Florida Senate - 2021                                    SB 1156
       By Senator Brandes
       24-01666-21                                           20211156__
    1                        A bill to be entitled                      
    2         An act relating to serious mental illness as bar to
    3         execution; creating s. 921.135, F.S.; defining the
    4         term “serious mental illness”; prohibiting the
    5         imposing of a sentence of death upon a defendant
    6         convicted of a capital felony if the defendant had a
    7         serious mental illness at the time of committing the
    8         offense; requiring a defendant to provide a certain
    9         notice if he or she intends to raise serious mental
   10         illness as a bar to a death sentence; requiring the
   11         defendant to file a written motion if he or she
   12         intends to raise serious mental illness as a bar to a
   13         death sentence; providing motion requirements;
   14         providing for the testing, evaluation, or examination
   15         of the defendant by experts; providing time
   16         limitations for the filing of the motion; requiring
   17         the circuit court to conduct an evidentiary hearing on
   18         the motion; providing court requirements; providing
   19         for waiver of the claim; requiring certain court
   20         orders if the court finds by clear and convincing
   21         evidence that the defendant had a serious mental
   22         illness at the time of the commission of the crime;
   23         authorizing the state to appeal such an order;
   24         providing requirements; providing that the time of
   25         diagnosis does not preclude the defendant from
   26         presenting evidence of a serious mental illness;
   27         prohibiting certain statements of the defendant from
   28         being used against him or her; providing construction;
   29         providing for postconviction proceedings; providing
   30         requirements; providing for stays of certain
   31         proceedings; providing an effective date.
   33         WHEREAS, leading state and national mental health
   34  organizations, including the American Psychological Association,
   35  the American Psychiatric Association, and the National Alliance
   36  on Mental Illness, have called for a prohibition on imposition
   37  of the death penalty for persons with a serious mental illness
   38  at the time of the commission of the crime, and
   39         WHEREAS, the American Bar Association recently endorsed the
   40  call for the end of the death penalty for persons with a serious
   41  mental illness, NOW, THEREFORE,
   43  Be It Enacted by the Legislature of the State of Florida:
   45         Section 1. Section 921.135, Florida Statutes, is created to
   46  read:
   47         921.135 Imposition of death sentence upon defendant with
   48  serious mental illness prohibited.—
   49         (1)DEFINITION.—As used in this section, the term “serious
   50  mental illness” means any mental diagnosis, disability, or
   51  defect that significantly impairs a person’s capacity to do any
   52  of the following: appreciate the nature, consequences, or
   53  wrongfulness of his or her conduct in the criminal offense;
   54  exercise rational judgment in relation to the criminal offense;
   55  or conform his or her conduct to the requirements of the law in
   56  connection with the criminal offense. A disorder manifested
   57  primarily by repeated criminal conduct or attributable solely to
   58  the acute effects of alcohol or other drugs does not, by itself,
   59  constitute a serious mental illness for purposes of this
   60  section. The condition or conditions defined in this section are
   61  a bar to the imposition of the death penalty notwithstanding the
   62  standard established in s. 775.027 for insanity and the criteria
   63  specified in s. 916.12 for establishing competence to proceed.
   66  sentence of death may not be imposed upon a defendant convicted
   67  of a capital felony if it is determined in accordance with this
   68  section that the defendant had a serious mental illness at the
   69  time the criminal offense was committed.
   70         (3)NOTICE REQUIRED.A defendant charged with a capital
   71  felony who intends to raise serious mental illness as a bar to a
   72  death sentence must give notice of such intention in accordance
   73  with the rules of court governing notices of intent to offer
   74  expert testimony regarding mental health mitigation during the
   75  penalty phase of a capital trial.
   78         (a)A defendant who intends to raise serious mental illness
   79  as a bar to execution shall file a written motion to establish
   80  serious mental illness as a bar to execution with the court.
   81         (b)The motion must state that the defendant is seriously
   82  mentally ill and, if the defendant has been tested, evaluated,
   83  or examined by one or more experts, must include the names and
   84  addresses of the experts. Copies of reports containing the
   85  opinions of any experts named in the motion must be attached to
   86  the motion. The court shall appoint an expert chosen by the
   87  state attorney if the state attorney so requests and that expert
   88  shall promptly test, evaluate, or examine the defendant and
   89  submit a written report of any findings to the parties and the
   90  court.
   91         (c)If the defendant has not been tested, evaluated, or
   92  examined by one or more experts, the motion must state that fact
   93  and the court must appoint two experts who shall promptly test,
   94  evaluate, or examine the defendant and submit a written report
   95  of any findings to the parties and the court.
