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2013 Florida Statutes
Chapter 27
STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES
STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES
CHAPTER 27
STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES
PART I
COURT REPORTERS; WITNESS COORDINATION(ss. 27.0055-27.0065)
PART II
STATE ATTORNEYS(ss. 27.01-27.367)
PART III
PUBLIC DEFENDERS AND OTHER COURT-APPOINTED COUNSEL(ss. 27.40-27.61)
PART IV
CAPITAL COLLATERAL REPRESENTATION(ss. 27.7001-27.715)
PART I
COURT REPORTERS; WITNESS COORDINATION27.0055 Official court reporters.
27.0061 Transcripts in criminal cases.
27.0065 Witness coordination.
27.0055 Official court reporters.—
(1) The term “official court reporter” means any individual appointed as an official court reporter pursuant to former chapter 29 prior to the effective date of this act.
(2) It shall not constitute a violation of chapter 112 for an official court reporter to either directly or indirectly purchase, rent, or utilize any goods or services for any court reporting firm in which the official court reporter is an officer, partner, director, or proprietor, or in which the official court reporter has a material interest.
(3) It shall not constitute a violation of chapter 112 for an official court reporter to have or hold any employment or contractual relationship with any business entity or agency which is subject to the regulation of, or is doing business with, any agency of which the court reporter is an officer or employee.
(4) The provisions of this section shall take effect upon becoming a law and shall apply to any individual appointed as an official court reporter prior to the effective date of this section for those actions listed in subsections (2) and (3) above.
History.—s. 1, ch. 95-286; s. 10, ch. 99-2.
27.0061 Transcripts in criminal cases.—Upon the demand of the state attorney, or the presiding judge in any criminal case, or the defendant within the time allowed for taking an appeal and for the purpose of taking an appeal in a criminal case, the court reporter shall furnish with reasonable diligence a transcript of the testimony and proceedings; and the costs for same shall be taxed as costs in the case.
History.—s. 4, ch. 95-286.
27.0065 Witness coordination.—Each state attorney and public defender shall be responsible for:
(1) Coordinating court appearances, including pretrial conferences and depositions, for all witnesses who are subpoenaed in criminal cases, including law enforcement personnel.
(2) Contacting witnesses and securing information necessary to place a witness on an on-call status with regard to his or her court appearance.
(3) Contacting witnesses to advise them not to report to court in the event the case for which they have been subpoenaed has been continued or has had a plea entered, or in the event there is any other reason why their attendance is not required on the dates they have been ordered to report.
(4) Contacting the employer of a witness, when necessary, to confirm that the employee has been subpoenaed to appear in court as a witness.
In addition, the state attorney or public defender may provide additional services to reduce time and wage losses to a minimum for all witnesses.
History.—s. 1, ch. 82-176; s. 262, ch. 95-147; s. 5, ch. 2003-402.
Note.—Former s. 43.35.
PART II
STATE ATTORNEYS27.01 State attorneys; number, election, terms.
27.015 Private practice prohibited.
27.02 Duties before court.
27.03 Duties before grand jury.
27.04 Summoning and examining witnesses for state.
27.05 Assisting Attorney General.
27.06 Habeas corpus and preliminary trials.
27.08 State claims; surrender of papers to successor.
27.10 Obligation as to claims; how discharged.
27.11 Report upon claims committed to state attorney.
27.12 Power to compromise.
27.13 Completion of compromise.
27.14 Assigning state attorneys to other circuits.
27.15 State attorneys to assist in other circuits.
27.151 Confidentiality of specified executive orders; criteria.
27.16 Appointment of acting state attorney.
27.18 Assistant to state attorney.
27.181 Assistant state attorneys; appointment; powers and duties; compensation.
27.182 Salary discrimination based on gender or race; review within the office of state attorney.
27.25 State attorney authorized to employ personnel; funding formula.
27.251 Special investigators.
27.255 Investigators; authority to arrest, qualifications, rights, immunities, bond, and oath.
27.34 Limitations on payment of salaries and other related costs of state attorneys’ offices other than by the state.
27.341 Electronic filing and receipt of court documents.
27.345 State Attorney RICO Trust Fund; authorized use of funds; reporting.
27.3451 State Attorney’s Forfeiture and Investigative Support Trust Fund.
27.35 Salaries of state attorneys.
27.366 Legislative intent and policy in cases meeting criteria of s. 775.087(2) and (3).
27.367 State Attorneys Revenue Trust Fund.
27.01 State attorneys; number, election, terms.—There shall be a state attorney for each of the judicial circuits, who shall be elected at the general election by the qualified electors of their respective judicial circuits as other state officials are elected, and who shall serve for a term of 4 years.
History.—s. 1, ch. 5120, 1903; GS 1796; ss. 1, chs. 6197, 6198, 1911; RGS 3026; CGL 4769; ss. 1, 5-A, ch. 17085, 1935; s. 1, ch. 26761, 1951.
27.015 Private practice prohibited.—All state attorneys elected to said office shall be so elected on a full-time basis and shall be prohibited from the private practice of law while holding said office.
History.—s. 1, ch. 70-79; s. 11, ch. 2002-1.
27.02 Duties before court.—
(1) The state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party, except as provided in chapters 39, 984, and 985. The intake procedures of chapters 39, 984, and 985 shall apply as provided therein. The state attorney shall appear in the circuit and county courts within his or her judicial circuit for the purpose of prosecuting violations of special laws and county or municipal ordinances punishable by incarceration if the prosecution is ancillary to a state prosecution or if the state attorney has contracted with the county or municipality for reimbursement for services rendered in accordance with s. 27.34(1).
(2) The state attorney, when complying with the discovery obligation pursuant to the applicable rule of procedure, may charge the defendant fees as provided for in s. 119.07(4), not to exceed 15 cents per page for a copy of a noncertified copy of a public record. However, these fees may be deferred if the defendant has been determined to be indigent as provided in s. 27.52.
History.—s. 3, ch. 1661, 1868; RS 1344; GS 1779; RGS 3005; CGL 4739; s. 5, ch. 72-404; s. 7, ch. 90-208; s. 116, ch. 95-147; s. 4, ch. 98-280; s. 6, ch. 2003-402; s. 4, ch. 2004-265; s. 31, ch. 2004-335.
27.03 Duties before grand jury.—Whenever required by the grand jury, the state attorney shall attend them for the purpose of examining witnesses in their presence, or of giving legal advice in any matter before them; and he or she shall prepare bills of indictment.
History.—s. 4, ch. 1661, 1868; RS 1345; GS 1780; RGS 3006; CGL 4740; s. 117, ch. 95-147.
27.04 Summoning and examining witnesses for state.—The state attorney shall have summoned all witnesses required on behalf of the state; and he or she is allowed the process of his or her court to summon witnesses from throughout the state to appear before the state attorney at such convenient places in the state attorney’s judicial circuit and at such convenient times as may be designated in the summons, to testify before him or her as to any violation of the law upon which they may be interrogated, and he or she is empowered to administer oaths to all witnesses summoned to testify by the process of his or her court or who may voluntarily appear before the state attorney to testify as to any violation or violations of the law.
History.—s. 2, ch. 2094, 1877; RS 1346; GS 1781; s. 10, ch. 7838, 1919; RGS 3007; CGL 4741; s. 1, ch. 22634, 1945; s. 1, ch. 57-290; s. 118, ch. 95-147; s. 7, ch. 2003-402; s. 3, ch. 2013-25.
27.05 Assisting Attorney General.—In addition to the duties now imposed upon the several state attorneys of this state, by statute, they shall assist the Attorney General in the preparation and presentation of all appeals to the Supreme Court, from the circuit court of their respective circuits, of all cases, civil or criminal, in which the state is a party.
History.—s. 1, ch. 5399, 1905; RGS 3008; CGL 4742.
27.06 Habeas corpus and preliminary trials.—The several state attorneys of this state shall represent the state in all cases of habeas corpus arising in their respective circuits, and shall also represent the state, either in person or by assistant, in cases of preliminary trials of persons charged with capital offenses in all cases where the committing trial court judge shall have given due and timely notice of the time and place of such trial. Notice of the application for the writ of habeas corpus shall be given to the prosecuting officer of the court wherein the statute under attack is being applied, the criminal law proceeding is being maintained, or the conviction has occurred.
History.—s. 3, ch. 5399, 1905; RGS 3010; CGL 4746; s. 4, ch. 29737, 1955; s. 4, ch. 73-334; s. 2, ch. 2004-11.
27.08 State claims; surrender of papers to successor.—Upon the qualification of the successor of any state attorney, the state attorney going out of office shall deliver to his or her successor a statement of all cases for the collection of money in favor of the state under his or her control and the papers connected with the same, and take his or her receipt for the same, which receipt, when filed with the Department of Financial Services, shall release such state attorney from any further liability to the state upon the claims receipted for; and the state attorney receiving the claims shall be liable in all respects for the same, as provided against state attorneys in s. 17.20.
History.—s. 4, ch. 1413, 1863; RS 1353; GS 1782; RGS 3018; CGL 4754; s. 11, ch. 25035, 1949; ss. 12, 35, ch. 69-106; s. 119, ch. 95-147; s. 79, ch. 2003-261.
27.10 Obligation as to claims; how discharged.—The charges mentioned in s. 17.20 shall be evidence of indebtedness on the part of any state attorney against whom any charge is made for the full amount of such claim to the state until the same shall be collected and paid into the treasury or sued to insolvency, which fact of insolvency shall be certified by the circuit judge of his or her circuit, unless the state attorney makes it fully appear to the Department of Financial Services that the failure to collect the same did not result from his or her neglect.
History.—s. 2, ch. 1413, 1863; RS 1348; GS 1783; RGS 3013; CGL 4749; s. 11, ch. 25035, 1949; ss. 12, 35, ch. 69-106; s. 120, ch. 95-147; s. 80, ch. 2003-261.
27.11 Report upon claims committed to state attorney.—The state attorney shall make a report to the Chief Financial Officer on the first Monday in January and July in each and every year of the condition of all claims placed in his or her hands or which the state attorney may have been required to prosecute and collect, whether the same is in suit or in judgment, or collected, and the probable solvency or insolvency of claims not collected, and shall at the same time pay over all moneys which he or she may have collected belonging to the state; and the Chief Financial Officer shall not audit or allow any claim which any state attorney may have against the state for services until he or she makes the report herein required.
History.—s. 3, ch. 1413, 1863; RS 1349; GS 1784; RGS 3014; CGL 4750; s. 121, ch. 95-147; s. 81, ch. 2003-261.
27.12 Power to compromise.—
(1) The state attorney may, with the approval of the Department of Financial Services, compromise and settle all judgments, claims, and demands in favor of the state in his or her circuit against defaulting collectors of revenue, sheriffs and other officers, and the sureties on their bonds, on such terms as the state attorney may deem equitable and proper.
(2) Any such compromise or settlement may be made with any of the sureties of such defaulting officer as to his or her individual liability, and a receipt to such surety shall be a discharge of his or her obligation; but the discharge of one or more of the sureties so compromised and settled with shall not operate as a discharge of the principal or other sureties from the judgment, claim, or demand in favor of the state.
History.—s. 1, ch. 3236, 1881; RS 1351; GS 1786; RGS 3016; CGL 4752; ss. 12, 35, ch. 69-106; s. 122, ch. 95-147; s. 82, ch. 2003-261.
27.13 Completion of compromise.—The state attorney shall, on agreeing to any compromise or settlement, report the same to the Department of Financial Services for its approval; and, on its approving such compromise or settlement, the state attorney, on a compliance with the terms of such compromise or settlement shall give a receipt to the collector of revenue, sheriff or other officer, or the sureties on their bonds, or to the legal representatives, which receipt shall be a discharge from all judgments, claims or demands of the state against such collector of revenue or other officer, or the sureties on their bonds.
History.—s. 2, ch. 3236, 1881; RS 1352; GS 1787; RGS 3017; CGL 4753; ss. 12, 35, ch. 69-106; s. 83, ch. 2003-261.
27.14 Assigning state attorneys to other circuits.—
(1) If any state attorney is disqualified to represent the state in any investigation, case, or matter pending in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of circuits or of courts between such state attorney and any other state attorney or order an assignment of any state attorney to discharge the duties of the state attorney with respect to one or more specified investigations, cases, or matters, specified in general in the executive order of the Governor. Any exchange or assignment of any state attorney to a particular circuit shall expire 12 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor showing good and sufficient cause to extend such exchange or assignment.
(2) If the statewide prosecutor in charge of the Office of Statewide Prosecution determines that he or she is not qualified to represent the state in any investigation, case, or matter pending in the courts of the state or if a court of competent jurisdiction disqualifies him or her from representing the state, the Governor may, by executive order filed with the Department of State, order an assignment of any state attorney to discharge the duties of such prosecutor with respect to one or more specified investigations, cases, or matters, generally described in the order. The assignment of any state attorney shall expire 12 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor showing good and sufficient cause to extend such assignment.
(3) Whenever a state attorney is exchanged or assigned, he or she may designate one or more of his or her assistant state attorneys and state attorney investigators to perform the duties assigned under the executive order.
History.—s. 2, ch. 5399, 1905; RGS 3009; CGL 4743; s. 1, ch. 69-1736; s. 4, ch. 73-334; s. 1, ch. 74-627; s. 1, ch. 75-193; s. 1, ch. 83-111; s. 2, ch. 85-179; s. 3, ch. 87-224; s. 123, ch. 95-147; s. 1, ch. 96-256.
27.15 State attorneys to assist in other circuits.—
(1) The Governor of the state may for good and sufficient reasons require any state attorney in the state to proceed to any place in the state and assist the state attorney holding office in the circuit where such place is located in the discharge of any of the duties of such state attorney. Any state attorney in this state who shall be so directed by the Governor to go and assist any other state attorney in the discharge of his or her duties shall immediately proceed to the place designated and assist the state attorney of the circuit in which such place is located in the performance of duties.
(2) When any state attorney is required to go beyond the limits of the circuit in which he or she holds office to comply with this section or on other official business performed at the direction of the Governor, the expenses that would otherwise not have been incurred but for the executive assignment shall be borne by the state and shall be paid from the appropriation provided by the state for the state attorney who is being assisted in the discharge of his or her duties. Other costs attendant to the prosecution of such cases shall be paid by the entity obligated to pay the expense in the absence of an executive assignment.
History.—ss. 1, 2, ch. 8571, 1921; CGL 4744, 4745; s. 24, ch. 57-1; s. 1, ch. 67-324; s. 2, ch. 69-1736; s. 124, ch. 95-147; s. 8, ch. 2003-402.
27.151 Confidentiality of specified executive orders; criteria.—
(1) If the Governor provides in an executive order issued pursuant to s. 27.14 or s. 27.15 that the order or a portion thereof is confidential, the order or portion so designated, the application of the Governor to the Supreme Court and all proceedings thereon, and the order of the Supreme Court shall be confidential and exempt from the provisions of s. 119.07(1).
(2) The Governor shall base his or her decision to make an executive order confidential on the criteria set forth in 1s. 119.14.
(3) To maintain the confidentiality of the executive order, the state attorney, upon entering the circuit of assignment, shall immediately have the executive order sealed by the court prior to filing it with the clerk of the circuit court. The Governor may make public any executive order issued pursuant to s. 27.14 or s. 27.15 by a subsequent executive order, and at the expiration of a confidential executive order or any extensions thereof, the executive order and all associated orders and reports shall be open to the public pursuant to chapter 119 unless the information contained in the executive order is confidential pursuant to the provisions of chapter 39, chapter 415, chapter 984, or chapter 985.
History.—s. 2, ch. 75-193; s. 1, ch. 86-76; s. 7, ch. 90-360; s. 12, ch. 91-57; s. 125, ch. 95-147; s. 5, ch. 95-196; s. 10, ch. 96-406; s. 5, ch. 98-280.
27.16 Appointment of acting state attorney.—Whenever there shall be a vacancy in the office of the state attorney in any of the judicial circuits of this state, either by nonappointment or otherwise, or if a state attorney shall not be present at any regular or special term of the courts of his or her circuit or, being present, shall from any cause be unable to perform the duties of office or shall be disqualified to act in any particular case, the circuit judge of his or her judicial circuit shall have full power to appoint a prosecuting officer from among the members of the bar, with the consent of the member so appointed, to whom shall be administered an oath to faithfully discharge the duties of state attorney, and who shall have as full and complete authority, and whose acts shall be in all respects as valid as a regularly appointed state attorney. He or she shall sign all indictments and other documents as “acting state attorney.” The power of the appointee shall cease upon the cessation of the inability or disqualification of the state attorney or the completion of the appointee’s duties in any particular case.
History.—s. 1, ch. 1726, 1869; s. 2, ch. 1996, 1874; RS 1354; s. 1, ch. 4899, 1901; GS 1789; RGS 3019; CGL 4755; s. 1, ch. 69-212; s. 4, ch. 73-334; s. 126, ch. 95-147.
27.18 Assistant to state attorney.—The state attorney, by and with the consent of court, may procure the assistance of any member of the bar when the amount of the state business renders it necessary, either in the grand jury room to advise them upon legal points and framing indictments, or in court to prosecute criminals; but, such assistant shall not be authorized to sign any indictments or administer any oaths, or to perform any other duty except the giving of legal advice, drawing up of indictments, and the prosecuting of criminals in open court. His or her compensation shall be paid by the state attorney and not by the state.
History.—s. 1, ch. 2099, 1877; RS 1355; GS 1791; RGS 3021; CGL 4757; s. 127, ch. 95-147.
