THE BILL ITSELF
CS/SB 1326
Prosecution of Defendants
Florida Senate - 2026 CS for SB 1326 By the Committee on Criminal Justice; and Senator Martin 591-02425-26 20261326c1
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A bill to be entitled
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An act relating to the prosecution of defendants;
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amending s. 775.027, F.S.; revising the qualifications
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for an insanity defense; amending s. 916.12, F.S.;
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updating reporting requirements for examining experts;
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amending s. 916.145, F.S.; revising requirements for
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dismissal of charges; amending s. 916.15, F.S.;
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requiring involuntary commitment for persons found not
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guilty by reason of insanity in certain circumstances;
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amending s. 921.0026, F.S.; revising mitigating
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circumstances for sentencing; providing an effective
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date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Section 775.027, Florida Statutes, is amended to
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read:
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775.027 Insanity defense.—
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(1) AFFIRMATIVE DEFENSE.—All persons are presumed to be
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sane. It is an affirmative defense to a criminal prosecution
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that, at the time of the commission of the acts constituting the
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offense, the defendant was insane. Insanity is established when
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the defendant had a mental infirmity, disease, or defect and
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because of this condition, the defendant did not know what he or
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she was doing or its consequences. :
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(a) The defendant had a mental infirmity, disease, or
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defect; and
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(b) Because of this condition, the defendant:
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1. Did not know what he or she was doing or its
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consequences; or
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2. Although the defendant knew what he or she was doing and
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its consequences, the defendant did not know that what he or she
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was doing was wrong.
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Mental infirmity, disease, or defect does not constitute a
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defense of insanity except as provided in this subsection.
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(2) BURDEN OF PROOF.—The defendant has the burden of
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proving the defense of insanity by clear and convincing
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evidence.
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Section 2. Subsection (3) of section 916.12, Florida
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Statutes, is amended to read:
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916.12 Mental competence to proceed.—
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(3) In considering the issue of competence to proceed, an
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examining expert shall first consider and specifically include
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in his or her report the defendant’s capacity to:
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(a) Appreciate the charges or allegations against the
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defendant.
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(b) Appreciate the range and nature of possible penalties,
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if applicable, that may be imposed in the proceedings against
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the defendant.
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(c) Understand the adversarial nature of the legal process.
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(d) Disclose to counsel facts pertinent to the proceedings
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at issue.
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(e) Manifest appropriate courtroom behavior.
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(f) Testify relevantly.
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In addition, an examining expert shall consider and include in
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his or her report whether the expert finds that the defendant is
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malingering, what instrument or method was used as the basis for
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any such finding, and any other factor deemed relevant by the
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expert.
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Section 3. Section 916.145, Florida Statutes, is amended to
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read:
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916.145 Dismissal of charges.—
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(1) Except as provided in subsection (2), the charges
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against a defendant adjudicated incompetent to proceed due to
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mental illness may not shall be dismissed unless: without
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prejudice to the state if
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(a) The defendant remains incompetent to proceed for a
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duration of time equal to the maximum statutory sentence for
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such charges; and
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(b) The maximum statutory sentence for such charges is more
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than 5 years.
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(2) If the defendant’s maximum statutory sentence is equal
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to or less than 5 years, 5 continuous, uninterrupted years after
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such determination, unless the court in its order specifies its
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reasons for believing that the defendant will become competent
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to proceed within the foreseeable future and specifies the time
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within which the defendant is expected to become competent to
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proceed. the court may dismiss such charges at least 3 years
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after such determination of incompetency , unless the charge is:
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(a) Arson;
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(b) Sexual battery;
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(c) Robbery;
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(d) Kidnapping;
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(e) Aggravated child abuse;
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(f) Aggravated abuse of an elderly person or disabled
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adult;
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(g) Aggravated assault with a deadly weapon;
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(h) Murder;
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(i) Manslaughter;
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(j) Aggravated manslaughter of an elderly person or
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disabled adult;
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(k) Aggravated manslaughter of a child;
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(l) Unlawful throwing, projecting, placing, or discharging
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of a destructive device or bomb;
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(m) Armed burglary;
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(n) Aggravated battery;
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(o) Aggravated stalking;
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(p) A forcible felony as defined in s. 776.08 and not
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listed elsewhere in this subsection;
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(q) An offense where an element of the offense requires the
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possession, use, or discharge of a firearm;
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(r) An attempt to commit an offense listed in this
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subsection;
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(s) An offense allegedly committed by a defendant who has
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had a forcible or violent felony conviction within the 5 years
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immediately preceding the date of arrest for the nonviolent
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felony sought to be dismissed;
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(t) An offense allegedly committed by a defendant who,
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after having been found incompetent and placed under court
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supervision in a community-based program, is formally charged by
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a state attorney or the Office of the Statewide Prosecutor with
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a new felony offense; or
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(u) An offense for which there is an identifiable victim
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and such victim has not consented to the dismissal.
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(3) (2) This section does not prohibit the state from
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refiling dismissed charges if the defendant is declared to be
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competent to proceed in the future.
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Section 4. Section 916.15, Florida Statutes, is amended to
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read:
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916.15 Involuntary commitment of defendant adjudicated not
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guilty by reason of insanity.—
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(1) The determination of whether a defendant is not guilty
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by reason of insanity shall be determined in accordance with s.
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775.027 and the applicable Rule 3.217, Florida Rules of Criminal
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Procedure.
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(2) A defendant who is acquitted of criminal charges
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because of a finding of not guilty by reason of insanity shall
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may be involuntarily committed pursuant to such finding if the
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defendant has a mental illness and, because of the illness, is
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manifestly dangerous to himself or herself or others.
