August 03, 2020
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Senate Bill 2712

Senate Bill sb2712

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                  SB 2712

    By Senator Crist





    12-1808-04                                              See HB

  1                      A bill to be entitled

  2         An act relating to mentally ill defendants;

  3         creating s. 775.028, F.S.; authorizing a

  4         finding of guilty but mentally ill for certain

  5         criminal defendants; providing burdens of

  6         proof; providing conditions for the acceptance

  7         of a plea of guilty but mentally ill; providing

  8         for a hearing on the issue of mental illness;

  9         permitting defendants to withdraw pleas of

10         guilty but mentally ill if a judge refuses to

11         accept such plea; providing that if such plea

12         is withdrawn and the right to jury trial is

13         waived, a different judge must preside at

14         trial; providing definitions of "guilty but

15         mentally ill person" and "legally insane

16         person"; preserving existing insanity defense;

17         amending s. 916.105, F.S.; revising legislative

18         intent; amending s. 916.106, F.S.; redefining

19         "forensic client" of the Department of Children

20         and Family Services to include persons found

21         guilty but mentally ill; incorporating the

22         expanded definition into the definition of

23         "forensic facility"; amending s. 916.107, F.S.;

24         providing that persons found guilty but

25         mentally ill shall be entitled to individual

26         dignity; amending s. 916.115, F.S.; providing

27         for the appointment of experts on the issue of

28         mental illness; creating s. 916.155, F.S.;

29         amending s. 916.16, F.S.; providing continuing

30         jurisdiction for the committing court over a

31         person found guilty but mentally ill for

                                  1

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         certain purposes; providing exclusive

 2         jurisdiction of such court over the decision to

 3         release such person; amending s. 921.011, F.S.;

 4         providing definitions of "guilty but mentally

 5         ill person" and "legally insane person";

 6         amending s. 921.09, F.S.; providing for the

 7         payment by the county of physicians appointed

 8         by the court to advise on the issue of mental

 9         illness; creating s. 921.30, F.S.; providing

10         for the sentencing of persons found guilty but

11         mentally ill; providing an effective date.

12  

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

14  

15         Section 1.  Section 775.028, Florida Statutes, is

16  created to read:

17         775.028  Guilty but mentally ill.--

18         (1)  GENERAL RULE.--A defendant who timely offers a

19  defense of insanity in accordance with the Florida Rules of

20  Criminal Procedure may be found guilty but mentally ill at

21  trial if the trier of facts finds:

22         (a)  The prosecution has established, beyond a

23  reasonable doubt, that the defendant is guilty of an offense.

24         (b)  The defendant has failed to establish the defense

25  of insanity in accordance with s. 775.027.

26         (c)  The defendant has established by clear and

27  convincing evidence that she or he was mentally ill at the

28  time of the commission of the offense.

29         (2)  PLEA OF GUILTY BUT MENTALLY ILL.--A person who

30  waives her or his right to trial may plead guilty but mentally

31  ill. No plea of guilty but mentally ill may be accepted by the

                                  2

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1  trial judge until the judge has examined; has held a hearing

 2  on the sole issue of the defendant's mental illness, at which

 3  hearing either party may present evidence; and is satisfied

 4  that the defendant was mentally ill at the time of the offense

 5  to which the plea is entered. If the trial judge refuses to

 6  accept a plea of guilty but mentally ill, the defendant shall

 7  be permitted to withdraw her or his plea. A defendant whose

 8  plea is not accepted by the court shall be entitled to a jury

 9  trial, except that if a defendant subsequently waives her or

10  his right to a jury trial, the judge who presided at the

11  hearing on mental illness shall not preside at the trial.

12         (3)  DEFINITION.--For the purposes of this section,

13  "mentally ill" means a condition under which a person, as a

14  result of mental disease or defect, lacks substantial capacity

15  either to appreciate the wrongfulness of her or his conduct or

16  to conform her or his conduct to the requirements of the law.

17         (4)  PRESERVATION OF EXISTING INSANITY

18  DEFENSE.--Nothing in this section shall be deemed to repeal or

19  otherwise abrogate s. 775.027.

20         (5)  BURDEN OF PROOF.--The state shall have the burden

21  of proof with respect to guilt, but the defendant has the

22  burden of proof with respect to proving that she or he was

23  mentally ill at the time the offense was committed.

