Florida Rule of Criminal Procedure 3.216
RULE 3.216. INSANITY AT TIME OF OFFENSE OR PROBATION
OR COMMUNITY CONTROL VIOLATION: NOTICE
AND APPOINTMENT OF EXPERTS
(a) Expert to Aid Defense Counsel. When in any criminal
case a defendant is adjudged to be indigent or partially indigent,
and is not represented by the public defender or regional counsel,
and counsel has reason to believe that the defendant may be
incompetent to proceed or that the defendant may have been insane
at the time of the offense or probation or community control
violation, counsel may so inform the court who shall appoint 1
expert to examine the defendant in order to assist counsel in the
preparation of the defense. The expert shall report only to the
attorney for the defendant and matters related to the expert shall be
deemed to fall under the lawyer-client privilege.
(b) Notice of Intent to Rely on Insanity Defense. When in
any criminal case it shall be the intention of the defendant to rely
on the defense of insanity either at trial or probation or community
control violation hearing, no evidence offered by the defendant for
the purpose of establishing that defense shall be admitted in the
case unless advance notice in writing of the defense shall have been
given by the defendant as hereinafter provided.
(c) Time for Filing Notice. The defendant shall give notice
of intent to rely on the defense of insanity no later than 15 days
after the arraignment or the filing of a written plea of not guilty in
the case when the defense of insanity is to be relied on at trial or no
later than 15 days after being brought before the appropriate court
to answer to the allegations in a violation of probation or
community control proceeding. If counsel for the defendant shall
have reasonable grounds to believe that the defendant may be
incompetent to proceed, the notice shall be given at the same time
that the motion for examination into the defendant’s competence is
filed. The notice shall contain a statement of particulars showing
the nature of the insanity the defendant expects to prove and the
names and addresses of the witnesses by whom the defendant
expects to show insanity, insofar as is possible.
(d) Court-Ordered Evaluations. On the filing of such notice
and on motion of the state, the court shall order the defendant to be
examined by the state’s mental health expert(s) as to the sanity or
insanity of the defendant at the time of the commission of the
alleged offense or probation or community control violation.
Attorneys for the state and defendant may be present at the
examination.
(e) Time for Filing Notice of Intent to Rely on a Mental
Health Defense Other than Insanity. The defendant shall give
notice of intent to rely on any mental health defense other than
insanity as soon as a good faith determination has been made to
utilize the defense but in no event later than 30 days prior to trial.
The notice shall contain a statement of particulars showing the
nature of the defense the defendant expects to prove and the names
and addresses of the witnesses by whom the defendant expects to
prove the defense, insofar as possible. If expert testimony will be
presented, the notice shall indicate whether the expert has
examined the defendant.
(f) Court-Ordered Experts for Other Mental Health
Defenses. If the notice to rely on any mental health defense other
than insanity indicates the defendant will rely on the testimony of
an expert who has examined the defendant, the court shall upon
motion of the state order the defendant be examined by one
qualified expert for the state as to the mental health defense raised
by the defendant. Upon a showing of good cause, the court may
order additional examinations upon motion by the state or the
defendant. Attorneys for the state and defendant may be present at
the examination. When the defendant relies on the testimony of an
expert who has not examined the defendant, the state shall not be
entitled to a compulsory examination of the defendant.
(g) Waiver of Time to File. On good cause shown for the
omission of the notice of intent to rely on the defense of insanity, or
any mental health defense, the court may in its discretion grant the
defendant 10 days to comply with the notice requirement. If leave is
granted and the defendant files the notice, the defendant is deemed
unavailable to proceed. If the trial has already commenced, the
court, only on motion of the defendant, may declare a mistrial in
order to permit the defendant to raise the defense of insanity
pursuant to this rule. Any motion for mistrial shall constitute a
waiver of the defendant’s right to any claim of former jeopardy
arising from the uncompleted trial.
(h) Evaluating Defendant after Pretrial Release. If the
defendant has been released on bail or other release conditions, the
court may order the defendant to appear at a designated place for
evaluation at a specific time as a condition of the release provision.
If the court determines that the defendant will not submit to the
evaluation provided for herein or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the evaluation is completed. A
motion made for evaluation under this subdivision shall not
otherwise affect the defendant’s right to pretrial release.
(i) Evidence. Any experts appointed by the court may be
summoned to testify at the trial, and shall be deemed court
witnesses whether called by the court or by either party. Other
evidence regarding the defendant’s insanity or mental condition
may be introduced by either party. At trial, in its instructions to the
jury, the court shall include an instruction on the consequences of
a verdict of not guilty by reason of insanity.
