Senate Bill sb2576

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    Florida Senate - 2005                                  SB 2576

    By Senator Haridopolos





    26-1114-05

  1                      A bill to be entitled

  2         An act relating to competency to proceed;

  3         amending s. 916.115, F.S.; requiring an expert

  4         appointed to examine a defendant to evaluate

  5         the defendant with mental illness in a facility

  6         of the Department of Corrections when

  7         appropriate; amending s. 916.145, F.S.;

  8         requiring a defendant be returned to the

  9         custody of the Department of Corrections after

10         charges against the defendant are dismissed but

11         the defendant has an active sentence with the

12         department; amending s. 916.17, F.S.;

13         prohibiting a court from ordering a conditional

14         release if the defendant with mental illness

15         has an active sentence with the Department of

16         Corrections; amending s. 916.301, F.S.;

17         authorizing an expert to examine a defendant

18         who has mental retardation or autism in a

19         facility of the Department of Corrections;

20         amending s. 916.304, F.S.; prohibiting a court

21         from ordering a conditional release if the

22         defendant who has mental retardation or autism

23         has an active sentence with the Department of

24         Corrections; amending s. 922.07, F.S.;

25         providing for procedures when a person under

26         sentence of death is alleged to be insane;

27         requiring the Department of Children and Family

28         Services to supply a treatment team to evaluate

29         and treat the person; requiring the treatment

30         team to report to the Governor within a

31         specified time; authorizing the Governor to

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 1         appoint a commission to reexamine the person;

 2         providing that if the Governor determines that

 3         the person has regained the mental capacity to

 4         understand the nature of the death penalty, the

 5         Governor shall lift the stay and proceed with

 6         the execution; amending s. 945.41, F.S.;

 7         providing for legislative intent for inmates

 8         sentenced to death who may not be competent to

 9         participate in postconviction proceedings;

10         amending s. 945.42, F.S.; redefining the term

11         "psychologist"; creating s. 945.501, F.S.;

12         defining terms relating to inmates sentenced to

13         death who may not be competent to participate

14         in postconviction proceedings; creating s.

15         945.502, F.S.; authorizing counsel to file a

16         motion requesting the court to determine

17         whether the inmate is competent to proceed;

18         providing procedures to determine the

19         competency of the inmate; requiring the court

20         to appoint examining experts; providing for

21         responsibilities of the experts; requiring the

22         experts to file a report with the court;

23         requiring the court to hold a hearing; creating

24         s. 945.503, F.S,; providing procedures to

25         determine whether an inmate found not competent

26         to proceed should be committed to the

27         Department of Children and Family Services for

28         treatment or training; requiring the Department

29         of Children and Family Services to provide

30         treatment or training services; providing

31         procedures to reexamine the inmate; creating s.

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 1         945.504, F.S.; providing for involuntary

 2         treatment of an inmate found not to be

 3         competent to proceed who refuses to give

 4         express and informed consent to the treatment

 5         or training; providing procedures for emergency

 6         and nonemergency situations; providing a

 7         hearing, authorizing the court to appoint a

 8         master to preside at the hearing; providing an

 9         effective date.

10  

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

12  

13         Section 1.  Section 916.115, Florida Statutes, is

14  amended to read:

15         916.115  Appointment of experts.--

16         (1)(a)  Annually, the department shall provide the

17  courts with a list of mental health professionals who have

18  completed approved training as experts.

19         (b)  The court may appoint no more than three nor fewer

20  than two experts to determine issues of the mental condition

21  of a defendant in a criminal case, including the issues of

22  competency to proceed, insanity, and involuntary

23  hospitalization or placement.  The panel of experts may

24  evaluate the defendant in jail, in a Department of Corrections

25  facility, or in another appropriate local facility.

26         (c)  To the extent possible, the appointed experts

27  shall have completed forensic evaluator training approved by

28  the department and be either a psychiatrist, licensed

29  psychologist, or physician.

