Bill Text: FL S1120 | 2018 | Regular Session | Introduced


Bill Title: Expert Witnesses

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2018-03-10 - Died in Judiciary [S1120 Detail]

Download: Florida-2018-S1120-Introduced.html
       Florida Senate - 2018                                    SB 1120
       
       
        
       By Senator Perry
       
       
       
       
       
       8-01041A-18                                           20181120__
    1                        A bill to be entitled                      
    2         An act relating to expert witnesses; amending s.
    3         393.11, F.S.; requiring a court to pay reasonable fees
    4         to members of an examining committee for their
    5         evaluation and testimony regarding persons with
    6         disabilities; deleting a provision specifying the
    7         source of the fees to be paid; amending s. 744.331,
    8         F.S.; requiring a court, rather than the state, to pay
    9         certain fees if a ward is indigent; amending s.
   10         916.115, F.S.; authorizing a court to initially
   11         appoint one expert under certain circumstances;
   12         authorizing a court to take less restrictive action
   13         than commitment if an expert finds a defendant
   14         incompetent; requiring that a defendant be evaluated
   15         by no fewer than two experts before a court commits
   16         the defendant; providing an exception; authorizing a
   17         court to pay for up to two additional experts
   18         appointed by the court under certain circumstances;
   19         requiring a court to pay for the first, rather than
   20         any, expert that it appoints under certain
   21         circumstances; authorizing a party disputing a
   22         determination of competence to request up to two
   23         additional expert evaluations at that party’s expense;
   24         providing for payments to experts for their testimony
   25         under certain circumstances; amending s. 916.12, F.S.;
   26         deleting provisions relating to the evaluation and
   27         commitment of a defendant under certain circumstances;
   28         amending s. 916.17, F.S.; requiring the court to pay
   29         for the evaluation and testimony of an expert for a
   30         defendant on conditional release under certain
   31         circumstances; amending s. 916.301, F.S.; authorizing,
   32         rather than requiring, a court to appoint up to two
   33         additional experts to evaluate a defendant suspected
   34         of having an intellectual disability or autism under
   35         certain circumstances; providing for the payment of
   36         additional experts under certain circumstances;
   37         amending s. 916.304, F.S.; requiring the court to pay
   38         for the evaluation and testimony of an expert for a
   39         defendant on conditional release under certain
   40         circumstances; amending s. 921.09, F.S.; authorizing a
   41         defendant who has alleged insanity to retain, at the
   42         defense’s expense rather than the county’s, one or
   43         more physicians for certain purposes; deleting a
   44         provision requiring fees to be paid by the county;
   45         amending s. 921.12, F.S.; authorizing a defendant who
   46         has an alleged pregnancy to retain, at the defense’s
   47         expense rather than the county’s, one or more
   48         physicians for certain purposes; amending s. 921.137,
   49         F.S.; requiring the court to pay for the evaluation
   50         and testimony of an expert for a defendant who raises
   51         intellectual disability as a bar to a death sentence
   52         under certain circumstances; amending s. 985.19, F.S.;
   53         authorizing a court to initially appoint one expert to
   54         evaluate a child’s mental condition, pending certain
   55         determinations; authorizing a court to take less
   56         restrictive action than commitment if an expert finds
   57         a child incompetent; requiring that a child be
   58         evaluated by no fewer than two experts before a court
   59         commits the child; providing an exception; authorizing
   60         a court to appoint up to two additional experts under
   61         certain circumstances; authorizing a court to require
   62         a hearing with certain testimony before ordering the
   63         commitment of a child; requiring the court to pay
   64         reasonable fees to the experts for their evaluations
   65         and testimony; requiring a court to order the Agency
   66         for Persons with Disabilities to select an expert to
   67         examine a child for intellectual disability or autism;
   68         deleting a provision requiring a specific
   69         appropriation before the implementation of specified
   70         provisions; amending ss. 29.006 and 29.007, F.S.;
   71         conforming cross-references; providing an effective
   72         date.
   73          
   74  Be It Enacted by the Legislature of the State of Florida:
   75  
   76         Section 1. Paragraph (g) of subsection (5) of section
   77  393.11, Florida Statutes, is amended to read:
   78         393.11 Involuntary admission to residential services.—
