CODING: Words stricken are deletions; words underlined are additions.
                                                   HOUSE AMENDMENT
                                            Bill No. CS for SB 358
    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) Roberts, Goodlette, Turnbull, and Heyman
12  offered the following:
13
14         Amendment to Amendment (381421) (with title amendment) 
15         On page 1, between lines 16 and 17,
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17  insert:
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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                                                   HOUSE AMENDMENT
                                            Bill No. CS for SB 358
    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. CS for SB 358
    Amendment No. ___ (for drafter's use only)
  1  who was sentenced to death before the effective date of this
  2  act.
  3         Section 2.  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 3.  Subsection (7) of section 921.142, Florida
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                                                   HOUSE AMENDMENT
                                            Bill No. CS for SB 358
    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. CS for SB 358
    Amendment No. ___ (for drafter's use only)
  1  ================ T I T L E   A M E N D M E N T ===============
  2  And the title is amended as follows:
  3         On page 36, line 4, of the amendment
  4
  5  after "services;" insert:
  6         creating s. 921.137, F.S.; defining the term
  7         "mental retardation"; prohibiting the
  8         imposition of a sentence of death on a
  9         defendant who suffers from mental retardation
10         if the mental retardation is directly related
11         to the defendant's conduct at the time of the
12         crime; providing requirements for raising
13         mental retardation as a bar to the death
14         sentence; providing for a separate proceeding
15         to determine whether the defendant suffers from
16         mental retardation; providing for an
17         determination of mental retardation to be
18         appealed; providing for application of
19         provisions prohibiting imposition of a sentence
20         of death; amending ss. 921.141, 921.142, F.S.;
21         providing for a defendant's mental retardation
22         to be considered as a mitigating circumstance
23         by the jury for purposes of the advisory
24         sentence recommended by the jury in a capital
25         felony or a capital drug-trafficking felony;
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