30         (2)  Expert witnesses appointed by the court to

31  evaluate the mental condition of a defendant in a criminal

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 1  case shall be allowed reasonable fees for services rendered as

 2  evaluators of competence or sanity and as witnesses, which

 3  shall be paid by the county in which the indictment was found

 4  or the information or affidavit was filed. State employees

 5  shall be paid expenses under pursuant to s. 112.061. The fees

 6  shall be taxed as costs in the case. In order for the experts

 7  to be paid for the services rendered, the reports and

 8  testimony must explicitly address each of the factors and

 9  follow the procedures set out in this chapter and in the

10  Florida Rules of Criminal Procedure.

11         Section 2.  Section 916.145, Florida Statutes, is

12  amended to read:

13         916.145  Adjudication of incompetency due to mental

14  illness; dismissal of charges.--The charges against any

15  defendant adjudicated incompetent to proceed to trial due to

16  the defendant's mental illness shall be dismissed without

17  prejudice to the state if the defendant remains incompetent to

18  proceed 5 years after such determination, unless the court in

19  its order specifies its reasons for believing that the

20  defendant will become competent to proceed within the

21  foreseeable future and specifies the time within which the

22  defendant is expected to become competent to proceed. The

23  charges against the defendant are dismissed without prejudice

24  to the state to refile the charges should the defendant be

25  declared competent to proceed in the future. The defendant

26  shall be returned to the custody of the Department of

27  Corrections after the charges against the defendant are

28  dismissed, if the defendant has an active sentence with the

29  Department of Corrections.

30         Section 3.  Subsections (1) and (3) of section 916.17,

31  Florida Statutes, are amended to read:

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 1         916.17  Conditional release.--

 2         (1)  The committing court may order a conditional

 3  release of any defendant who has been found to be incompetent

 4  to proceed or not guilty by reason of insanity, based on an

 5  approved plan for providing appropriate outpatient care and

 6  treatment, provided that the defendant does not have an active

 7  sentence with the Department of Corrections. The committing

 8  court may order a conditional release of any defendant in lieu

 9  of an involuntary commitment to a facility under pursuant to

10  s. 916.13 or s. 916.15. Upon a recommendation that outpatient

11  treatment of the defendant is appropriate, a written plan for

12  outpatient treatment, including recommendations from qualified

13  professionals, must be filed with the court, with copies to

14  all parties. The Such a plan may also be submitted by the

15  defendant and filed with the court with copies to all parties.

16  The plan shall include:

17         (a)  Special provisions for residential care or

18  adequate supervision of the defendant.

19         (b)  Provisions for outpatient mental health services.

20         (c)  If appropriate, recommendations for auxiliary

21  services such as vocational training, educational services, or

22  special medical care.

23  

24  In its order of conditional release, the court shall specify

25  the conditions of release based upon the release plan and

26  shall direct the appropriate agencies or persons to submit

27  periodic reports to the court regarding the defendant's

28  compliance with the conditions of the release and progress in

29  treatment, with copies to all parties.

30         (3)  If at any time it is determined after a hearing

31  that the defendant no longer requires court-supervised

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 1  followup care, the court shall terminate its jurisdiction in

 2  the cause and discharge the defendant, provided that the

 3  defendant does not have an active sentence with the Department

 4  of Corrections.

 5         Section 4.  Subsections (6) and (7) of section 916.301,

 6  Florida Statutes, are amended to read:

 7         916.301  Appointment of experts.--

 8         (6)  The panel of experts may examine the defendant in

 9  jail, in a Department of Corrections facility, in another

10  appropriate local facility, or on an outpatient basis.

11         (7)  Expert witnesses appointed by the court to

12  evaluate the mental condition of a defendant in a criminal

13  case shall be allowed reasonable fees for services rendered as

14  evaluators and as witnesses, which shall be paid by the county

15  in which the indictment was found or the information or

16  affidavit was filed. State employees shall be paid expenses

17  under pursuant to s. 112.061. The fees shall be taxed as costs

18  in the case. In order for the experts to be paid for the

19  services rendered, the reports and testimony must explicitly

20  address each of the factors and follow the procedures set out

21  in this chapter and in the Florida Rules of Criminal

22  Procedure.

23         Section 5.  Subsections (1) and (3) of section 916.304,

24  Florida Statutes, are amended to read:

25         916.304  Conditional release.--

26         (1)  If the defendant does not have an active sentence

27  with the Department of Corrections, the committing court may

28  order a conditional release of any defendant who has been

29  found to be incompetent to proceed, based on an approved plan

30  for providing continuing community-based training. The

31  committing criminal court may order a conditional release of

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 1  any defendant in lieu of an involuntary commitment to a

 2  forensic facility under pursuant to s. 916.302. Upon a

 3  recommendation that community-based training for the defendant

 4  is appropriate, a written plan for community-based training,

 5  including recommendations from qualified professionals, may be

 6  filed with the court, with copies to all parties. The Such a

 7  plan may also be submitted by the defendant and filed with the

 8  court, with copies to all parties. The plan shall include:

 9         (a)  Special provisions for residential care and

10  adequate supervision of the defendant, including recommended

11  location of placement.

