House Bill hb1095c1

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    Florida House of Representatives - 2001             CS/HB 1095

        By the Committee on State Administration and
    Representatives Green, Goodlette, Spratt, Kottkamp,
    Littlefield, Murman, Argenziano, Detert, Rubio, Barreiro,
    Kilmer, Negron, Farkas, Crow, Byrd, Bilirakis, Russell,
    (Additional Sponsors on Last Printed Page)


  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 the imposition of a

  5         sentence of death on a defendant who has mental

  6         retardation; providing requirements for raising

  7         mental retardation as a bar to the death

  8         sentence; providing for a separate proceeding

  9         to determine whether the defendant has mental

10         retardation; providing for a determination of

11         mental retardation to be appealed; providing

12         for application of provisions prohibiting

13         imposition of a sentence of death; providing an

14         effective date.

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

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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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  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 specify the

  6  standardized intelligence tests as provided in this

  7  subsection.

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

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

10  accordance with the provisions outlined herein that the

11  defendant has mental retardation.

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

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

14  sentence must give notice of such intention in accordance with

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

16  testimony regarding mental health mitigation during the

17  penalty phase of a capital trial.

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

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

20  death sentence is convicted of a capital offense and an

21  advisory jury has returned a recommended sentence of death,

22  the defendant may file a motion to determine whether the

23  defendant has mental retardation. Upon receipt of the motion,

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

25  retardation who shall evaluate the defendant and report their

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

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

28  921.142, the final sentencing hearing shall be without a jury.

29  At the final sentencing hearing, the court shall consider the

30  findings of the court-appointed experts and consider the

31  findings of any other experts offered by the state or defense

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  1  as to whether the defendant has mental retardation. If the

  2  court finds by clear and convincing evidence that the

  3  defendant has mental retardation as defined in subsection (1),

  4  the court shall not impose a sentence of death and shall enter

  5  a written order that sets forth with specificity the findings

  6  in support of the determination.

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

  8  recommended sentence by an advisory jury following a plea of

  9  guilty or nolo contendere to a capital felony and adjudication

10  of guilt by the court, or following a jury verdict of guilty

11  of a capital felony, upon acceptance of the waiver by the

12  court, a defendant who has given notice as required in

13  subsection (3) may file a motion for a determination of mental

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

15  as provided in subsection (4).

16         (6)  When an advisory jury returns a recommendation of

17  a life sentence and the state intends to request the court to

18  order the defendant sentenced to death, the state shall inform

19  any defendant that has given notice of his or her intent to

20  raise mental retardation as a bar to the death penalty. Any

21  defendant, after receipt of such notice from the state, may

22  file a motion requesting the court to determine mental

23  retardation. Upon request of such motion, the court shall

24  proceed as outlined in subsection (4).

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

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

27         (8)  This section shall not apply to a defendant who

28  was sentenced to death prior to the date of this act.

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

30  law.

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                         ADDITIONAL SPONSORS
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  4  Bucher, Davis, Betancourt, Kendrick, McGriff, Mahon,

  5  Henriquez, Atwater, Diaz de la Portilla, Rich, Romeo, Gannon,

  6  Bean, Bense, Wiles, Heyman, Fiorentino, Justice, Kosmas, Lynn,

  7  Seiler, Paul, Holloway, Hart, Garcia, Bullard, Attkisson,

  8  Bendross-Mindingall, Prieguez, Waters, Stansel, Cusack,

  9  Melvin, Lacasa, Lerner, Sobel, Slosberg, Kallinger, Gelber,

10  Smith, Ausley, Jennings and Bennett

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