Florida Senate - 2017 SB 1382
By Senator Perry
8-01132-17 20171382__
1 A bill to be entitled
2 An act relating to expert witnesses; amending s.
3 393.11, F.S.; requiring the court to pay reasonable
4 fees to members of the examining committee for their
5 evaluation and testimony regarding persons with
6 disabilities; deleting a provision specifying the
7 source of the fees to be paid; amending s. 744.331,
8 F.S.; requiring a court, rather than the state, to pay
9 certain fees if a ward is indigent; amending s.
10 916.115, F.S.; authorizing a court to initially
11 appoint one expert under certain circumstances;
12 authorizing a court to take less restrictive action
13 than commitment if an expert finds a defendant
14 incompetent; requiring that a defendant be evaluated
15 by no fewer than two experts before a court commits
16 the defendant; providing an exception; authorizing a
17 court to pay for up to two additional experts
18 appointed by the court under certain circumstances;
19 authorizing a party disputing a determination of
20 competence to request two additional expert
21 evaluations at that party’s expense; providing for
22 payments to experts for their testimony under certain
23 circumstances; amending s. 916.12, F.S.; deleting
24 provisions relating to the evaluation and commitment
25 of a defendant under certain circumstances; amending
26 s. 916.17, F.S.; requiring the court to pay for the
27 evaluation and testimony of an expert for a defendant
28 on conditional release under certain circumstances;
29 amending s. 916.301, F.S.; authorizing, rather than
30 requiring, a court to appoint up to two additional
31 experts to evaluate a defendant suspected of having an
32 intellectual disability or autism under certain
33 circumstances; providing for the payment of additional
34 experts under certain circumstances; amending s.
35 916.304, F.S.; requiring the court to pay for the
36 evaluation and testimony of an expert for a defendant
37 on conditional release under certain circumstances;
38 amending s. 921.09, F.S.; authorizing a defendant who
39 has alleged insanity to retain, at the defendant’s
40 expense rather than the county’s, one or more
41 physicians; deleting a provision requiring fees to be
42 paid by the county; amending s. 921.12, F.S.;
43 authorizing a defendant who has an alleged pregnancy
44 to retain, at the defendant’s expense rather than the
45 county’s, one or more physicians; amending s. 921.137,
46 F.S.; requiring the court to pay for the evaluation
47 and testimony of an expert for a defendant who raises
48 intellectual disability as a bar to a death sentence
49 under certain circumstances; amending s. 985.19, F.S.;
50 authorizing a court to initially appoint one expert to
51 evaluate a child’s mental condition, pending certain
52 determinations; authorizing a court to take less
53 restrictive action than commitment if an expert finds
54 a child incompetent; requiring that a child be
55 evaluated by no fewer than two experts before a court
56 commits the child; providing an exception; authorizing
57 a court to appoint up to two additional experts under
58 certain circumstances; authorizing a court to require
59 a hearing with certain testimony before ordering the
60 commitment of a child; requiring the court to pay
61 reasonable fees to the experts for their evaluations
62 and testimony; requiring a court to order the Agency
63 for Persons with Disabilities to select an expert to
64 examine a child for intellectual disability or autism;
65 deleting a provision requiring a specific
66 appropriation before the implementation of specified
67 provisions; amending ss. 29.006 and 29.007, F.S;
68 conforming cross-references; providing an effective
69 date.
70
71 Be It Enacted by the Legislature of the State of Florida:
72
73 Section 1. Paragraph (g) of subsection (5) of section
74 393.11, Florida Statutes, is amended to read:
75 393.11 Involuntary admission to residential services.—
76 (5) EXAMINING COMMITTEE.—
77 (g) The court Members of the examining committee shall pay
78 receive a reasonable fees, as fee to be determined by the court,
79 for the evaluation and testimony by members of the examining
80 committee. The fees shall be paid from the general revenue fund
81 of the county in which the person who has the intellectual
82 disability or autism resided when the petition was filed.