12         (b)  Recommendations for auxiliary services such as

13  vocational training, psychological training, educational

14  services, leisure services, and special medical care.

15  

16  In its order of conditional release, the court shall specify

17  the conditions of release based upon the release plan and

18  shall direct the appropriate agencies or persons to submit

19  periodic reports to the courts regarding the defendant's

20  compliance with the conditions of the release and progress in

21  training, with copies to all parties.

22         (3)  If at any time it is determined after a hearing

23  that the defendant no longer requires court-supervised

24  followup care, the court shall terminate its jurisdiction in

25  the cause and discharge the defendant. If the defendant has an

26  active sentence with the Department of Corrections, he or she

27  must be released to the custody of the Department of

28  Corrections.

29         Section 6.  Section 922.07, Florida Statutes, is

30  amended to read:

31  

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 1         922.07  Proceedings when person under sentence of death

 2  is alleged appears to be insane.--

 3         (1)  If, at least 10 days before a scheduled execution,

 4  When the Governor receives written notification from the

 5  counsel of record of the inmate or a prison administrator is

 6  informed that a person under sentence of death may be insane,

 7  the Governor shall stay execution of the sentence and appoint

 8  a commission of three psychiatrists to examine the convicted

 9  person. The Governor shall notify the psychiatrists in writing

10  that they are to examine the convicted person to determine

11  whether he or she understands the nature and effect of the

12  death penalty and why it is to be imposed upon him or her.

13  The examination of the convicted person shall take place with

14  all three psychiatrists present at the same time. Counsel for

15  the convicted person and the state attorney may be present at

16  the examination.  If the convicted person does not have

17  counsel, the court that imposed the sentence shall appoint

18  counsel to represent him or her.

19         (2)  After receiving the report of the commission, if

20  the Governor decides that the convicted person has the mental

21  capacity to understand the nature of the death penalty and the

22  reasons why it was imposed upon him or her, the Governor shall

23  immediately lift the stay and notify the Attorney General of

24  such action.  Within 10 days after such notification, the

25  Governor must set the new date for execution of the death

26  sentence. When the new date for execution of the death

27  sentence is set by the Governor under this subsection, the

28  Attorney General shall notify the inmate's counsel of record

29  of the date and time of execution.

30         (3)  If the Governor decides that the convicted person

31  does not have the mental capacity to understand the nature of

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 1  the death penalty and why it was imposed on him or  her, the

 2  Governor shall have the convicted person transferred committed

 3  to a Department of Corrections mental health treatment

 4  facility capable of housing death row inmates. A treatment

 5  team from the Department of Children and Family Services shall

 6  provide evaluation and treatment services to the inmate

 7  according to the contract provisions of s. 945.41(1). The

 8  treatment team shall report to the Governor on the mental

 9  condition of the inmate every 30 days.

10         (4)  At any time after the convicted person is

11  transferred to the Department of Corrections mental health

12  treatment facility, the Governor may appoint a commission to

13  reexamine the convicted person. After receiving a report from

14  the commission, if the Governor determines that the convicted

15  person has regained the mental capacity to understand the

16  nature of the death penalty and the reasons why it was imposed

17  upon him or her, the Governor shall lift the stay and proceed

18  as provided in subsection (2). When a person under sentence of

19  death has been committed to a Department of Corrections mental

20  health treatment facility, he or she shall be kept there until

21  the facility administrator determines that he or she has been

22  restored to sanity.  The facility administrator shall notify

23  the Governor of his or her determination, and the Governor

24  shall appoint another commission to proceed as provided in

25  subsection (1).

26         (5)  The Governor shall allow reasonable fees to

27  psychiatrists appointed under the provisions of this section,

28  which shall be paid by the state.