   79         (5) EXAMINING COMMITTEE.—
   80         (g) The court Members of the examining committee shall pay
   81  receive a reasonable fees, as fee to be determined by the court,
   82  for the evaluation and testimony by members of the examining
   83  committee. The fees shall be paid from the general revenue fund
   84  of the county in which the person who has the intellectual
   85  disability or autism resided when the petition was filed.
   86         Section 2. Paragraph (b) of subsection (7) of section
   87  744.331, Florida Statutes, is amended, and paragraph (a) of that
   88  subsection is republished, to read:
   89         744.331 Procedures to determine incapacity.—
   90         (7) FEES.—
   91         (a) The examining committee and any attorney appointed
   92  under subsection (2) are entitled to reasonable fees to be
   93  determined by the court.
   94         (b) The fees awarded under paragraph (a) shall be paid by
   95  the guardian from the property of the ward or, if the ward is
   96  indigent, by the court state. The state shall have a creditor’s
   97  claim against the guardianship property for any amounts paid
   98  under this section. The state may file its claim within 90 days
   99  after the entry of an order awarding attorney ad litem fees. If
  100  the state does not file its claim within the 90-day period, the
  101  state is thereafter barred from asserting the claim. Upon
  102  petition by the state for payment of the claim, the court shall
  103  enter an order authorizing immediate payment out of the property
  104  of the ward. The state shall keep a record of the payments.
  105         Section 3. Section 916.115, Florida Statutes, is amended to
  106  read:
  107         916.115 Appointment of experts.—
  108         (1) The court shall appoint no more than three experts to
  109  determine the mental condition of a defendant in a criminal
  110  case, including competency to proceed, insanity, involuntary
  111  placement, and treatment. The court may initially appoint one
  112  expert for the evaluation, pending a determination of the
  113  defendant’s competency and the parties’ positions on stipulating
  114  to the findings. The experts may evaluate the defendant in jail
  115  or in another appropriate local facility or in a facility of the
  116  Department of Corrections.
  117         (a) To the extent possible, the appointed experts shall
  118  have completed forensic evaluator training approved by the
  119  department, and each shall be a psychiatrist, licensed
  120  psychologist, or physician.
  121         (b) The department shall maintain and annually provide the
  122  courts with a list of available mental health professionals who
  123  have completed the approved training as experts.
  124         (2) The court may take less restrictive action than
  125  commitment authorized by this chapter or the Florida Rules of
  126  Criminal Procedure if an expert determines that the defendant is
  127  incompetent to proceed. A defendant must be evaluated by no
  128  fewer than two experts before the court commits the defendant;
  129  however, the court may commit the defendant without further
  130  evaluation or hearing if one expert finds that the defendant is
  131  incompetent to proceed and the parties stipulate to that
  132  finding. If the parties do not stipulate to the finding of the
  133  expert that the defendant is incompetent, the court may appoint
  134  no more than two additional experts to evaluate the defendant.
  135  Notwithstanding any stipulation by the parties, the court may
  136  require a hearing with testimony from the experts before
  137  ordering the commitment of a defendant.
  138         (3)(a)(2) The court shall pay for the first any expert that
  139  it appoints by court order, upon motion of counsel for the
  140  defendant or the state or upon its own motion, and up to two
  141  additional experts appointed by the court when the defendant is
  142  found incompetent and the parties do not stipulate to the
  143  findings.
  144         (b) If the defense or the state retains an expert and
  145  waives the confidentiality of the expert’s report, the court may
  146  pay for no more than two additional experts appointed by court
  147  order.
  148         (c) If a first evaluation determines the defendant is
  149  competent to proceed and a party disputes the findings, the
  150  party disputing the determination may request up to two
  151  additional experts to perform evaluations at the party’s
  152  expense.
  153         (d) If an expert appointed by the court upon motion of
  154  counsel for the defendant specifically to evaluate the
  155  competence of the defendant to proceed also addresses issues
  156  related to sanity as an affirmative defense, the court shall pay
  157  only for that portion of the expert’s fees relating to the
  158  evaluation on competency to proceed, and the balance of the fees
  159  shall be chargeable to the defense.
  160         (e) If testimony from an expert is ordered by the court,
  161  the court shall pay reasonable fees, as determined by the court,
  162  to the expert. Testimony requested by the state or the defendant
  163  shall be paid by the requesting party.
  164         (f)(a) Pursuant to s. 29.006, the office of the public