24         Section 2.  Subsection (1) of section 916.105, Florida

25  Statutes, is amended to read:

26         916.105  Legislative intent.--

27         (1)  It is the intent of the Legislature that the

28  Department of Children and Family Services establish, locate,

29  and maintain separate and secure facilities and programs for

30  the treatment or training of defendants who are charged with a

31  felony and who have been found to be incompetent to proceed

                                  3

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1  due to their mental illness, retardation, or autism, who have

 2  been found guilty but mentally ill, or who have been acquitted

 3  of felonies by reason of insanity, and who, while still under

 4  the jurisdiction of the committing court, are committed to the

 5  department under the provisions of this chapter. The separate,

 6  secure facilities shall be sufficient to accommodate the

 7  number of defendants committed under the conditions noted

 8  above, except those defendants found by the department to be

 9  appropriate for treatment or training in a civil treatment

10  facility or program. Such secure facilities shall be designed

11  and administered so that ingress and egress, together with

12  other requirements of this chapter, may be strictly controlled

13  by staff responsible for security in order to protect the

14  defendant, facility personnel, other clients, and citizens in

15  adjacent communities.

16         Section 3.  Subsection (7) of section 916.106, Florida

17  Statutes, is amended to read:

18         916.106  Definitions.--For the purposes of this

19  chapter:

20         (7)  "Forensic client" or "client" means any defendant

21  who is mentally ill, retarded, or autistic and who is

22  committed to the department pursuant to this chapter and:

23         (a)  Who has been determined to need treatment for a

24  mental illness or training for retardation or autism;

25         (b)  Who has been found incompetent to proceed on a

26  felony offense, has been found guilty but mentally ill with

27  respect to a felony offense, or has been acquitted of a felony

28  offense by reason of insanity;

29         (c)  Who has been determined by the department to:

30         1.  Be dangerous to himself or herself or others; or

31  

                                  4

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         2.  Present a clear and present potential to escape;

 2  and

 3         (d)  Who is an adult or a juvenile prosecuted as an

 4  adult.

 5         Section 4.  Paragraph (a) of subsection (1) of section

 6  916.107, Florida Statutes, is amended to read:

 7         916.107  Rights of forensic clients.--

 8         (1)  RIGHT TO INDIVIDUAL DIGNITY.--

 9         (a)  The policy of the state is that the individual

10  dignity of the client shall be respected at all times and upon

11  all occasions, including any occasion when the forensic client

12  is detained, transported, or treated. Defendants who are

13  mentally ill, retarded, or autistic and who are charged with

14  committing felonies shall receive appropriate treatment or

15  training. In a criminal case involving a defendant who has

16  been adjudicated incompetent to proceed, guilty but mentally

17  ill, or not guilty by reason of insanity, a jail may be used

18  as an emergency facility for up to 15 days from the date the

19  department receives a completed copy of the commitment order

20  containing the documentation required by Rules 3.212 and

21  3.217, Florida Rules of Criminal Procedure. For a defendant

22  who is mentally ill, retarded, or autistic, who is held in a

23  jail, and who has been adjudicated incompetent to proceed or

24  not guilty by reason of insanity, evaluation and treatment or

25  training shall be provided in the jail by the local public

26  receiving facility for mental health services or by the

27  developmental services program for persons with retardation or

28  autism, the client's physician or psychologist, or any other

29  appropriate program until the client is transferred to the

30  custody of the department.

31  

                                  5

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         Section 5.  Section 916.115, Florida Statutes, is

 2  amended to read:

 3         916.115  Appointment of experts.--

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

 5  courts with a list of mental health professionals who have

 6  completed approved training as experts.

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

 8  than two experts to determine issues of the mental condition

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

10  competency to proceed, mental illness, insanity, and

11  involuntary hospitalization or placement. The panel of experts

12  may evaluate the defendant in jail or in another appropriate

13  local facility.

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

15  shall have completed forensic evaluator training approved by

16  the department and be either a psychiatrist, licensed

17  psychologist, or physician.

18         (2)  Expert witnesses appointed by the court to

19  evaluate the mental condition of a defendant in a criminal

20  case shall be allowed reasonable fees for services rendered as

21  evaluators of competence or sanity and as witnesses, which

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

23  or the information or affidavit was filed. State employees

24  shall be paid expenses pursuant to s. 112.061. The fees shall

25  be taxed as costs in the case. In order for the experts to be

26  paid for the services rendered, the reports and testimony must

27  explicitly address each of the factors and follow the

28  procedures set out in this chapter and in the Florida Rules of

29  Criminal Procedure.

30         Section 6.  Section 916.155, Florida Statutes, is

31  created to read:

                                  6

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         916.155  Involuntary commitment of defendant found

 2  guilty but mentally ill.--

 3         (1)  A defendant who is found guilty but mentally ill

 4  may be involuntarily committed pursuant to such finding if the

 5  defendant is mentally ill and, because of the illness, is

 6  manifestly dangerous to himself or herself or others.