29         Section 7.  Section 945.41, Florida Statutes, is

30  amended to read:

31  

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 1         945.41  Legislative intent of ss. 945.40-945.49.--It is

 2  the intent of the Legislature that mentally ill inmates in the

 3  custody of the Department of Corrections receive evaluation

 4  and appropriate treatment for their mental illness through a

 5  continuum of services.  It is further the intent of the

 6  Legislature that:

 7         (1)  Inmates in the custody of the department who have

 8  mental illnesses that require hospitalization and intensive

 9  psychiatric inpatient treatment or care shall receive

10  appropriate treatment or care in Department of Corrections

11  mental health treatment facilities designated for that

12  purpose. The department shall contract with the Department of

13  Children and Family Services for the provision of mental

14  health services in any departmental mental health treatment

15  facility. The Department of Corrections shall provide mental

16  health services to inmates in its custody committed to it and

17  may contract with any persons or agencies qualified to provide

18  these such services.

19         (2)  Inmates sentenced to death who are in the custody

20  of the department, but whose competence to proceed with

21  postconviction proceedings is at issue, shall remain in the

22  custody of the department but shall receive mental health

23  evaluation and treatment services from the Department of

24  Children and Family Services. The definition of terms, the

25  determination of an inmate's competence, the mental health

26  commitment of an inmate, the discharge of the commitment

27  order, and the involuntary administration of treatment or

28  medications shall be conducted according to ss. 945.501-

29  945.504.

30         (3)(2)  Mental health treatment facilities must be

31  secure and adequately equipped and staffed for the provision

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 1  of mental health services and that, to the extent possible,

 2  the such services must be provided in the least restrictive

 3  manner consistent with optimum improvement of the inmate's

 4  condition.

 5         (4)(3)  Inmates who are transferred to any facility for

 6  the purpose of mental health treatment shall be given

 7  consideration for parole and be eligible for release by reason

 8  of gain-time allowances as provided in s. 944.291 and release

 9  by expiration of sentence, consistent with guidelines

10  established for that purpose by the department.

11         (5)(4)  Any inmate sentenced as a youthful offender, or

12  designated as a youthful offender by the department under

13  pursuant to chapter 958, who is transferred under pursuant to

14  this act to a mental health treatment facility shall be

15  separated from other inmates, if necessary, as determined by

16  the warden of the treatment facility.  A In no case shall any

17  youthful offender may not be placed at the Florida State

18  Prison or the Union Correctional Institution for mental health

19  treatment.

20         (6)(5)  The department may designate a mental health

21  treatment facility for adult and youthful female offenders or

22  may contract with other appropriate agencies for these such

23  services.

24         Section 8.  Subsection (10) of section 945.42, Florida

25  Statutes, is amended to read:

26         945.42  Definitions; ss. 945.40-945.49.--As used in ss.

27  945.40-945.49, the following terms shall have the meanings

28  ascribed to them, unless the context shall clearly indicate

29  otherwise:

30         (10)  "Psychologist" means a behavioral practitioner

31  who has an approved degree in psychology that is primarily

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 1  clinical in nature from a university or professional graduate

 2  school that is state-authorized or accredited by an

 3  accrediting agency approved by the United States Department of

 4  Education and who is professionally certified by the

 5  appropriate professional psychology association or is licensed

 6  as a psychologist under pursuant to chapter 490.

 7         Section 9.  Section 945.501, Florida Statutes, is

 8  created to read:

 9         945.501  Definitions.--As used in ss. 945.501-945.504,

10  the term:

11         (1)  "Court" means the circuit court.

12         (2)  "Inmate" means an inmate who has been sentenced to

13  death and who either has been found incompetent to proceed in

14  his or her postconviction proceeding or whose competence is at

15  issue.

16         (3)  "Psychotropic medication" means any drug or

17  compound used to treat mental or emotional disorders affecting

18  the mind, behavior, intellectual functions, perception, moods,

19  or emotions and includes antipsychotic, antidepressant,

20  antimanic, and antianxiety drugs.

21         (4)  "Treatment team" means the personnel assigned by

22  the Department of Children and Family Services to evaluate and

23  treat an inmate who is competent and is in the custody of the

24  department.