  165  defender shall pay for any expert retained by the office.
  166         (g)(b) Pursuant to s. 29.005, the office of the state
  167  attorney shall pay for any expert retained by the office and for
  168  any expert whom the office retains and whom the office moves the
  169  court to appoint in order to ensure that the expert has access
  170  to the defendant.
  171         (h)(c) An expert retained by the defendant who is
  172  represented by private counsel appointed under s. 27.5303 shall
  173  be paid by the Justice Administrative Commission.
  174         (i)(d) An expert retained by a defendant who is indigent
  175  for costs as determined by the court and who is represented by
  176  private counsel, other than private counsel appointed under s.
  177  27.5303, on a fee or pro bono basis, or who is representing
  178  himself or herself, shall be paid by the Justice Administrative
  179  Commission from funds specifically appropriated for these
  180  expenses.
  181         (j)(e) State employees shall be reimbursed for expenses
  182  pursuant to s. 112.061.
  183         (k)(f) The fees shall be taxed as costs in the case.
  184         (l)(g) In order for an expert to be paid for the services
  185  rendered, the expert’s report and testimony must explicitly
  186  address each of the factors and follow the procedures set out in
  187  this chapter and in the Florida Rules of Criminal Procedure.
  188         Section 4. Subsection (2) of section 916.12, Florida
  189  Statutes, is amended, and subsection (1) of that section is
  190  republished, to read:
  191         916.12 Mental competence to proceed.—
  192         (1) A defendant is incompetent to proceed within the
  193  meaning of this chapter if the defendant does not have
  194  sufficient present ability to consult with her or his lawyer
  195  with a reasonable degree of rational understanding or if the
  196  defendant has no rational, as well as factual, understanding of
  197  the proceedings against her or him.
  198         (2) Mental health experts appointed pursuant to s. 916.115
  199  shall first determine whether the defendant has a mental illness
  200  and, if so, consider the factors related to the issue of whether
  201  the defendant meets the criteria for competence to proceed as
  202  described in subsection (1). A defendant must be evaluated by no
  203  fewer than two experts before the court commits the defendant or
  204  takes other action authorized by this chapter or the Florida
  205  Rules of Criminal Procedure, except if one expert finds that the
  206  defendant is incompetent to proceed and the parties stipulate to
  207  that finding, the court may commit the defendant or take other
  208  action authorized by this chapter or the rules without further
  209  evaluation or hearing, or the court may appoint no more than two
  210  additional experts to evaluate the defendant. Notwithstanding
  211  any stipulation by the state and the defendant, the court may
  212  require a hearing with testimony from the expert or experts
  213  before ordering the commitment of a defendant.
  214         Section 5. Subsection (2) of section 916.17, Florida
  215  Statutes, is amended to read:
  216         916.17 Conditional release.—
  217         (2) Upon the filing of an affidavit or statement under oath
  218  by any person that the defendant has failed to comply with the
  219  conditions of release, that the defendant’s condition has
  220  deteriorated to the point that inpatient care is required, or
  221  that the release conditions should be modified, the court shall
  222  hold a hearing within 7 days after receipt of the affidavit or
  223  statement under oath. After the hearing, the court may modify
  224  the release conditions. The court may also order that the
  225  defendant be returned to the department if it is found, after
  226  the appointment and report of experts, that the person meets the
  227  criteria for involuntary commitment under s. 916.13 or s.
  228  916.15. The court shall pay reasonable fees, as determined by
  229  the court, for the evaluation and testimony of the expert.
  230         Section 6. Subsection (2) of section 916.301, Florida
  231  Statutes, is amended to read:
  232         916.301 Appointment of experts.—
  233         (2) If a defendant’s suspected mental condition is
  234  intellectual disability or autism, the court shall appoint the
  235  following:
  236         (a) At least one, or at the request of any party, two
  237  experts to evaluate whether the defendant meets the definition
  238  of intellectual disability or autism and, if so, whether the
  239  defendant is competent to proceed; and
  240         (b)Shall appoint a psychologist selected by the agency who
  241  is licensed or authorized by law to practice in this state, with
  242  experience in evaluating persons suspected of having an
  243  intellectual disability or autism, and a social service
  244  professional, with experience in working with persons who have
  245  an intellectual disability or autism.
  246         1. The psychologist shall evaluate whether the defendant
  247  meets the definition of intellectual disability or autism and,
  248  if so, whether the defendant is incompetent to proceed due to
  249  intellectual disability or autism.