27.181 Assistant state attorneys; appointment; powers and duties; compensation.—
(1) Each assistant state attorney appointed by a state attorney shall serve during the pleasure of the state attorney appointing him or her. Each such appointment shall be in writing and shall be recorded in the office of the clerk of the circuit court of the county in which the appointing state attorney resides. No such appointee shall perform any of the duties of assistant state attorney until he or she shall have taken and subscribed to a written oath that he or she will faithfully perform the duties of assistant state attorney and shall have caused the oath to be recorded in the office of the clerk of the circuit court of the county in which the appointing state attorney resides. Upon the recordation of such appointment and oath, the appointing state attorney shall promptly cause certified copies thereof to be transmitted to the Secretary of State. When any such appointment shall be revoked, the revocation thereof shall be made in writing and shall be recorded in the office of the clerk of the circuit court of the county in which the appointment is recorded, and the state attorney executing the revocation shall forthwith cause a certified copy thereof to be transmitted to the Secretary of State. If any such appointee dies or resigns, the appointing state attorney shall promptly give written notice of such death or resignation to the Secretary of State.
(2) Each assistant state attorney appointed by a state attorney shall have all of the powers and discharge all of the duties of the state attorney appointing him or her, under the direction of that state attorney. No such assistant state attorney may sign informations unless specifically designated to do so by the state attorney. He or she shall sign indictments, informations, and other official documents, as assistant state attorney, and, when so signed, such indictments, informations, and documents shall have the same force and effect as if signed by the state attorney.
(3) Until otherwise provided by law, each assistant state attorney appointed by a state attorney under the authorization of this section shall receive the allowances for expenses provided by law at the time of appointment, to be paid in accordance with such law. The salary for each assistant state attorney shall be set by the state attorney of the same judicial circuit in an amount not to exceed 100 percent of that state attorney’s salary and shall be paid from funds appropriated for that purpose. However, the assistant state attorneys who serve in less than a full-time capacity shall be compensated for services performed in an amount in proportion to the salary allowed for full-time services.
History.—ss. 1, 2, 3, 4, 6, ch. 67-188; s. 1, ch. 72-326; s. 14, ch. 73-299; s. 1, ch. 80-244; s. 3, ch. 81-230; s. 128, ch. 95-147; s. 9, ch. 95-312; s. 2, ch. 2000-343.
27.182 Salary discrimination based on gender or race; review within the office of state attorney.—Each state attorney shall undertake an annual review of compensation policies for the position of assistant state attorney. Within the context of comparable skills, experience, and responsibility, any inequities found to exist on the basis of gender or race shall be eliminated.
History.—s. 7, ch. 91-74.
27.25 State attorney authorized to employ personnel; funding formula.—
(1) The state attorney of each judicial circuit is authorized to employ and establish, in such number as is authorized by the General Appropriations Act, assistant state attorneys and other staff pursuant to s. 29.005. The state attorneys of all judicial circuits shall jointly develop a coordinated classification and pay plan which shall be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Executive Office of the Governor established pursuant to s. 216.181.
(2) The state attorney of each judicial circuit is authorized to employ an executive director. The salary of the executive director shall be set by the state attorney in accordance with the policies and procedures of the Executive Office of the Governor established pursuant to s. 216.181 and shall not exceed 90 percent of the state attorney’s salary. The duties of the executive director shall be as prescribed by the state attorney.
(3) In any judicial circuit where a court reporter is not available, any stenographer employed by a state attorney is authorized and may be required to perform the services of a court reporter and shall be entitled to receive the per diem and fees provided by law for such services.
(4) All payments for the salary of the state attorney and the necessary expenses of office, including salaries of deputies, assistants, and staff, shall be considered as being for a valid public purpose.
(5) The appropriations for the offices of state attorneys shall be determined by a funding formula based on population and such other factors as may be deemed appropriate in a manner to be determined by this section and the General Appropriations Act.
History.—ss. 1, 2, ch. 17261, 1935; CGL 1936 Supp. 4759(9); s. 1, ch. 18147, 1937; s. 1, ch. 18148, 1937; s. 1, ch. 22188, 1943; s. 1, ch. 22905, 1945; ss. 2, 3, ch. 25243, 1949; s. 1, ch. 29952, 1955; s. 1, ch. 57-301; s. 5, ch. 67-324; s. 4, ch. 69-212; s. 1, ch. 69-257; s. 2, ch. 72-326; s. 1, ch. 73-215; s. 2, ch. 79-344; s. 1, ch. 81-230; s. 1, ch. 87-85; s. 129, ch. 95-147; s. 9, ch. 2003-402.
27.251 Special investigators.—The state attorney of each judicial circuit is authorized to employ any municipal or county police officer or sheriff’s deputy as an investigator for the state attorney’s office with full powers of arrest throughout the judicial circuit provided such investigator serves on a special task force to investigate matters involving criminal activity the detection of which might benefit from a special task force and provided further that the salary of such municipal or county police officer or sheriff’s deputy shall be paid by the city, county, or sheriff by which the investigator is principally employed, and with the consent of the county, sheriff, or municipality. The arrest powers granted in this section may be exercised only in the furtherance of the conduct of the business of the special task force to which such municipal or county police officer or sheriff’s deputy is assigned by the state attorney.
History.—ss. 1, 4, ch. 78-227; s. 130, ch. 95-147; s. 6, ch. 95-196; s. 1, ch. 2010-119.
27.255 Investigators; authority to arrest, qualifications, rights, immunities, bond, and oath.—
(1) Each investigator employed on a full-time basis by a state attorney and each special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 is hereby declared to be a law enforcement officer of the state and a conservator of the peace, under the direction and control of the state attorney who employs him or her, with full powers of arrest, in accordance with the laws of this state. Such investigator may arrest any person for violation of state law or applicable county or city ordinances when such violation occurs within the boundaries of the judicial circuit served by the state attorney employing the investigator, except that arrests may be made out of said judicial circuit when hot pursuit originates within said judicial circuit. Such investigator shall, within the boundaries of the judicial circuit served by such state attorney, have full authority to serve any arrest warrant, search warrant, capias, or court order issued by any court or judge within such judicial circuit in a criminal case, or in connection with a criminal investigation, when the same is directed to him or her. The investigator may serve, anywhere within the state, a witness subpoena issued by any court or judge within the state or issued in connection with a criminal investigation that arises anywhere within the state, provided that prior notice is given to the sheriff in whose county service will be attempted; however, failure to provide this notice to the sheriff does not affect the validity of the service. The investigator may carry weapons on or about his or her person in the same manner as other law enforcement officers.
(2) All investigators employed by a state attorney or appointed pursuant to the provisions of s. 27.251 shall meet the minimum standards established by the Criminal Justice Standards and Training Commission of the Department of Law Enforcement for the employment and training of law enforcement officers under chapter 943, except that investigators employed by a state attorney on July 1, 1974, shall not be required to meet such standards.
(3) In the performance of any of the powers, duties, and functions authorized by law or this section, investigators employed by a state attorney or appointed pursuant to the provisions of s. 27.251 shall have the same rights, protections, and immunities afforded other peace or law enforcement officers.
(4) Any full-time investigator employed by the state attorney and any special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 shall, before entering into the performance of duties, take and file the oath as prescribed in s. 5, Art. II of the State Constitution. The state attorney may require any full-time investigator employed by the state attorney or any special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 to give a bond conditioned on the faithful performance of the investigator’s duties.
History.—s. 1, ch. 70-275; s. 1, ch. 74-260; s. 2, ch. 78-227; s. 5, ch. 79-8; s. 2, ch. 83-167; s. 131, ch. 95-147; s. 2, ch. 96-256; s. 6, ch. 98-34.
27.34 Limitations on payment of salaries and other related costs of state attorneys’ offices other than by the state.—
(1) A county or municipality may contract with, or appropriate or contribute funds to the operation of, the various state attorneys as provided in this subsection. A state attorney prosecuting violations of special laws or county or municipal ordinances punishable by incarceration and not ancillary to a state charge shall contract with counties and municipalities to recover the full cost of services rendered on an hourly basis or reimburse the state for the full cost of assigning one or more full-time equivalent attorney positions to work on behalf of the county or municipality. Notwithstanding any other provision of law, in the case of a county with a population of less than 75,000, the state attorney shall contract for full reimbursement, or for reimbursement as the parties otherwise agree.
(a) A contract for reimbursement on an hourly basis shall require counties and municipalities to reimburse the state attorney for services rendered at a rate of $50 per hour. If an hourly rate is specified in the General Appropriations Act, that rate shall control.
(b) A contract for assigning one or more full-time equivalent attorney positions to perform work on behalf of a county or municipality shall assign one or more full-time equivalent positions based on estimates by the state attorney of the number of hours required to handle the projected workload. The full cost of each full-time equivalent attorney position on an annual basis shall be $50, or the amount specified in the General Appropriations Act, multiplied by the legislative budget request standard for available work hours for one full-time equivalent attorney position, or, in the absence of that standard, 1,854 hours. The contract may provide for funding full-time equivalent positions in one-quarter increments.
(c) Persons employed by the county or municipality may be provided to the state attorney to serve as special investigators pursuant to the provisions of s. 27.251. Any payments received pursuant to this subsection shall be deposited into the Grants and Donations Trust Fund within the Justice Administrative Commission for appropriation by the Legislature.
(2) A state attorney or assistant state attorney may not receive from any county or municipality any supplemental salary, except as provided in this section.
(3) Notwithstanding s. 27.25, the Chief Financial Officer may contract with the state attorney of any judicial circuit of the state for the prosecution of criminal violations of the Workers’ Compensation Law and related crimes if the Chief Financial Officer contributes funds for such purposes. Such contracts may provide for the training, salary, and expenses of one or more assistant state attorneys used in the prosecution of crimes. If the Chief Financial Officer contributes funds to the state attorney to prosecute these violations and the accused person is indigent and represented by the public defender, the Chief Financial Officer shall also contract with the public defender to provide representation to the person accused of these crimes. The contract may provide for the training, salary, and expenses of one or more assistant public defenders used in the defense of these crimes.
(4) Unless expressly authorized by law or in the General Appropriations Act, state attorneys are prohibited from spending state-appropriated funds on county funding obligations under s. 14, Art. V of the State Constitution beginning January 1, 2005. This includes expenditures on communications services and facilities as defined in s. 29.008. This does not prohibit a state attorney from spending funds for these purposes in exceptional circumstances when necessary to maintain operational continuity in the form of a short-term advance pending reimbursement by the county. If a state attorney provides short-term advance funding for a county responsibility as authorized by this subsection, the state attorney shall request full reimbursement from the board of county commissioners prior to making the expenditure or at the next meeting of the board of county commissioners after the expenditure is made. The total of all short-term advances authorized by this subsection shall not exceed 2 percent of the state attorney’s approved operating budget in any given year. No short-term advances authorized by this subsection shall be permitted until all reimbursements arising from advance funding in the prior state fiscal year have been received by the state attorney. All reimbursement payments received by the state attorney pursuant to this subsection shall be deposited into the General Revenue Fund. Notwithstanding the provisions of this subsection, the state attorney may expend funds for the purchase of computer systems, including associated hardware and software, and for personnel related to this function.
History.—s. 3, ch. 72-326; s. 1, ch. 72-734; s. 2, ch. 73-215; s. 1, ch. 77-164; s. 3, ch. 78-227; s. 3, ch. 79-344; s. 1, ch. 85-213; s. 2, ch. 87-139; s. 1, ch. 88-280; s. 139, ch. 92-279; s. 55, ch. 92-326; s. 105, ch. 93-415; s. 79, ch. 94-209; s. 8, ch. 96-252; s. 7, ch. 96-260; s. 25, ch. 96-388; s. 4, ch. 97-78; s. 8, ch. 97-235; s. 84, ch. 2003-261; s. 10, ch. 2003-402; s. 5, ch. 2004-265; s. 7, ch. 2004-391.
27.341 Electronic filing and receipt of court documents.—
(1)(a) Each office of the state attorney shall electronically file court documents with the clerk of the court and receive court documents from the clerk of the court. It is the expectation of the Legislature that the electronic filing and receipt of court documents will reduce costs for the office of the state attorney, the clerk of the court, and the judiciary; will increase timeliness in the processing of cases; and will provide the judiciary and the clerk of the court with case-related information to allow for improved judicial case management.
(b) As used in this section, the term “court documents” includes, but is not limited to, pleadings, motions, briefs, and their respective attachments, orders, judgments, opinions, decrees, and transcripts.
(2) It is further the expectation of the Legislature that each office of the state attorney consult with the office of the public defender for the same circuit served by the office of the state attorney, the clerks of court for the circuit, the Florida Court Technology Commission, and any authority that governs the operation of a statewide portal for the electronic filing and receipt of court documents.
(3) The Florida Prosecuting Attorneys Association shall file a report with the President of the Senate and the Speaker of the House of Representatives by March 1, 2012, describing the progress that each office of the state attorney has made to use the Florida Courts E-Portal or, if the case type is not approved for the Florida Courts E-Portal, separate clerks’ offices portals for purposes of electronic filing and documenting receipt of court documents. For any office of the state attorney that has not fully implemented an electronic filing and receipt system by March 1, 2012, the report must also include a description of the additional activities that are needed to complete the system for that office and the projected time necessary to complete the additional activities.
History.—s. 1, ch. 2011-208.
27.345 State Attorney RICO Trust Fund; authorized use of funds; reporting.—
(1) Subject to the provisions of s. 895.09, when a state attorney files an action pursuant to s. 895.05, funds provided to the state attorney pursuant to s. 895.09(2)(a) or, alternatively, attorneys’ fees and costs, whichever is greater, shall be deposited in the State Attorney RICO Trust Fund.
(2) There is created for each of the several state attorneys a trust fund to be known as the State Attorney RICO Trust Fund. The amounts awarded to a state attorney pursuant to this section shall be deposited in the trust fund for that state attorney. Funds deposited in such trust fund shall be used, when authorized by appropriation or action of the Executive Office of the Governor pursuant to s. 216.181(11), for investigation, prosecution, and enforcement by that state attorney of civil or criminal causes of action arising under the provisions of the Florida RICO (Racketeer Influenced and Corrupt Organization) Act.
(3) Each state attorney that has established a State Attorney RICO Trust Fund shall report to the Executive Office of the Governor annually by November 15 the amounts recovered pursuant to this section for the previous fiscal year.
History.—s. 3, ch. 84-249; s. 2, ch. 86-277; s. 3, ch. 89-102; s. 7, ch. 95-196; s. 3, ch. 95-280; s. 16, ch. 2001-56; s. 12, ch. 2002-1; s. 1, ch. 2002-70.
27.3451 State Attorney’s Forfeiture and Investigative Support Trust Fund.—There is created for each of the several state attorneys a trust fund to be known as the State Attorney’s Forfeiture and Investigative Support Trust Fund. Revenues received by a state attorney as a result of forfeiture proceedings, as provided under s. 932.704, shall be deposited in such trust fund and shall be used, when authorized by appropriation or action of the Executive Office of the Governor pursuant to s. 216.181(11), for the investigation of crime, prosecution of criminals, or other law enforcement purposes.
History.—s. 1, ch. 89-307; s. 4, ch. 95-280; s. 17, ch. 2001-56.
27.35 Salaries of state attorneys.—Each state attorney shall receive as salary the amount provided in the General Appropriations Act.
History.—ss. 3, 6, ch. 72-326; s. 11, ch. 2003-402.
27.366 Legislative intent and policy in cases meeting criteria of s. 775.087(2) and (3).—It is the intent of the Legislature that convicted criminal offenders who meet the criteria in s. 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided herein. It is the intent of the Legislature to establish zero tolerance of criminals who use, threaten to use, or avail themselves of firearms in order to commit crimes and thereby demonstrate their lack of value for human life. It is also the intent of the Legislature that prosecutors should appropriately exercise their discretion in those cases in which the offenders’ possession of the firearm is incidental to the commission of a crime and not used in furtherance of the crime, used in order to commit the crime, or used in preparation to commit the crime. For every case in which the offender meets the criteria in this act and does not receive the mandatory minimum prison sentence, the state attorney must explain the sentencing deviation in writing and place such explanation in the case file maintained by the state attorney.
History.—s. 2, ch. 99-12; s. 1, ch. 2011-200.
27.367 State Attorneys Revenue Trust Fund.—The State Attorneys Revenue Trust Fund is created within the Justice Administrative Commission. Moneys credited to the trust fund shall be used for the purpose of funding the activities of the state attorneys.
History.—s. 1, ch. 2009-8; s. 2, ch. 2011-16.
PART III
PUBLIC DEFENDERS AND OTHERCOURT-APPOINTED COUNSEL
27.40 Court-appointed counsel; circuit registries; minimum requirements; appointment by court.
27.405 Court-appointed counsel; Justice Administrative Commission tracking and reporting.
27.425 Due process service rates; responsibilities of chief judge.
27.50 Public defender; qualifications; election.
27.51 Duties of public defender.
27.511 Offices of criminal conflict and civil regional counsel; legislative intent; qualifications; appointment; duties.
27.5111 Indigent Civil Defense Trust Fund.
27.5112 Electronic filing and receipt of court documents.
27.512 Order of no imprisonment.
27.52 Determination of indigent status.
27.525 Indigent Criminal Defense Trust Fund.
27.53 Appointment of assistants and other staff; method of payment.
27.5301 Salaries of public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant regional counsel.
27.5302 Salary discrimination based on gender or race; review within the office of public defender.
27.5303 Public defenders; criminal conflict and civil regional counsel; conflict of interest.
27.5304 Private court-appointed counsel; compensation; notice.
27.5305 Attorney or provider compensation; conditions; requirements.
27.54 Limitation on payment of expenditures other than by the state.
27.55 Compensation of public defender and expenditures for office in newly created circuit.
27.561 Effect of nonpayment.
27.562 Disposition of funds.
27.58 Administration of public defender services.
27.59 Access to prisoners.
27.61 Public Defenders Revenue Trust Fund.
27.40 Court-appointed counsel; circuit registries; minimum requirements; appointment by court.—
(1) Counsel shall be appointed to represent any individual in a criminal or civil proceeding entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law. The court shall appoint a public defender to represent indigent persons as authorized in s. 27.51. The office of criminal conflict and civil regional counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the public defender is unable to provide representation due to a conflict of interest or is not authorized to provide representation.
