. 1837, ch. 97-102; s. 10, ch. 99-188; s. 26, ch. 2000-320; s. 1, ch. 2002-212; s. 19, ch. 2005-128.


Source: Online Sunshine: Official Internet Site of the Florida Legislature, "The 2012 Florida Statutes," www.leg.state.fl.us (accessed Aug. 14, 2012)