 7         (2)  Defendants found guilty but mentally ill and found

 8  to meet the criteria for involuntary commitment may be

 9  committed for a period not to exceed the length of sentence

10  imposed for the offense, and treated in accordance with the

11  provisions of this section and the applicable Florida Rules of

12  Criminal Procedure. The department shall admit a defendant so

13  adjudicated to an appropriate facility or program for

14  treatment and shall retain and treat such defendant. The

15  defendant, the state, the department, or the Department of

16  Corrections may, at any time, request a hearing to determine

17  whether the defendant should remain in the custody of the

18  department or should be recommitted to the Department of

19  Corrections for the remainder of the sentence.

20         (3)  In all proceedings under this section, both the

21  defendant and the state shall have the right to a hearing

22  before the committing court. Evidence at such hearing may be

23  presented by the hospital administrator or the administrator's

24  designee as well as by the state, the Department of

25  Corrections, and the defendant. The defendant shall have the

26  right to counsel at any such hearing. In the event that a

27  defendant is determined to be indigent pursuant to s. 27.52,

28  the public defender shall represent the defendant. The parties

29  shall have access to the defendant's records at the treating

30  facilities and may interview or depose personnel who have had

31  contact with the defendant at the treating facilities.

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         Section 7.  Section 916.16, Florida Statutes, is

 2  amended to read:

 3         916.16  Jurisdiction of committing court.--

 4         (1)  The committing court shall retain jurisdiction in

 5  the case of any defendant hospitalized as incompetent to

 6  proceed or because of a finding of not guilty by reason of

 7  insanity or guilty but mentally ill pursuant to this chapter.

 8  No such defendant may be released except by order of the

 9  committing court. The administrative hearing examiner shall

10  have no jurisdiction to determine issues of continuing

11  hospitalization or release of any defendant admitted pursuant

12  to this chapter.

13         (2)  The committing court shall retain jurisdiction in

14  the case of any defendant placed on conditional release. No

15  such defendant may be released from the conditions of release

16  except by order of the committing court.

17         Section 8.  Subsections (4) through (7) of section

18  921.0011, Florida Statutes, are renumbered as subsections (6)

19  through (9), respectively, and new subsections (4) and (5) are

20  added to that section, to read:

21         921.0011  Definitions.--As used in this chapter, the

22  term:

23         (4)  "Legally insane" means a condition under which the

24  person, at the time of the commission of the act, was laboring

25  under such a defect of reason, from disease of the mind, as

26  not to know the nature and quality of the act she or he was

27  doing or, if she or he did know it, that she or he did not

28  know she or he was doing what was wrong.

29         (5)  "Mentally ill person" means a person who, as a

30  result of mental disease or defect, lacks substantial capacity

31  

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1  either to appreciate the wrongfulness of his conduct or to

 2  conform his conduct to the requirements of the law.

 3         Section 9.  Section 921.09, Florida Statutes, is

 4  amended to read:

 5         921.09  Fees of physicians who determine mental

 6  condition sanity at time of sentence.--The court shall allow

 7  reasonable fees to physicians appointed by the court to

 8  determine the mental condition of a defendant who has alleged

 9  insanity as a cause for not pronouncing sentence or who has

10  raised a defense of mental illness. The fees shall be paid by

11  the county in which the indictment was found or the

12  information or affidavit filed.

13         Section 10.  Section 921.30, Florida Statutes, is

14  created to read:

15         921.30  Disposition of persons found guilty but

16  mentally ill.--

17         (1)  A defendant found guilty but mentally ill or whose

18  plea of guilty but mentally ill is accepted under the

19  provisions of s. 775.028 may have any sentence imposed on her

20  or him which may lawfully be imposed on any defendant

21  convicted of the same offense. Before imposing a sentence, the

22  court shall hear testimony and make a finding on the issue of

23  whether the defendant at the time of sentencing is mentally

24  ill, retarded, or autistic and in need of treatment.

25         (2)  Defendants who are mentally ill, retarded, or

26  autistic and who are convicted of felonies shall receive

27  appropriate treatment as is psychiatrically or psychologically

28  indicated for his or her mental illness. Treatment and the

29  payment of such treatment shall be provided in accordance with

30  s. 916.107(2).

31  

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    Florida Senate - 2004                                  SB 2712
    12-1808-04                                              See HB




 1         Section 11.  This act shall take effect upon becoming a

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