(2)(a) Private counsel shall be appointed to represent persons in those cases in which provision is made for court-appointed counsel but the office of criminal conflict and civil regional counsel is unable to provide representation due to a conflict of interest.
(b) Private counsel appointed by the court to provide representation shall be selected from a registry of individual attorneys maintained under this section.
(3) In utilizing a registry:
(a) The chief judge of the circuit shall compile a list of attorneys in private practice, by county and by category of cases, and provide the list to the clerk of court in each county. The chief judge of the circuit may restrict the number of attorneys on the general registry list. To be included on a registry, attorneys shall certify:
1. That they meet any minimum requirements established by the chief judge and by general law for court appointment;
2. That they are available to represent indigent defendants in cases requiring court appointment of private counsel;
3. That they are willing to abide by the terms of the contract for services; and
4. Whether they are willing to accept as full payment the flat fees prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12), except for cases brought under the Racketeer Influenced and Corrupt Organizations Act and capital cases as defined in s. 27.5304(5)(a)4.
To be included on a registry, an attorney also must enter into a contract for services with the Justice Administrative Commission. Failure to comply with the terms of the contract for services may result in termination of the contract and removal from the registry. Each attorney on the registry shall be responsible for notifying the clerk of the court and the Justice Administrative Commission of any change in his or her status. Failure to comply with this requirement shall be cause for termination of the contract for services and removal from the registry until the requirement is fulfilled. In addition to general registries, the chief judge may establish limited registries that include only those attorneys willing to waive compensation in excess of the flat fee prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12).
(b) The court shall appoint attorneys in rotating order in the order in which names appear on the applicable registry, unless the court makes a finding of good cause on the record for appointing an attorney out of order. If a chief judge establishes a limited registry of attorneys willing to waive compensation in excess of the flat fee, the court shall appoint attorneys from that limited registry unless there are no attorneys available to accept the appointment on the limited registry. The clerk of court shall maintain the registry and provide to the court the name of the attorney for appointment. An attorney not appointed in the order in which his or her name appears on the list shall remain next in order.
(c) If the number of attorneys on the registry in a county or circuit for a particular category of cases is inadequate, the chief judge of the particular circuit shall provide to the clerk of court the names of at least three private attorneys who have relevant experience. The clerk of court shall send an application to each of these attorneys to register for appointment.
(d) Quarterly, each chief judge shall provide a current copy of each registry to the Chief Justice of the Supreme Court, the state attorney and public defender in each judicial circuit, the office of criminal conflict and civil regional counsel, the clerk of court in each county, and the Justice Administrative Commission. Circuits utilizing a limited registry list as allowed by paragraph (a) shall include the race, gender, and national origin of all attorneys listed in and appointed under the limited registry.
(4) To be eligible for court appointment, an attorney must be a member in good standing of The Florida Bar in addition to any other qualifications specified by general law and any requirements set by the chief judge of the circuit.
(5) The Justice Administrative Commission shall approve uniform contract forms for use in procuring the services of private court-appointed counsel and uniform procedures and forms for use by a court-appointed attorney in support of billing for attorney’s fees, costs, and related expenses to demonstrate the attorney’s completion of specified duties.
(6) After court appointment, the attorney must immediately file a notice of appearance with the court indicating acceptance of the appointment to represent the defendant.
(7)(a) A private attorney appointed by the court from the registry to represent a client is entitled to payment as provided in s. 27.5304. An attorney appointed by the court who is not on the registry list may be compensated under s. 27.5304 if the court finds in the order of appointment that there were no registry attorneys available for representation for that case.
(b)1. The attorney shall maintain appropriate documentation, including contemporaneous and detailed hourly accounting of time spent representing the client. If the attorney fails to maintain such contemporaneous and detailed hourly records, the attorney waives the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act. These records and documents are subject to review by the Justice Administrative Commission, subject to the attorney-client privilege and work-product privilege. The attorney shall maintain the records and documents in a manner that enables the attorney to redact any information subject to a privilege in order to facilitate the commission’s review of the records and documents and not to impede such review. The attorney may redact information from the records and documents only to the extent necessary to comply with the privilege.
2. If an attorney fails, refuses, or declines to permit the commission to review documentation for a case as provided in this paragraph, the attorney waives the right to seek, and the commission may not pay, compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act for that case.
3. A finding by the commission that an attorney has waived the right to seek compensation in excess of the flat fee established in s. 27.5304 and the General Appropriations Act, as provided in this paragraph, is presumed to be valid, unless, as determined by a court, the commission’s finding is not supported by competent and substantial evidence.
(8) Subject to the attorney-client privilege and the work-product privilege, an attorney who withdraws or is removed from representation shall deliver all files, notes, documents, and research to the successor attorney within 15 days after receiving notice from the successor attorney. The successor attorney shall bear the cost of transmitting all files, notes, documents, and research.
(9) Any interested person may advise the court of any circumstance affecting the quality of representation, including, but not limited to, false or fraudulent billing, misconduct, failure to meet continuing legal education requirements, solicitation to receive compensation from the client the attorney is appointed to represent, or failure to file appropriate motions in a timely manner.
(10) The attorney shall provide information in the form specified by the Justice Administrative Commission pursuant to s. 27.405, subject to the attorney-client privilege and work-product privilege.
(11) This section does not apply to attorneys appointed to represent persons in postconviction capital collateral cases pursuant to part IV of this chapter.
History.—s. 13, ch. 2003-402; s. 6, ch. 2004-265; s. 1, ch. 2005-236; s. 1, ch. 2007-62; s. 5, ch. 2010-162; s. 1, ch. 2012-123.
27.405 Court-appointed counsel; Justice Administrative Commission tracking and reporting.—
(1) The Justice Administrative Commission shall separately track expenditures and performance measures for private court-appointed counsel for each of the categories of criminal or civil cases in which private counsel may be appointed.
(2) The commission shall prepare and issue on a quarterly basis a statewide report comparing actual year-to-date expenditures to budget amounts for each of the judicial circuits. The commission shall prepare and issue on an annual basis a statewide report comparing performance measures for each of the judicial circuits. The commission shall distribute copies of the quarterly and annual reports to the Governor, the Chief Justice of the Supreme Court, the President of the Senate, and the Speaker of the House of Representatives.
(3) From October 1, 2005, through September 30, 2007, the commission shall also track and issue a report on the race, gender, and national origin of private court-appointed counsel for the Eleventh Judicial Circuit.
History.—s. 2, ch. 2007-62.
27.425 Due process service rates; responsibilities of chief judge.—
(1) The maximum compensation rates for state-funded due process service providers in cases in which the court has appointed private counsel or declared a person indigent for costs shall be specified annually in the General Appropriations Act. For purposes of this section, due process compensation rates do not include attorney’s fees for legal representation of the client.
(2) The total amount expended for providers of due process services in eligible cases may not exceed the amount budgeted in the General Appropriations Act for the particular due process service.
(3) The Justice Administrative Commission shall approve uniform contract forms for use in procuring due process services and uniform procedures for use by a due process provider, or a private attorney on behalf of a due process provider, in support of billing for due process services to demonstrate completion of the specified services.
History.—s. 3, ch. 2007-62; s. 6, ch. 2010-162.
27.50 Public defender; qualifications; election.—For each judicial circuit, there shall be a public defender who shall be, and shall have been for the preceding 5 years, a member in good standing of The Florida Bar. The public defender shall be elected at the general election, for a term of 4 years, by the qualified electors of the judicial circuit. The public defender shall be an elector of the state and shall reside within the territorial jurisdiction of the judicial circuit in which he or she serves.
History.—s. 1, ch. 63-409; s. 15, ch. 73-333; s. 1, ch. 80-376; s. 137, ch. 95-147.
27.51 Duties of public defender.—
(1) The public defender shall represent, without additional compensation, any person determined to be indigent under s. 27.52 and:
(a) Under arrest for, or charged with, a felony;
(b) Under arrest for, or charged with:
1. A misdemeanor authorized for prosecution by the state attorney;
2. A violation of chapter 316 punishable by imprisonment;
3. Criminal contempt; or
4. A violation of a special law or county or municipal ordinance ancillary to a state charge, or if not ancillary to a state charge, only if the public defender contracts with the county or municipality to provide representation pursuant to ss. 27.54 and 125.69.
The public defender shall not provide representation pursuant to this paragraph if the court, prior to trial, files in the cause an order of no imprisonment as provided in s. 27.512;
(c) Alleged to be a delinquent child pursuant to a petition filed before a circuit court;
(d) Sought by petition filed in such court to be involuntarily placed as a mentally ill person under part I of chapter 394, involuntarily committed as a sexually violent predator under part V of chapter 394, or involuntarily admitted to residential services as a person with developmental disabilities under chapter 393. A public defender shall not represent any plaintiff in a civil action brought under the Florida Rules of Civil Procedure, the Federal Rules of Civil Procedure, or the federal statutes, or represent a petitioner in a rule challenge under chapter 120, unless specifically authorized by statute;
(e) Convicted and sentenced to death, for purposes of handling an appeal to the Supreme Court; or
(f) Is appealing a matter in a case arising under paragraphs (a)-(d).
(2) The court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent. The court, however, may appoint private counsel in capital cases as provided in ss. 27.40 and 27.5303.
(3) Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office. Assistant public defenders shall give priority and preference to their duties as assistant public defenders and shall not otherwise engage in the practice of criminal law.
(4) The public defender for the judicial circuit specified in this subsection shall, after the record on appeal is transmitted to the appellate court by the office of the public defender which handled the trial and if requested by any public defender within the indicated appellate district, handle all circuit court appeals within the state courts system and any authorized appeals to the federal courts required of the official making such request:
(a) Public defender of the second judicial circuit, on behalf of any public defender within the district comprising the First District Court of Appeal.
(b) Public defender of the tenth judicial circuit, on behalf of any public defender within the district comprising the Second District Court of Appeal.
(c) Public defender of the eleventh judicial circuit, on behalf of any public defender within the district comprising the Third District Court of Appeal.
(d) Public defender of the fifteenth judicial circuit, on behalf of any public defender within the district comprising the Fourth District Court of Appeal.
(e) Public defender of the seventh judicial circuit, on behalf of any public defender within the district comprising the Fifth District Court of Appeal.
(5)(a) When direct appellate proceedings prosecuted by a public defender on behalf of an accused and challenging a judgment of conviction and sentence of death terminate in an affirmance of such conviction and sentence, whether by the Florida Supreme Court or by the United States Supreme Court or by expiration of any deadline for filing such appeal in a state or federal court, the public defender shall notify the accused of his or her rights pursuant to Rule 3.850, Florida Rules of Criminal Procedure, including any time limits pertinent thereto, and shall advise such person that representation in any collateral proceedings is the responsibility of the capital collateral regional counsel. The public defender shall then forward all original files on the matter to the capital collateral regional counsel, retaining such copies for his or her files as may be desired. However, the trial court shall retain the power to appoint the public defender or other attorney not employed by the capital collateral regional counsel to represent such person in proceedings for relief by executive clemency pursuant to ss. 27.40 and 27.5303.
(b) It is the intent of the Legislature that any public defender representing an inmate in any collateral proceedings in any court on June 24, 1985, shall continue representation of that inmate in all postconviction proceedings unless relieved of responsibility from further representation by the court.
(6) A sum shall be appropriated to the public defender of each judicial circuit enumerated in subsection (4) for the employment of assistant public defenders and clerical employees and the payment of expenses incurred in cases on appeal.
History.—s. 2, ch. 63-409; s. 1, ch. 67-539; ss. 19, 35, ch. 69-106; s. 1, ch. 71-28; s. 1, ch. 72-327; s. 1, ch. 72-722; s. 1, ch. 73-216; s. 4, ch. 73-334; s. 3, ch. 77-147; s. 1, ch. 79-588; s. 2, ch. 80-376; ss. 2, 6, ch. 85-332; s. 11, ch. 87-133; s. 1, ch. 89-308; s. 8, ch. 91-45; s. 138, ch. 95-147; s. 15, ch. 95-195; s. 4, ch. 96-232; s. 2, ch. 97-107; s. 2, ch. 99-222; s. 12, ch. 2000-3; s. 15, ch. 2003-402; s. 8, ch. 2004-265; s. 4, ch. 2006-1.
27.511 Offices of criminal conflict and civil regional counsel; legislative intent; qualifications; appointment; duties.—
(1) It is the intent of the Legislature to provide adequate representation to persons entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law. It is the further intent of the Legislature to provide adequate representation in a fiscally sound manner, while safeguarding constitutional principles. Therefore, an office of criminal conflict and civil regional counsel is created within the geographic boundaries of each of the five district courts of appeal. The regional counsel shall be appointed as set forth in subsection (3) for each of the five regional offices. The offices shall commence fulfilling their constitutional and statutory purpose and duties on October 1, 2007.
(2) Each office of criminal conflict and civil regional counsel shall be assigned to the Justice Administrative Commission for administrative purposes. The commission shall provide administrative support and service to the offices to the extent requested by each regional counsel within the available resources of the commission. The regional counsel and the offices are not subject to control, supervision, or direction by the commission in the performance of their duties, but the employees of the offices shall be governed by the classification plan and the salary and benefits plan for the commission.
(3)(a) Each regional counsel must be, and must have been for the preceding 5 years, a member in good standing of The Florida Bar. Each regional counsel shall be appointed by the Governor and is subject to confirmation by the Senate. The Supreme Court Judicial Nominating Commission, in addition to the current regional counsel, shall recommend to the Governor not fewer than two or more than five additional qualified candidates for appointment to each of the five regional counsel positions. The Governor shall appoint the regional counsel for the five regions from among the recommendations, or, if it is in the best interest of the fair administration of justice, the Governor may reject the nominations and request that the Supreme Court Judicial Nominating Commission submit three new nominees. The regional counsel shall be appointed to a term of 4 years, the term beginning on October 1, 2015. Vacancies shall be filled in the manner provided in paragraph (b).
(b) If for any reason a regional counsel is unable to complete a full term in office, the Governor may immediately appoint an interim regional counsel who meets the qualifications to be a regional counsel to serve as regional counsel for that district until a new regional counsel is appointed in the manner provided in paragraph (a). The Florida Supreme Court Judicial Nominating Commission shall provide the Governor with a list of nominees for appointment within 6 months after the date of the vacancy. A temporary vacancy in office does not affect the validity of any matters or activities of the office of regional counsel.
(4) Each regional counsel shall serve on a full-time basis and may not engage in the private practice of law while holding office. Assistant regional counsel shall give priority and preference to their duties as assistant regional counsel and may not otherwise engage in the practice of criminal law. However, part-time assistant regional counsel may practice criminal law for private payment so long as the representation does not result in a legal or ethical conflict of interest with a case for which the office of criminal conflict and civil regional counsel is providing representation. Assistant regional counsel may not accept criminal cases for reimbursement by the state under s. 27.5304. Assistant regional counsel may not engage in civil proceedings for which the state compensates attorneys under s. 27.5304.
(5) When the Office of the Public Defender, at any time during the representation of two or more defendants, determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without a conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, and the court grants the public defender’s motion to withdraw, the office of criminal conflict and civil regional counsel shall be appointed and shall provide legal services, without additional compensation, to any person determined to be indigent under s. 27.52, who is:
(a) Under arrest for, or charged with, a felony;
(b) Under arrest for, or charged with:
1. A misdemeanor authorized for prosecution by the state attorney;
2. A violation of chapter 316 punishable by imprisonment;
3. Criminal contempt; or
4. A violation of a special law or county or municipal ordinance ancillary to a state charge or, if not ancillary to a state charge, only if the office of criminal conflict and civil regional counsel contracts with the county or municipality to provide representation pursuant to ss. 27.54 and 125.69.
The office of criminal conflict and civil regional counsel may not provide representation pursuant to this paragraph if the court, prior to trial, files in the cause an order of no imprisonment as provided in s. 27.512;
(c) Alleged to be a delinquent child pursuant to a petition filed before a circuit court;
(d) Sought by petition filed in such court to be involuntarily placed as a mentally ill person under part I of chapter 394, involuntarily committed as a sexually violent predator under part V of chapter 394, or involuntarily admitted to residential services as a person with developmental disabilities under chapter 393;
(e) Convicted and sentenced to death, for purposes of handling an appeal to the Supreme Court;
(f) Appealing a matter in a case arising under paragraphs (a)-(d); or
(g) Seeking correction, reduction, or modification of a sentence under Rule 3.800, Florida Rules of Criminal Procedure, or seeking postconviction relief under Rule 3.850, Florida Rules of Criminal Procedure, if, in either case, the court determines that appointment of counsel is necessary to protect a person’s due process rights.
