Statutory Mental Health Mitigating Circumstances

In Nelson v. State, 850 So. 2d 514 (Fla. 2003), the court affirmed the trial court's rejection of the two statutory mental health mitigating circumstances, stating: "The record reflects that there was competent, substantial evidence refuting the allegation that Nelson was under extreme mental or emotional disturbance." 850 So. 2d at 530. At the evidentiary hearing, trial counsel testified he was concerned that the State would successfully argue that mitigation was not established given the modifying adjective "extreme." Trial counsel further testified that he was concerned the jury would not give proper weight to the nonstatutory mitigation if certain mitigation was singled out as being statutory. Nelson alleges this strategy cannot be reasonable because it was based on ignorance of the controlling case law. The postconviction court found the tactical decision to be reasonable because the decision not to request the jury instructions on the two mental health mitigators did not prevent the defense from presenting mental health mitigating evidence to the jury.