83 Section 2. Paragraph (b) of subsection (7) of section
84 744.331, Florida Statutes, is amended, and paragraph (a) of that
85 subsection is republished, to read:
86 744.331 Procedures to determine incapacity.—
87 (7) FEES.—
88 (a) The examining committee and any attorney appointed
89 under subsection (2) are entitled to reasonable fees to be
90 determined by the court.
91 (b) The fees awarded under paragraph (a) shall be paid by
92 the guardian from the property of the ward or, if the ward is
93 indigent, by the court state. The state shall have a creditor’s
94 claim against the guardianship property for any amounts paid
95 under this section. The state may file its claim within 90 days
96 after the entry of an order awarding attorney ad litem fees. If
97 the state does not file its claim within the 90-day period, the
98 state is thereafter barred from asserting the claim. Upon
99 petition by the state for payment of the claim, the court shall
100 enter an order authorizing immediate payment out of the property
101 of the ward. The state shall keep a record of the payments.
102 Section 3. Section 916.115, Florida Statutes, is amended to
103 read:
104 916.115 Appointment of experts.—
105 (1) The court shall appoint no more than three experts to
106 determine the mental condition of a defendant in a criminal
107 case, including competency to proceed, insanity, involuntary
108 placement, and treatment. The court may initially appoint one
109 expert for the evaluation, pending a determination of the
110 defendant’s competency and the parties’ positions on stipulating
111 to the findings. The experts may evaluate the defendant in jail
112 or in another appropriate local facility or in a facility of the
113 Department of Corrections.
114 (a) To the extent possible, the appointed experts shall
115 have completed forensic evaluator training approved by the
116 department, and each shall be a psychiatrist, licensed
117 psychologist, or physician.
118 (b) The department shall maintain and annually provide the
119 courts with a list of available mental health professionals who
120 have completed the approved training as experts.
121 (2) The court may take less restrictive action than
122 commitment authorized by this chapter or the Florida Rules of
123 Criminal Procedure based on the determination by one expert that
124 the defendant is incompetent to proceed. A defendant must be
125 evaluated by no fewer than two experts before the court commits
126 the defendant; however, the court may commit the defendant
127 without further evaluation or hearing if one expert finds that
128 the defendant is incompetent to proceed and the parties
129 stipulate to that finding. If the parties do not stipulate to
130 the finding of the expert that the defendant is incompetent, the
131 court may appoint no more than two additional experts to
132 evaluate the defendant. Notwithstanding any stipulation by the
133 parties, the court may require a hearing with testimony from the
134 experts before ordering the commitment of a defendant.
135 (3)(a)(2) The court shall pay for any expert that it
136 appoints by court order, upon motion of counsel for the
137 defendant or the state or upon its own motion, and up to two
138 additional experts appointed by the court when the defendant is
139 found incompetent and the parties do not stipulate to the
140 findings.
141 (b) If the defense or the state retains an expert and
142 waives the confidentiality of the expert’s report, the court may
143 pay for no more than two additional experts appointed by court
144 order.
145 (c) If a first evaluation determines the defendant is
146 competent to proceed and a party disputes the findings, the
147 party disputing the determination may request up to two
148 additional experts to perform evaluations at the party’s
149 expense.
150 (d) If an expert appointed by the court upon motion of
151 counsel for the defendant specifically to evaluate the
152 competence of the defendant to proceed also addresses issues
153 related to sanity as an affirmative defense, the court shall pay
154 only for that portion of the expert’s fees relating to the
155 evaluation on competency to proceed, and the balance of the fees
156 shall be chargeable to the defense.
157 (e) If testimony from the expert is ordered by the court,
158 the court shall pay reasonable fees, as determined by the court,
159 to the expert. Testimony requested by the state or the defendant
160 shall be paid by the requesting party.
161 (f)(a) Pursuant to s. 29.006, the office of the public
162 defender shall pay for any expert retained by the office.
163 (g)(b) Pursuant to s. 29.005, the office of the state
164 attorney shall pay for any expert retained by the office and for
165 any expert whom the office retains and whom the office moves the
166 court to appoint in order to ensure that the expert has access
167 to the defendant.
168 (h)(c) An expert retained by the defendant who is
169 represented by private counsel appointed under s. 27.5303 shall
170 be paid by the Justice Administrative Commission.