(6)(a) The office of criminal conflict and civil regional counsel has primary responsibility for representing persons entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law in civil proceedings, including, but not limited to, proceedings under s. 393.12 and chapters 39, 392, 397, 415, 743, 744, and 984 and proceedings to terminate parental rights under chapter 63. Private court-appointed counsel eligible under s. 27.40 have primary responsibility for representing minors who request counsel under s. 390.01114, the Parental Notice of Abortion Act; however, the office of criminal conflict and civil regional counsel may represent a minor under that section if the court finds that no private court-appointed attorney is available.
(b) If constitutional principles or general law provide for court-appointed counsel in civil proceedings, the court shall first appoint the regional counsel unless general law specifically provides for appointment of the public defender, in which case the court shall appoint the regional counsel if the public defender has a conflict of interest.
(c) Notwithstanding paragraph (b) or any provision of chapter 744 to the contrary, when chapter 744 provides for appointment of counsel, the court, in consultation with the clerk of court and prior to appointing counsel, shall determine, if possible, whether the person entitled to representation is indigent, using the best available evidence.
1. If the person is indigent, the court shall appoint the regional counsel. If at any time after appointment the regional counsel determines that the person is not indigent and that there are sufficient assets available for the payment of legal representation under s. 744.108, the regional counsel shall move the court to reassign the case to a private attorney.
2. If the person is not indigent or if the court and the clerk are not able to determine whether the person is indigent at the time of appointment, the court shall appoint a private attorney. If at any time after appointment the private attorney determines that the person is indigent and that there are not sufficient assets available for the payment of legal representation under s. 744.108, the private attorney shall move the court to reassign the case to the regional counsel. When a case is reassigned, the private attorney may seek compensation from the Justice Administrative Commission for representation not recoverable from any assets of the person in an amount approved by the court as a pro rata portion of the compensation limits prescribed in the General Appropriations Act.
(d) The regional counsel may not represent any plaintiff in a civil action brought under the Florida Rules of Civil Procedure, the Federal Rules of Civil Procedure, or federal statutes, and may not represent a petitioner in a rule challenge under chapter 120, unless specifically authorized by law.
(7) The court may not appoint the office of criminal conflict and civil regional counsel to represent, even on a temporary basis, any person who is not indigent, except to the extent that appointment of counsel is specifically provided for in chapters 390, 394, 415, 743, and 744 without regard to the indigent status of the person entitled to representation.
(8) The public defender for the judicial circuit specified in s. 27.51(4) shall, after the record on appeal is transmitted to the appellate court by the office of criminal conflict and civil regional counsel which handled the trial and if requested by the regional counsel for the indicated appellate district, handle all circuit court appeals authorized pursuant to paragraph (5)(f) within the state courts system and any authorized appeals to the federal courts required of the official making the request. If the public defender certifies to the court that the public defender has a conflict consistent with the criteria prescribed in s. 27.5303 and moves to withdraw, the regional counsel shall handle the appeal, unless the regional counsel has a conflict, in which case the court shall appoint private counsel pursuant to s. 27.40.
(9) When direct appellate proceedings prosecuted by the office of criminal conflict and civil regional counsel on behalf of an accused and challenging a judgment of conviction and sentence of death terminate in an affirmance of such conviction and sentence, whether by the Supreme Court or by the United States Supreme Court or by expiration of any deadline for filing such appeal in a state or federal court, the office of criminal conflict and civil regional counsel shall notify the accused of his or her rights pursuant to Rule 3.850, Florida Rules of Criminal Procedure, including any time limits pertinent thereto, and shall advise such person that representation in any collateral proceedings is the responsibility of the capital collateral regional counsel. The office of criminal conflict and civil regional counsel shall forward all original files on the matter to the capital collateral regional counsel, retaining such copies for his or her files as may be desired or required by law. However, the trial court shall retain the power to appoint the office of criminal conflict and civil regional counsel or other attorney not employed by the capital collateral regional counsel to represent such person in proceedings for relief by executive clemency pursuant to ss. 27.40 and 27.5303.
History.—s. 4, ch. 2007-62; s. 3, ch. 2008-111; s. 2, ch. 2009-61; s. 7, ch. 2010-162; s. 2, ch. 2012-123.
27.5111 Indigent Civil Defense Trust Fund.—The Indigent Civil Defense Trust Fund is created within the Justice Administrative Commission. Moneys credited to the trust fund shall be used for the purpose of funding the activities of the offices of criminal conflict and civil regional counsel as provided in s. 27.511.
History.—s. 1, ch. 2008-110; s. 2, ch. 2011-18.
27.5112 Electronic filing and receipt of court documents.—
(1)(a) Each office of the public defender shall electronically file court documents with the clerk of the court and receive court documents from the clerk of the court. It is the expectation of the Legislature that the electronic filing and receipt of court documents will reduce costs for the office of the public defender, the clerk of the court, and the judiciary; will increase timeliness in the processing of cases; and will provide the judiciary and the clerk of the court with case-related information to allow for improved judicial case management.
(b) As used in this section, the term “court documents” includes, but is not limited to, pleadings, motions, briefs, and their respective attachments, orders, judgments, opinions, decrees, and transcripts.
(2) It is further the expectation of the Legislature that, in developing the capability and implementing the process, each office of the public defender consult with the office of the state attorney for the same circuit served by the office of the public defender, the clerks of court for the circuit, the Florida Court Technology Commission, and any authority that governs the operation of a statewide portal for the electronic filing and receipt of court documents.
(3) The Florida Public Defender Association shall file a report with the President of the Senate and the Speaker of the House of Representatives by March 1, 2012, describing the progress that each office of the public defender has made to use the Florida Courts E-Portal or, if the case type is not approved for the Florida Courts E-Portal, separate clerks’ offices portals for purposes of electronic filing and documenting receipt of court documents. For any office of the public defender that has not fully implemented an electronic filing and receipt system by March 1, 2012, the report must also include a description of the additional activities that are needed to complete the system for that office and the projected time necessary to complete the additional activities.
History.—s. 2, ch. 2011-208.
27.512 Order of no imprisonment.—
(1) In each case in which the court determines that it will not sentence the defendant to imprisonment if convicted, the court shall issue an order of no imprisonment and the court may not appoint the public defender or other counsel to represent the defendant. If the court issues an order of no imprisonment following the appointment of the public defender or other counsel, the court shall immediately terminate the appointed counsel’s services. However, if at any time the court withdraws the order of no imprisonment with respect to an indigent defendant, the court shall appoint the public defender to represent the defendant.
(2) The form and contents of an order of no imprisonment shall be determined by rules adopted by the Supreme Court.
History.—s. 3, ch. 97-107; s. 5, ch. 2007-62.
27.52 Determination of indigent status.—
(1) APPLICATION TO THE CLERK.—A person seeking appointment of a public defender under s. 27.51 based upon an inability to pay must apply to the clerk of the court for a determination of indigent status using an application form developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court.
(a) The application must include, at a minimum, the following financial information:
1. Net income, consisting of total salary and wages, minus deductions required by law, including court-ordered support payments.
2. Other income, including, but not limited to, social security benefits, union funds, veterans’ benefits, workers’ compensation, other regular support from absent family members, public or private employee pensions, reemployment assistance or unemployment compensation, dividends, interest, rent, trusts, and gifts.
3. Assets, including, but not limited to, cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a boat or a motor vehicle or in other tangible property.
4. All liabilities and debts.
5. If applicable, the amount of any bail paid for the applicant’s release from incarceration and the source of the funds.
The application must include a signature by the applicant which attests to the truthfulness of the information provided. The application form developed by the corporation must include notice that the applicant may seek court review of a clerk’s determination that the applicant is not indigent, as provided in this section.
(b) An applicant shall pay a $50 application fee to the clerk for each application for court-appointed counsel filed. The applicant shall pay the fee within 7 days after submitting the application. If the applicant does not pay the fee prior to the disposition of the case, the clerk shall notify the court, and the court shall:
1. Assess the application fee as part of the sentence or as a condition of probation; or
2. Assess the application fee pursuant to s. 938.29.
(c) Notwithstanding any provision of law, court rule, or administrative order, the clerk shall assign the first $50 of any fees or costs paid by an indigent person as payment of the application fee. A person found to be indigent may not be refused counsel or other required due process services for failure to pay the fee.
(d) All application fees collected by the clerk under this section shall be transferred monthly by the clerk to the Department of Revenue for deposit in the Indigent Criminal Defense Trust Fund administered by the Justice Administrative Commission, to be used to as appropriated by the Legislature. The clerk may retain 2 percent of application fees collected monthly for administrative costs prior to remitting the remainder to the Department of Revenue.
(e)1. The clerk shall assist a person who appears before the clerk and requests assistance in completing the application, and the clerk shall notify the court if a person is unable to complete the application after the clerk has provided assistance.
2. If the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her in its completion and is responsible for submitting the application to the clerk on the person’s behalf. The public defender may enter into an agreement for jail employees, pretrial services employees, or employees of other criminal justice agencies to assist the public defender in performing functions assigned to the public defender under this subparagraph.
(2) DETERMINATION BY THE CLERK.—The clerk of the court shall determine whether an applicant seeking appointment of a public defender is indigent based upon the information provided in the application and the criteria prescribed in this subsection.
(a) An applicant, including an applicant who is a minor or an adult tax-dependent person, is indigent if the applicant’s income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed for the size of the household of the applicant by the United States Department of Health and Human Services or if the person is receiving Temporary Assistance for Needy Families-Cash Assistance, poverty-related veterans’ benefits, or Supplemental Security Income (SSI).
1. There is a presumption that the applicant is not indigent if the applicant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property having a net equity value of $2,500 or more, excluding the value of the person’s homestead and one vehicle having a net value not exceeding $5,000.
2. Notwithstanding the information that the applicant provides, the clerk may conduct a review of the property records for the county in which the applicant resides and the motor vehicle title records of the state to identify any property interests of the applicant under this paragraph. The clerk may evaluate and consider the results of the review in making a determination under this subsection. If the review is 1conducted, the clerk shall maintain the results of the review in a file with the application and provide the file to the court if the applicant seeks review under subsection (4) of the clerk’s determination of indigent status.
(b) Based upon its review, the clerk shall make one of the following determinations:
1. The applicant is not indigent.
2. The applicant is indigent.
(c)1. If the clerk determines that the applicant is indigent, the clerk shall submit the determination to the office of the public defender and immediately file the determination in the case file.
2. If the public defender is unable to provide representation due to a conflict pursuant to s. 27.5303, the public defender shall move the court for withdrawal from representation and appointment of the office of criminal conflict and civil regional counsel.
(d) The duty of the clerk in determining whether an applicant is indigent shall be limited to receiving the application and comparing the information provided in the application to the criteria prescribed in this subsection. The determination of indigent status is a ministerial act of the clerk and not a decision based on further investigation or the exercise of independent judgment by the clerk. The clerk may contract with third parties to perform functions assigned to the clerk under this section.
(e) The applicant may seek review of the clerk’s determination that the applicant is not indigent in the court having jurisdiction over the matter at the next scheduled hearing. If the applicant seeks review of the clerk’s determination of indigent status, the court shall make a final determination as provided in subsection (4).
(3) APPOINTMENT OF COUNSEL ON INTERIM BASIS.—If the clerk of the court has not made a determination of indigent status at the time a person requests appointment of a public defender, the court shall make a preliminary determination of indigent status, pending further review by the clerk, and may, by court order, appoint a public defender, the office of criminal conflict and civil regional counsel, or private counsel on an interim basis.
(4) REVIEW OF CLERK’S DETERMINATION.—
(a) If the clerk of the court determines that the applicant is not indigent, and the applicant seeks review of the clerk’s determination, the court shall make a final determination of indigent status by reviewing the information provided in the application against the criteria prescribed in subsection (2) and by considering the following additional factors:
1. Whether the applicant has been released on bail in an amount of $5,000 or more.
2. Whether a bond has been posted, the type of bond, and who paid the bond.
3. Whether paying for private counsel in an amount that exceeds the limitations in s. 27.5304, or other due process services creates a substantial hardship for the applicant or the applicant’s family.
4. Any other relevant financial circumstances of the applicant or the applicant’s family.
(b) Based upon its review, the court shall make one of the following determinations and, if the applicant is indigent, shall appoint a public defender, the office of criminal conflict and civil regional counsel, or, if appropriate, private counsel:
1. The applicant is not indigent.
2. The applicant is indigent.
(5) INDIGENT FOR COSTS.—A person who is eligible to be represented by a public defender under s. 27.51 but who is represented by private counsel not appointed by the court for a reasonable fee as approved by the court or on a pro bono basis, or who is proceeding pro se, may move the court for a determination that he or she is indigent for costs and eligible for the provision of due process services, as prescribed by ss. 29.006 and 29.007, funded by the state.
(a) The person must file a written motion with the court and submit to the court:
1. The completed application prescribed in subsection (1).
2. In the case of a person represented by counsel, an affidavit attesting to the estimated amount of attorney’s fees and the source of payment for these fees.
(b) The person shall arrange for service of a copy of the motion and attachments on the Justice Administrative Commission. The commission has standing to appear before the court to contest any motion to declare a person indigent for costs and may participate in a hearing on the motion by use of telephonic or other communication equipment.
(c) If the person did not apply for a determination of indigent status under subsection (1) in the same case and is not already liable for the application fee required under that subsection, he or she becomes liable for payment of the fee upon filing the motion with the court.
(d) In reviewing the motion, the court shall consider:
1. Whether the applicant applied for a determination of indigent status under subsection (1) and the outcome of such application.
2. The extent to which the person’s income equals or exceeds the income criteria prescribed in subsection (2).
3. The additional factors prescribed in subsection (4).
4. Whether the applicant is proceeding pro se.
5. When the applicant retained private counsel.
6. The amount of any attorney’s fees and who is paying the fees. There is a presumption that the applicant is not indigent for costs if the amount of attorney’s fees exceeds $5,000 for a noncapital case or $25,000 for a capital case in which the state is seeking the death penalty. To overcome this presumption, the applicant has the burden to show through clear and convincing evidence that the fees are reasonable based on the nature and complexity of the case. In determining the reasonableness of the fees, the court shall consider the amount that a private court-appointed attorney paid by the state would receive for providing representation for that type of case.
(e) Based upon its review, the court shall make one of the following determinations:
1. The applicant is not indigent for costs.
2. The applicant is indigent for costs.
(f) The provision of due process services based upon a determination that a person is indigent for costs under this subsection must be effectuated pursuant to a court order, a copy of which the clerk shall provide to counsel representing the person, or to the person directly if he or she is proceeding pro se, for use in requesting payment of due process expenses through the Justice Administrative Commission. Private counsel representing a person declared indigent for costs shall execute the Justice Administrative Commission’s contract for counsel representing persons determined to be indigent for costs. Private counsel representing a person declared indigent for costs may not receive state funds, either directly or on behalf of due process providers, unless the attorney has executed the contract required under this paragraph.
(g) Costs shall be reimbursed at the rates established under ss. 27.425 and 27.5305. To receive reimbursement of costs, either directly or on behalf of due process providers, private counsel representing a person declared indigent for costs shall comply with the procedures and requirements under this chapter governing billings by and compensation of private court-appointed counsel.
(h) The court may not appoint an attorney paid by the state based on a finding that the defendant is indigent for costs if the defendant has privately retained and paid counsel.
(i) A defendant who is found guilty of a criminal act by a court or jury or enters a plea of guilty or nolo contendere and who received due process services after being found indigent for costs under this subsection is liable for payment of due process costs expended by the state.
1. The attorney representing the defendant, or the defendant if he or she is proceeding pro se, shall provide an accounting to the court delineating all costs paid or to be paid by the state within 90 days after disposition of the case notwithstanding any appeals.
2. The court shall issue an order determining the amount of all costs paid by the state and any costs for which prepayment was waived under this section or s. 57.081. The clerk shall cause a certified copy of the order to be recorded in the official records of the county, at no cost. The recording constitutes a lien against the person in favor of the state in the county in which the order is recorded. The lien may be enforced in the same manner prescribed in s. 938.29.
3. If the attorney or the pro se defendant fails to provide a complete accounting of costs expended by the state and consequently costs are omitted from the lien, the attorney or pro se defendant may not receive reimbursement or any other form of direct or indirect payment for those costs if the state has not paid the costs. The attorney or pro se defendant shall repay the state for those costs if the state has already paid the costs. The clerk of the court may establish a payment plan under s. 28.246 and may charge the attorney or pro se defendant a one-time administrative processing charge under s. 28.24(26)(c).
(6) DUTIES OF PARENT OR LEGAL GUARDIAN.—A nonindigent parent or legal guardian of an applicant who is a minor or an adult tax-dependent person shall furnish the minor or adult tax-dependent person with the necessary legal services and costs incident to a delinquency proceeding or, upon transfer of such person for criminal prosecution as an adult pursuant to chapter 985, a criminal prosecution in which the person has a right to legal counsel under the Constitution of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to furnish legal services and costs under this section does not bar the appointment of legal counsel pursuant to this section, s. 27.40, or s. 27.5303. When the public defender, the office of criminal conflict and civil regional counsel, a private court-appointed conflict counsel, or a private attorney is appointed to represent a minor or an adult tax-dependent person in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian shall be liable for payment of the fees, charges, and costs of the representation even if the person is a minor being tried as an adult. Liability for the fees, charges, and costs of the representation shall be imposed in the form of a lien against the property of the nonindigent parents or legal guardian of the minor or adult tax-dependent person. The lien is enforceable as provided in s. 27.561 or s. 938.29.
