House Bill 0901

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    Florida House of Representatives - 2000                 HB 901

        By Representative Roberts






  1                      A bill to be entitled

  2         An act relating to the sentencing of capital

  3         felons; amending ss. 921.141 and 921.142, F.S.;

  4         providing for a separate proceeding to

  5         determine if the defendant accused of or

  6         convicted of a capital felony is mentally

  7         retarded; prescribing the penalty to be imposed

  8         if the defendant is determined to be mentally

  9         retarded; requiring the defendant to raise the

10         claim of mental retardation; providing

11         circumstances under which such claim may be

12         waived; defining mental retardation; providing

13         an effective date.

14

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

16

17         Section 1.  Subsection (1) of section 921.141, Florida

18  Statutes, is amended to read:

19         921.141  Sentence of death or life imprisonment for

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

21         (1)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--

22         (a)  Upon conviction or adjudication of guilt of a

23  defendant of a capital felony, the court shall conduct a

24  separate sentencing proceeding to determine whether the

25  defendant should be sentenced to death or life imprisonment as

26  authorized by s. 775.082. The proceeding shall be conducted by

27  the trial judge before the trial jury as soon as practicable.

28  If, through impossibility or inability, the trial jury is

29  unable to reconvene for a hearing on the issue of penalty,

30  having determined the guilt of the accused, the trial judge

31  may summon a special juror or jurors as provided in chapter

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    Florida House of Representatives - 2000                 HB 901

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  1  913 to determine the issue of the imposition of the penalty.

  2  If the trial jury has been waived, or if the defendant pleaded

  3  guilty, the sentencing proceeding shall be conducted before a

  4  jury impaneled for that purpose, unless waived by the

  5  defendant. In the proceeding, evidence may be presented as to

  6  any matter that the court deems relevant to the nature of the

  7  crime and the character of the defendant and shall include

  8  matters relating to any of the aggravating or mitigating

  9  circumstances enumerated in subsections (5) and (6). may be

10  received, regardless of its admissibility under the

11  exclusionary rules of evidence, provided the defendant is

12  accorded a fair opportunity to rebut any hearsay statements.

13  However, this subsection shall not be construed to authorize

14  the introduction of any evidence secured in violation of the

15  Constitution of the United States or the Constitution of the

16  State of Florida.  The state and the defendant or the

17  defendant's counsel shall be permitted to present argument for

18  or against sentence of death.

19         (b) If the court determines, by clear and convincing

20  evidence, that the defendant suffers from mental retardation,

21  as defined in s. 916.106(12), the court shall sentence the

22  defendant to life imprisonment. The defendant shall bear the

23  burden of persuasion to demonstrate that he or she is mentally

24  retarded. The failure of the defendant to raise the claim that

25  he or she is mentally retarded at the sentencing phase shall

26  waive any such claim. No postconviction claim may be based on

27  the assertion that a defendant could have or should have been

28  sentenced to life imprisonment based on the defendant's

29  alleged mental retardation. This claim may only be raised in

30  capital criminal prosecutions occurring after the effective

31  date of this act and may not be raised in any postconviction

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    Florida House of Representatives - 2000                 HB 901

    235-255-00






  1  proceeding. This claim may only be raised in the guilt phase

  2  of a capital criminal proceeding. For purposes of this

  3  section, "mental retardation" means significantly subaverage

  4  intellectual functioning existing concurrently with deficits

  5  in adaptive behavior and manifested during the period from

  6  conception to age 18. "Adaptive behavior," for the purpose of

  7  this definition, means the effectiveness with which an

  8  individual meets the standards of personal independence and

  9  social responsibility expected of a person of the individual's

10  age, cultural group, and community.

11         Section 2.  Subsection (2) 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         (2)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--

17         (a)  Upon conviction or adjudication of guilt of a

18  defendant of a capital felony under s. 893.135, the court

19  shall conduct a separate sentencing proceeding to determine

20  whether the defendant should be sentenced to death or life

21  imprisonment as authorized by s. 775.082.  The proceeding

22  shall be conducted by the trial judge before the trial jury as

23  soon as practicable.  If, through impossibility or inability,

24  the trial jury is unable to reconvene for a hearing on the

25  issue of penalty, having determined the guilt of the accused,

26  the trial judge may summon a special juror or jurors as

27  provided in chapter 913 to determine the issue of the

28  imposition of the penalty.  If the trial jury has been waived,

29  or if the defendant pleaded guilty, the sentencing proceeding

30  shall be conducted before a jury impaneled for that purpose,

31  unless waived by the defendant.  In the proceeding, evidence

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    Florida House of Representatives - 2000                 HB 901

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  1  may be presented as to any matter that the court deems

  2  relevant to the nature of the crime and the character of the

  3  defendant and shall include matters relating to any of the

  4  aggravating or mitigating circumstances enumerated in

  5  subsections (6) and (7).  Any such evidence which the court

  6  deems to have probative value may be received, regardless of

  7  its admissibility under the exclusionary rules of evidence,

  8  provided the defendant is accorded a fair opportunity to rebut

  9  any hearsay statements.  However, this subsection shall not be

10  construed to authorize the introduction of any evidence

11  secured in violation of the Constitution of the United States

12  or the Constitution of the State of Florida. The state and the

13  defendant or the defendant's counsel shall be permitted to

14  present argument for or against sentence of death.

15         (b) If the court determines, by clear and convincing

16  evidence, that the defendant suffers from mental retardation,

17  as defined in s. 916.106(12), the court shall sentence the

18  defendant to life imprisonment. The defendant shall bear the

19  burden of persuasion to demonstrate that he or she is mentally

20  retarded. The failure of the defendant to raise the claim that

21  he or she is mentally retarded at the sentencing phase shall

22  waive any such claim. No postconviction claim may be based on

23  the assertion that a defendant could have or should have been

24  sentenced to life imprisonment based on the defendant's

25  alleged mental retardation. This claim may only be raised in

26  capital criminal prosecutions occurring after the effective

27  date of this act and may not be raised in any postconviction

28  proceeding. This claim may only be raised in the guilt phase

29  of a capital criminal proceeding. For purposes of this

30  section, "mental retardation" means significantly subaverage

31  intellectual functioning existing concurrently with deficits

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    Florida House of Representatives - 2000                 HB 901

    235-255-00






  1  in adaptive behavior and manifested during the period from

  2  conception to age 18. "Adaptive behavior," for the purpose of

  3  this definition, means the effectiveness with which an

  4  individual meets the standards of personal independence and

  5  social responsibility expected of a person of the individual's

  6  age, cultural group, and community.

  7         Section 3.  This act shall take effect October 1, 2000.

  8

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10                          HOUSE SUMMARY

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      Provides for a separate proceeding to determine if the
12    defendant accused of or convicted of a capital felony is
      mentally retarded. Prescribes the penalty to be imposed
13    if the defendant is determined to be mentally retarded.
      Requires the defendant to raise the claim of mental
14    retardation. Provides circumstances under which such
      claim may be waived. Defines mental retardation.
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