Committee Notes
1980 Adoption.
(a) This subdivision is based on Pouncy v. State, 353 So. 2d
640 (Fla. 3d DCA 1977), and provides that an expert may be
provided for an indigent defendant. The appointment of the expert
will in this way allow the public defender or court-appointed
attorney to screen possible incompetency or insanity cases and give
a basis for determining whether issues of incompetency or insanity
ought to be raised before the court; it will also permit the defense
attorney to specify in greater detail in the statement of particulars
the nature of the insanity that attorney expects to prove, if any, and
the basis for the raising of that defense.
(b) Essentially the same as in prior rules; provides that
written notice must be given in advance by the defendant.
(c) Since counsel for indigents often are not appointed until
arraignment and since it is sometimes difficult for a defendant to
make a determination on whether the defense of insanity should be
raised prior to arraignment, a 15-day post-arraignment period is
provided for the filing of the notice. The defendant must raise
incompetency at the same time as insanity, if at all possible. With
the appointment of the expert to assist, the defendant should be
able to raise both issues at the same time if grounds for both exist.
The remainder of the rule, providing for the statement to be
included in the notice, is essentially the same as that in prior rules.
(d) The appointment of experts provision is designed to
track, insofar as possible, the provisions for appointment of experts
contained in the rules relating to incompetency to stand trial and in
the Florida Statutes relating to appointment of expert witnesses.
Insofar as possible, the single examination should include
incompetency, involuntary commitment issues where there are
reasonable grounds for their consideration, and issues of insanity
at time of the offense. Judicial economy would mandate such a
single examination where possible.
(g) In order to obtain more standardized reports, specific
items relating to the examination are required of the examining
experts. See note to rule 3.211(a).
(h) Essentially the substance of prior rule 3.210(e)(4) and (5),
with some changes. Both prior provisions are combined into a
single provision; speedy trial time limits are no longer set forth, but
waiver of double jeopardy is mandated.
(i) Same as rule 3.210(b)(3), relating to incompetency to
stand trial. See commentary to that rule.
(j) A restatement of former rule 3.210(e)(7). The provision
that experts called by the court shall be deemed court witnesses is
new. The former provision relating to free access to the defendant is
eliminated as unnecessary.
As to appointment of experts, see section 912.11, Florida
Statutes.
1988 Amendment. The amendments to this rule, including
the title, provide for the affirmative defense of insanity in violation
of probation or community control proceedings as well as at trial.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
1996 Amendment. Subdivisions (e) and (f) were added to
conform to State v. Hickson, 630 So. 2d 172 (Fla. 1993). These
amendments are not intended to expand existing case law.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.
OR COMMUNITY CONTROL VIOLATION: NOTICE
AND APPOINTMENT OF EXPERTS
(a) Expert to Aid Defense Counsel. When in any criminal
case a defendant is adjudged to be indigent or partially indigent,
and is not represented by the public defender or regional counsel,
and counsel has reason to believe that the defendant may be
incompetent to proceed or that the defendant may have been insane
at the time of the offense or probation or community control
violation, counsel may so inform the court who shall appoint 1
expert to examine the defendant in order to assist counsel in the
preparation of the defense. The expert shall report only to the
attorney for the defendant and matters related to the expert shall be
deemed to fall under the lawyer-client privilege.
(b) Notice of Intent to Rely on Insanity Defense. When in
any criminal case it shall be the intention of the defendant to rely
on the defense of insanity either at trial or probation or community
control violation hearing, no evidence offered by the defendant for
the purpose of establishing that defense shall be admitted in the
case unless advance notice in writing of the defense shall have been
given by the defendant as hereinafter provided.
(c) Time for Filing Notice. The defendant shall give notice
of intent to rely on the defense of insanity no later than 15 days
after the arraignment or the filing of a written plea of not guilty in
the case when the defense of insanity is to be relied on at trial or no
later than 15 days after being brought before the appropriate court
to answer to the allegations in a violation of probation or
community control proceeding. If counsel for the defendant shall
have reasonable grounds to believe that the defendant may be
incompetent to proceed, the notice shall be given at the same time
that the motion for examination into the defendant’s competence is
filed. The notice shall contain a statement of particulars showing
the nature of the insanity the defendant expects to prove and the
names and addresses of the witnesses by whom the defendant
expects to show insanity, insofar as is possible.
(d) Court-Ordered Evaluations. On the filing of such notice
and on motion of the state, the court shall order the defendant to be
examined by the state’s mental health expert(s) as to the sanity or
insanity of the defendant at the time of the commission of the
alleged offense or probation or community control violation.
Attorneys for the state and defendant may be present at the
examination.
(e) Time for Filing Notice of Intent to Rely on a Mental
Health Defense Other than Insanity. The defendant shall give
notice of intent to rely on any mental health defense other than
insanity as soon as a good faith determination has been made to
utilize the defense but in no event later than 30 days prior to trial.
The notice shall contain a statement of particulars showing the
nature of the defense the defendant expects to prove and the names
and addresses of the witnesses by whom the defendant expects to
prove the defense, insofar as possible. If expert testimony will be
presented, the notice shall indicate whether the expert has
examined the defendant.