(7) FINANCIAL DISCREPANCIES; FRAUD; FALSE INFORMATION.—
(a) If the court learns of discrepancies between the application or motion and the actual financial status of the person found to be indigent or indigent for costs, the court shall determine whether the public defender, office of criminal conflict and civil regional counsel, or private attorney shall continue representation or whether the authorization for any other due process services previously authorized shall be revoked. The person may be heard regarding the information learned by the court. If the court, based on the information, determines that the person is not indigent or indigent for costs, the court shall order the public defender, office of criminal conflict and civil regional counsel, or private attorney to discontinue representation and revoke the provision of any other authorized due process services.
(b) If the court has reason to believe that any applicant, through fraud or misrepresentation, was improperly determined to be indigent or indigent for costs, the matter shall be referred to the state attorney. Twenty-five percent of any amount recovered by the state attorney as reasonable value of the services rendered, including fees, charges, and costs paid by the state on the person’s behalf, shall be remitted to the Department of Revenue for deposit into the Grants and Donations Trust Fund within the Justice Administrative Commission. Seventy-five percent of any amount recovered shall be remitted to the Department of Revenue for deposit into the General Revenue Fund.
(c) A person who knowingly provides false information to the clerk or the court in seeking a determination of indigent status under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 3, ch. 63-409; s. 1, ch. 70-57; s. 4, ch. 73-334; s. 1, ch. 77-99; s. 1, ch. 77-378; s. 8, ch. 79-164; s. 3, ch. 80-376; s. 1, ch. 81-273; s. 139, ch. 95-147; s. 1, ch. 96-232; s. 4, ch. 97-107; s. 28, ch. 97-271; s. 6, ch. 98-280; s. 3, ch. 2001-122; s. 16, ch. 2003-402; s. 9, ch. 2004-265; s. 3, ch. 2005-236; s. 6, ch. 2007-62; s. 4, ch. 2008-111; s. 8, ch. 2010-162; s. 31, ch. 2012-30; s. 1, ch. 2012-100; s. 3, ch. 2012-123.
1Note.—As amended by s. 3, ch. 2012-123. The amendment by s. 1, ch. 2012-100, used the words “completed by the clerk” instead of the word “conducted.”
27.525 Indigent Criminal Defense Trust Fund.—The Indigent Criminal Defense Trust Fund is created, to be administered by the Justice Administrative Commission. Funds shall be credited to the trust fund as provided in s. 27.52, to be used for the purposes of indigent criminal defense as appropriated by the Legislature to the public defender or the office of criminal conflict and civil regional counsel. The Justice Administrative Commission shall account for these funds on a circuit basis, and appropriations from the fund shall be proportional to each circuit’s collections.
History.—s. 1, ch. 96-376; s. 7, ch. 2007-62.
27.53 Appointment of assistants and other staff; method of payment.—
(1) The public defender of each judicial circuit is authorized to employ and establish, in such numbers as authorized by the General Appropriations Act, assistant public defenders and other staff and personnel pursuant to s. 29.006, who shall be paid from funds appropriated for that purpose. Notwithstanding the provisions of s. 790.01, s. 790.02, or s. 790.25(2)(a), an investigator employed by a public defender, while actually carrying out official duties, is authorized to carry concealed weapons if the investigator complies with s. 790.25(3)(o). However, such investigators are not eligible for membership in the Special Risk Class of the Florida Retirement System. The public defenders of all judicial circuits shall jointly develop a coordinated classification and pay plan which shall be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Executive Office of the Governor established in s. 216.181. Each assistant public defender appointed by a public defender under this section shall serve at the pleasure of the public defender. Each investigator employed by a public defender shall have full authority to serve any witness subpoena or court order issued, by any court or judge within the judicial circuit served by such public defender, in a criminal case in which such public defender has been appointed to represent the accused.
(2) Any member of The Florida Bar, in good standing, may volunteer without salary to represent indigent defendants. Volunteer attorneys are to be referred to as special assistant public defenders. A special assistant public defender may not reassign or subcontract a case to another attorney.
(3) The appropriations for the offices of public defender shall be determined by a funding formula and such other factors as may be deemed appropriate in a manner to be determined by this section and the General Appropriations Act.
(4) The five criminal conflict and civil regional counsel may employ and establish, in the numbers authorized by the General Appropriations Act, assistant regional counsel and other staff and personnel in each judicial district pursuant to s. 29.006, who shall be paid from funds appropriated for that purpose. Notwithstanding s. 790.01, s. 790.02, or s. 790.25(2)(a), an investigator employed by an office of criminal conflict and civil regional counsel, while actually carrying out official duties, is authorized to carry concealed weapons if the investigator complies with s. 790.25(3)(o). However, such investigators are not eligible for membership in the Special Risk Class of the Florida Retirement System. The five regional counsel shall jointly develop recommended modifications to the classification plan and the salary and benefits plan for the Justice Administrative Commission. The recommendations shall be submitted to the commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives by September 15, 2007, for the regional offices’ initial establishment and before January 1 of each year thereafter. Such recommendations shall be developed in accordance with policies and procedures of the Executive Office of the Governor established in s. 216.181. Each assistant regional counsel appointed by the regional counsel under this section shall serve at the pleasure of the regional counsel. Each investigator employed by the regional counsel shall have full authority to serve any witness subpoena or court order issued by any court or judge in a criminal case in which the regional counsel has been appointed to represent the accused.
(5) The appropriations for the offices of criminal conflict and civil regional counsel shall be determined by a funding formula and other factors that are considered appropriate in a manner to be determined by this section and the General Appropriations Act.
History.—s. 4, ch. 63-409; s. 1, ch. 65-527; s. 1, ch. 67-192; s. 2, ch. 67-539; s. 2, ch. 72-327; s. 2, ch. 73-216; s. 1, ch. 76-287; s. 1, ch. 78-344; s. 4, ch. 80-376; s. 2, ch. 81-230; s. 2, ch. 81-273; s. 2, ch. 87-85; s. 1, ch. 90-159; s. 1, ch. 90-311; s. 140, ch. 95-147; s. 5, ch. 97-107; s. 1, ch. 99-282; s. 17, ch. 2003-402; s. 8, ch. 2007-62.
27.5301 Salaries of public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant regional counsel.—
(1) The salaries of public defenders shall be as provided in the General Appropriations Act and shall be paid in equal monthly installments.
(2) The salary for each assistant public defender shall be set by the public defender of the same judicial circuit in an amount not to exceed 100 percent of that public defender’s salary and shall be paid from funds appropriated for that purpose. Assistant public defenders who serve in less than a full-time capacity shall be compensated for services performed in an amount to be in proportion to the salary allowed for full-time services.
(3) The salary of the criminal conflict and civil regional counsel shall be as provided in the General Appropriations Act and shall be paid in equal monthly installments.
(4) The salary for each assistant regional counsel shall be set by the regional counsel in an amount not to exceed 100 percent of the regional counsel’s salary and shall be paid from funds appropriated for that purpose. Assistant regional counsel who serve in less than a full-time capacity shall be compensated for services performed in an amount that is in proportion to the salary allowed for full-time services.
History.—ss. 3, 7, ch. 72-327; s. 5, ch. 80-376; s. 4, ch. 81-230; s. 18, ch. 2003-402; s. 9, ch. 2007-62.
27.5302 Salary discrimination based on gender or race; review within the office of public defender.—Each public defender shall undertake an annual review of compensation policies for the position of assistant public defender. Within the context of comparable skills, experience, and responsibility, any inequities found to exist on the basis of gender or race shall be eliminated.
History.—s. 8, ch. 91-74.
27.5303 Public defenders; criminal conflict and civil regional counsel; conflict of interest.—
(1)(a) If, at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, then the public defender shall file a motion to withdraw and move the court to appoint other counsel. The court shall review and may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall deny the motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client. If the court grants the motion to withdraw, the court shall appoint one or more attorneys to represent the accused, as provided in s. 27.40. The public defender shall submit to the Justice Administrative Commission a copy of the order granting the motion to withdraw within 30 days after the motion is granted. The commission shall report quarterly to the Governor, the President of the Senate, and the Speaker of the House of Representatives on the number of orders granting motions to withdraw for each circuit.
(b) If, at any time during the representation of two or more persons in a criminal or civil proceeding, a criminal conflict and civil regional counsel determines that the interests of those clients are so adverse or hostile that they cannot all be counseled by the regional counsel or his or her staff without conflict of interest, or that none can be counseled by the regional counsel or his or her staff because of a conflict of interest, the regional counsel shall file a motion to withdraw and move the court to appoint other counsel. If requested by the Justice Administrative Commission, the regional counsel shall submit a copy of the motion to the Justice Administrative Commission at the time it is filed with the court. The court shall review and may inquire or conduct a hearing into the adequacy of the regional counsel’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall deny the motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the client. If the court grants the motion to withdraw, the court shall appoint one or more private attorneys to represent the person as provided in s. 27.40. The clerk of court shall inform the regional office and the commission when the court appoints private counsel.
(c) Upon its own motion, the court shall appoint such other counsel when the facts developed upon the face of the record and court files in the case disclose a conflict of interest. The clerk shall advise the appropriate public defender or criminal conflict and civil regional counsel, in writing, with an electronic copy to the Justice Administrative Commission when the court makes the motion and appoints one or more attorneys. The court shall specify the basis for the conflict.
(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.
(e) In determining whether or not there is a conflict of interest, the public defender or regional counsel shall apply the standards contained in the Uniform Standards for Use in Conflict of Interest Cases found in appendix C to the Final Report of the Article V Indigent Services Advisory Board dated January 6, 2004. Before a motion to withdraw is filed under this section, the public defender or regional counsel serving the circuit, or his or her designee, must:
1. Determine if there is a viable alternative to withdrawal from representation which would remedy the conflict of interest and, if it exists, implement that alternative; and
2. Approve in writing the filing of the motion to withdraw.
(2) The court shall appoint conflict counsel pursuant to s. 27.40, first appointing the office of criminal conflict and civil regional counsel and, if the office is found to have a conflict, appointing private counsel. The appointed private attorney may not be affiliated with the public defender, any assistant public defender, the regional counsel, or any assistant regional counsel in his or her official capacity or any other private attorney appointed to represent a codefendant. The public defender or regional counsel may not participate in case-related decisions, performance evaluations, or expense determinations in conflict cases.
(3) Private court-appointed counsel shall be compensated as provided in s. 27.5304.
(4)(a) If a defendant is convicted and the death sentence is imposed, the appointed attorney shall continue representation through appeal to the Supreme Court. The attorney shall be compensated as provided in s. 27.5304. If the attorney first appointed is unable to handle the appeal, the court shall appoint another attorney and that attorney shall be compensated as provided in s. 27.5304.
(b) The public defender or an attorney appointed pursuant to this section may be appointed by the court rendering the judgment imposing the death penalty to represent an indigent defendant who has applied for executive clemency as relief from the execution of the judgment imposing the death penalty.
(c) When the appointed attorney in a capital case has completed the duties imposed by this section, the attorney shall file a written report in the trial court stating the duties performed by the attorney and apply for discharge.
History.—s. 19, ch. 2003-402; s. 10, ch. 2004-265; s. 10, ch. 2007-62.
27.5304 Private court-appointed counsel; compensation; notice.—
(1) Private court-appointed counsel shall be compensated by the Justice Administrative Commission as provided in this section and the General Appropriations Act. The flat fees prescribed in this section are limitations on compensation. The specific flat fee amounts for compensation shall be established annually in the General Appropriations Act. The attorney also shall be reimbursed for reasonable and necessary expenses in accordance with s. 29.007. If the attorney is representing a defendant charged with more than one offense in the same case, the attorney shall be compensated at the rate provided for the most serious offense for which he or she represented the defendant. This section does not allow stacking of the fee limits established by this section.
(2) The Justice Administrative Commission shall review an intended billing by private court-appointed counsel for attorney fees based on a flat fee per case for completeness and compliance with contractual and statutory requirements. The commission may approve the intended bill for a flat fee per case for payment without approval by the court if the intended billing is correct. An intended billing that seeks compensation for any amount exceeding the flat fee established for a particular type of representation, as prescribed in the General Appropriations Act, shall comply with subsections (11) and (12).
(3) The court retains primary authority and responsibility for determining the reasonableness of all billings for attorney fees, costs, and related expenses, subject to statutory limitations. Private court-appointed counsel is entitled to compensation upon final disposition of a case.
(4)(a) The attorney shall submit a bill for attorney fees, costs, and related expenses within 90 days after the disposition of the case at the lower court level, notwithstanding any appeals. The Justice Administrative Commission shall provide by contract with the attorney for imposition of a penalty of:
1. Fifteen percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 90 days after the disposition of the case at the lower court level, notwithstanding any appeals;
2. For cases for which disposition occurs on or after July 1, 2010, 50 percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 1 year after the disposition of the case at the lower court level, notwithstanding any appeals; or
3. For cases for which disposition occurs on or after July 1, 2010, 75 percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 2 years after the disposition of the case at the lower court level, notwithstanding any appeals.
(b) For purposes of this subsection, the term “disposition” means:
1. At the trial court level, that the court has entered a final appealable judgment, unless rendition of judgment is stayed by the filing of a timely motion for rehearing. The filing of a notice of appeal does not stay the time for submission of an intended billing; and
2. At the appellate court level, that the court has issued its mandate.
(5) The compensation for representation in a criminal proceeding shall not exceed the following:
(a)1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000. For purposes of this subparagraph, a “capital case” is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
5. For representation on appeal: $2,000.
(b) If a death sentence is imposed and affirmed on appeal to the Supreme Court, the appointed attorney shall be allowed compensation, not to exceed $1,000, for attorney fees and costs incurred in representing the defendant as to an application for executive clemency, with compensation to be paid out of general revenue from funds budgeted to the Justice Administrative Commission.
(6) For compensation for representation pursuant to a court appointment in a proceeding under chapter 39:
(a) At the trial level, compensation for representation for dependency proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an adjudication of dependency, shall be completed by the trial attorney and is considered compensated by the flat fee for dependency proceedings.
1. Counsel may bill the flat fee not exceeding $1,000 following disposition or upon dismissal of the petition.
2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year following the date of appointment and each year thereafter as long as the case remains under protective supervision.
3. If the court grants a motion to reactivate protective supervision, the attorney shall receive the annual flat fee not exceeding $200 following the first judicial review and up to an additional $200 each year thereafter.
4. If, during the course of dependency proceedings, a proceeding to terminate parental rights is initiated, compensation shall be as set forth in paragraph (b). If counsel handling the dependency proceeding is not authorized to handle proceedings to terminate parental rights, the counsel must withdraw and new counsel must be appointed.
(b) At the trial level, compensation for representation in termination of parental rights proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an order granting or denying termination of parental rights, shall be completed by trial counsel and is considered compensated by the flat fee for termination of parental rights proceedings. If the individual has dependency proceedings ongoing as to other children, those proceedings are considered part of the termination of parental rights proceedings as long as that termination of parental rights proceeding is ongoing.
1. Counsel may bill the flat fee not exceeding $1,000 30 days after rendition of the final order. Each request for payment submitted to the Justice Administrative Commission must include the trial counsel’s certification that:
a. Counsel discussed grounds for appeal with the parent or that counsel attempted and was unable to contact the parent; and
b. No appeal will be filed or that a notice of appeal and a motion for appointment of appellate counsel, containing the signature of the parent, have been filed.
2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year after the date of appointment and each year thereafter as long as the termination of parental rights proceedings are still ongoing.
(c) For appeals from an adjudication of dependency, compensation may not exceed $1,000.
1. Counsel may bill a flat fee not exceeding $750 upon filing the initial brief or the granting of a motion to withdraw.
2. If a brief is filed, counsel may bill an additional flat fee not exceeding $250 upon rendition of the mandate.
(d) For an appeal from an adjudication of termination of parental rights, compensation may not exceed $2,000.
1. Counsel may bill a flat fee not exceeding $1,000 upon filing the initial brief or the granting of a motion to withdraw.
2. If a brief is filed, counsel may bill an additional flat fee not exceeding $1,000 upon rendition of the mandate.
(7) Counsel entitled to receive compensation from the state for representation pursuant to court appointment in a proceeding under chapter 384, chapter 390, chapter 392, chapter 393, chapter 394, chapter 397, chapter 415, chapter 743, chapter 744, or chapter 984 shall receive compensation not to exceed the limits prescribed in the General Appropriations Act.
(8) A private attorney appointed in lieu of the public defender or the criminal conflict and civil regional counsel to represent an indigent defendant may not reassign or subcontract the case to another attorney or allow another attorney to appear at a critical stage of a case who is not on the registry developed under s. 27.40.
(9) Private court-appointed counsel representing an individual in an appeal to a district court of appeal or the Supreme Court may submit a request for payment to the Justice Administrative Commission at the following intervals:
(a) Upon the filing of an appellate brief, including, but not limited to, a reply brief.
(b) When the opinion of the appellate court is finalized.
(10) Private court-appointed counsel may not bill for preparation of invoices.
(11) It is the intent of the Legislature that the flat fees prescribed under this section and the General Appropriations Act comprise the full and complete compensation for private court-appointed counsel. It is further the intent of the Legislature that the fees in this section are prescribed for the purpose of providing counsel with notice of the limit on the amount of compensation for representation in particular proceedings.
(a) If court-appointed counsel moves to withdraw prior to the full performance of his or her duties through the completion of the case, the court shall presume that the attorney is not entitled to the payment of the full flat fee established under this section and the General Appropriations Act.
(b) If court-appointed counsel is allowed to withdraw from representation prior to the full performance of his or her duties through the completion of the case and the court appoints a subsequent attorney, the total compensation for the initial and any and all subsequent attorneys may not exceed the flat fee established under this section and the General Appropriations Act, except as provided in subsection (12).
This subsection constitutes notice to any subsequently appointed attorney that he or she will not be compensated the full flat fee.
