Senate Bill sb0238c1

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    Florida Senate - 2001                            CS for SB 238

    By the Committee on Criminal Justice and Senators Mitchell,
    Sullivan, Sebesta, Jones, Dawson, Holzendorf, Wasserman
    Schultz, Latvala, Horne, Clary, Rossin, Meek, Dyer, Lawson,
    Garcia, Lee, Silver, Campbell, Smith and Miller


    307-823-01

  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 imposition of the

  5         sentence of death if the court determines that

  6         the defendant suffers from mental retardation;

  7         requiring that a defendant notify the court of

  8         an intention to raise mental retardation as a

  9         bar to the sentence of death; providing

10         requirements for the court in determining

11         whether the defendant suffers from mental

12         retardation; providing that the sentence of

13         death may not be imposed unless the court finds

14         by clear and convincing evidence that the

15         defendant suffers from mental retardation;

16         requiring notice to the defendant if the state

17         requests a sentence of death, notwithstanding

18         the jury's recommendation for life

19         imprisonment; authorizing the state to appeal a

20         determination of mental retardation; providing

21         for application of the act; providing an

22         effective date.

23

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

25

26         Section 1.  Section 921.137, Florida Statutes, is

27  created to read:

28         921.137  Imposition of the death sentence upon a

29  mentally retarded defendant prohibited.--

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

31  retardation" means significantly subaverage general

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    Florida Senate - 2001                            CS for SB 238
    307-823-01




  1  intellectual functioning existing concurrently with deficits

  2  in adaptive behavior and manifested during the period from

  3  conception to age 18. The term "significantly subaverage

  4  general intellectual functioning," for the purpose of this

  5  section, means performance that is two or more standard

  6  deviations from the mean score on a standardized intelligence

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

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

  9  of this definition, means the effectiveness or degree with

10  which an individual meets the standards of personal

11  independence and social responsibility expected of his or her

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

13  and Family Services shall adopt rules to specify the

14  standardized intelligence tests as provided in this

15  subsection.

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

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

18  accordance with this section that the defendant suffers from

19  mental retardation.

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

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

22  sentence must give notice of such intention in accordance with

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

24  testimony regarding mental-health mitigation during the

25  penalty phase of a capital trial.

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

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

28  death sentence is convicted of a capital felony and an

29  advisory jury has returned a recommended sentence of death,

30  the defendant may file a motion to determine whether the

31  defendant suffers from mental retardation. Upon receipt of the

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    Florida Senate - 2001                            CS for SB 238
    307-823-01




  1  motion, the court shall appoint two experts in the field of

  2  mental retardation who shall evaluate the defendant and report

  3  their findings to the court and all interested parties prior

  4  to the final sentencing hearing. Notwithstanding s. 921.141 or

  5  s. 912.142, the final sentencing hearing shall be held without

  6  a jury. At the final sentencing hearing, the court shall

  7  consider the findings of the court-appointed experts and

  8  consider the findings of any other expert which is offered by

  9  the state or the defense on the issue of whether the defendant

10  suffers from mental retardation. If the court finds, by clear

11  and convincing evidence, that the defendant suffers from

12  mental retardation as defined in subsection (1), the court may

13  not impose a sentence of death and shall enter a written order

14  that sets forth with specificity the findings in support of

15  the determination.

16         (5)  If a defendant waives his or her right to a

17  recommended sentence by an advisory jury following a plea of

18  guilt or nolo contendere to a capital felony and adjudication

19  of guilt by the court, or following a jury finding of guilt of

20  a capital felony, upon acceptance of the waiver by the court,

21  a defendant who has given notice as required in subsection (3)

22  may file a motion for a determination of mental retardation.

23  Upon granting the motion, the court shall proceed as provided

24  in subsection (4).

25         (6)  If, following a recommendation by an advisory jury

26  that the defendant be sentenced to life imprisonment, the

27  state intends to request the court to order that the defendant

28  be sentenced to death, the state must inform the defendant of

29  such request if the defendant has notified the court of his or

30  her intent to raise mental retardation as a bar to the death

31  sentence. After receipt of the notice from the state, the

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    Florida Senate - 2001                            CS for SB 238
    307-823-01




  1  defendant may file a motion requesting a determination by the

  2  court of whether the defendant suffers from mental

  3  retardation. Upon granting the motion, the court shall proceed

  4  as provided in subsection (4).

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

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

  7         (8)  This section does not apply to a defendant who was

  8  sentenced to death prior to the effective date of this act.

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

10  law.

11

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                         Senate Bill 238

14

15  1.    Provides that a person who is found by the court to be
          mentally retarded shall not receive the death sentence.
16        Removes the requirement that the defendant's conduct at
          the time of the crime be directly related to mental
17        retardation.

18  2.    Changes the reference to the rule of court which will
          govern the defendant's notice requirements for purposes
19        of reliance on mental retardation as a bar to the death
          penalty.
20
    3.    Sets forth procedures to be followed under various
21        circumstances including: where the defendant is found
          guilty at trial and the advisory jury has recommended
22        the death sentence; where the defendant is found guilty
          at trial and the advisory jury has recommended life
23        imprisonment but the state still seeks the death
          penalty; where the defendant has been found guilty at
24        trial or entered a plea to a capital offense and waived
          the right to an advisory jury.
25
    4.    Provides for the appointment of two experts in the area
26        of mental retardation by the court, and allows the state
          and the defense to call additional experts at the final
27        sentencing hearing.

28  5.    Deletes the provisions which added mental retardation to
          the list of statutory mitigating factors under s.
29        921.141 and 921.142, F.S.

30

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