25         Section 10.  Section 945.502, Florida Statutes, is

26  created to read:

27         945.502  Mental competence to proceed during capital

28  postconviction litigation for an inmate.--

29         (1)  The postconviction collateral counsel of an inmate

30  may file a motion requesting the court to determine the

31  competency of the inmate. Counsel must include with the motion

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 1  a certificate attesting that the motion is filed in good faith

 2  and on reasonable grounds to believe that the inmate is

 3  incompetent to proceed. The motion and certificate replaces

 4  the signed oath of the inmate that otherwise accompanies a

 5  motion filed under Rule 3.851, Rules of Criminal Procedure.

 6         (2) The motion for a competency examination must be in

 7  writing and must allege with specificity the factual matters

 8  at issue and the reason that competent consultation with the

 9  inmate is necessary with respect to each factual matter

10  specified. To the extent that it does not invade the

11  lawyer-client privilege with collateral counsel, the motion

12  must contain a recital of the specific observations of, and

13  conversations with, the inmate which have formed the basis of

14  the motion.

15         (3)  The court shall determine whether there are facts

16  at issue the development or resolution of which requires the

17  inmate to be able to consult with his or her attorney with a

18  reasonable degree of rational understanding. Postconviction or

19  collateral relief issues that involve only matters of record

20  or claims that do not require the participation of the inmate

21  shall proceed notwithstanding the incompetence of the inmate.

22         (4)  If the court finds that there are reasonable

23  grounds to believe that an inmate is not competent to proceed

24  in a capital postconviction proceeding in which facts are at

25  issue, the development or resolution of which requires the

26  participation of the inmate, the court shall order the inmate

27  examined by no more than three, but not less than two, experts

28  before setting the matter for a hearing. The experts appointed

29  by the court may not be employed by or under contract with the

30  department. The court may seek input from the inmate's

31  

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 1  collateral counsel and the state attorney before appointing

 2  the experts.

 3         (5)  The court shall appoint the mental health

 4  professionals as experts to determine postconviction legal

 5  competency.

 6         (6)  The order appointing experts shall:

 7         (a)  Identify the purpose of the evaluation and specify

 8  the area of inquiry that should be addressed;

 9         (b)  Specify the legal criteria to be applied; and

10         (c)  Specify the date by which a report must be filed

11  with the court and to whom copies must be sent.

12         (7)  Counsel for the inmate, the department, and the

13  state attorney may be present at the examination that must be

14  conducted at a date and time convenient for all parties.

15         (8)  In considering whether the inmate is competent to

16  proceed, the experts shall consider and include in their

17  report:

18         (a)  The capacity of the inmate to understand the

19  adversary nature of the legal process and the postconviction

20  capital collateral proceeding;

21         (b)  The capacity of the inmate to disclose to

22  collateral counsel facts pertinent to the postconviction

23  proceeding at issue; and

24         (c)  Any other factors considered relevant by the

25  experts and the court as specified in the order appointing the

26  experts.

27         (9)  Each expert must file a written report with the

28  court that:

29         (a)  Identifies the specific matters referred for

30  evaluation;

31  

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 1         (b)  Describes the evaluative procedures, techniques,

 2  and tests used in the examination and the purpose for each

 3  procedure;

 4         (c)  States the expert's clinical observations,

 5  findings, and opinions on each issue referred by the court for

 6  evaluation, and indicates with specificity those issues, if

 7  any, for which the expert could not give an opinion; and

 8         (d)  Identifies the sources of information used by the

 9  expert and presents the factual basis for the clinical

10  findings and opinion of the expert.

11         (10)  If the experts find that the inmate is

12  incompetent to proceed, the experts shall report on any

13  recommended treatment or training for the inmate to attain

14  competence to proceed. In considering the issues relating to

15  treatment or training, the experts shall report on:

16         (a)  The mental illness or mental retardation causing

17  the incompetence;

18         (b)  The treatment appropriate for the mental illness

19  or the training appropriate for the mental retardation of the

20  inmate and an explanation of each of the possible treatment or

21  training alternatives in order of choices; and

22         (c)  The likelihood of the inmate attaining competence

23  under the treatment or training recommended, an assessment of

24  the probable duration of the treatment or training required to

25  restore competence, and the probability that the inmate will

26  attain competence to proceed in the foreseeable future.