  250         2. The social service professional shall provide a social
  251  and developmental history of the defendant; and
  252         (b) May, at the request of any party that does not
  253  stipulate to findings of incompetence, appoint up to two
  254  additional experts to evaluate whether the defendant meets the
  255  definition of intellectual disability or autism and, if so,
  256  whether the defendant is competent to proceed. The first
  257  additional expert shall be paid by the court and the second
  258  additional expert shall be paid by the requesting party.
  259  However, if the first evaluation determines the defendant is
  260  competent to proceed and a party disputes the findings, that
  261  party may request up to two additional experts to perform
  262  evaluations at the party’s expense.
  263         Section 7. Subsection (2) of section 916.304, Florida
  264  Statutes, is amended to read:
  265         916.304 Conditional release.—
  266         (2) Upon the filing of an affidavit or statement under oath
  267  by any person that the defendant has failed to comply with the
  268  conditions of release, that the defendant’s condition has
  269  deteriorated, or that the release conditions should be modified,
  270  the court shall hold a hearing within 7 days after receipt of
  271  the affidavit or statement under oath. With notice to the court
  272  and all parties, the agency may detain a defendant in a forensic
  273  facility until the hearing occurs. After the hearing, the court
  274  may modify the release conditions. The court may also order that
  275  the defendant be placed into more appropriate programs for
  276  further training or may order the defendant to be committed to a
  277  forensic facility if it is found, after the appointment and
  278  report of experts, that the defendant meets the criteria for
  279  placement in a forensic facility. The court shall pay reasonable
  280  fees, as determined by the court, for the evaluation and
  281  testimony of the expert.
  282         Section 8. Section 921.09, Florida Statutes, is amended to
  283  read:
  284         921.09 Fees of physicians who determine sanity at time of
  285  sentence.—The court shall allow reasonable fees to physicians
  286  appointed by the court to determine the mental condition of A
  287  defendant who has alleged insanity as a cause for not
  288  pronouncing sentence may, at the defense’s expense, retain one
  289  or more physicians to determine the mental condition of the
  290  defendant. The fees shall be paid by the county in which the
  291  indictment was found or the information or affidavit filed.
  292         Section 9. Section 921.12, Florida Statutes, is amended to
  293  read:
  294         921.12 Fees of physicians when pregnancy is alleged as
  295  cause for not pronouncing sentence.—The court shall allow
  296  reasonable fees to the physicians appointed to examine A
  297  defendant who has alleged her pregnancy as a cause for not
  298  pronouncing sentence may, at the defense’s expense, retain one
  299  or more physicians to examine the defendant. The fees shall be
  300  paid by the county in which the indictment was found or the
  301  information or affidavit filed.
  302         Section 10. Subsection (4) of section 921.137, Florida
  303  Statutes, is amended to read:
  304         921.137 Imposition of the death sentence upon an
  305  intellectually disabled defendant prohibited.—
  306         (4) After a defendant who has given notice of his or her
  307  intention to raise intellectual disability as a bar to the death
  308  sentence is convicted of a capital felony and an advisory jury
  309  has returned a recommended sentence of death, the defendant may
  310  file a motion to determine whether the defendant is
  311  intellectually disabled. Upon receipt of the motion, the court
  312  shall appoint two experts in the field of intellectual
  313  disabilities who shall evaluate the defendant and report their
  314  findings to the court and all interested parties before prior to
  315  the final sentencing hearing. The court shall pay reasonable
  316  fees, as determined by the court, for the evaluation and
  317  testimony of the expert regardless of whether the defendant is
  318  indigent. Notwithstanding s. 921.141 or s. 921.142, the final
  319  sentencing hearing shall be held without a jury. At the final
  320  sentencing hearing, the court shall consider the findings of the
  321  court-appointed experts and consider the findings of any other
  322  expert which is offered by the state or the defense on the issue
  323  of whether the defendant has an intellectual disability. If the
  324  court finds, by clear and convincing evidence, that the
  325  defendant has an intellectual disability as defined in
  326  subsection (1), the court may not impose a sentence of death and
  327  shall enter a written order that sets forth with specificity the
  328  findings in support of the determination.
  329         Section 11. Paragraphs (b) and (e) of subsection (1) and
  330  subsection (7) of section 985.19, Florida Statutes, are amended
  331  to read:
  332         985.19 Incompetency in juvenile delinquency cases.—
  333         (1) If, at any time prior to or during a delinquency case,
