AMEND. TO FL. RULES OF CRIM. PROCEDURE & APP. PROC.

• Decision Date: 20 May 2004
• Docket Number: No. SC03-685.,SC03-685.
• Parties: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE AND FLORIDA RULES OF APPELLATE PROCEDURE.
• Court: Florida Supreme Court

875 So.2d 563

AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE AND FLORIDA RULES OF APPELLATE PROCEDURE.

No. SC03-685.

Supreme Court of Florida.

May 20, 2004.

Miles A. McGrane III, President, Coral Gables, FL, Kelly Overstreet Johnson, President-elect, Tallahassee, FL, and John F. Harkness, Jr., Tallahassee, FL, on behalf of The Florida Bar; Honorable Olin Wilson Shinholser, Chair, Criminal Procedure Rules Committee, Sebring, FL; Katherine Eastmoore Giddings, Chair, Appellate Court Rules Committee, of Katz, Kutter, Haigler, Tallahassee, FL, for Petitioner.

James T. Miller, Chair, Amicus Curiae Committee, Jacksonville, FL, and David Fussell, President, Orlando, FL, on behalf of the Florida Association of Criminal Defense Lawyers (FACDL); William D. Matthewman of Seiden, Alder & Matthewman, Miami, FL; Nancy Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, on behalf of the Florida Public Defender Association; Michael Messer, Executive Director, Miami, FL, on behalf of Association for Retarded Citizens, South Florida; Martin J. McClain and Linda M. McDermott of McClain & McDermott, Tallahassee, FL, John P. Abatecola, Chief Assistant CCRC, Capital Collateral Counsel-Northern Region, Tallahassee, FL, Terri L. Backhus of Backhus & Izakowitz, P.A., Tampa, FL, and Todd G. Scher of Law Offices of Todd G. Scher, P.L., Miami, FL, attorneys representing death-sentenced prisoners in post-conviction proceedings; Stephen Krosschell of Goodman & Nekvasil, P.A., Clearwater, FL, a member of the Criminal Rules Subcommittee of the Appellate Rules Committee; Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Fernandina Beach, FL, and Penny Brill, Assistant State Attorney, Eleventh Judicial Circuit, Miami, FL, on behalf of the Florida Prosecuting Attorneys Association (FPAA); Andrew Stanton, Assistant Public Defender, and Edith Georgi, Coordinator, Capital Litigation Unit, Miami, FL, on behalf of the Capital Litigation Unit of the Office of the Public Defender, Eleventh Judicial Circuit; Charles J. Crist, Jr., Attorney General, Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, FL, and Candance M. Sabella, Assistant Attorney General, Chief—Capital Appeals, Tampa, FL, on behalf of the Attorney General; Neal A. Dupree, Capital Collateral Regional Counsel—Southern Region, Rachel L. Day, Assistant CCRC-South, and William M. Hennis III, Assistant CCRC-South, Fort Lauderdale, FL, on behalf of the Capital Collateral Regional Counsel—South; John W. Jennings, Capital Collateral Regional Counsel—Middle Region, Peter Cannon, Assistant CCRC and Eric Pinkard, Assistant CCRC, Tampa, FL, on behalf of Office of the Capital Collateral Regional Counsel—Middle Region; Siobhan Helene Shea, Palm Beach, FL; Harvey J. Sepler, Assistant Public Defender, Chair, Criminal Rules Subcommittee of the Appellate Court Rules Committee of The Florida Bar, Miami, FL; Honorable O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Sanford, FL; Jeff Kottkamp, Chair, Committee on Judiciary, Florida House of Representatives, Cape Coral, FL, and David De La Paz, Staff Director on behalf of Gustavo Barreiro, Chair, Committee on Public Safety & Crime Prevention, Responding with comments.

PER CURIAM.

In 2001, the Legislature created section 921.137, Florida Statutes, which bars the imposition of death sentences on mentally retarded persons and establishes a method for determining which capital defendants are mentally retarded. The Criminal Procedure Rules Committee thereafter proposed new Rule of Criminal Procedure 3.203 to provide the necessary procedure to raise mental retardation as a bar to a death sentence under section 921.137.¹ In 2002, the United States Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which the Court held that the execution of the mentally retarded constitutes excessive punishment under the Eighth Amendment and that the individual states are free to establish their own methods for determining which offenders are mentally retarded. Atkins was not decided at the time the rules committee proposed new rule 3.203. This Court thus deferred consideration of the committee's proposal and stated that it would consider the proposal together with several cases pending in this Court that raise claims based on section 921.137 or Atkins. Amendments to Fla. Rules of Crim. Pro., 842 So.2d 110 (Fla.2003).