27         (11)  The court shall schedule a hearing to determine

28  the competence of the inmate to proceed within 30 days after

29  the experts have filed their reports with the court.

30         (12)  If, after a hearing, the court finds the inmate

31  competent to proceed, or, after having found the inmate

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 1  incompetent, finds that competency has been restored, the

 2  court shall enter its order and proceed with the

 3  postconviction proceeding.

 4         (13)  An inmate who, because of psychotropic

 5  medication, is able to understand the nature of proceedings

 6  and assist in the inmate's own defense is not assumed to be

 7  incompetent to proceed simply because the satisfactory mental

 8  functioning of the inmate is dependent upon the medication.

 9         Section 11.  Section 945.503, Florida Statutes, is

10  created to read:

11         945.503  Involuntary commitment of an inmate who has

12  been adjudicated incompetent to proceed with capital

13  postconviction litigation.--

14         (1)  An inmate who has been found not competent to

15  proceed in a capital postconviction proceeding under s.

16  945.502 and has, in addition, met the criteria for involuntary

17  commitment shall be committed to the Department of Children

18  and Family Services for evaluation and treatment or training.

19  However, the inmate shall remain in the physical custody of

20  the department and be placed in a department facility designed

21  and equipped to treat and house death-row inmates.

22         (2)  If the court finds the inmate is not competent to

23  proceed, or that the inmate is competent to proceed but that

24  competence depends on the continuation of appropriate

25  treatment for a mental illness or training for mental

26  retardation, the court may not issue an involuntary commitment

27  order to the Department of Children and Family Services unless

28  the additional criteria for involuntary commitment has been

29  satisfied. The court must find by clear and convincing

30  evidence that:

31  

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 1         (a)  The inmate is mentally ill or mentally retarded

 2  and, as a result, there is a substantial likelihood that in

 3  the near future the inmate will inflict serious bodily harm on

 4  herself or himself or another person; and

 5         (b)  All available, less-restrictive treatment

 6  alternatives have been judged inappropriate or unavailable;

 7  and

 8         (c)  There is a substantial probability that the mental

 9  illness or mental retardation causing the inmate's

10  incompetence will respond to treatment or training and that

11  the inmate will regain competency to proceed in the reasonably

12  foreseeable future.

13         (3)  If the court commits the inmate, the order of

14  commitment must contain:

15         (a)  Findings of fact relating to the issues of

16  competency and commitment, addressing the factors set forth in

17  ss. 945.502 and 945.503;

18         (b)  Copies of the reports of the experts filed with

19  the court under the order of examination;

20         (c)  Copies of any other psychiatric, psychological, or

21  social work reports filed with the court relating to the

22  mental state of the inmate; and

23         (d)  Copies of the criminal commitment papers,

24  including the judgment and sentencing documents.

25         (4)  The department facility shall admit the inmate.

26  The Department of Children and Family Services must evaluate

27  and treat or train the inmate according to the contract

28  provisions of s. 945.41(1). Within 6 months from the date of

29  admission, the treatment team shall file with the court a

30  report describing the treatment or training provided to the

31  inmate and the prognosis and behavior of the inmate. The

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 1  report must discuss whether the inmate is cooperating with the

 2  treatment or the training offered, whether the inmate

 3  continues to be incompetent to proceed, and whether the

 4  criteria for involuntary commitment continues to be met. A

 5  copy of the report must be sent to counsel for the inmate,

 6  counsel for the department, and the state attorney.

 7         (a)1.  If, at any time during the 6-month period or

 8  during any period of extended commitment that may be

 9  subsequently ordered, the treatment team determines that the

10  inmate no longer meets the criteria for commitment or has

11  become competent to proceed, the team must notify the court by

12  filing a report, with copies to all parties, including the

13  department.

14         2.  If, during the 6-month period of commitment and

15  treatment or training, or during any period of extended

16  commitment that may be subsequently ordered, counsel for the

17  inmate has reasonable grounds to believe that the inmate is

18  competent to proceed or no longer meets the criteria for

19  commitment, counsel may move for a hearing on the issue of the

20  inmate's competence or commitment. The motion must contain a

21  certificate of counsel that the motion is made in good faith

22  and on reasonable grounds to believe that the inmate is now

23  competent to proceed or no longer meets the criteria for

24  commitment. To the extent that it does not invade the

25  attorney-client privilege, the motion must contain a recital

26  of the specific observations of and conversations with the

27  inmate which have formed the basis for the motion.

