       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 2, 2014.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                                No. 3D14-598
                         Lower Tribunal No. 09-14217
                             ________________


                               Jason Beckman,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.


      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rodney
Smith, Judge.

     Carlos J. Martinez, Public Defender, and Kathryn Stroback, Assistant Public
Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant
Attorney General, for respondent.


Before SUAREZ, LAGOA, and LOGUE, JJ.

      SUAREZ, J.

      Petitioner Jason Beckman, a juvenile, seeks a writ of certiorari precluding

the state from conducting a psychological evaluation of him to be used at his

sentencing hearing. Beckman was convicted of first degree murder of his father
and he has listed a psychologist on his witness list for his individualized sentencing

inquiry required under Miller v. Alabama, 132 S. Ct. 2455 (2012). Beckman

apparently intends to argue the psychologist’s finding that he has Asperger’s

Disorder as a mitigating factor in his sentencing inquiry. The state moved to have

him examined by a psychologist for the state’s use at the hearing, and the trial

court granted the motion over Beckman’s objection. Beckman filed this petition

for writ of certiorari to quash the trial court’s order and to prevent the state’s

psychological exam. Recognizing that this is an issue of first impression, we

nevertheless deny the petition, in part, based upon the requirements of Miller and

the holdings of Dillbeck v. State, 643 So. 2d 1027 (Fla. 1994) and State v.

Massengill, 77 So. 2d 67 (Fla. 3d DCA 2011).

      In Miller, the Supreme Court determined that juveniles, like Beckman, who

are convicted of first degree murder are entitled to individualized sentencing

proceedings so that “a judge or jury m[ay] have the opportunity to consider

mitigating circumstances” before imposing sentence. Miller, 132 S. Ct. at 2475.

In preparation for his sentencing proceeding, Beckman was evaluated by a

psychologist who determined that he “meets the criteria for Asperger’s Disorder,

which is a neurological disorder on the autism spectrum.”            After Beckman

identified the psychologist as a witness for his sentencing proceeding, the trial

court granted the state’s motion to have Beckman evaluated by its own

psychologist.

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      Since Miller was issued, very few cases have discussed the relative rights of

the defendant or the state in connection with the required sentencing proceedings,

and there are no such cases in Florida. Nevertheless, we find that the Florida

Supreme Court’s holding in Dillbeck, supra, is instructive in this context. There, a

capital defendant argued that the state could not compel him to be examined by a

mental health expert. In rejecting that claim, the Court stated:

             Under these circumstances, we cannot say that the trial
             court abused its discretion in striving to level the playing
             field by ordering Dillbeck to submit to a pre-penalty
             phase interview with the State’s expert. [citation
             omitted]. No truly objective tribunal can compel one side
             in a legal bout to abide by the Marquis of Queensberry’s
             rules, while the other fights ungloved.

643 So. 2d at 1030. Similarly, in State v. Massingill, 77 So. 3d 677 (Fla. 3d DCA

2011), this court found that the state was entitled to its own mental health expert in

connection with evaluation of downward departure sentencing examinations. In

both cases, the goal of the courts was to “level the playing field.” We see no

reason the same goal should not apply to sentencing proceedings under Miller.1

However, we agree with Beckman that the state’s evaluation must be limited to

examination of the mitigating factors identified by Beckman’s expert.


1Beckman argues that because the court in Miller discussed only mitigating factors
for sentencing, the ruling does not permit examination of aggravating factors.
Beckman concludes that, as a result, the state has no burden of proof in Miller
sentencing proceeding. Without determining the validity of those arguments, we
conclude that the state is entitled to attempt to rebut any mitigating factors
presented by defendants in such proceedings and is entitled to the benefit of expert
opinion in framing such rebuttal.
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      Finally, Beckman argues that if the state is entitled to examine him, its

examination must be by an expert especially qualified in the area of Asperger’s or

autism spectrum neurological disorders, citing Part III of Florida Statutes Chapter

916, “Forensic Services for Persons Who are Intellectually Disabled or Autistic.”

While that part of Chapter 916 does provide specific requirements for forensic

services for persons with autism, it has no application to a post-conviction

sentencing proceeding. Moreover, the qualifications and credibility of the expert

are for the trial court to determine.    Nevertheless, we grant that portion of the

petition which seeks to limit the state’s examination of Beckman to the mitigating

factors identified by Beckman’s expert, to wit, his diagnosis of Asperger’s

Disorder.

      Petition for Certiorari granted in part and denied in part.




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