171 (i)(d) An expert retained by a defendant who is indigent
172 for costs as determined by the court and who is represented by
173 private counsel, other than private counsel appointed under s.
174 27.5303, on a fee or pro bono basis, or who is representing
175 himself or herself, shall be paid by the Justice Administrative
176 Commission from funds specifically appropriated for these
177 expenses.
178 (j)(e) State employees shall be reimbursed for expenses
179 pursuant to s. 112.061.
180 (k)(f) The fees shall be taxed as costs in the case.
181 (l)(g) In order for an expert to be paid for the services
182 rendered, the expert’s report and testimony must explicitly
183 address each of the factors and follow the procedures set out in
184 this chapter and in the Florida Rules of Criminal Procedure.
185 Section 4. Subsection (2) of section 916.12, Florida
186 Statutes, is amended, and subsection (1) of that section is
187 republished, to read:
188 916.12 Mental competence to proceed.—
189 (1) A defendant is incompetent to proceed within the
190 meaning of this chapter if the defendant does not have
191 sufficient present ability to consult with her or his lawyer
192 with a reasonable degree of rational understanding or if the
193 defendant has no rational, as well as factual, understanding of
194 the proceedings against her or him.
195 (2) Mental health experts appointed pursuant to s. 916.115
196 shall first determine whether the defendant has a mental illness
197 and, if so, consider the factors related to the issue of whether
198 the defendant meets the criteria for competence to proceed as
199 described in subsection (1). A defendant must be evaluated by no
200 fewer than two experts before the court commits the defendant or
201 takes other action authorized by this chapter or the Florida
202 Rules of Criminal Procedure, except if one expert finds that the
203 defendant is incompetent to proceed and the parties stipulate to
204 that finding, the court may commit the defendant or take other
205 action authorized by this chapter or the rules without further
206 evaluation or hearing, or the court may appoint no more than two
207 additional experts to evaluate the defendant. Notwithstanding
208 any stipulation by the state and the defendant, the court may
209 require a hearing with testimony from the expert or experts
210 before ordering the commitment of a defendant.
211 Section 5. Subsection (2) of section 916.17, Florida
212 Statutes, is amended to read:
213 916.17 Conditional release.—
214 (2) Upon the filing of an affidavit or statement under oath
215 by any person that the defendant has failed to comply with the
216 conditions of release, that the defendant’s condition has
217 deteriorated to the point that inpatient care is required, or
218 that the release conditions should be modified, the court shall
219 hold a hearing within 7 days after receipt of the affidavit or
220 statement under oath. After the hearing, the court may modify
221 the release conditions. The court may also order that the
222 defendant be returned to the department if it is found, after
223 the appointment and report of experts, that the person meets the
224 criteria for involuntary commitment under s. 916.13 or s.
225 916.15. The court shall pay reasonable fees, as determined by
226 the court, for the evaluation and testimony of the expert.
227 Section 6. Subsection (2) of section 916.301, Florida
228 Statutes, is amended to read:
229 916.301 Appointment of experts.—
230 (2) If a defendant’s suspected mental condition is
231 intellectual disability or autism, the court shall appoint the
232 following:
233 (a) At least one, or at the request of any party, two
234 experts to evaluate whether the defendant meets the definition
235 of intellectual disability or autism and, if so, whether the
236 defendant is competent to proceed; and
237 (b) Shall appoint a psychologist selected by the agency who
238 is licensed or authorized by law to practice in this state, with
239 experience in evaluating persons suspected of having an
240 intellectual disability or autism, and a social service
241 professional, with experience in working with persons who have
242 an intellectual disability or autism.
243 1. The psychologist shall evaluate whether the defendant
244 meets the definition of intellectual disability or autism and,
245 if so, whether the defendant is incompetent to proceed due to
246 intellectual disability or autism.
247 2. The social service professional shall provide a social
248 and developmental history of the defendant; and
249 (b) May, at the request of any party that does not
250 stipulate to findings of incompetence, appoint up to two
251 additional experts to evaluate whether the defendant meets the
252 definition of intellectual disability or autism and, if so,
253 whether the defendant is competent to proceed. The first
254 additional expert shall be paid by the court and the second
255 additional expert shall be paid by the requesting party.