28         3.  If during the 6-month period of commitment and

29  either treatment or training, or during any period of extended

30  commitment that may be subsequently ordered, personnel of the

31  department have reasonable grounds to believe that the inmate

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 1  is competent to proceed or no longer meets the criteria for

 2  commitment, counsel for the department may move for a hearing

 3  on the issue of the inmate's competence or commitment. The

 4  motion must contain a certificate of counsel that the motion

 5  is made in good faith and on reasonable grounds to believe

 6  that the inmate is now competent to proceed or no longer meets

 7  the criteria for commitment. To the extent possible, the

 8  motion must contain a recital of the specific observations of

 9  and conversations with the inmate that have formed the basis

10  for the motion.

11         4.  If, during the 6-month period of commitment and

12  treatment or training or during any period of extended

13  commitment that may be subsequently ordered, the state

14  attorney has reasonable grounds to believe that the inmate is

15  competent to proceed or no longer meets the criteria for

16  commitment, the state attorney may move for a hearing on the

17  issue of the inmate's competence or commitment. The motion

18  shall contain a certificate of counsel that the motion is made

19  in good faith and on reasonable grounds to believe that the

20  inmate is now competent to proceed or no longer meets the

21  criteria for commitment. To the extent possible, the motion

22  must contain a recital of the specific observations of and

23  conversations with the inmate that have formed the basis for

24  the motion.

25         (b)  If, after considering a motion filed with the

26  court or after receipt of other information from other

27  sources, the court has reasonable grounds to believe that the

28  inmate may have regained competence to proceed or no longer

29  meets the criteria for commitment, the court shall order the

30  treatment team or appoint independent experts to report to the

31  

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 1  court on these issues, with copies to all parties, and shall

 2  order a hearing to be held on those issues.

 3         (c)  The court must hold a hearing within 30 days after

 4  receiving a report on the issue of competency. If, after the

 5  hearing, the court determines that the inmate continues to be

 6  incompetent to proceed and continues to meet the criteria for

 7  continued commitment and treatment or training, the court

 8  shall order continued commitment and treatment or training for

 9  a period not to exceed 1 year.

10         (5)  If, at any time after commitment, the court

11  determines, after a hearing, that the inmate is competent to

12  proceed, it must enter its order, discharge the involuntary

13  commitment order as to the Department of Children and Family

14  Services, and proceed with the inmate's postconviction

15  litigation.

16         (6)  If, after a hearing, the court determines that the

17  defendant remains incompetent to proceed but no longer meets

18  the criteria for involuntary commitment, the court must

19  discharge the involuntary commitment order to the Department

20  of Children and Family Services.

21         (7)  After discharge of the involuntary commitment

22  order, the department shall house the inmate at the

23  correctional facility it determines appropriate.

24         (8)  If the court finds the inmate competent to

25  proceed, the order must contain:

26         (a)  Findings of fact relating to the issues of

27  competency;

28         (b)  Copies of the reports of the examining experts;

29  and

30  

31  

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 1         (c)  Copies of any other psychiatric, psychological, or

 2  social work reports filed with the court relating to the

 3  mental state of the inmate.

 4         Section 12.  Section 945.504, Florida Statutes, is

 5  created to read:

 6         945.504  Involuntary treatment of an inmate who has

 7  been found incompetent to proceed in a postconviction

 8  proceeding.--If an inmate who has been involuntarily committed

 9  under s. 945.503, is unable or refuses to give express and

10  informed written consent for treatment or training, including

11  psychotropic medications, which treatment the treatment team

12  believes is necessary to restore the competency of the inmate

13  and for the safety of the inmate or others, the treatment or

14  training may be provided under the following circumstances:

15         (1)  In an emergency in which there is immediate danger

16  to the safety of the inmate or others, the treatment may be

17  provided upon the written order of a physician from the

18  Department of Children and Family Services for a period not to

19  exceed 48 hours, excluding weekends and legal holidays. If,

20  after the 48-hour period, the inmate has not given express and

21  informed consent to the treatment initially refused, the

22  treatment team must, within 48 hours, excluding weekends and

23  legal holidays, petition the committing court or other

24  authorized circuit court, at the option of the team, for an

25  order authorizing the continued treatment of the inmate. In

26  the interim, treatment may be continued without the consent of

27  the inmate upon the continued written order of a physician

28  from the Department of Children and Family Services who has

29  determined that the emergency continues to present a danger to

30  the safety of the inmate or others.