(12) The Legislature recognizes that on rare occasions an attorney may receive a case that requires extraordinary and unusual effort.
(a) If counsel seeks compensation that exceeds the limits prescribed by law, he or she must file a motion with the chief judge for an order approving payment of attorney fees in excess of these limits.
1. Before filing the motion, the counsel shall deliver a copy of the intended billing, together with supporting affidavits and all other necessary documentation, to the Justice Administrative Commission.
2. The Justice Administrative Commission shall review the billings, affidavit, and documentation for completeness and compliance with contractual and statutory requirements. If the Justice Administrative Commission objects to any portion of the proposed billing, the objection and supporting reasons must be communicated in writing to the private court-appointed counsel. The counsel may thereafter file his or her motion, which must specify whether the commission objects to any portion of the billing or the sufficiency of documentation, and shall attach the commission’s letter stating its objection.
(b) Following receipt of the motion to exceed the fee limits, the chief judge or a single designee shall hold an evidentiary hearing. The chief judge may select only one judge per circuit to hear and determine motions pursuant to this subsection, except multicounty circuits and the eleventh circuit may have up to two designees.
1. At the hearing, the attorney seeking compensation must prove by competent and substantial evidence that the case required extraordinary and unusual efforts. The chief judge or single designee shall consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial. The fact that a trial was conducted in a case does not, by itself, constitute competent substantial evidence of an extraordinary and unusual effort. In a criminal case, relief under this section may not be granted if the number of work hours does not exceed 75 or the number of the state’s witnesses deposed does not exceed 20.
2. The chief judge or single designee shall enter a written order detailing his or her findings and identifying the extraordinary nature of the time and efforts of the attorney in the case which warrant exceeding the flat fee established by this section and the General Appropriations Act.
(c) A copy of the motion and attachments shall be served on the Justice Administrative Commission at least 5 business days before the date of a hearing. The Justice Administrative Commission has standing to appear before the court, including at the hearing under paragraph (b), to contest any motion for an order approving payment of attorney fees, costs, or related expenses and may participate in a hearing on the motion by use of telephonic or other communication equipment. The Justice Administrative Commission may contract with other public or private entities or individuals to appear before the court for the purpose of contesting any motion for an order approving payment of attorney fees, costs, or related expenses. The fact that the Justice Administrative Commission has not objected to any portion of the billing or to the sufficiency of the documentation is not binding on the court.
(d) If the chief judge or a single designee finds that counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or single designee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage must be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the flat fee in the case would be confiscatory. If the chief judge or single designee determines that 200 percent of the flat fee would be confiscatory, he or she shall order the amount of compensation using an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.
(e) Any order granting relief under this subsection must be attached to the final request for a payment submitted to the Justice Administrative Commission.
(f) For criminal cases only, if the court orders payment in excess of the flat fee established by law, fees shall be paid as follows:
1. The flat fee shall be paid from funds appropriated to the Justice Administrative Commission in the General Appropriations Act.
2. The amount ordered by the court in excess of the flat fee shall be paid by the Justice Administrative Commission in a special category designated for that purpose in the General Appropriations Act.
3. If, during the fiscal year, all funds designated for payment of the amount ordered by the court in excess of the flat fee are spent, the amount of payments in excess of the flat fee shall be made from the due process funds, or other funds as necessary, appropriated to the state courts system in the General Appropriations Act. Funds from the state courts system must be used in a manner approved by the Chief Justice and administered by the Trial Court Budget Commission.
(g) The Justice Administrative Commission shall provide to the Office of the State Courts Administrator monthly data by statewide uniform case number, attorney, and defendant name concerning:
1. Private court-appointed cases opened;
2. Cases paid and the amount of payment, including any amount in excess of the flat fee; and
3. Cases for which compensation was waived.
(h) The Justice Administrative Commission shall provide monthly to the Office of the State Courts Administrator data concerning the number of cases approved for compensation in excess of the flat fee and the amount of these awards by circuit and by judge. The Justice Administrative Commission shall report the data quarterly in an electronic format to the chairs of the legislative appropriations committees and the Office of the State Courts Administrator.
History.—s. 20, ch. 2003-402; s. 11, ch. 2004-265; s. 4, ch. 2005-236; s. 11, ch. 2007-62; s. 9, ch. 2010-162; s. 4, ch. 2012-123; s. 2, ch. 2013-216.
27.5305 Attorney or provider compensation; conditions; requirements.—This section applies to the payment by the state through the Justice Administrative Commission of legal fees and due process costs in an eligible criminal or civil matter when a person receives the services of a private court-appointed attorney or is declared indigent for costs.
(1) ELECTRONIC FUNDS TRANSFER.—
(a) A person requesting compensation from the state through the Justice Administrative Commission for the provision of criminal or civil legal representation or other due process services must, as a condition for compensation, participate in a direct-deposit program under which the person authorizes the transfer of funds electronically to an account in the person’s name at a federally chartered or state-chartered financial institution.
(b) The Justice Administrative Commission may exempt a person from compliance with this section if the commission finds that participation in a direct-deposit program creates a financial hardship for the person.
(c) This subsection applies to compensation for services that are provided on or after January 1, 2011.
(2) TRANSCRIPTS.—
(a) The state may pay for the cost of preparing a transcript of a deposition only if the private court-appointed attorney secures an order from the court finding that preparation of the transcript is necessary, in which case the state may pay for one original and one copy only.
(b) The state may pay for the cost of one original transcript of any deposition, hearing, or other proceeding. Any other payment for a transcript of that same deposition, hearing, or other proceeding, regardless of whether the transcript is an additional original transcript or a copy, shall be at the rate paid for a copy of a transcript. This paragraph applies regardless of which state agency pays for the first original transcript.
(3) COURT REPORTERS; INVESTIGATORS.—Beginning with the 2010-2011 fiscal year, and applicable to services performed starting in that year, uniform statewide rates shall be prescribed annually in the General Appropriations Act for the payment of:
(a) Court reporting services that are not provided through the state courts system; and
(b) Private investigation services.
(4) EXPERT WITNESSES; MITIGATION SPECIALISTS.—A private court-appointed attorney must obtain authorization from the court to employ an out-of-state expert or mitigation specialist upon a showing that an expert or mitigation specialist who has appropriate skills or expertise is not available from within the county in which the case was filed or from elsewhere in the state. An order authorizing the employment must be in writing and contain specific findings regarding the unavailability of a qualified in-state expert or mitigation specialist. The attorney shall submit a copy of the order to the Justice Administrative Commission.
(5) RIGHT TO DISCOVERY.—The Justice Administrative Commission has a right to engage in discovery in accordance with the Florida Rules of Civil Procedure on a motion to the court seeking payment of attorney’s fees, costs, or other expenses. This right includes a reasonable opportunity to obtain discovery before a hearing on the motion.
History.—s. 10, ch. 2010-162.
27.54 Limitation on payment of expenditures other than by the state.—
(1) All payments for the salary of the public defender and the criminal conflict and civil regional counsel and for the necessary expenses of office, including salaries of assistants and staff, shall be considered as being for a valid public purpose. Travel expenses shall be paid in accordance with the provisions of s. 112.061.
(2) A county or municipality may contract with, or appropriate or contribute funds to, the operation of the offices of the various public defenders and regional counsel as provided in this subsection. A public defender or regional counsel defending violations of special laws or county or municipal ordinances punishable by incarceration and not ancillary to a state charge shall contract with counties and municipalities to recover the full cost of services rendered on an hourly basis or reimburse the state for the full cost of assigning one or more full-time equivalent attorney positions to work on behalf of the county or municipality. Notwithstanding any other provision of law, in the case of a county with a population of less than 75,000, the public defender or regional counsel shall contract for full reimbursement, or for reimbursement as the parties otherwise agree. In local ordinance violation cases, the county or municipality shall pay for due process services that are approved by the court, including deposition costs, deposition transcript costs, investigative costs, witness fees, expert witness costs, and interpreter costs. The person charged with the violation shall be assessed a fee for the services of a public defender or regional counsel and other costs and fees paid by the county or municipality, which assessed fee may be reduced to a lien, in all instances in which the person enters a plea of guilty or no contest or is found to be in violation or guilty of any count or lesser included offense of the charge or companion case charges, regardless of adjudication. The court shall determine the amount of the obligation. The county or municipality may recover assessed fees through collections court or as otherwise permitted by law, and any fees recovered pursuant to this section shall be forwarded to the applicable county or municipality as reimbursement.
(a) A contract for reimbursement on an hourly basis shall require a county or municipality to reimburse the public defender or regional counsel for services rendered at a rate of $50 per hour. If an hourly rate is specified in the General Appropriations Act, that rate shall control.
(b) A contract for assigning one or more full-time equivalent attorney positions to perform work on behalf of the county or municipality shall assign one or more full-time equivalent positions based on estimates by the public defender or regional counsel of the number of hours required to handle the projected workload. The full cost of each full-time equivalent attorney position on an annual basis shall be $50, or the amount specified in the General Appropriations Act, multiplied by the legislative budget request standard for available work hours for one full-time equivalent attorney position, or, in the absence of that standard, 1,854 hours. The contract may provide for funding full-time equivalent positions in one-quarter increments.
(c) Any payments received pursuant to this subsection shall be deposited into the Grants and Donations Trust Fund within the Justice Administrative Commission for appropriation by the Legislature.
(3) No public defender, assistant public defender, regional counsel, or assistant regional counsel shall receive from any county or municipality any supplemental salary, except as provided in this section.
(4) Unless expressly authorized by law or in the General Appropriations Act, public defenders and regional counsel are prohibited from spending state-appropriated funds on county funding obligations under s. 14, Art. V of the State Constitution beginning January 1, 2005. This includes expenditures on communications services and facilities as defined in s. 29.008. This does not prohibit a public defender from spending funds for these purposes in exceptional circumstances when necessary to maintain operational continuity in the form of a short-term advance pending reimbursement from the county. If a public defender or regional counsel provides short-term advance funding for a county responsibility as authorized by this subsection, the public defender or regional counsel shall request full reimbursement from the board of county commissioners prior to making the expenditure or at the next meeting of the board of county commissioners after the expenditure is made. The total of all short-term advances authorized by this subsection shall not exceed 2 percent of the public defender’s or regional counsel’s approved operating budget in any given year. No short-term advances authorized by this subsection shall be permitted until all reimbursements arising from advance funding in the prior state fiscal year have been received by the public defender or regional counsel. All reimbursement payments received by the public defender or regional counsel shall be deposited into the General Revenue Fund. Notwithstanding the provisions of this subsection, the public defender or regional counsel may expend funds for the purchase of computer systems, including associated hardware and software, and for personnel related to this function.
History.—s. 5, ch. 63-409; s. 3, ch. 67-539; s. 4, ch. 72-327; s. 2, ch. 72-722; s. 3, ch. 73-216; s. 6, ch. 80-376; s. 4, ch. 85-213; s. 4, ch. 88-280; s. 1, ch. 89-118; s. 2, ch. 91-303; s. 140, ch. 92-279; s. 55, ch. 92-326; s. 141, ch. 95-147; s. 21, ch. 2003-402; s. 12, ch. 2004-265; s. 5, ch. 2005-236; s. 12, ch. 2007-62.
27.55 Compensation of public defender and expenditures for office in newly created circuit.—
(1) In the event a new judicial circuit is created, the Executive Office of the Governor is authorized to release the necessary moneys for the payment of the salary of the public defender in such newly created circuit in accordance with the provisions of s. 27.5301.
(2) In the event a new judicial circuit is created, the Executive Office of the Governor is authorized to release necessary moneys to operate the public defender’s office in the newly created judicial circuit in accordance with the formula provided in the General Appropriations Act in effect at the time such new judicial circuit is created.
History.—s. 2, ch. 63-410; s. 1, ch. 67-333; ss. 2, 3, ch. 67-371; s. 4, ch. 67-539; ss. 31, 35, ch. 69-106; s. 84, ch. 79-190; s. 7, ch. 80-376.
27.561 Effect of nonpayment.—
(1) Whenever a defendant-recipient or parent is ordered to pay attorney’s fees or costs, default in the payment thereof shall be cause for finding the defendant-recipient or parent in contempt of court, and the court may issue a show cause citation or a warrant of arrest for the defendant-recipient’s or parent’s appearance.
(2) Unless the defendant-recipient or parent shows that default was not attributable to an intentional refusal to obey the order of the court or to a failure on his or her part to make a good faith effort to make the payment, the court may find that the default constitutes contempt and order him or her committed until the attorney’s fees or costs, or a specified part thereof, are paid or may take any other action appropriate under the circumstances, including revocation of probation.
(3) If it appears to the satisfaction of the court that the default in the payment of the attorney’s fees or costs is not contempt, the court may enter an order allowing the defendant-recipient or parent additional time for, or reducing the amount of, payment or revoking the assessed attorney’s fees or costs, or the unpaid portion thereof, in whole or in part.
History.—s. 2, ch. 77-264; s. 9, ch. 80-376; s. 143, ch. 95-147.
27.562 Disposition of funds.—All funds collected pursuant to s. 938.29 shall be remitted to the Department of Revenue for deposit into the Indigent Criminal Defense Trust Fund administered by the Justice Administrative Commission pursuant to s. 27.525. The Justice Administrative Commission shall account for funds deposited into the Indigent Criminal Defense Trust Fund by circuit. Appropriations from the fund shall be proportional to each circuit’s collections. All judgments entered pursuant to this part shall be in the name of the state.
History.—s. 3, ch. 77-264; s. 11, ch. 79-400; s. 4, ch. 96-232; s. 8, ch. 97-107; s. 29, ch. 97-271; s. 22, ch. 2003-402; s. 13, ch. 2004-265; s. 5, ch. 2008-111; s. 3, ch. 2009-61.
27.58 Administration of public defender services.—The public defender of each judicial circuit of the state shall be the chief administrator of all public defender services authorized under s. 27.51 within the circuit.
History.—s. 7, ch. 63-409; s. 3, ch. 2000-343; s. 23, ch. 2003-402.
27.59 Access to prisoners.—The public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant regional counsel shall be empowered to inquire of all persons who are incarcerated in lieu of bond and to tender them advice and counsel at any time, but the provisions of this section shall not apply with respect to persons who have engaged private counsel.
History.—s. 6, ch. 67-539; s. 10, ch. 80-376; s. 13, ch. 2007-62.
27.61 Public Defenders Revenue Trust Fund.—The Public Defenders Revenue Trust Fund is created within the Justice Administrative Commission. Moneys credited to the trust fund shall be used for the purpose of funding the activities of the public defenders.
History.—s. 1, ch. 2009-9; s. 2, ch. 2011-17.
PART IV
CAPITAL COLLATERAL REPRESENTATION27.7001 Legislative intent and findings.
27.7002 Limitation on collateral representation; lawyer disqualification; use of state funds for excess fees not authorized.
27.701 Capital collateral regional counsel.
27.702 Duties of the capital collateral regional counsel; reports.
27.703 Conflict of interest and substitute counsel.
27.704 Appointment of assistants and other staff.
27.7045 Capital case proceedings; constitutionally deficient representation.
27.705 Salaries of capital collateral regional counsel and assistant capital collateral counsel.
27.706 Private practice of law prohibited.
27.707 Investigators; service of process.
27.708 Access to prisoners; compliance with the Florida Rules of Criminal Procedure; records requests.
27.7081 Capital postconviction public records production.
27.7091 Legislative recommendations to Supreme Court; postconviction proceedings; pro bono service credit.
27.710 Registry of attorneys applying to represent persons in postconviction capital collateral proceedings; certification of minimum requirements; appointment by trial court.
27.711 Terms and conditions of appointment of attorneys as counsel in postconviction capital collateral proceedings.
27.715 Capital Collateral Regional Counsel Trust Fund.
27.7001 Legislative intent and findings.—It is the intent of the Legislature to create part IV of this chapter, consisting of ss. 27.7001-27.711, inclusive, to provide for the collateral representation of any person convicted and sentenced to death in this state, so that collateral legal proceedings to challenge any Florida capital conviction and sentence may be commenced in a timely manner and so as to assure the people of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice. It is the further intent of the Legislature that collateral representation shall not include representation during retrials, resentencings, proceedings commenced under chapter 940, or civil litigation.
History.—s. 1, ch. 85-332; s. 5, ch. 95-280; s. 1, ch. 96-290; s. 1, ch. 2002-31.
27.7002 Limitation on collateral representation; lawyer disqualification; use of state funds for excess fees not authorized.—
(1) This chapter does not create any right on behalf of any person, provided counsel pursuant to any provision of this chapter, to challenge in any form or manner the adequacy of the collateral representation provided.
(2) With respect to counsel appointed to represent defendants in collateral proceedings pursuant to ss. 27.710 and 27.711, the sole method of assuring adequacy of representation provided shall be in accordance with the provisions of s. 27.711(12).
(3) No provision of this chapter shall be construed to generate any right on behalf of any attorney appointed pursuant to s. 27.710, or seeking appointment pursuant to s. 27.710, to be compensated above the amounts provided in s. 27.711.
(4) No attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter.
(5) The use of state funds for compensation of counsel appointed pursuant to s. 27.710 above the amounts set forth in s. 27.711 is not authorized.
(6) The executive director of the Justice Administrative Commission is authorized to permanently remove from the registry of attorneys provided in ss. 27.710 and 27.711 any attorney who seeks compensation for services above the amounts provided in s. 27.711.
(7) Any attorney who notifies any court, judge, state attorney, the Attorney General, or the executive director of the Justice Administrative Commission, that he or she cannot provide adequate or proper representation under the terms and conditions set forth in s. 27.711 shall be permanently disqualified from any attorney registry created under this chapter unless good cause arises after a change in circumstances.