  334  the court has reason to believe that the child named in the
  335  petition may be incompetent to proceed with the hearing, the
  336  court on its own motion may, or on the motion of the child’s
  337  attorney or state attorney must, stay all proceedings and order
  338  an evaluation of the child’s mental condition.
  339         (b) All determinations of competency shall be made at a
  340  hearing, with findings of fact based on an evaluation of the
  341  child’s mental condition made by no not less than two nor more
  342  than three experts appointed by the court. The court may
  343  initially appoint one expert for the evaluation, pending a
  344  determination of the child’s competency and the parties’
  345  positions on stipulating to the findings. The basis for the
  346  determination of incompetency must be specifically stated in the
  347  evaluation. In addition, a recommendation as to whether
  348  residential or nonresidential treatment or training is required
  349  must be included in the evaluation. The court may take less
  350  restrictive action than commitment authorized by this chapter or
  351  the Florida Rules of Juvenile Procedure based on the
  352  determination by one expert that the child is incompetent to
  353  proceed. A child must be evaluated by no fewer than two experts
  354  before the court commits the child; however, the court may
  355  commit the child without further evaluation or hearing if one
  356  expert finds that the child is incompetent to proceed and the
  357  parties stipulate to that finding. If the parties do not
  358  stipulate to the finding of the expert that the child is
  359  incompetent, the court may appoint no more than two additional
  360  experts to evaluate the child. Notwithstanding any stipulation
  361  by the parties, the court may require a hearing with testimony
  362  from one or more experts before ordering the commitment of a
  363  child. Experts appointed by The court to determine the mental
  364  condition of a child shall pay be allowed reasonable fees, as
  365  determined by the court, for the evaluation and testimony
  366  provided by the experts services rendered. State employees may
  367  be paid expenses pursuant to s. 112.061. The fees shall be taxed
  368  as costs in the case.
  369         (e) For incompetency evaluations related to intellectual
  370  disability or autism, the court shall order the Agency for
  371  Persons with Disabilities to select the expert to examine the
  372  child to determine if the child meets the definition of
  373  “intellectual disability” or “autism” in s. 393.063 and, if so,
  374  whether the child is competent to proceed with delinquency
  375  proceedings.
  376         (7) The provisions of this section shall be implemented
  377  only subject to specific appropriation.
  378         Section 12. Subsection (4) of section 29.006, Florida
  379  Statutes, is amended to read:
  380         29.006 Indigent defense costs.—For purposes of implementing
  381  s. 14, Art. V of the State Constitution, the elements of the
  382  public defenders’ offices and criminal conflict and civil
  383  regional counsel offices to be provided from state revenues
  384  appropriated by general law are as follows:
  385         (4) Mental health professionals appointed pursuant to s.
  386  394.473 and required in a court hearing involving an indigent,
  387  and mental health professionals appointed pursuant to s.
  388  916.115(3) s. 916.115(2) and required in a court hearing
  389  involving an indigent.
  390         Section 13. Subsection (5) of section 29.007, Florida
  391  Statutes, is amended to read:
  392         29.007 Court-appointed counsel.—For purposes of
  393  implementing s. 14, Art. V of the State Constitution, the
  394  elements of court-appointed counsel to be provided from state
  395  revenues appropriated by general law are as follows:
  396         (5) Mental health professionals appointed pursuant to s.
  397  394.473 and required in a court hearing involving an indigent,
  398  mental health professionals appointed pursuant to s. 916.115(3)
  399  s. 916.115(2) and required in a court hearing involving an
  400  indigent, and any other mental health professionals required by
  401  law for the full adjudication of any civil case involving an
  402  indigent person.
  403  
  404  Subsections (3), (4), (5), (6), and (7) apply when court
  405  appointed counsel is appointed; when the court determines that
  406  the litigant is indigent for costs; or when the litigant is
  407  acting pro se and the court determines that the litigant is
  408  indigent for costs at the trial or appellate level. This section
  409  applies in any situation in which the court appoints counsel to
  410  protect a litigant’s due process rights. The Justice
  411  Administrative Commission shall approve uniform contract forms
  412  for use in processing payments for due process services under
  413  this section. In each case in which a private attorney
  414  represents a person determined by the court to be indigent for
  415  costs, the attorney shall execute the commission’s contract for
  416  private attorneys representing persons determined to be indigent
  417  for costs.
  418         Section 14. This act shall take effect July 1, 2018.

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