DEFENDANT’S INTELLECTUAL DISABILITY AS A BAR TO IMPOSITION OF THE DEATH PENALTY

(a) Scope. This rule applies in all cases in which a defendant is convicted of a crime punishable by death, the state attorney has not waived the death penalty on the record, and the defendant’s intellectual disability becomes an issue.

(b) Definition of Intellectual Disability. As used in this rule, the term “intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, means performance that is 2 or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Families in rule 65G-4.011 of the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

(c) Motion for Determination of Intellectual Disability as a Bar to Execution; Contents; Procedures.

(1) A defendant who intends to raise intellectual disability as a bar to execution must file a written motion to establish intellectual disability as a bar to execution with the court.

(2) The motion must state that the defendant is intellectually disabled and, if the defendant has been tested, evaluated, or examined by 1 or more experts, the names and addresses of the experts. Reports containing the opinions of any experts named in the motion must be attached to the motion. The court must appoint an expert chosen by the state attorney if the state attorney so requests. The expert must promptly test, evaluate, or examine the defendant and must submit a written report of any findings to the parties and the court.

(3) If the defendant has not been tested, evaluated, or examined by 1 or more experts, the motion must state that fact and the court must appoint 2 experts who must promptly test, evaluate, or examine the defendant and must submit a written report of any findings to the parties and the court.

(4) Attorneys for the state and defendant may be present at the examinations conducted by court-appointed experts.

(5) If the defendant refuses to be examined or fully cooperate with the court appointed experts or the state’s expert, the court may, in the court’s discretion:

(A) order the defense to allow the court-appointed experts to review all mental health reports, tests, and evaluations by the defendant’s expert;

(B) prohibit the defense experts from testifying concerning any tests, evaluations, or examinations of the defendant regarding the defendant’s intellectual disability; or

(C) order such relief as the court determines to be appropriate.

(d) Time for filing Motion for Determination of Intellectual Disability as a Bar to Execution. The motion for a determination of intellectual disability as a bar to execution must be filed not later than 90 days before trial, or at such time as is ordered by the court.

(e) Hearing on Motion to Determine Intellectual Disability. The circuit court must conduct an evidentiary hearing on the motion for a determination of intellectual disability. At the hearing, the court must consider the findings of the experts and all other evidence on the issue of whether the defendant is intellectually disabled. The court must enter a written order prohibiting the imposition of the death penalty and setting forth the court’s specific findings in support of the court’s determination if the court finds that the defendant is intellectually disabled as defined in subdivision (b) of this rule. The court must stay the proceedings for 30 days from the date of rendition of the order prohibiting the death penalty or, if a motion for rehearing is filed, for 30 days following the rendition of the order denying rehearing, to allow the state the opportunity to appeal the order. If the court determines that the defendant has not established intellectual disability, the court must enter a written order setting forth the court’s specific findings in support of the court’s determination.

(f) Waiver. A claim authorized under this rule is waived if not filed in accord with the time requirements for filing set out in this rule, unless good cause is shown for the failure to comply with the time requirements.

(g) Finding of Intellectual Disability; Order to Proceed. If, after the evidence presented, the court is of the opinion that the defendant is intellectually disabled, the court must order the case to proceed without the death penalty as an issue.

(h) Appeal. An appeal may be taken by the state if the court enters an order finding that the defendant is intellectually disabled, which will stay further proceedings in the trial court until a decision on appeal is rendered. Appeals are to proceed according to Florida Rule of Appellate Procedure 9.140(c).

(i) Motion to Establish Intellectual Disability as a Bar to Execution; Stay of Execution. The filing of a motion to establish intellectual disability as a bar to execution will not stay further proceedings without a separate order staying execution.