HB 1251 2022
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hb1251-00
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to serious mental illness as bar to 2
sentence of death; creating s. 921.135, F.S.; defining 3
the term "serious mental illness"; prohibiting the 4
imposition of a sentence of death upon a defendant 5
convicted of a capital felony if the defendant had a 6
serious mental illness at the time the criminal 7
offense was committed; requiring a defendant to 8
provide a certain notice if he or she intends to raise 9
serious mental illness as a bar to a sentence of 10
death; requiring the defendant to file a written 11
motion if he or she intends to raise serious mental 12
illness as a bar to a sentence of death; providing 13
requirements for the motion; providing for the 14
testing, evaluation, or examination of the defendant 15
by experts; providing time limitations for the filing 16
of the motion; requiring the circuit court to conduct 17
an evidentiary hearing on the motion; providing court 18
requirements; providing for waiver of the claim; 19
requiring certain court orders if the court finds by 20
clear and convincing evidence that the defendant had a 21
serious mental illness at the time of the commission 22
of the criminal offense; authorizing the state to 23
appeal such an order; providing appeal require ments; 24
providing that the time of diagnosis does not preclude 25
HB 1251 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
the defendant from presenting evidence of a serious 26
mental illness; prohibiting certain statements of the 27
defendant from being used against him or her; 28
providing construction; providing for post conviction 29
proceedings; providing requirements for postconviction 30
proceedings; providing for stays of certain 31
proceedings; providing an effective date. 32
33
WHEREAS, leading state and national mental health 34
organizations, including the American Psychologi cal 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 criminal off ense, 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, 42
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Be It Enacted by the Legislature of the State of Florida: 44
45
Section 1. Section 921 .135, Florida Statutes, is created 46
to read: 47
921.135 Imposition of sentence of death upon defendant 48
with serious mental illness prohibited. — 49
(1) DEFINITION.—As used in this section, the term "serious 50
HB 1251 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
mental illness" means any mental diagnosis, disabilit y, or 51
defect that significantly impairs a person's capacity to 52
appreciate the nature, consequences, or wrongfulness of his or 53
her conduct in a criminal offense; exercise rational judgment in 54
relation to a criminal offense; or conform his or her conduct to 55
the requirements of the law in connection with a criminal 56
offense. A disorder manifested primarily by repeated criminal 57
conduct or attributable solely to the acute effects of alcohol 58
or other drugs does not, by itself, constitute a serious mental 59
illness for purposes of this section. The condition or 60
conditions defined in this section are a bar to the imposition 61
of the death penalty notwithstanding the standard established in 62
s. 775.027 for insanity and the criteria specified in s. 916.12 63
for establishing competence to proceed. 64
(2) DEATH PENALTY PROHIBITED FOR DEFENDANT WITH SERIOUS 65
MENTAL ILLNESS AT TIME OF COMMISSION OF CRIMINAL OFFENSE. —A 66
sentence of death may not be imposed upon a defendant convicted 67
of a capital felony if it is determined in accordanc e 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
sentence of death must give notice of such intention in 73
accordance with the rules of court governing notices of intent 74
to offer expert testimony regarding mental health mitigation 75
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
during the penalty phase of a capital trial. 76
(4) MOTION FOR DETERMINATION OF SERIOUS MENTAL ILLNESS AS 77
A BAR TO SENTENCE OF DEATH; CONTENTS; PROCEDURES. — 78
(a) A defendant who intends to raise serious mental 79
illness as a bar to sentence of death shall file a written 80
motion to establish serious mental illness as a bar to sentence 81
of death with the court. 82
(b) The motion must state that the defendant is seriously 83
mentally ill and, if the defendant has been tested, evaluated, 84
or examined by one or more experts, must include the names and 85
addresses of the experts. Copies of reports containing the 86
opinions of any experts named in the motion must be attached to 87
the motion. The court shall appoint an expert chosen by the 88
state attorney if the state attorney so requests, and such 89
expert shall promptly test, evaluate, or examine the defendant 90
and submit a written report of any findings to the parties and 91
the court. 92
(c) If the defendant has not been tested, evaluated, or 93
examined by one or more experts, the motion must state that fact 94
and the court must appoint two experts who shall promptly test, 95
evaluate, or examine the defendant and submit a written report 96
of any findings to the parties and the court. 97
(d) Attorneys for the state and the defendant may be 98
present at the examinations conducted by court -appointed 99
experts. 100
