A Defendant Is Entitled to Claim That a Prior Mental Health Expert’s Examination Was Insufficient

In Ake v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the United States Supreme Court concluded that in a sentencing proceeding, "due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase."

While ordinarily a postconviction claim based on Ake is procedurally barred because it could have been raised on direct appeal, a defendant is entitled to litigate during postconviction a claim that a prior mental health expert's examination was so "grossly insufficient" that the expert "ignored clear indications of either mental retardation or organic brain damage." Raleigh v. State, 932 So. 2d 1054, 1060 (Fla. 2006) (quoting Sireci, 502 So. 2d at 1224).