31  

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 1         (2)  In a situation other than an emergency, the

 2  treatment team must petition the court for an order

 3  authorizing the treatment for the inmate. The order shall

 4  allow the treatment for a period not to exceed 90 days from

 5  the date of the entry of the order. Unless the court is

 6  notified in writing that the inmate has provided express and

 7  informed consent in writing, the treatment team shall, before

 8  the expiration of the initial 90-day order, petition the court

 9  for an order continuing treatment for another 90-day period.

10  This procedure must be repeated until the inmate provides

11  consent or the involuntary commitment order is discharged.

12         (3)  At a hearing on the issue of whether the court

13  should enter an order authorizing treatment or training for

14  which an inmate has not given express and informed consent,

15  the court must determine by clear and convincing evidence that

16  the inmate is mentally ill or mentally retarded and that the

17  proposed treatment or training is necessary to restore

18  competency. In arriving at the decision, the court must

19  consider at least the following factors:

20         (a)  The inmate's expressed preference regarding

21  treatment or training;

22         (b)  The probability of adverse side effects;

23         (c)  The prognosis for restoration to competency

24  without treatment or training; and

25         (d)  The prognosis for restoration to competency with

26  treatment or training.

27         (4)  The court may appoint a master to preside at the

28  hearing. The inmate or the inmate's guardian, and the

29  representative, shall be provided with a copy of the petition

30  and the date, time, and location of the hearing. The inmate

31  has the right to have an attorney represent him or her at the

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 1  hearing, and, if the inmate is indigent, the court shall

 2  appoint an attorney, who may be from the office of the public

 3  defender, to represent the inmate at the hearing. The inmate

 4  may testify or not, as he or she chooses, may cross-examine

 5  witnesses testifying on behalf of the facility, and may

 6  present his or her own witnesses.

 7         (5)  Once the procedures have been provided and

 8  treatment or training has been ordered, the treatment team may

 9  prescribe and administer the treatment, or it may prescribe

10  the treatment and a registered nurse employed either by the

11  department or the Department of Children and Family Services

12  may administer the medication to the inmate.

13         (6)  In addition, when the permission of the inmate

14  cannot be obtained, the treatment team with the inmate's

15  department treating physician's consent or the inmate's

16  department treating physician may authorize emergency surgical

17  or nonpsychiatric medical treatment if such treatment is

18  deemed lifesaving or there is a situation threatening serious

19  bodily harm to the inmate.

20         Section 13.  This act shall take effect July 1, 2005.

21  

22  

23  

24  

25  

26  

27  

28  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Requires a defendant to be returned to the custody of the
      Department of Corrections after charges against the
 4    defendant are dismissed if the defendant has an active
      sentence with the department. Prohibits a court from
 5    ordering a conditional release if the defendant who has
      mental illness or mental retardation has an active
 6    sentence with the Department of Corrections. Provides for
      procedures when a person under sentence of death is
 7    alleged to be insane. Requires the Department of Children
      and Family Services to supply a treatment team to
 8    evaluate and treat the person. Requires the treatment
      team to report to the Governor within a specified time
 9    period. Authorizes the Governor to appoint a commission
      to reexamine the person. Provides that the Governor shall
10    lift the stay and proceed with the execution under
      certain circumstances. Authorizes counsel to file a
11    motion requesting the court to determine if the inmate is
      competent to proceed in postconviction proceedings.
12    Provides procedures to determine the competency of the
      inmate. Requires the court to appoint examining experts.
13    Requires the experts to file a report with the court.
      Provides procedures to determine if an inmate found not
14    competent to proceed should be committed to the
      Department of Children and Family Services for treatment
15    or training. Provides procedures to reexamine the inmate.
      Provides for involuntary treatment of an inmate found not
16    to be competent to proceed who refuses to give express
      and informed consent to the treatment or training. (See
17    bill for details.)

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