On its own motion, this Court proposed Florida Rule of Criminal Procedure 3.203 (Defendant's/Prisoner's Mental Retardation as a Bar to Execution) and Florida Rule of Appellate Procedure 9.142(c) (Appeal of Determination of Mental Retardation Claim). Rule 3.203, as proposed, was divided into three categories. The first category was applicable to mental retardation claims that arose in all trials that began after the effective date of the rule— future cases. The second category applied to all trials that began on or before the effective date of the rule but where a sentence had not been imposed and affirmed on direct appeal on or before the effective date of the rule—nonfinal cases. The final category applied to all trials in which a prisoner had been convicted of first-degree murder and sentenced to death and where the conviction and sentence had been affirmed on direct appeal on or before the effective date of the rule—final cases. Rule 9.142(c) was proposed as an addition to Florida Rule of Appellate Procedure 9.142 to provide the procedure applicable to an appeal by the State, a defendant, or a prisoner of the trial court's mental retardation determination. The proposed rules were published for comment in the May 15, 2003, edition of The Florida Bar News.

In response to the proposed rules, this Court received comments. Circuit Judge O.H. Eaton and the Criminal Court Steering Committee submitted proposed rules as a substitute for the rules proposed by this Court. We accept these comments and suggestions as being well advised and now adopt a rule which is primarily in the form adopted by Judge Eaton and the committee. We appreciate their work with respect to this issue.

In order that there may be time for the newly drafted rule to be disseminated and for there to be additional comments in response to this rule, we adopt Florida Rule of Criminal Procedure 3.203, effective October 1, 2004, as set forth in the appendix to this opinion. Any additional comments concerning the rule should be submitted to this Court no later than August 10, 2004.

To conform to the Florida Rules of Appellate Procedure, we also amend rule 9.140(c), relating to the State's right to appeal a trial court's finding of mental retardation, as set forth in the appendix to this opinion. New language added to rule 9.140(c) is indicated by underscoring; deletions are indicated by struck-through type.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

CANTERO, J., concurs with an opinion, in which ANSTEAD, C.J., and PARIENTE, J., concur.

PARIENTE, J., concurring.

I concur in the majority opinion, and write separately to explain why, from my perspective, this Court has omitted a burden of proof from the rule we adopt today. Regarding the burden of proof, I share the concerns about the constitutionality of the "clear and convincing" standard contained in the comments of the Criminal Court Steering Committee on the proposed rule. In recommending a "preponderance" standard, the Committee expressed doubts that the statutory "clear and convincing" burden of proof is constitutional under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). In Atkins, which was decided after the enactment of section 921.137, Florida Statutes, the United States Supreme Court held that the Eighth Amendment bars the execution of mentally retarded defendants otherwise eligible for the death penalty. Although in Atkins the Court did not discuss the proper burden of proof, in Cooper the Court held that a state law requiring a defendant to establish incompetence to stand trial by clear and convincing evidence was unconstitutional.

Because of concerns about whether the burden of proof is a substantive or procedural requirement and further concerns over whether a "preponderance of evidence" burden of proof may be constitutionally required under Atkins and Cooper, it is preferable to omit the burden of proof enunciated by the legislature from our rule of procedure regarding mental retardation. In exercising our rulemaking authority, we have on several occasions declined to adopt proposed rule amendments because of doubts over their constitutionality. See In re Amendments to the Florida Evidence Code, 782 So.2d 339, 341-42 (Fla.2000)

(citing "grave concerns about the constitutionality" of an amendment to the evidence code); Amendments to the Florida Rules of Criminal Procedure, 794 So.2d 457, 457 (Fla.2000) (declining to adopt rule that would have removed requirement of attesting witnesses to out-of-court waiver of counsel "[s]ince all waivers of counsel must be voluntary"). Our omission of a burden of proof from the rule we adopt today leaves the trial courts obligated to either apply the clear and convincing evidence standard of section 921.137(4), or find that standard unconstitutional in a particular case. The issue will then come to us in the form of an actual case or controversy rather than a nonadversarial rules proceeding.

I also write to suggest that the Legislature amend the burden of proof set forth in section 921.137 in light of Atkins. When the Legislature enacted section 921.137 in 2001, the United States Supreme Court had not yet recognized a constitutional prohibition on imposing the death penalty on mentally...