History.—s. 2, ch. 2002-31; s. 2, ch. 2011-131.
27.701 Capital collateral regional counsel.—There are created three regional offices of capital collateral counsel, which shall be located in a northern, middle, and southern region of the state. The northern region shall consist of the First, Second, Third, Fourth, Eighth, and Fourteenth Judicial Circuits; the middle region shall consist of the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, and Eighteenth Judicial Circuits; and the southern region shall consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth, Nineteenth, and Twentieth Judicial Circuits. Each regional office shall be administered by a regional counsel. A regional counsel must be, and must have been for the preceding 5 years, a member in good standing of The Florida Bar or a similar organization in another state. Each capital collateral regional counsel shall be appointed by the Governor, and is subject to confirmation by the Senate. The Supreme Court Judicial Nominating Commission shall recommend to the Governor three qualified candidates for each appointment as regional counsel. The Governor shall appoint a regional counsel for each region from among the recommendations, or, if it is in the best interest of the fair administration of justice in capital cases, the Governor may reject the nominations and request submission of three new nominees by the Supreme Court Judicial Nominating Commission. Each capital collateral regional counsel shall be appointed to a term of 3 years. Vacancies in the office of capital collateral regional counsel shall be filled in the same manner as appointments. A person appointed as a regional counsel may not run for or accept appointment to any state office for 2 years following vacation of office.
History.—s. 3, ch. 85-332; s. 145, ch. 95-147; s. 1, ch. 97-313; s. 84, ch. 2003-399; s. 1, ch. 2004-240; ss. 63, 76, ch. 2004-269; s. 3, ch. 2013-216.
27.702 Duties of the capital collateral regional counsel; reports.—
(1) The capital collateral regional counsel shall represent each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court. The three capital collateral regional counsel’s offices shall function independently and be separate budget entities, and the regional counsel shall be the office heads for all purposes. The Justice Administrative Commission shall provide administrative support and service to the three offices to the extent requested by the regional counsel. The three regional offices shall not be subject to control, supervision, or direction by the Justice Administrative Commission in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters.
(2) The capital collateral regional counsel shall represent persons convicted and sentenced to death within the region in collateral postconviction proceedings, unless a court appoints or permits other counsel to appear as counsel of record.
(3)(a) The capital collateral regional counsel shall file motions seeking compensation for representation and reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when providing representation to indigent persons in the federal courts, and shall deposit all such payments received into the Capital Collateral Regional Counsel Trust Fund.
(b) The court having jurisdiction over any nonindigent or indigent-but-able-to-contribute defendant who has been receiving the services of the capital collateral regional counsel may assess attorney’s fees and costs against the defendant at any stage in the proceedings as the court may deem appropriate. The determination of indigence of any defendant shall be made pursuant to s. 27.52. Liability for the costs of such representation may be imposed in the form of a lien against the property of the nonindigent or indigent-but-able-to-contribute defendant, which lien shall be enforceable as provided in s. 27.561 or s. 938.29.
(4)(a) The capital collateral regional counsel or private counsel shall give written notification of each pleading filed by that office and the name of the person filing the pleading to the trial court assigned to the case.
(b) Each capital collateral regional counsel shall provide a quarterly report to the President of the Senate and the Speaker of the House of Representatives which details the number of hours worked by investigators and legal counsel per case and the amounts per case expended during the preceding quarter in investigating and litigating capital collateral cases.
History.—s. 3, ch. 85-332; s. 3, ch. 92-300; s. 146, ch. 95-147; s. 2, ch. 96-290; s. 2, ch. 97-313; s. 2, ch. 98-197; s. 2, ch. 98-198; s. 12, ch. 99-2; s. 1, ch. 99-221; s. 2, ch. 2000-3; ss. 89, 90, ch. 2003-399; s. 24, ch. 2003-402; s. 4, ch. 2004-240; s. 2, ch. 2004-251; ss. 68, 69, 76, ch. 2004-269; s. 2, ch. 2009-62; s. 3, ch. 2011-131; s. 4, ch. 2013-216.
27.703 Conflict of interest and substitute counsel.—
(1) The capital collateral regional counsel shall not accept an appointment or take any other action that will create an actual conflict of interest. If, at any time during the representation of a person, the capital collateral regional counsel alleges that the continued representation of that person creates an actual conflict of interest, the sentencing court shall, upon determining that an actual conflict exists, designate another regional counsel. If the replacement regional counsel alleges that an actual conflict of interest exists, the sentencing court shall, upon determining that an actual conflict exists, appoint one or more members of The Florida Bar who meet the requirements of s. 27.704(2) and who are not disqualified pursuant to s. 27.7045 to represent the person. An actual conflict of interest exists when an attorney actively represents conflicting interests. A possible, speculative, or merely hypothetical conflict is insufficient to support an allegation that an actual conflict of interest exists.
(2) Appointed counsel shall be paid from funds appropriated to the Chief Financial Officer. The hourly rate may not exceed $100. However, all appointments of private counsel under this section shall be in accordance with ss. 27.710 and 27.711.
(3) Capital collateral regional counsel appointed pursuant to this section must have participated in at least five felony jury trials, five felony appeals, or five capital postconviction evidentiary hearings, or any combination of at least five of such proceedings, and must not be disqualified pursuant to s. 27.7045.
History.—s. 3, ch. 85-332; s. 147, ch. 95-147; s. 3, ch. 96-290; s. 3, ch. 97-313; s. 2, ch. 99-221; s. 13, ch. 2000-3; s. 86, ch. 2003-261; s. 5, ch. 2013-216.
27.704 Appointment of assistants and other staff.—Each capital collateral regional counsel may:
(1) Appoint, employ, and establish, in such numbers as he or she determines, full-time or part-time assistant counsel, investigators, and other clerical and support personnel who shall be paid from funds appropriated for that purpose. A full-time assistant capital collateral counsel must not be disqualified pursuant to s. 27.7045; must be a member in good standing of The Florida Bar, with not less than 3 years’ experience in the practice of criminal law; and, prior to employment, must have participated in at least five felony jury trials, five felony appeals, or five capital postconviction evidentiary hearings or any combination of at least five of such proceedings. Law school graduates who do not have the qualifications of a full-time assistant capital collateral counsel may be employed as members of the legal staff but may not be designated as sole counsel for any person.
(2) Contract with private counsel who are members in good standing of The Florida Bar or with public defenders for the purpose of providing prompt and cost-effective representation for individuals who are sentenced to death in this state. A private counsel or public defender under contract with the regional counsel must not be disqualified pursuant to s. 27.7045; must have at least 3 years’ experience in the practice of criminal law; and, prior to the contract, must have participated in at least two capital trials or capital sentencing proceedings, five felony appeals, or five capital postconviction evidentiary hearings, or any combination of at least five of such proceedings.
(3) Appoint pro bono assistant counsel, who must be members in good standing of The Florida Bar, and who shall serve without compensation at the discretion of the capital collateral regional counsel.
History.—s. 3, ch. 85-332; s. 148, ch. 95-147; s. 4, ch. 97-313; s. 6, ch. 2013-216.
27.7045 Capital case proceedings; constitutionally deficient representation.—Notwithstanding another provision of law, an attorney employed by the state or appointed pursuant to s. 27.711 may not represent a person charged with a capital offense at trial or on direct appeal or a person sentenced to death in a postconviction proceeding if, in two separate instances, a court, in a capital postconviction proceeding, determined that such attorney provided constitutionally deficient representation and relief was granted as a result. This prohibition on representation shall be for a period of 5 years, which commences at the time relief is granted after the highest court having jurisdiction to review the deficient representation determination has issued its final order affirming the second such determination.
History.—s. 7, ch. 2013-216.
27.705 Salaries of capital collateral regional counsel and assistant capital collateral counsel.—
(1) Each capital collateral regional counsel shall be paid a salary by the state, which shall be as provided in the General Appropriations Act and shall be paid in equal monthly installments.
(2) Full-time assistant capital collateral counsel shall be compensated in an amount set by the capital collateral regional counsel, which may not exceed 100 percent of the salary of the capital collateral regional counsel and shall be paid from funds appropriated for that purpose.
(3) All payments of the salary of each of the capital collateral regional counsel and employees of his or her office, and payments for other necessary expenses of office from state funds appropriated therefor, are for a valid public purpose. Travel expenses for official business within and outside the state shall be paid in accordance with s. 112.061. For purposes of s. 112.061 only, part-time assistant capital collateral counsel shall be considered employees of the regional office of capital collateral counsel.
(4) Each capital collateral regional counsel shall develop a classification and pay plan to be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Executive Office of the Governor established pursuant to s. 216.181.
History.—s. 3, ch. 85-332; s. 4, ch. 87-85; s. 149, ch. 95-147; s. 5, ch. 97-313.
27.706 Private practice of law prohibited.—Each capital collateral regional counsel and all full-time assistants appointed by him or her shall serve on a full-time basis and may not engage in the private practice of law.
History.—s. 3, ch. 85-332; s. 150, ch. 95-147; s. 6, ch. 97-313.
27.707 Investigators; service of process.—Each investigator employed by the capital collateral regional counsel has full authority to serve any subpoena or court order issued by any court or judge in any case for which the office has responsibility for providing representation.
History.—s. 3, ch. 85-332; s. 7, ch. 97-313.
27.708 Access to prisoners; compliance with the Florida Rules of Criminal Procedure; records requests.—
(1) Each capital collateral regional counsel and his or her assistants may inquire of all persons sentenced to death who are incarcerated and tender them advice and counsel at any reasonable time, but this section does not apply with respect to persons who are represented by other counsel.
(2) The capital collateral regional counsel and contracted private counsel must timely comply with all provisions of the Florida Rules of Criminal Procedure governing collateral review of capital cases.
(3) Except as provided in s. 27.7081, the capital collateral regional counsel or contracted private counsel shall not make any public records request on behalf of his or her client.
History.—s. 3, ch. 85-332; s. 151, ch. 95-147; s. 8, ch. 97-313; s. 3, ch. 98-198; s. 40, ch. 2005-251.
27.7081 Capital postconviction public records production.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Agency” has the same meaning as provided in s. 119.011.
(b) “Collateral counsel” means a capital collateral regional counsel from one of the three regions in Florida, a private attorney who has been appointed to represent a capital defendant for postconviction litigation, or a private attorney who has been hired by the capital defendant or who has agreed to work pro bono for a capital defendant for postconviction litigation.
(c) “Public records” has the same meaning as provided in s. 119.011.
(d) “Trial court” means:
1. The judge who entered the judgment and imposed the sentence of death; or
2. If a motion for postconviction relief in a capital case has been filed and a different judge has already been assigned to that motion, the judge who is assigned to rule on that motion.
(2) APPLICABILITY AND SCOPE.—This section only applies to the production of public records for capital postconviction defendants and does not change or alter the time periods specified in Rule 3.851, Florida Rules of Criminal Procedure. Furthermore, this section does not affect, expand, or limit the production of public records for any purpose other than use in a proceeding held pursuant to Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure. This section shall not be a basis for renewing public records requests that have been initiated previously or for relitigating issues pertaining to production of public records upon which a court has ruled before July 1, 2013. Public records requests made in postconviction proceedings in capital cases in which the conviction and sentence of death have been affirmed on direct appeal before July 1, 2013, shall be governed by the rules and laws in effect immediately before July 1, 2013.
(3) RECORDS REPOSITORY.—The Secretary of State shall establish and maintain a records repository to archive capital postconviction public records as provided for in this section.
(4) FILING AND SERVICE.—
(a) The original of all notices, requests, or objections filed under this section must be filed with the clerk of the trial court. Copies must be served on the trial court, the Attorney General, the state attorney, collateral counsel, and any affected person or agency, unless otherwise required by this section.
(b) Service shall be made pursuant to Rule 3.030, Florida Rules of Criminal Procedure.
(c) In all instances requiring written notification or request, the party who has the obligation of providing a notification or request shall provide proof of receipt.
(d) Persons and agencies receiving postconviction public records notifications or requests pursuant to this section are not required to furnish records filed in a trial court before the receipt of the notice.
(5) ACTION UPON ISSUANCE OF THE MANDATE ON DIRECT APPEAL.—
(a) Within 15 days after receiving written notification of the Florida Supreme Court’s mandate affirming the sentence of death, the Attorney General shall file with the trial court a written notice of the mandate and serve a copy of the notice upon the state attorney who prosecuted the case, the Department of Corrections, and the defendant’s trial counsel. The notice to the state attorney shall direct the state attorney to submit public records to the records repository within 90 days after receipt of written notification and to notify each law enforcement agency involved in the investigation of the capital offense to submit public records to the records repository within 90 days after receipt of written notification. The notice to the Department of Corrections shall direct the department to submit public records to the records repository within 90 days after receipt of written notification.
(b) Within 90 days after receiving written notification of issuance of the Florida Supreme Court’s mandate affirming a death sentence, the state attorney shall provide written notification to the Attorney General of the name and address of an additional person or agency that has public records pertinent to the case.
(c) Within 90 days after receiving written notification of issuance of the Florida Supreme Court’s mandate affirming a death sentence, the defendant’s trial counsel shall provide written notification to the Attorney General of the name and address of a person or agency with information pertinent to the case which has not previously been provided to collateral counsel.
(d) Within 15 days after receiving written notification of any additional person or agency pursuant to paragraph (b) or paragraph (c), the Attorney General shall notify all persons or agencies identified pursuant to paragraph (b) or paragraph (c) that these persons or agencies are required by law to copy, index, and deliver to the records repository all public records pertaining to the case that are in their possession. The person or agency shall bear the costs related to copying, indexing, and delivering the records.
(6) ACTION UPON RECEIPT OF NOTICE OF MANDATE.—
(a) Within 15 days after receipt of a written notice of the mandate from the Attorney General, the state attorney shall provide written notification to each law enforcement agency involved in the specific case to submit public records to the records repository within 90 days after receipt of written notification. A copy of the notice shall be served upon the defendant’s trial counsel.
(b) Within 90 days after receipt of a written notice of the mandate from the Attorney General, the state attorney shall copy, index, and deliver to the records repository all public records that were produced in the state attorney’s investigation or prosecution of the case. The state attorney shall bear the costs. The state attorney shall also provide written notification to the Attorney General of compliance with this section, including certifying that, to the best of the state attorney’s knowledge or belief, all public records in the state attorney’s possession have been copied, indexed, and delivered to the records repository as required by this section.
(c) Within 90 days after receipt of written notification of the mandate from the Attorney General, the Department of Corrections shall, at its own expense, copy, index, and deliver to the records repository all public records determined by the department to be relevant to the subject matter of a proceeding under Rule 3.851, Florida Rules of Criminal Procedure, unless such copying, indexing, and delivering would be unduly burdensome. The Secretary of Corrections shall provide written notification to the Attorney General of compliance with this paragraph certifying that, to the best of the Secretary of Corrections’ knowledge or belief, all such public records in the possession of the Secretary of Corrections have been copied, indexed, and delivered to the records repository.
(d) Within 90 days after receipt of written notification of the mandate from the state attorney, a law enforcement agency shall, at its own expense, copy, index, and deliver to the records repository all public records that were produced in the investigation or prosecution of the case. The chief law enforcement officer of each law enforcement agency shall provide written notification to the Attorney General of compliance with this paragraph including certifying that, to the best of the chief law enforcement officer’s knowledge or belief, all such public records in possession of the agency or in possession of an employee of the agency have been copied, indexed, and delivered to the records repository.
(e) Within 90 days after receipt of written notification of the mandate from the Attorney General, each additional person or agency identified pursuant to paragraph (5)(b) or paragraph (5)(c) shall copy, index, and deliver to the records repository all public records which were produced during the prosecution of the case. The person or agency shall bear the costs. The person or agency shall provide written notification to the Attorney General of compliance with this 1paragraph and shall certify, to the best of the person or agency’s knowledge and belief, all such public records in the possession of the person or agency have been copied, indexed, and delivered to the records repository.
(7) EXEMPT OR CONFIDENTIAL PUBLIC RECORDS.—
(a) Public records delivered to the records repository pursuant to this section that are confidential or exempt from the requirements of s. 119.07(1) or s. 24(a), Art. I of the State Constitution, must be separately contained, without being redacted, and sealed. The outside of the container must clearly identify that the public record is confidential or exempt and that the seal may not be broken without an order of the trial court. The outside of the container must identify the nature of the public records and the legal basis for the exemption.
(b) Upon the entry of an appropriate court order, sealed containers subject to an inspection by the trial court shall be shipped to the clerk of court. The containers may be opened only for inspection by the trial court. The moving party shall bear all costs associated with the transportation and inspection of such records by the trial court.
(8) DEMAND FOR ADDITIONAL PUBLIC RECORDS.—
(a) Within 240 days after collateral counsel is appointed, retained, or appears pro bono, such counsel shall send a written demand for additional public records to each person or agency submitting public records or identified as having information pertinent to the case under subsection (5).
(b) Within 90 days after receipt of the written demand, each person or agency notified under this subsection shall deliver to the records repository additional public records in the possession of the person or agency that pertain to the case and shall certify to the best of the person or agency’s knowledge and belief that all additional public records have been delivered to the records repository or, if no additional public records are found, shall recertify that the public records previously delivered are complete.
(c) Within 60 days after receipt of the written demand, a person or agency may file with the trial court an objection to the written demand described in paragraph (a). The trial court may order a person or agency to produce additional public records if the court determines that:
1. Collateral counsel has made a timely and diligent search as provided in this section.
2. Collateral counsel’s written demand identifies, with specificity, those additional public records that are not at the records repository.
