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Florida Senate Bill sb0238er

Florida Senate Bill sb0238er

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


    2001 Legislature                  CS for SB 238, 2nd Engrossed



  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 tha 

  6         the defendant has mental retardation; requiring

  7         that a defendant notify the court of an

  8         intention to raise mental retardation as a bar

  9         to the sentence of death; providing

10         requirements for the court in determining

11         whether the defendant has mental retardation 

12         providing that the sentence of death may not be

13         imposed if the court finds by clear and

14         convincing evidence that the defendant has

15         mental retardation; requiring notice to the

16         defendant if the state requests a sentence of

17         death, notwithstanding the jury's

18         recommendation for life imprisonment;

19         authorizing the state to appeal a determination

20         of mental retardation; providing for

21         application of the act; providing an effective

22         date.


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


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
  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 has mental

19  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 has mental retardation. Upon receipt of the motion

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

  2  retardation who shall evaluate the defendant and report their

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

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

  5  921.142, the final sentencing hearing shall be held without a

  6  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  has mental retardation. If the court finds, by clear and

11  convincing evidence, that the defendant has mental retardation

12  as defined in subsection (1), the court may not impose a

13  sentence of death and shall enter a written order that sets

14  forth with specificity the findings in support of the

15  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

  1  defendant may file a motion requesting a determination by the

  2  court of whether the defendant has mental retardation. Upon

  3  granting the motion, the court shall proceed as provided in

  4  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 wa 

  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.