(f) Court-Ordered Experts for Other Mental Health
Defenses. If the notice to rely on any mental health defense other
than insanity indicates the defendant will rely on the testimony of
an expert who has examined the defendant, the court shall upon
motion of the state order the defendant be examined by one
qualified expert for the state as to the mental health defense raised
by the defendant. Upon a showing of good cause, the court may
order additional examinations upon motion by the state or the
defendant. Attorneys for the state and defendant may be present at
the examination. When the defendant relies on the testimony of an
expert who has not examined the defendant, the state shall not be
entitled to a compulsory examination of the defendant.
(g) Waiver of Time to File. On good cause shown for the
omission of the notice of intent to rely on the defense of insanity, or
any mental health defense, the court may in its discretion grant the
defendant 10 days to comply with the notice requirement. If leave is
granted and the defendant files the notice, the defendant is deemed
unavailable to proceed. If the trial has already commenced, the
court, only on motion of the defendant, may declare a mistrial in
order to permit the defendant to raise the defense of insanity
pursuant to this rule. Any motion for mistrial shall constitute a
waiver of the defendant’s right to any claim of former jeopardy
arising from the uncompleted trial.
(h) Evaluating Defendant after Pretrial Release. If the
defendant has been released on bail or other release conditions, the
court may order the defendant to appear at a designated place for
evaluation at a specific time as a condition of the release provision.
If the court determines that the defendant will not submit to the
evaluation provided for herein or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the evaluation is completed. A
motion made for evaluation under this subdivision shall not
otherwise affect the defendant’s right to pretrial release.
(i) Evidence. Any experts appointed by the court may be
summoned to testify at the trial, and shall be deemed court
witnesses whether called by the court or by either party. Other
evidence regarding the defendant’s insanity or mental condition
may be introduced by either party. At trial, in its instructions to the
jury, the court shall include an instruction on the consequences of
a verdict of not guilty by reason of insanity.
Committee Notes
1980 Adoption.
(a) This subdivision is based on Pouncy v. State, 353 So. 2d
640 (Fla. 3d DCA 1977), and provides that an expert may be
provided for an indigent defendant. The appointment of the expert
will in this way allow the public defender or court-appointed
attorney to screen possible incompetency or insanity cases and give
a basis for determining whether issues of incompetency or insanity
ought to be raised before the court; it will also permit the defense
attorney to specify in greater detail in the statement of particulars
the nature of the insanity that attorney expects to prove, if any, and
the basis for the raising of that defense.
(b) Essentially the same as in prior rules; provides that
written notice must be given in advance by the defendant.
(c) Since counsel for indigents often are not appointed until
arraignment and since it is sometimes difficult for a defendant to
make a determination on whether the defense of insanity should be
raised prior to arraignment, a 15-day post-arraignment period is
provided for the filing of the notice. The defendant must raise
incompetency at the same time as insanity, if at all possible. With
the appointment of the expert to assist, the defendant should be
able to raise both issues at the same time if grounds for both exist.
The remainder of the rule, providing for the statement to be
included in the notice, is essentially the same as that in prior rules.
(d) The appointment of experts provision is designed to
track, insofar as possible, the provisions for appointment of experts
contained in the rules relating to incompetency to stand trial and in
the Florida Statutes relating to appointment of expert witnesses.
Insofar as possible, the single examination should include
incompetency, involuntary commitment issues where there are
reasonable grounds for their consideration, and issues of insanity
at time of the offense. Judicial economy would mandate such a
single examination where possible.
(g) In order to obtain more standardized reports, specific
items relating to the examination are required of the examining
experts. See note to rule 3.211(a).
(h) Essentially the substance of prior rule 3.210(e)(4) and (5),
with some changes. Both prior provisions are combined into a
single provision; speedy trial time limits are no longer set forth, but
waiver of double jeopardy is mandated.
(i) Same as rule 3.210(b)(3), relating to incompetency to
stand trial. See commentary to that rule.
(j) A restatement of former rule 3.210(e)(7). The provision
that experts called by the court shall be deemed court witnesses is
new. The former provision relating to free access to the defendant is
eliminated as unnecessary.
As to appointment of experts, see section 912.11, Florida
Statutes.
1988 Amendment. The amendments to this rule, including
the title, provide for the affirmative defense of insanity in violation
of probation or community control proceedings as well as at trial.
1992 Amendment. The purpose of the amendment is to
gender neutralize the wording of the rule.
1996 Amendment. Subdivisions (e) and (f) were added to
conform to State v. Hickson, 630 So. 2d 172 (Fla. 1993). These
amendments are not intended to expand existing case law.
Introductory Note Relating to Amendments to Rules 3.210
to 3.219. See notes following rule 3.210 for the text of this note.