Senate Bill sb0238

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    Florida Senate - 2001                                   SB 238

    By Senators Mitchell, Sullivan, Sebesta, Jones, Dawson,
    Holzendorf, Wasserman Schultz, Latvala, Horne, Clary, Rossin,
    Meek, Dyer, Lawson, Garcia, Lee and Silver



    4-203-01

  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 suffers

  6         from mental retardation if the mental

  7         retardation is directly related to the

  8         defendant's conduct at the time of the crime;

  9         providing requirements for raising mental

10         retardation as a bar to the death sentence;

11         providing for a separate proceeding to

12         determine whether the defendant suffers from

13         mental retardation; providing for an

14         determination of mental retardation to be

15         appealed; providing for application of

16         provisions prohibiting imposition of a sentence

17         of death; amending ss. 921.141, 921.142, F.S.;

18         providing for a defendant's mental retardation

19         to be considered as a mitigating circumstance

20         by the jury for purposes of the advisory

21         sentence recommended by the jury in a capital

22         felony or a capital drug-trafficking felony;

23         providing an effective date.

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

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27         Section 1.  Section 921.137, Florida Statutes, is

28  created to read:

29         921.137  Imposition of the death sentence upon a

30  mentally retarded defendant prohibited.--

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    Florida Senate - 2001                                   SB 238
    4-203-01




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

  2  retardation" means significantly subaverage general

  3  intellectual functioning existing concurrently with deficits

  4  in adaptive behavior and manifested during the period from

  5  conception to age 18. The term "significantly subaverage

  6  general intellectual functioning," for the purpose of this

  7  section, means performance that is two or more standard

  8  deviations from the mean score on a standardized intelligence

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

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

11  of this definition, means the effectiveness or degree with

12  which an individual meets the standards of personal

13  independence and social responsibility expected of his or her

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

15  and Family Services shall adopt rules to specify the

16  standardized intelligence tests as provided in this

17  subsection.

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

19  defendant convicted of a capital felony who suffers from

20  mental retardation if the defendant's conduct at the time of

21  the commission of the crime is directly related to the mental

22  retardation.

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

24  intends to raise mental retardation as a bar to the death

25  sentence under this section must give notice of such intention

26  in accordance with the rules of court governing notice of

27  intent to rely on an insanity defense.

28         (4)  When a defendant who has given proper notice of

29  intent to raise mental retardation as a bar to the death

30  sentence is convicted or adjudicated guilty of a capital

31  felony, the court must conduct a separate proceeding, without

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    Florida Senate - 2001                                   SB 238
    4-203-01




  1  the jury, to determine the applicability of subsection (2)

  2  before conducting sentencing proceedings under s. 921.141 or

  3  s. 921.142. If the court determines that the defendant has

  4  demonstrated by clear and convincing evidence that a sentence

  5  of death may not be imposed pursuant to subsection (2), the

  6  court shall enter a written order that sets forth with

  7  specificity its findings in support of its determination.

  8         (5)  The state may appeal, pursuant to s. 924.07, a

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

10         (6)  This section does not apply to a capital defendant

11  who was sentenced to death before the effective date of this

12  act.

13         Section 2.  Subsection (6) of section 921.141, Florida

14  Statutes, is amended to read:

15         921.141  Sentence of death or life imprisonment for

16  capital felonies; further proceedings to determine sentence.--

17         (6)  MITIGATING CIRCUMSTANCES.--Mitigating

18  circumstances shall be the following:

19         (a)  The defendant has no significant history of prior

20  criminal activity.

21         (b)  The capital felony was committed while the

22  defendant was under the influence of extreme mental or

23  emotional disturbance.

24         (c)  The victim was a participant in the defendant's

25  conduct or consented to the act.

26         (d)  The defendant was an accomplice in the capital

27  felony committed by another person and his or her

28  participation was relatively minor.

29         (e)  The defendant acted under extreme duress or under

30  the substantial domination of another person.

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  1         (f)  The capacity of the defendant to appreciate the

  2  criminality of his or her conduct or to conform his or her

  3  conduct to the requirements of law was substantially impaired.

  4         (g)  The age of the defendant at the time of the crime.

  5         (h)  The defendant suffers from mental retardation,

  6  which must be determined in accordance with the definition of

  7  the term "mental retardation" in s. 921.137.

  8         (i)(h)  The existence of any other factors in the

  9  defendant's background that would mitigate against imposition

10  of the death penalty.

11         Section 3.  Subsection (7) of section 921.142, Florida

12  Statutes, is amended to read:

13         921.142  Sentence of death or life imprisonment for

14  capital drug trafficking felonies; further proceedings to

15  determine sentence.--

16         (7)  MITIGATING CIRCUMSTANCES.--Mitigating

17  circumstances shall include the following:

18         (a)  The defendant has no significant history of prior

19  criminal activity.

20         (b)  The capital felony was committed while the

21  defendant was under the influence of extreme mental or

22  emotional disturbance.

23         (c)  The defendant was an accomplice in the capital

24  felony committed by another person, and the defendant's

25  participation was relatively minor.

26         (d)  The defendant was under extreme duress or under

27  the substantial domination of another person.

28         (e)  The capacity of the defendant to appreciate the

29  criminality of her or his conduct or to conform her or his

30  conduct to the requirements of law was substantially impaired.

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    Florida Senate - 2001                                   SB 238
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  1         (f)  The age of the defendant at the time of the

  2  offense.

  3         (g)  The defendant could not have reasonably foreseen

  4  that her or his conduct in the course of the commission of the

  5  offense would cause or would create a grave risk of death to

  6  one or more persons.

  7         (h)  The defendant suffers from mental retardation,

  8  which must be determined in accordance with the definition of

  9  the term "mental retardation" in s. 921.137.

10         (i)(h)  The existence of any other factors in the

11  defendant's background that would mitigate against imposition

12  of the death penalty.

13         Section 4.  This act shall take effect upon becoming a

14  law.

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16            *****************************************

17                          SENATE SUMMARY

18    Prohibits imposition of a sentence of death upon a
      defendant charged with a capital felony if the
19    defendant's conduct at the time of the crime is directly
      related to the defendant's mental retardation. Requires
20    that the court conduct a separate proceeding without a
      jury if a defendant notifies the court of his or her
21    intent to raise mental retardation as a bar to the death
      sentence. Provides that the state may appeal a
22    determination of mental retardation. Defines the term
      "mental retardation" for purposes of the act. (See bill
23    for details.)

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