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Insanity Defense

Under Title XLVI, Florida Statute Section 775.027, the insanity defense is an affirmative defense. The statute provides that as an affirmative defense,

“All persons are presumed to be sane. It is an affirmative defense to a criminal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when: (a) The defendant had a mental infirmity, disease, or defect; and (b) Because of this condition, the defendant:

  1. Did not know what he or she was doing or its consequences; or
  2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong.

Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.”

The burden of proof under Section 775.027(2) is that “[t]he defendant has the burden of proving the defense of insanity by clear and convincing evidence.”

Attorneys for the Temporarily Insanity in Florida

The attorneys at Sammis Law Firm represent clients with an affirmative defense for being temporarily insane at the time the crime was committed. We help clients find an expert witness who can render an expert opinion in the case.

We represent clients throughout the greater Tampa Bay area including Hillsborough County, Polk County, Hernando County, Pasco County, and Pinellas County.

Contact us to find out more about the charges pending against you, the maximum and minimum penalties, and potential defenses.

Call 813-250-0500.


Jury Instructions for the Insanity Defense

The jury instruction for the insanity defense is found in Chapter 3.6(a). The standard jury instruction was adopted in 1981 [431 So. 2d 600], and was amended in 1986 [483 So. 2d 428], and 1994 [636 So. 2d 502], and 2006.

The standard jury instructions for the insanity defense provides:

An issue in this case is whether (defendant) was insane when the crime allegedly was committed. A person is considered to be insane when:

  1. [He] [She] had a mental infirmity, disease, or defect.
  2. Because of this condition
    • a. [he] [she] did not know what [he] [she] was doing or its consequences or
    • b. although [he] [she] knew what [he] [she] was doing and its consequences, [he] [she] did not know it was wrong.

The jury might also be told:

  • “A defendant who believed that what [he] [she] was doing was morally right is not insane if the defendant knew that what [he] [she] was doing violated societal standards or was against the law.”
  • All persons are presumed to be sane. However, if the evidence causes you to have a reasonable doubt concerning the defendant’s sanity, then the presumption of sanity vanishes and the State must prove beyond a reasonable doubt that the defendant was sane.
  • The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue.
  • In determining the issue of insanity, you may consider the testimony of expert and nonexpert witnesses. The question you must answer is not whether the defendant is insane today, or has ever been insane, but simply if whether instead the defendant was insane at the time the crime allegedly was committed.
  • Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person is overcome by passion or temper.
  • If the evidence establishes that the defendant had been adjudged insane by a court, and has not been judicially restored to legal sanity, then you should assume the defendant was insane at the time of commission of the alleged crime, unless the evidence convinces you otherwise.
  • If you find that (defendant) committed the crime but have a reasonable doubt that [he] [she] was sane at that time you find by clear and convincing evidence that the defendant was insane, then you should find [him] [her] not guilty by reason of insanity.
  • If your verdict is that the defendant is not guilty by reason of insanity because insane, that does not necessarily mean [he] [she] will be released from custody. I must conduct further proceedings to determine if the defendant should be committed to a mental hospital, or given other outpatient treatment or released.

If drugs or alcohol are involved, see Cirack v. State, 201 So. 2d 706 (Fla. 1967).


History of the Insanity Defense

The history of the insanity defense was explained by the Florida Supreme Court in Case No. SC05-1622:

“Insanity has long been recognized as a defense to any criminal prosecution in Florida. As early as 1843, the House of Lords in England formulated a set of guidelines concerning the defense of insanity, later known as the so-called “M’Naghten Rule”. These guidelines set a precedent in England’s court of last resort. The rule was treated as if it had statutory force, and was followed in many Commonwealth countries, and parts of the United States. Under M’Naghten a person is not criminally responsible if, at the time of the alleged crime the defendant had a mental infirmity, disease or defect, and because of the condition:

  1. Did not know what he or she was doing or its consequences, or
  2. Although he or she knew what he or she was doing and its consequences, did not know that it was wrong.

In Florida, there has always been a presumption that in a criminal case a person is sane. The defendant has the burden of raising the issue of
insanity through the presentation of evidence. Prior to 2000, if the defendant introduced evidence sufficient to present a reasonable doubt as to his or her sanity, the presumption of sanity vanished. The burden then shifted to the state to establish the defendant’s sanity, beyond and to the exclusion of every reasonable doubt.

In 2000, the Florida legislature changed the landscape in cases where insanity is raised as a defense. The Florida legislature passed Senate Bill
268, creating section 775.027, Florida Statutes. The law is patterned after a similar federal law on insanity….

The Senate staff analysis for Senate Bill 268 outlines the Florida Legislature’s rationale for changing the law. The analysis contains the following quote:

The acquittal of John Hinkley on all charges stemming from his attempt on President Reagan’s life, coupled with the ensuing public focus on the insanity defense, prompted Congress to undertake a comprehensive overhaul of the insanity defense as it operated in the federal courts. Shannon v. United States, 512 U.S. 573, 114 S. Ct. 2419 (1994). As a result of this case, Congress passed the Insanity Defense Reform Act of 1984, (IDRA), 18 U.S.C. ss. 17, 4241-4247. The IDRA makes insanity an affirmative defense in federal courts, to be proved by the defendant, by clear and convincing evidence.

Senate Bill 268 mirrors the standard of proof required by the Insanity Defense Reform Act of 1984. The Committee began a review of instruction 3.6(a) – Insanity, after the enactment of section 775.027, Florida Statutes. The first meeting of the committee to address this issue was held in January 2001. Subsequent committee action on this subject occurred for a period of almost four and one half years. After many debates and discussions on acceptable language, the committee finally agreed on amended language in 2005. The committee’s proposed instruction (Appendix B) retains the M’Naghten rule of law while addressing the issue of moral standards.”


This article was last updated on Friday, December 17, 2021.

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