¹794.0115 Repeat sexual batterers; definition; procedure; enhanced penalties.--

1. (1) As used in this act, "repeat sexual batterer" means a defendant for whom the court must impose a mandatory minimum term of imprisonment, as provided in subsection (3), if it finds that:

   1. (a) The defendant has previously been convicted of a felony or an attempt or conspiracy to commit a felony and one or more of such convictions was for:

      1. Any felony offense in violation of s. 794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy to commit the felony offense.

      2. A qualified offense as defined in s. 775.084(1)(e), if the elements of the qualified offense are substantially similar to the elements of a felony offense in violation of s. 794.011(2)(b), (3), (4), or (5), or an attempt or conspiracy to commit the felony offense.

   2. (b) The felony for which the defendant is to be sentenced is one of the felonies enumerated in subparagraph (a)1. or subparagraph (a)2. and was committed:

      1. While the defendant was serving a prison sentence or other sentence imposed as a result of a prior conviction for any offense enumerated in subparagraph (a)1. or subparagraph (a)2.; or

      2. Within 10 years after the date of the conviction of the last prior offense enumerated in subparagraph (a)1. or subparagraph (a)2., or within 10 years after the defendant's release from a prison sentence, probation, community control, or other sentence imposed as a result of a prior conviction for any offense enumerated in subparagraph (a)1. or subparagraph (a)2., whichever is later.

   3. (c) The defendant has not received a pardon on the ground of innocence for any crime that is necessary for the operation of this subsection.
   4. (d) A conviction of a crime necessary to the operation of this subsection has not been set aside in any postconviction proceeding.

2. (2) In a separate proceeding, the court shall determine if the defendant is a repeat sexual batterer. The procedure shall be as follows:

   1. (a) The court shall obtain and consider a presentence investigation prior to the imposition of a sentence as a repeat sexual batterer.
   2. (b) Written notice shall be served on the defendant and the defendant's attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence in order to allow the preparation of a submission on behalf of the defendant.
   3. (c) Except as provided in paragraph (a), all evidence presented shall be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.
   4. (d) Each of the findings required as the basis for such sentence shall be found to exist by a preponderance of the evidence and shall be appealable to the extent normally applicable to similar findings.
   5. (e) For the purpose of identification of a repeat sexual batterer, the court shall fingerprint the defendant pursuant to s. 921.241
   6. (f) For an offense committed on or after the effective date of this act, if the state attorney pursues a repeat sexual batterer sanction against the defendant and the court, in a separate proceeding pursuant to this subsection, determines that the defendant meets the criteria under subsection (1) for imposing such sanction, the court must sentence the defendant as a repeat sexual batterer, subject to imprisonment pursuant to this section as provided in subsection (3).
3. (3) (a) The court, in conformity with the procedure established in subsection (2), must sentence the repeat sexual batterer to a mandatory minimum term of 10 years' imprisonment.

4. (b) Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.

   ¹Note.--Section 3, ch. 2002-211, provides that "[e]xcept as otherwise specifically provided in this act, the provisions reenacted by this act shall be applied retroactively to July 1, 1999, or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit."

History.--s. 7, ch. 99-188; s. 1, ch. 2002-211.