256 However, if the first evaluation determines the defendant is
257 competent to proceed and a party disputes the findings, that
258 party may request up to two additional experts to perform
259 evaluations at the party’s expense.
260 Section 7. Subsection (2) of section 916.304, Florida
261 Statutes, is amended to read:
262 916.304 Conditional release.—
263 (2) Upon the filing of an affidavit or statement under oath
264 by any person that the defendant has failed to comply with the
265 conditions of release, that the defendant’s condition has
266 deteriorated, or that the release conditions should be modified,
267 the court shall hold a hearing within 7 days after receipt of
268 the affidavit or statement under oath. With notice to the court
269 and all parties, the agency may detain a defendant in a forensic
270 facility until the hearing occurs. After the hearing, the court
271 may modify the release conditions. The court may also order that
272 the defendant be placed into more appropriate programs for
273 further training or may order the defendant to be committed to a
274 forensic facility if it is found, after the appointment and
275 report of experts, that the defendant meets the criteria for
276 placement in a forensic facility. The court shall pay reasonable
277 fees, as determined by the court, for the evaluation and
278 testimony of the expert.
279 Section 8. Section 921.09, Florida Statutes, is amended to
280 read:
281 921.09 Fees of physicians who determine sanity at time of
282 sentence.—The court shall allow reasonable fees to physicians
283 appointed by the court to determine the mental condition of A
284 defendant who has alleged insanity as a cause for not
285 pronouncing sentence may, at the defense’s expense, retain one
286 or more physicians to determine the mental condition of the
287 defendant. The fees shall be paid by the county in which the
288 indictment was found or the information or affidavit filed.
289 Section 9. Section 921.12, Florida Statutes, is amended to
290 read:
291 921.12 Fees of physicians when pregnancy is alleged as
292 cause for not pronouncing sentence.—The court shall allow
293 reasonable fees to the physicians appointed to examine A
294 defendant who has alleged her pregnancy as a cause for not
295 pronouncing sentence may, at the defense’s expense, retain one
296 or more physicians to examine the defendant. The fees shall be
297 paid by the county in which the indictment was found or the
298 information or affidavit filed.
299 Section 10. Subsection (4) of section 921.137, Florida
300 Statutes, is amended to read:
301 921.137 Imposition of the death sentence upon an
302 intellectually disabled defendant prohibited.—
303 (4) After a defendant who has given notice of his or her
304 intention to raise intellectual disability as a bar to the death
305 sentence is convicted of a capital felony and an advisory jury
306 has returned a recommended sentence of death, the defendant may
307 file a motion to determine whether the defendant is
308 intellectually disabled. Upon receipt of the motion, the court
309 shall appoint two experts in the field of intellectual
310 disabilities who shall evaluate the defendant and report their
311 findings to the court and all interested parties before prior to
312 the final sentencing hearing. The court shall pay reasonable
313 fees, as determined by the court, for the evaluation and
314 testimony of the expert regardless of whether the defendant is
315 indigent. Notwithstanding s. 921.141 or s. 921.142, the final
316 sentencing hearing shall be held without a jury. At the final
317 sentencing hearing, the court shall consider the findings of the
318 court-appointed experts and consider the findings of any other
319 expert which is offered by the state or the defense on the issue
320 of whether the defendant has an intellectual disability. If the
321 court finds, by clear and convincing evidence, that the
322 defendant has an intellectual disability as defined in
323 subsection (1), the court may not impose a sentence of death and
324 shall enter a written order that sets forth with specificity the
325 findings in support of the determination.
326 Section 11. Paragraphs (b) and (e) of subsection (1) and
327 subsection (7) of section 985.19, Florida Statutes, are amended
328 to read:
329 985.19 Incompetency in juvenile delinquency cases.—
330 (1) If, at any time prior to or during a delinquency case,
331 the court has reason to believe that the child named in the
332 petition may be incompetent to proceed with the hearing, the
333 court on its own motion may, or on the motion of the child’s
334 attorney or state attorney must, stay all proceedings and order
335 an evaluation of the child’s mental condition.
336 (b) All determinations of competency shall be made at a
337 hearing, with findings of fact based on an evaluation of the
338 child’s mental condition made by no not less than two nor more
339 than three experts appointed by the court. The court may
340 initially appoint one expert for the evaluation, pending a
341 determination of the child’s competency and the parties’
342 positions on stipulating to the findings. The basis for the
343 determination of incompetency must be specifically stated in the
344 evaluation. In addition, a recommendation as to whether
345 residential or nonresidential treatment or training is required
346 must be included in the evaluation. The court may take less
347 restrictive action than commitment authorized by this chapter or
348 the Florida Rules of Juvenile Procedure based on the
349 determination by one expert that the child is incompetent to
350 proceed. A child must be evaluated by no fewer than two experts
351 before the court commits the child; however, the court may
352 commit the child without further evaluation or hearing if one
353 expert finds that the child is incompetent to proceed and the
354 parties stipulate to that finding. If the parties do not
355 stipulate to the finding of the expert that the child is
356 incompetent, the court may appoint no more than two additional
357 experts to evaluate the child. Notwithstanding any stipulation
358 by the parties, the court may require a hearing with testimony
359 from one or more experts before ordering the commitment of a
360 child. Experts appointed by The court to determine the mental
361 condition of a child shall pay be allowed reasonable fees, as
362 determined by the court, for the evaluation and testimony of the
363 experts services rendered. State employees may be paid expenses
364 pursuant to s. 112.061. The fees shall be taxed as costs in the
365 case.
366 (e) For incompetency evaluations related to intellectual
367 disability or autism, the court shall order the Agency for
368 Persons with Disabilities to select the expert to examine the
369 child to determine if the child meets the definition of
370 “intellectual disability” or “autism” in s. 393.063 and, if so,
371 whether the child is competent to proceed with delinquency
372 proceedings.
373 (7) The provisions of this section shall be implemented
374 only subject to specific appropriation.
375 Section 12. Subsection (4) of section 29.006, Florida
376 Statutes, is amended to read:
377 29.006 Indigent defense costs.—For purposes of implementing
378 s. 14, Art. V of the State Constitution, the elements of the
379 public defenders’ offices and criminal conflict and civil
380 regional counsel offices to be provided from state revenues
381 appropriated by general law are as follows:
382 (4) Mental health professionals appointed pursuant to s.
383 394.473 and required in a court hearing involving an indigent,
384 and mental health professionals appointed pursuant to s.
385 916.115(3) s. 916.115(2) and required in a court hearing
386 involving an indigent.
387 Section 13. Subsection (5) of section 29.007, Florida
388 Statutes, is amended to read:
389 29.007 Court-appointed counsel.—For purposes of
390 implementing s. 14, Art. V of the State Constitution, the
391 elements of court-appointed counsel to be provided from state
392 revenues appropriated by general law are as follows:
393 (5) Mental health professionals appointed pursuant to s.
394 394.473 and required in a court hearing involving an indigent,
395 mental health professionals appointed pursuant to s. 916.115(3)
396 s. 916.115(2) and required in a court hearing involving an
397 indigent, and any other mental health professionals required by
398 law for the full adjudication of any civil case involving an
399 indigent person.
400
401 Subsections (3), (4), (5), (6), and (7) apply when court
402 appointed counsel is appointed; when the court determines that
403 the litigant is indigent for costs; or when the litigant is
404 acting pro se and the court determines that the litigant is
405 indigent for costs at the trial or appellate level. This section
406 applies in any situation in which the court appoints counsel to
407 protect a litigant’s due process rights. The Justice
408 Administrative Commission shall approve uniform contract forms
409 for use in processing payments for due process services under
410 this section. In each case in which a private attorney
411 represents a person determined by the court to be indigent for
412 costs, the attorney shall execute the commission’s contract for
413 private attorneys representing persons determined to be indigent
414 for costs.
415 Section 14. This act shall take effect July 1, 2017.