Florida Senate - 2026 SB 1326
By Senator Martin
33-01489-26 20261326__
1 A bill to be entitled
2 An act relating to the prosecution of defendants;
3 amending s. 775.027, F.S.; specifying that it is a
4 defense to a prosecution under any law that a
5 defendant, as a result of mental disease or defect,
6 lacked the culpable mental state required as an
7 element of the crime charged; specifying that mental
8 disease or defect is not otherwise a defense to a
9 prosecution under any law; deleting the affirmative
10 defense to a criminal prosecution that, at the time of
11 the commission of the acts constituting the offense,
12 the defendant was insane; deleting provisions for
13 establishing the affirmative defense; deleting a
14 provision relating to the burden of proof relating to
15 the affirmative defense; amending s. 916.12, F.S.;
16 requiring an expert examining a defendant’s mental
17 competence to proceed to administer a clinically
18 recognized instrument to determine whether the
19 defendant is malingering and include the results in
20 his or her report; amending s. 921.0026, F.S.;
21 revising a mitigating circumstance under which a
22 departure from the lowest permissible sentence is
23 reasonably justified; creating s. 921.245, F.S.;
24 authorizing the incorporation into a convicted
25 defendant’s criminal sentence certain specialized
26 treatment for mental health disease or defects;
27 prohibiting such treatment from providing a basis for
28 a sentencing court to depart from the lowest
29 permissible sentence; specifying that certain
30 provisions do not prevent a sentencing court from
31 considering a defendant’s mental disease or defect
32 when imposing a sentence within the permissible
33 sentencing range; providing an effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Section 775.027, Florida Statutes, is amended to
38 read:
39 775.027 Insanity Defense of lack of culpable mental state.—
40 (1) AFFIRMATIVE DEFENSE.—All persons are presumed to be
41 sane. It is a defense to a prosecution under any law that a
42 defendant, as a result of mental disease or defect, lacked the
43 culpable mental state required as an element of the crime
44 charged. Mental disease or defect is not otherwise a defense to
45 a prosecution under any law an affirmative defense to a criminal
46 prosecution that, at the time of the commission of the acts
47 constituting the offense, the defendant was insane. Insanity is
48 established when:
49 (a) The defendant had a mental infirmity, disease, or
50 defect; and
51 (b) Because of this condition, the defendant:
52 1. Did not know what he or she was doing or its
53 consequences; or
54 2. Although the defendant knew what he or she was doing and
55 its consequences, the defendant did not know that what he or she
56 was doing was wrong.
57
58 Mental infirmity, disease, or defect does not constitute a
59 defense of insanity except as provided in this subsection.
60 (2) BURDEN OF PROOF.—The defendant has the burden of
61 proving the defense of insanity by clear and convincing
62 evidence.
63 Section 2. Subsection (3) of section 916.12, Florida
64 Statutes, is amended to read:
65 916.12 Mental competence to proceed.—
66 (3) In considering the issue of competence to proceed, an
67 examining expert shall first consider and specifically include
68 in his or her report the defendant’s capacity to:
69 (a) Appreciate the charges or allegations against the
70 defendant.
71 (b) Appreciate the range and nature of possible penalties,
72 if applicable, that may be imposed in the proceedings against
73 the defendant.
74 (c) Understand the adversarial nature of the legal process.
75 (d) Disclose to counsel facts pertinent to the proceedings
76 at issue.
77 (e) Manifest appropriate courtroom behavior.
78 (f) Testify relevantly.
79
80 In addition, an examining expert shall administer a clinically
81 recognized instrument to determine whether the defendant is
82 malingering consider and include the results of this instrument
83 in his or her report, along with any other factor deemed
84 relevant by the expert.
85 Section 3. Paragraph (d) of subsection (2) of section
86 921.0026, Florida Statutes, is amended to read:
87 921.0026 Mitigating circumstances.—This section applies to
88 any felony offense, except any capital felony, committed on or
89 after October 1, 1998.
90 (2) Mitigating circumstances under which a departure from
91 the lowest permissible sentence is reasonably justified include,
92 but are not limited to:
93 (d) The defendant requires specialized treatment for a
94 mental disorder that is unrelated to substance abuse or
95 addiction or for a physical disability, and the defendant is
96 amenable to treatment.
97 Section 4. Section 921.245, Florida Statutes, is created to
98 read:
99 921.245 Mental health treatment for convicted defendants.—
100 (1) If a convicted defendant requires specialized treatment
101 for a mental disease or defect that is unrelated to substance
102 abuse or addiction, and the defendant is amenable to treatment,
103 such treatment may be incorporated into his or her criminal
104 sentence, but the treatment may not provide a basis for a
105 sentencing court to depart from the lowest permissible sentence
106 established by the Criminal Punishment Code.
107 (2) This section does not prevent a sentencing court from
108 considering a defendant’s mental disease or defect when imposing
109 a sentence within the permissible sentencing range established
110 by the Criminal Punishment Code.
111 Section 5. This act shall take effect October 1, 2026.