   96         (d)Attorneys for the state and the defendant may be
   97  present at the examinations conducted by court-appointed
   98  experts.
   99         (e)If the defendant refuses to be examined or to fully
  100  cooperate with the court-appointed experts or the state’s
  101  expert, the court may:
  102         1.Order the defense to allow the court-appointed experts
  103  to review all mental health reports, tests, and evaluations by
  104  the defendant’s expert;
  105         2.Prohibit the defense experts from testifying concerning
  106  any tests, evaluations, or examinations of the defendant
  107  regarding the defendant’s serious mental illness; or
  108         3.Order such relief as the court determines to be
  109  appropriate.
  112  determination of serious mental illness as a bar to execution
  113  must be filed no later than 90 days before trial or at such time
  114  as is ordered by the court.
  116  The circuit court shall conduct an evidentiary hearing on the
  117  motion for a determination of serious mental illness. At the
  118  hearing, the court shall consider the findings of the experts
  119  and all other evidence on the issue of whether the defendant is
  120  seriously mentally ill. If the court finds that the defendant is
  121  seriously mentally ill, it shall enter a written order
  122  prohibiting the imposition of the death penalty and setting
  123  forth the court’s specific findings in support of the
  124  determination. The court shall stay the proceedings for 30 days
  125  from the date of rendition of the order prohibiting the death
  126  penalty or, if a motion for rehearing is filed, for 30 days
  127  following the rendition of the order denying rehearing, to allow
  128  the state the opportunity to appeal the order. If the court
  129  determines that the defendant has not established that he or she
  130  is seriously mentally ill, the court must enter a written order
  131  setting forth the court’s specific findings in support of that
  132  determination.
  133         (7)WAIVER.A claim authorized under this section is waived
  134  if it is not timely filed as specified in subsection (5), unless
  135  good cause is shown for the failure to comply with that
  136  subsection.
  138  the court finds by clear and convincing evidence that the
  139  defendant had a serious mental illness at the time he or she
  140  committed the crime, the court must order the case to proceed
  141  without the death penalty as an issue and must enter a written
  142  order that sets forth with specificity the findings of support
  143  for the determination.
  144         (9)APPEAL.—The state may appeal a court order finding that
  145  the defendant is seriously mentally ill, which stays further
  146  proceedings in the trial court until a decision on appeal is
  147  rendered. Appeals must proceed according to Rule 9.140(c),
  148  Florida Rules of Appellate Procedure.
  149         (10)TIME OF DIAGNOSIS.—A diagnosis of the condition or
  150  conditions after the date of commission of the crime with which
  151  the person is charged does not preclude him or her from
  152  presenting evidence that he or she had a serious mental illness
  153  at the time he or she is alleged to have committed the offense.
  154         (11)STATEMENTS OF DEFENDANT.—Any statement that a person
  155  makes in an evaluation or pretrial hearing ordered pursuant to
  156  this section may not be used against the defendant on the issue
  157  of guilt in any criminal action or proceeding.
  158         (12)MITIGATION EXCLUSION.—This section may not be
  159  construed to preclude the defendant from presenting mitigating
  160  evidence of serious mental illness at the sentencing phase of
  161  the trial.
  162         (13)EFFECT ON POSTCONVICTION PROCEEDINGS.If a person to
  163  whom this section applies has completed state postconviction
  164  proceedings, the person may request permission to file a
  165  successive petition for postconviction relief in accordance with
  166  the Florida Rules of Criminal Procedure alleging that the
  167  petitioner is an individual who had a serious mental illness at
  168  the time he or she committed the offense. A request under this
  169  subsection must be filed not later than July 1, 2022. If the
  170  successive petition is authorized, the postconviction court must
  171  proceed under the Florida rules of postconviction relief. If the
  172  postconviction court determines that the petitioner is an
  173  individual with a serious mental illness, it must vacate the
  174  petitioner’s death sentence and impose a sentence of life
  175  imprisonment without parole. This subsection does not preclude
  176  the postconviction court from granting the person any additional
  177  relief to which the person may be entitled based on the merits
  178  of the person’s additional postconviction claims.
  180  EXECUTION; STAY OF EXECUTION.The filing of a motion to
  181  establish serious mental illness as a bar to execution does not
  182  stay further proceedings in the absence of a separate order
  183  staying execution.
  184         Section 2. This act shall take effect July 1, 2021.