3. The additional public records sought are relevant to the subject matter of a postconviction proceeding under Rule 3.851, Florida Rules of Criminal Procedure, or appear reasonably calculated to lead to the discovery of admissible evidence.
4. The additional public records request is not overly broad or unduly burdensome.
(9) LIMITATION ON POSTPRODUCTION REQUEST FOR ADDITIONAL RECORDS.—
(a) In order to obtain public records in addition to those provided under subsections (6), (7), and (8), collateral counsel must file an affidavit in the trial court which:
1. Attests that collateral counsel has made a timely and diligent search of the records repository.
2. Identifies with specificity those public records not at the records repository.
3. Establishes that the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence.
4. Must be served in accordance with subsection (4).
(b) The trial court may order a person or agency to produce additional public records only upon finding that:
1. Collateral counsel has made a timely and diligent search of the records repository.
2. Collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository.
3. The additional public records sought are either relevant to the subject matter of a capital postconviction proceeding or appear reasonably calculated to lead to the discovery of admissible evidence.
4. The additional records request is not overly broad or unduly burdensome.
(10) COPYING RECORDS.— The Secretary of State shall provide the personnel, supplies, and any necessary equipment to copy records held at the records repository.
(11) AUTHORITY OF THE COURT.—In proceedings under this section the trial court may:
(a) Compel or deny disclosure of records.
(b) Conduct an inspection in camera.
(c) Extend the time periods in this section upon a showing of good cause.
(d) Impose sanctions upon a party, person, or agency affected by this section, including initiating contempt proceedings, taxing expenses, extending time periods, ordering facts to be established, and granting other relief.
(e) Resolve a dispute arising under this section unless jurisdiction is in an appellate court.
(12) SCOPE OF PRODUCTION AND RESOLUTION OF PRODUCTION ISSUES.—
(a) Unless otherwise limited, the scope of production under any part of this section shall be that the public records sought are not privileged or immune from production and are either relevant to the subject matter of a postconviction proceeding under Rule 3.851, Florida Rules of Criminal Procedure, or are reasonably calculated to lead to the discovery of admissible evidence.
(b) Counsel for a party objecting or moving to compel production of public records pursuant to this section must file a copy of the objection or motion directly with the trial court.
(c) The trial court may order mediation for a controversy as to public records production pursuant to this section in accord with Rules 1.700, 1.710, 1.720, and 1.730, Florida Rules of Civil Procedure, or the trial court may refer such controversy to a magistrate in accord with Rule 1.490, Florida Rules of Civil Procedure.
(13) DESTRUCTION OF RECORDS.—Sixty days after a capital sentence is carried out, after a defendant is released from incarceration after the granting of a pardon or reversal of the sentence, or after a defendant has been resentenced to a term of years, the Attorney General shall provide written notification of this occurrence to the Secretary of State. After the expiration of the 60 days, the Secretary of State may destroy the copies of the records held by the records repository that pertain to that case, unless an objection to the destruction is filed in the trial court and served upon the Secretary of State. If no objection is served within the 60-day period, the records may then be destroyed. If an objection is served, the records shall not be destroyed until a final disposition of the objection.
History.—s. 1, ch. 98-198; s. 3, ch. 2000-3; s. 39, ch. 2005-251; s. 8, ch. 2013-216.
1Note.—The word “paragraph” was substituted for the word “subdivision” by the editors to improve clarity.
Note.—Former s. 119.19.
27.7091 Legislative recommendations to Supreme Court; postconviction proceedings; pro bono service credit.—In the interest of promoting justice and integrity with respect to capital collateral representation, the Legislature recommends that the Supreme Court:
(1) Adopt by rule the provisions of s. 924.055, which limit the time for postconviction proceedings in capital cases.
(2) Award pro bono service credit for time spent by an attorney in providing legal representation to an individual sentenced to death in this state, regardless of whether the attorney receives compensation for such representation.
History.—s. 12, ch. 97-313.
27.710 Registry of attorneys applying to represent persons in postconviction capital collateral proceedings; certification of minimum requirements; appointment by trial court.—
(1) The executive director of the Justice Administrative Commission shall compile and maintain a statewide registry of attorneys in private practice who have certified that they meet the minimum requirements of s. 27.704(2), who are available for appointment by the court under this section to represent persons convicted and sentenced to death in this state in postconviction collateral proceedings, and who have attended within the last year a continuing legal education program of at least 10 hours’ duration devoted specifically to the defense of capital cases, if available. Continuing legal education programs meeting the requirements of this rule offered by The Florida Bar or another recognized provider and approved for continuing legal education credit by The Florida Bar shall satisfy this requirement. The failure to comply with this requirement may be cause for removal from the list until the requirement is fulfilled. To ensure that sufficient attorneys are available for appointment by the court, when the number of attorneys on the registry falls below 50, the executive director shall notify the chief judge of each circuit by letter and request the chief judge to promptly submit the names of at least three private attorneys who regularly practice criminal law in that circuit and who appear to meet the minimum requirements to represent persons in postconviction capital collateral proceedings. The executive director shall send an application to each attorney identified by the chief judge so that the attorney may register for appointment as counsel in postconviction capital collateral proceedings. As necessary, the executive director may also advertise in legal publications and other appropriate media for qualified attorneys interested in registering for appointment as counsel in postconviction capital collateral proceedings. Not later than September 1 of each year, and as necessary thereafter, the executive director shall provide to the Chief Justice of the Supreme Court, the chief judge and state attorney in each judicial circuit, and the Attorney General a current copy of its registry of attorneys who are available for appointment as counsel in postconviction capital collateral proceedings. The registry must be indexed by judicial circuit and must contain the requisite information submitted by the applicants in accordance with this section.
(2) To be eligible for court appointment as counsel in postconviction capital collateral proceedings, an attorney must certify on an application provided by the executive director that he or she satisfies the minimum requirements for private counsel set forth in s. 27.704(2).
(3) An attorney who applies for registration and court appointment as counsel in postconviction capital collateral proceedings must certify that he or she is counsel of record in not more than nine such proceedings and, if appointed to represent a person in postconviction capital collateral proceedings, shall continue such representation under the terms and conditions set forth in s. 27.711 until the sentence is reversed, reduced, or carried out or unless permitted to withdraw from representation by the trial court. The court may not permit an attorney to withdraw from representation without a finding of sufficient good cause. The court may impose appropriate sanctions if it finds that an attorney has shown bad faith with respect to continuing to represent a defendant in a postconviction capital collateral proceeding. This section does not preclude the court from reassigning a case to a capital collateral regional counsel following discontinuation of representation if a conflict of interest no longer exists with respect to the case.
(4) Each private attorney who is appointed by the court to represent a capital defendant must enter into a contract with the Justice Administrative Commission. If the appointed attorney fails to execute the contract within 30 days after the date the contract is mailed to the attorney, the executive director shall notify the trial court. The Justice Administrative Commission shall function as contract manager and enforce performance of the terms and conditions of the contract. The Justice Administrative Commission shall approve uniform contract forms for use in procuring the services of private court-appointed counsel and uniform procedures and forms for use by a court-appointed attorney in support of billing for attorney fees, costs, and related expenses to demonstrate attorney completion of specified duties. By signing such contract, the attorney certifies that he or she intends to continue the representation under the terms and conditions set forth in the contract until the sentence is reversed, reduced, or carried out or until released by order of the trial court.
(5)(a) Upon the motion of the capital collateral regional counsel to withdraw pursuant to s. 924.056(1)(a); or
(b) Upon notification by the state attorney or the Attorney General that:
1. Thirty days have elapsed since appointment of the capital collateral regional counsel and no entry of appearance has been filed pursuant to s. 924.056; or
2. A person under sentence of death who was previously represented by private counsel is currently unrepresented in a postconviction capital collateral proceeding,
the executive director shall immediately notify the trial court that imposed the sentence of death that the court must immediately appoint an attorney, selected from the current registry, to represent such person in collateral actions challenging the legality of the judgment and sentence in the appropriate state and federal courts. The court shall have the authority to strike a notice of appearance filed by a Capital Collateral Regional Counsel, if the court finds the notice was not filed in good faith and may so notify the executive director that the client is no longer represented by the Office of Capital Collateral Regional Counsel. In making an assignment, the court shall give priority to attorneys whose experience and abilities in criminal law, especially in capital proceedings, are known by the court to be commensurate with the responsibility of representing a person sentenced to death. The trial court must issue an order of appointment which contains specific findings that the appointed counsel meets the statutory requirements and has the high ethical standards necessary to represent a person sentenced to death.
(6) More than one attorney may not be appointed and compensated at any one time under s. 27.711 to represent a person in postconviction capital collateral proceedings. However, an attorney appointed under this section may designate another attorney to assist him or her if the designated attorney meets the qualifications of this section.
History.—s. 3, ch. 98-197; s. 4, ch. 99-221; s. 11, ch. 2000-3; s. 3, ch. 2002-31; s. 5, ch. 2003-1; s. 87, ch. 2003-261; ss. 63, 64, 82, ch. 2011-47; s. 4, ch. 2011-131; s. 9, ch. 2013-216.
27.711 Terms and conditions of appointment of attorneys as counsel in postconviction capital collateral proceedings.—
(1) As used in s. 27.710 and this section, the term:
(a) “Capital defendant” means the person who is represented in postconviction capital collateral proceedings by an attorney appointed under s. 27.710.
(b) “Executive director” means the executive director of the Justice Administrative Commission.
(c) “Postconviction capital collateral proceedings” means one series of collateral litigation of an affirmed conviction and sentence of death, including the proceedings in the trial court that imposed the capital sentence, any appellate review of the sentence by the Supreme Court, any certiorari review of the sentence by the United States Supreme Court, and any authorized federal habeas corpus litigation with respect to the sentence. The term does not include repetitive or successive collateral challenges to a conviction and sentence of death which is affirmed by the Supreme Court and undisturbed by any collateral litigation.
(2) After appointment by the trial court under s. 27.710, the attorney must immediately file a notice of appearance with the trial court indicating acceptance of the appointment to represent the capital defendant throughout all postconviction capital collateral proceedings, including federal habeas corpus proceedings, in accordance with this section or until released by order of the trial court.
(3) An attorney appointed to represent a capital defendant is entitled to payment of the fees set forth in this section only upon full performance by the attorney of the duties specified in this section and approval of payment by the trial court, and the submission of a payment request by the attorney, subject to the availability of sufficient funding specifically appropriated for this purpose. The Justice Administrative Commission shall notify the court if it appears that sufficient funding has not been specifically appropriated for this purpose to pay any fees which may be incurred. The attorney shall maintain appropriate documentation, including a current and detailed hourly accounting of time spent representing the capital defendant. The fee and payment schedule in this section is the exclusive means of compensating a court-appointed attorney who represents a capital defendant. When appropriate, a court-appointed attorney must seek further compensation from the Federal Government, as provided in 18 U.S.C. s. 3006A or other federal law, in habeas corpus litigation in the federal courts.
(4) Upon approval by the trial court, an attorney appointed to represent a capital defendant under s. 27.710 is entitled to payment of the following fees by the Justice Administrative Commission:
(a) Regardless of the stage of postconviction capital collateral proceedings, the attorney is entitled to $100 per hour, up to a maximum of $2,500, after accepting appointment and filing a notice of appearance.
(b) The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the trial court the capital defendant’s complete original motion for postconviction relief under the Florida Rules of Criminal Procedure. The motion must raise all issues to be addressed by the trial court. However, an attorney is entitled to fees under this paragraph if the court schedules a hearing on a matter that makes the filing of the original motion for postconviction relief unnecessary or if the court otherwise disposes of the case.
(c) The attorney is entitled to $100 per hour, up to a maximum of $20,000, after the trial court issues a final order granting or denying the capital defendant’s motion for postconviction relief.
(d) The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the Supreme Court the capital defendant’s brief or briefs that address the trial court’s final order granting or denying the capital defendant’s motion for postconviction relief and the state petition for writ of habeas corpus.
(e) The attorney is entitled to $100 per hour, up to a maximum of $10,000, after the trial court issues an order, pursuant to a remand from the Supreme Court, which directs the trial court to hold further proceedings on the capital defendant’s motion for postconviction relief.
(f) The attorney is entitled to $100 per hour, up to a maximum of $4,000, after the appeal of the trial court’s denial of the capital defendant’s motion for postconviction relief and the capital defendant’s state petition for writ of habeas corpus become final in the Supreme Court.
(g) At the conclusion of the capital defendant’s postconviction capital collateral proceedings in state court, the attorney is entitled to $100 per hour, up to a maximum of $2,500, after filing a petition for writ of certiorari in the Supreme Court of the United States.
(h) If, at any time, a death warrant is issued, the attorney is entitled to $100 per hour, up to a maximum of $5,000. This payment shall be full compensation for attorney fees and costs for representing the capital defendant throughout the proceedings before the state courts of Florida.
The hours billed by a contracting attorney under this subsection may include time devoted to representation of the defendant by another attorney who is qualified under s. 27.710 and who has been designated by the contracting attorney to assist him or her.
(5) An attorney who represents a capital defendant may use the services of one or more investigators to assist in representing a capital defendant. Upon approval by the trial court, the attorney is entitled to payment from the Justice Administrative Commission of $40 per hour, up to a maximum of $15,000, for the purpose of paying for investigative services.
(6) An attorney who represents a capital defendant is entitled to a maximum of $15,000 for miscellaneous expenses, such as the costs of preparing transcripts, compensating expert witnesses, and copying documents. Upon approval by the trial court, the attorney is entitled to payment by the Justice Administrative Commission of up to $15,000 for miscellaneous expenses, except that, if the trial court finds that extraordinary circumstances exist, the attorney is entitled to payment in excess of $15,000.
(7) An attorney who is actively representing a capital defendant is entitled to a maximum of $500 per fiscal year for tuition and expenses for continuing legal education that pertains to the representation of capital defendants. Upon approval by the trial court, the attorney is entitled to payment by the Justice Administrative Commission for expenses for such tuition and continuing legal education.
(8) By accepting court appointment under s. 27.710 to represent a capital defendant, the attorney agrees to continue such representation under the terms and conditions set forth in this section until the capital defendant’s sentence is reversed, reduced, or carried out, and the attorney is permitted to withdraw from such representation by a court of competent jurisdiction. However, if an attorney is permitted to withdraw or is otherwise removed from representation prior to full performance of the duties specified in this section, the trial court shall approve payment of fees and costs for work performed, which may not exceed the amounts specified in this section. An attorney who withdraws or is removed from representation shall deliver all files, notes, documents, and research to the successor attorney within 15 days after notice from the successor attorney. The successor attorney shall bear the cost of transmitting the files, notes, documents, and research.
(9) An attorney may not represent more than ten defendants in capital postconviction litigation at any one time.
(10) This section does not authorize an attorney who represents a capital defendant to file repetitive or frivolous pleadings that are not supported by law or by the facts of the case. An action taken by an attorney who represents a capital defendant in postconviction capital collateral proceedings may not be the basis for a claim of ineffective assistance of counsel.
(11) An attorney appointed under s. 27.710 to represent a capital defendant may not represent the capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.
(12) The court shall monitor the performance of assigned counsel to ensure that the capital defendant is receiving quality representation. The court shall also receive and evaluate allegations that are made regarding the performance of assigned counsel. The Justice Administrative Commission, the Department of Legal Affairs, or any interested person may advise the court of any circumstance that could affect the quality of representation, including, but not limited to, false or fraudulent billing, misconduct, failure to meet continuing legal education requirements, solicitation to receive compensation from the capital defendant, or failure to file appropriate motions in a timely manner.
(13) Before the filing of a motion for order approving payment of attorney fees, costs, or related expenses, the assigned counsel shall deliver a copy of his intended billing, together with supporting affidavits and all other necessary documentation, to the Justice Administrative Commission. The Justice Administrative Commission shall review the intended billing for completeness and compliance with contractual and statutory requirements. If the Justice Administrative Commission objects to any portion of the proposed billing, the objection and reasons therefor shall be communicated to the assigned counsel. The assigned counsel may thereafter file his or her motion for order approving payment of attorney fees, costs, or related expenses together with supporting affidavits and all other necessary documentation. The motion must specify whether the Justice Administrative Commission objects to any portion of the billing or the sufficiency of documentation and, if so, the reason therefor. A copy of the motions and attachments shall be served on the Justice Administrative Commission at least 5 business days before the date of a hearing. The Justice Administrative Commission has standing to appear before the court to contest any motion for an order approving payment of attorney fees, costs, or related expenses and may participate in a hearing on the motion by use of telephonic or other communication equipment. The fact that the Justice Administrative Commission has not objected to any portion of the billing or to the sufficiency of the documentation is not binding on the court, which retains primary authority and responsibility for determining the reasonableness of all billings for fees, costs, and related expenses, subject to statutory limitations.
History.—s. 4, ch. 98-197; s. 5, ch. 99-221; s. 16, ch. 2000-3; s. 4, ch. 2002-31; s. 88, ch. 2003-261; ss. 87, 88, ch. 2003-399; s. 3, ch. 2004-240; ss. 66, 67, 76, ch. 2004-269; s. 5, ch. 2011-131; s. 10, ch. 2013-216.
27.715 Capital Collateral Regional Counsel Trust Fund.—The Capital Collateral Regional Counsel Trust Fund is created within the Justice Administrative Commission. Moneys credited to the trust fund shall be used for the purpose of funding the activities of the capital collateral regional counsel.
History.—s. 1, ch. 2009-62; s. 2, ch. 2013-12.