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



                                                   HOUSE AMENDMENT

                                         Bill No. SB 268, 2nd Eng.

    Amendment No. ___ (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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  4  ______________________________________________________________

  5                                           ORIGINAL STAMP BELOW

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10  ______________________________________________________________

11  Representative(s) Cosgrove offered the following:

12

13         Amendment (with title amendment) 

14         On page 2, lines 4-5

15  remove from the bill:  all of said lines

16

17  and insert in lieu thereof:

18         Section 2.  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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                                                   HOUSE AMENDMENT

                                         Bill No. SB 268, 2nd Eng.

    Amendment No. ___ (for drafter's use only)





  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 administer this

  6  subsection.

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

  8  defendant convicted of a capital felony who suffers from

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

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

11  retardation.

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

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

14  sentence under this section shall give notice of such

15  intention in accordance with the rules of court governing

16  notice of intent to rely on an insanity defense.

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

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

19  sentence is convicted or adjudicated guilty of a capital

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

21  the jury, to determine whether the defendant suffers from

22  mental retardation before conducting sentencing proceedings

23  under s. 921.141 or s. 921.142. If the court determines that

24  the defendant has demonstrated by clear and convincing

25  evidence that the defendant suffers from mental retardation,

26  the court shall enter a written order that sets forth with

27  specificity its findings in support of its determination that

28  the defendant suffers from mental retardation.

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

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

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

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                                                   HOUSE AMENDMENT

                                         Bill No. SB 268, 2nd Eng.

    Amendment No. ___ (for drafter's use only)





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

  2  act.

  3         Section 3.  Subsection (6) of section 921.141, Florida

  4  Statutes, is amended to read:

  5         921.141  Sentence of death or life imprisonment for

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

  7         (6)  MITIGATING CIRCUMSTANCES.--Mitigating

  8  circumstances shall be the following:

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

10  criminal activity.

11         (b)  The capital felony was committed while the

12  defendant was under the influence of extreme mental or

13  emotional disturbance.

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

15  conduct or consented to the act.

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

17  felony committed by another person and his or her

18  participation was relatively minor.

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

20  the substantial domination of another person.

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

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

23  conduct to the requirements of law was substantially impaired.

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

25         (h)  The defendant suffers from mental retardation,

26  which shall be determined in accordance with the definition of

27  the term "retardation" in s. 393.063.

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

29  defendant's background that would mitigate against imposition

30  of the death penalty.

31         Section 4.  Subsection (7) of section 921.142, Florida

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                                                   HOUSE AMENDMENT

                                         Bill No. SB 268, 2nd Eng.

    Amendment No. ___ (for drafter's use only)





  1  Statutes, is amended to read:

  2         921.142  Sentence of death or life imprisonment for

  3  capital drug trafficking felonies; further proceedings to

  4  determine sentence.--

  5         (7)  MITIGATING CIRCUMSTANCES.--Mitigating

  6  circumstances shall include the following:

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

  8  criminal activity.

  9         (b)  The capital felony was committed while the

10  defendant was under the influence of extreme mental or

11  emotional disturbance.

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

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

14  participation was relatively minor.

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

16  the substantial domination of another person.

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

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

19  conduct to the requirements of law was substantially impaired.

20         (f)  The age of the defendant at the time of the

21  offense.

22         (g)  The defendant could not have reasonably foreseen

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

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

25  one or more persons.

26         (h)  The defendant suffers from mental retardation,

27  which shall be determined in accordance with the definition of

28  the term "retardation" in s. 393.063.

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

30  defendant's background that would mitigate against imposition

31  of the death penalty.

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                                                   HOUSE AMENDMENT

                                         Bill No. SB 268, 2nd Eng.

    Amendment No. ___ (for drafter's use only)





  1         Section 5.  This act shall take effect upon becoming a

  2  law

  3

  4

  5  ================ T I T L E   A M E N D M E N T ===============

  6  And the title is amended as follows:

  7         On page 1, line 7,

  8

  9  after evidence; insert:

10         creating s. 921.137, F.S.; defining the term

11         "mental retardation"; prohibiting the

12         imposition of a sentence of death on a

13         defendant who suffers from mental retardation

14         if the mental retardation is directly related

15         to the defendant's conduct at the time of the

16         crime; providing requirements for raising

17         mental retardation as a bar to the death

18         sentence; providing for a separate proceeding

19         to determine whether the defendant suffers from

20         mental retardation; providing for an

21         determination of mental retardation to be

22         appealed; providing for application of

23         provisions prohibiting imposition of a sentence

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

25         providing for a defendant's mental retardation

26         to be considered as a mitigating circumstance

27         by the jury for purposes of the advisory

28         sentence recommended by the jury in a capital

29         felony or a capital drug-trafficking felony;

30

31

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