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House Bill 1091e1

CS/HB 1091, First Engrossed 1 A bill to be entitled 2 An act relating to the representation of 3 persons sentenced to death; amending s. 27.701, 4 F.S.; providing for the office of capital 5 collateral representative to be replaced by 6 three capital collateral regional counsels 7 appointed within the northern, middle, and 8 southern regions of the state; providing for 9 nominations of the regional counsels by the 10 Supreme Court Judicial Nominating Commission; 11 requiring the Governor to appoint the regional 12 counsels; providing for terms of office; 13 prohibiting a regional counsel from running for 14 or accepting appointment to a state office for 15 a specified period after leaving office; 16 amending s. 27.702, F.S.; specifying the duties 17 of the capital collateral regional counsel; 18 establishing the independence of the regional 19 offices but consolidating the administrative 20 functions of three offices within the Justice 21 Administrative Commission; authorizing the 22 court to assess attorney's fees and costs 23 against a nonindigent or 24 indigent-but-able-to-contribute defendant; 25 providing for a determination of indigency; 26 requiring the regional counsel to provide 27 certain reports to the President of the Senate, 28 the Speaker of the House of Representatives, 29 and the Commission on the Administration of 30 Justice in Capital Cases; amending s. 27.703, 31 F.S.; providing for the appointment of 1 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 substitute counsel in instances of conflict of 2 interest; establishing qualifications for 3 appointed counsel; establishing a rate of 4 compensation for attorney's fees in such cases; 5 amending s. 27.704, F.S.; authorizing the 6 capital collateral regional counsel to appoint 7 assistant counsel, investigators, and support 8 personnel; providing for employment of law 9 school graduates; providing employment 10 qualifications for certain positions; amending 11 s. 27.705, F.S.; providing for the capital 12 collateral counsel to be paid under the General 13 Appropriations Act; providing for the payment 14 of office and travel expenses; requiring the 15 regional counsel to submit a pay plan each year 16 to the Joint Legislative Management Committee; 17 amending s. 27.706, F.S.; prohibiting the 18 capital collateral regional counsel and 19 full-time assistants from engaging in the 20 private practice of law; amending s. 27.707, 21 F.S.; authorizing investigators employed by the 22 capital collateral regional counsel to serve 23 subpoenas and court orders; amending s. 27.708, 24 F.S.; providing for access to persons sentenced 25 to death who are incarcerated; requiring the 26 regional counsel and contracted private counsel 27 to comply with the Rules of Criminal Procedure; 28 requiring the regional counsel to approve 29 requests for public records made by assistant 30 counsel or appointed counsel; creating the 31 Commission on the Administration of Justice in 2 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 Capital Cases; providing for membership; 2 setting terms of membership; providing for the 3 selection of a chair; providing for per diem 4 and travel expenses; requiring quarterly 5 meetings of the commission; providing for the 6 Joint Legislative Management Committee to staff 7 the commission; requiring the commission to 8 review the administration of justice in capital 9 collateral cases, receive relevant public 10 input, review the operation of the regional 11 offices of capital collateral counsel, and 12 advise and make recommendations to the 13 Governor, Legislature, and Supreme Court; 14 requiring that the commission hear complaints 15 regarding the practice of any such office; 16 amending s. 16.01, F.S.; requiring that the 17 Attorney General act as co-counsel in capital 18 collateral proceedings; amending s. 924.051, 19 F.S.; providing circumstances under which a 20 motion for collateral or postconviction relief 21 in any capital case may be considered after a 22 specified date; prohibiting the testimony of an 23 expert witness in any such case unless approved 24 by the court; providing recommendations for the 25 Supreme Court; providing a transition period; 26 authorizing the Governor to appoint interim and 27 regional counsel by specified dates; 28 authorizing attorneys to continue 29 representation of clients during the 30 transitional period; providing an effective 31 date. 3 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 Be It Enacted by the Legislature of the State of Florida: 2 3 Section 1. Section 27.701, Florida Statutes, is 4 amended to read: 5 27.701 Capital collateral regional counsels 6 representative.--There are is hereby created three regional 7 offices in the judicial branch of state government the office 8 of capital collateral counsel, which shall be located in a 9 northern, middle, and southern region of the state. The 10 northern region shall consist of the First, Second, Third, 11 Fourth, Eighth, and Fourteenth Judicial Circuits; the middle 12 region shall consist of the Fifth, Sixth, Seventh, Ninth, 13 Tenth, Twelfth, Thirteenth, and Eighteenth Judicial Circuits; 14 and the southern region shall consist of the Eleventh, 15 Fifteenth, Sixteenth, Seventeenth, Nineteenth, and Twentieth 16 Judicial Circuits. