House Bill hb1095

    Florida House of Representatives - 2001                HB 1095

        By Representatives Green, Goodlette, Spratt, Kottkamp,
    Littlefield, Murman, Argenziano, Detert, Rubio, Barreiro,
    Kilmer, Negron and Farkas




  1                      A bill to be entitled

  2         An act relating to the death penalty; creating

  3         s. 921.137, F.S.; defining the term "mental

  4         retardation"; prohibiting the imposition of a

  5         sentence of death on a defendant who has mental

  6         retardation; providing requirements for raising

  7         mental retardation as a bar to the death

  8         sentence; providing for a separate proceeding

  9         to determine whether the defendant has mental

10         retardation; providing for a determination of

11         mental retardation to be appealed; providing

12         for application of provisions prohibiting

13         imposition of a sentence of death; providing an

14         effective date.

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

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18         Section 1.  Section 921.137, Florida Statutes, is

19  created to read:

20         921.137  Imposition of the death sentence upon a

21  mentally retarded defendant prohibited.--

22         (1)  As used in this section, the term "mental

23  retardation" means significantly subaverage general

24  intellectual functioning existing concurrently with deficits

25  in adaptive behavior and manifested during the period from

26  conception to age 18. The term "significantly subaverage

27  general intellectual functioning," for the purpose of this

28  section, means performance that is two or more standard

29  deviations from the mean score on a standardized intelligence

30  test specified in the rules of the Department of Children and

31  Family Services. The term "adaptive behavior," for the purpose

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CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1095

    705-148C-01






  1  of this definition, means the effectiveness or degree with

  2  which an individual meets the standards of personal

  3  independence and social responsibility expected of his or her

  4  age, cultural group, and community. The Department of Children

  5  and Family Services shall adopt rules to specify the

  6  standardized intelligence tests as provided in this

  7  subsection.

  8         (2)  A sentence of death may not be imposed upon a

  9  defendant convicted of a capital felony if it is determined in

10  accordance with the provisions outlined herein that the

11  defendant has mental retardation.

12         (3)  A defendant charged with a capital felony who

13  intends to raise mental retardation as a bar to a death

14  sentence must give notice of such intention in accordance with

15  the rules of court governing notices of intent to offer expert

16  testimony regarding mental health mitigation during the

17  penalty phase of a capital trial.

18         (4)  After a defendant who has given notice of his or

19  her intention to raise mental retardation as a bar to the

20  death sentence is convicted of a capital offense and an

21  advisory jury has returned a recommended sentence of death,

22  the defendant may file a motion to determine whether the

23  defendant has mental retardation. Upon receipt of the motion,

24  the court shall appoint two experts in the field of mental

25  retardation who shall evaluate the defendant and report their

26  findings to the court and all interested parties prior to the

27  final sentencing hearing. Notwithstanding s. 921.141 or s.

28  921.142, the final sentencing hearing shall be without a jury.

29  At the final sentencing hearing, the court shall consider the

30  findings of the court-appointed experts and consider the

31  findings of any other experts offered by the state or defense

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    Florida House of Representatives - 2001                HB 1095

    705-148C-01






  1  as to whether the defendant has mental retardation. If the

  2  court finds by clear and convincing evidence that the

  3  defendant has mental retardation as defined in subsection (1),

  4  the court shall not impose a sentence of death and shall enter

  5  a written order that sets forth with specificity the findings

  6  in support of the determination.

  7         (5)  If after either entering a plea of guilty or nolo

  8  contendere to a capital felony and being adjudicated guilty by

  9  the court, or a jury has returned a verdict of guilt to a

10  capital felony, then a defendant waives his or her right to a

11  recommended sentence by an advisory jury, the defendant may,

12  upon acceptance of the waiver by the court, file a motion to

13  determine whether the defendant has mental retardation,

14  provided the defendant has given the state notice as required

15  by subsection (3). Upon receipt of the motion, the court shall

16  proceed as provided in subsection (4).

17         (6)  When an advisory jury returns a recommendation of

18  a life sentence and the state intends to request the court to

19  order the defendant sentenced to death, the state shall inform

20  any defendant that has given notice of his or her intent to

21  raise mental retardation as a bar to the death penalty. Any

22  defendant, after receipt of such notice from the state, may

23  file a motion requesting the court to determine mental

24  retardation. Upon request of such motion, the court shall

25  proceed as outlined in subsection (4).

26         (7)  The state may appeal, pursuant to s. 924.07, a

27  determination of mental retardation made under subsection (4).

28         (8)  This section shall not apply to a defendant who

29  was sentenced to death prior to the date of this act.

30         Section 2.  This act shall take effect upon becoming a

31  law.

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    Florida House of Representatives - 2001                HB 1095

    705-148C-01






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  2                          HOUSE SUMMARY

  3
      Prohibits imposition of a sentence of death upon a
  4    defendant charged with a capital felony who has mental
      retardation. Requires that the court conduct a separate
  5    proceeding without a jury if a defendant notifies the
      court of his or her intent to raise mental retardation as
  6    a bar to the death sentence. Provides that the state may
      appeal a determination of mental retardation. Defines the
  7    term "mental retardation" for purposes of the act. See
      bill for details.
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