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(3)(a) Every defendant acquitted of criminal charges by
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reason of insanity and found to meet the criteria for
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involuntary commitment shall may be committed and treated in
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accordance with the provisions of this section and the
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applicable Florida Rules of Criminal Procedure.
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(b) Immediately after receipt of a completed copy of the
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court commitment order containing all documentation required by
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the applicable Florida Rules of Criminal Procedure, the
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department shall request all medical information relating to the
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defendant from the jail. The jail shall provide the department
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with all medical information relating to the defendant within 3
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business days after receipt of the department’s request or at
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the time the defendant enters the physical custody of the
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department, whichever is earlier.
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(c) The department shall admit a defendant so adjudicated
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to an appropriate facility or program for treatment and shall
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retain and treat such defendant. No later than 6 months after
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the date of admission, prior to the end of any period of
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extended commitment, or at any time that the administrator or
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his or her designee determines that the defendant no longer
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meets the criteria for continued commitment placement, the
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administrator or designee shall file a report with the court
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pursuant to the applicable Florida Rules of Criminal Procedure.
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(4) In all proceedings under this section, both the
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defendant and the state shall have the right to a hearing before
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the committing court. Evidence at such hearing may be presented
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by the hospital administrator or the administrator’s designee as
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well as by the state and the defendant. The defendant shall have
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the right to counsel at any such hearing. In the event that a
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defendant is determined to be indigent pursuant to s. 27.52, the
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public defender shall represent the defendant. The parties shall
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have access to the defendant’s records at the treating
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facilities and may interview or depose personnel who have had
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contact with the defendant at the treating facilities.
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(5) The commitment hearing shall be held within 30 days
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after the court receives notification that the defendant no
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longer meets the criteria for continued commitment. The
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defendant must be transported to the committing court’s
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jurisdiction for the hearing. Each defendant returning to a jail
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shall continue to receive the same psychotropic medications as
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prescribed by the facility physician at the time of discharge
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from a forensic or civil facility, unless the jail physician
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determines there is a compelling medical reason to change or
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discontinue the medication for the health and safety of the
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defendant. If the jail physician changes or discontinues the
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medication and the defendant is later determined at the
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competency hearing to be incompetent to stand trial and is
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recommitted to the department, the jail physician may not change
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or discontinue the defendant’s prescribed psychotropic
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medication upon the defendant’s next discharge from the forensic
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or civil facility.
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Section 5. Section 921.0026, Florida Statutes, is amended
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to read:
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921.0026 Mitigating circumstances.—This section applies to
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any felony offense, except any capital felony, committed on or
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after October 1, 1998.
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(1) A downward departure from the lowest permissible
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sentence, as calculated according to the total sentence points
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pursuant to s. 921.0024, is prohibited unless there are
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circumstances or factors that reasonably justify the downward
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departure. Mitigating factors to be considered include, but are
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not limited to, those listed in subsection (2). The imposition
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of a sentence below the lowest permissible sentence is subject
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to appellate review under chapter 924, but the extent of
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downward departure is not subject to appellate review.
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(2) Mitigating circumstances under which a departure from
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the lowest permissible sentence is reasonably justified include,
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but are not limited to:
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(a) The departure results from a legitimate, uncoerced plea
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bargain.
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(b) The defendant was an accomplice to the offense and was
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a relatively minor participant in the criminal conduct.
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(c) The capacity of the defendant to appreciate the
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criminal nature of the conduct or to conform that conduct to the
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requirements of law was substantially impaired.
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(d) 1. The defendant requires specialized treatment for a :
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a. Severe physical disability; or
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b. Severe and persistent mental illness that is unrelated
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to substance abuse or addiction, and has been diagnosed by a
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qualified professional, as that term is defined in s. 39.01. The
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court may not depart from the lowest permissible sentence under
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this subparagraph if the defendant is a danger to himself or
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herself or others, or is convicted of murder, manslaughter, or
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any offense listed in s. 943.0435.
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2. This paragraph may not be construed to allow a convicted
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defendant to receive outpatient therapy in lieu of a term of
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incarceration. mental disorder that is unrelated to substance
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abuse or addiction or for a physical disability, and the
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defendant is amenable to treatment.
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(e) The need for payment of restitution to the victim
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outweighs the need for a prison sentence.
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(f) The victim was an initiator, willing participant,
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aggressor, or provoker of the incident.
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(g) The defendant acted under extreme duress or under the
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domination of another person.
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(h) Before the identity of the defendant was determined,
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the victim was substantially compensated.
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(i) The defendant cooperated with the state to resolve the
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current offense or any other offense.
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(j) The offense was committed in an unsophisticated manner
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and was an isolated incident for which the defendant has shown
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remorse.
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(k) At the time of the offense the defendant was too young
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to appreciate the consequences of the offense.
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(l) The defendant is to be sentenced as a youthful
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offender.
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(m) The defendant’s offense is a nonviolent felony, the
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defendant’s Criminal Punishment Code scoresheet total sentence
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points under s. 921.0024 are 60 points or fewer, and the court
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determines that the defendant is amenable to the services of a
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postadjudicatory treatment-based drug court program and is
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otherwise qualified to participate in the program as part of the
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sentence. For purposes of this paragraph, the term “nonviolent
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felony” has the same meaning as provided in s. 948.08(6).
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(n) The defendant was making a good faith effort to obtain
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or provide medical assistance for an individual experiencing a
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drug-related overdose.
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(3) Except as provided in paragraph (2)(m), the defendant’s
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substance abuse or addiction, including intoxication at the time
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of the offense, is not a mitigating factor under subsection (2)
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and does not, under any circumstances, justify a downward
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departure from the permissible sentencing range.
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Section 6. This act shall take effect October 1, 2026.