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(e) If the defendant refuses to be examined or to fully 101
cooperate with the court -appointed experts or the state's 102
expert, the court may: 103
1. Order the defense to allow the court -appointed experts 104
to review all mental health reports, tests, and evaluation s by 105
the defendant's expert; 106
2. Prohibit the defense experts from testifying concerning 107
any tests, evaluations, or examinations of the defendant 108
regarding the defendant's serious mental illness; or 109
3. Order such relief as the court determines to be 110
appropriate. 111
(5) TIME FOR FILING MOTION FOR DETERMINATION OF SERIOUS 112
MENTAL ILLNESS AS A BAR TO SENTENCE OF DEATH. —The motion for a 113
determination of serious mental illness as a bar to sentence of 114
death must be filed no later than 90 days before trial or at 115
such time as is ordered by the court. 116
(6) HEARING ON MOTION TO DETERMINE SERIOUS MENTAL 117
ILLNESS.—The circuit court shall conduct an evidentiary hearing 118
on the motion for a determination of serious mental illness. At 119
the hearing, the court shall consider the findings of the 120
experts and all other evidence on the issue of whether the 121
defendant is seriously mentally ill. If the court finds that the 122
defendant is seriously mentally ill, it must enter a written 123
order prohibiting the imposition of the death penal ty and 124
setting forth the court's specific findings in support of the 125
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
determination. The court shall stay the proceedings for 30 days 126
after the date of rendition of the order prohibiting the death 127
penalty or, if a motion for rehearing is filed, for 30 days 128
following the rendition of the order denying rehearing, to allow 129
the state the opportunity to appeal the order. If the court 130
determines that the defendant has not established that he or she 131
is seriously mentally ill, the court must enter a written order 132
setting forth the court's specific findings in support of that 133
determination. 134
(7) WAIVER.—A claim authorized under this section is 135
waived if it is not timely filed as specified in subsection (5), 136
unless good cause is shown for the failure to comply with th at 137
subsection. 138
(8) FINDING OF SERIOUS MENTAL ILLNESS; ORDER TO PROCEED. —139
If the court finds by clear and convincing evidence that the 140
defendant had a serious mental illness at the time he or she 141
committed the criminal offense, the court must order the cas e to 142
proceed without the death penalty as an issue and must enter a 143
written order that sets forth with specificity the findings of 144
support for the determination. 145
(9) APPEAL.—The state may appeal a court order finding 146
that the defendant is seriously menta lly ill, which stays 147
further proceedings in the trial court until a decision on 148
appeal is rendered. Appeals must proceed according to Rule 149
9.140(c), Florida Rules of Appellate Procedure. 150
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
(10) TIME OF DIAGNOSIS. —A diagnosis of the condition or 151
conditions after the date of commission of the criminal offense 152
with which the person is charged does not preclude him or her 153
from presenting evidence that he or she had a serious mental 154
illness at the time he or she is alleged to have committed the 155
offense. 156
(11) STATEMENTS OF DEFENDANT. —Any statement that a person 157
makes in an evaluation or pretrial hearing ordered pursuant to 158
this section may not be used against the defendant on the issue 159
of guilt in any criminal action or proceeding. 160
(12) MITIGATION EXCLUSION. —This section may not be 161
construed to preclude the defendant from presenting mitigating 162
evidence of serious mental illness at the sentencing phase of 163
the trial. 164
(13) EFFECT ON POSTCONVICTION PROCEEDINGS. —If a person to 165
whom this section applies has complet ed state postconviction 166
proceedings, the person may request permission to file a 167
successive petition for postconviction relief in accordance with 168
the Florida Rules of Criminal Procedure alleging that the 169
petitioner is an individual who had a serious mental illness at 170
the time he or she committed the offense. A request under this 171
subsection must be filed not later than July 1, 2023. If the 172
successive petition is authorized, the postconviction court must 173
proceed under the Florida rules of postconviction relie f. If the 174
postconviction court determines that the petitioner is an 175
HB 1251 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
individual with a serious mental illness, it must vacate the 176
petitioner's sentence of death and impose a sentence of life 177
imprisonment without parole. This subsection does not preclude 178
the postconviction court from granting the person any additional 179
relief to which the person may be entitled based on the merits 180
of the person's additional postconviction claims. 181
(14) MOTION TO ESTABLISH SERIOUS MENTAL ILLNESS AS A BAR 182
TO SENTENCE OF DEATH; STAY OF EXECUTION.—The filing of a motion 183
to establish serious mental illness as a bar to sentence of 184
death does not stay further proceedings in the absence of a 185
separate order staying execution. 186
Section 2. This act shall take effect July 1, 2022. 187