Court amends criminal rules: prompting the governor to look into the rulemaking process.

The Florida Supreme Court has approved changes to the Florida Rules of Criminal Procedure to handle the determination of mental retardation of defendants facing the death penalty, angering Gov. Jeb Bush who said the court failed to follow state law.

Bush said he intended to consult with legislative leaders about constitutional changes to prevent the court from usurping legislative intent through court procedural rules.

The court ruled in a unanimous per curiam opinion on May 20 in Amendments to Florida Rules of Criminal Procedure and Florida Rules of Appellate Procedure, case no. SC03-685. Justices Barbara Pariente and Raoul Cantero also wrote concurring opinions.

The opinion noted that the legislature passed F.S. [section] 921.137 in 2001 which barred the execution of mentally retarded persons and established a method for determining whether defendants were mentally retarded. The law required the determination of retardation to be made after conviction and after a jury recommended death or the prosecution announced its intent to seek death even though the jury recommended life imprisonment. It also established a clear and convincing level of proof and was not retroactive.

The next year, the U.S. Supreme Court in Atkins v. Virginia, 336 U.S. 304 (2002), held that executing the mentally retarded violated the Eighth Amendment, and that states were free to establish their own methods for determining mental retardation.

The Criminal Procedure Rules Committee submitted proposed rules to implement ES. [section] 921.137 before the Atkins decision. After that ruling, the court on its own motion published rules (which were noticed in the May 15, 2003, Bar News) and invited comment.

"In response to the proposed rules, this court received comments," the opinion said. "Circuit Judge O.H. Eaton and the Criminal Court Steering Committee submitted proposed rules as a substitute for the rules proposed by the 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."

The rule establishes procedures for four types of cases: cases that have not begun when the new rules go into effect October 1; cases when the trial has started as of October 1; cases when a direct appeal is pending; and cases when the direct appeal is final.

The rule also did not set an evidentiary standard for the judge to use in...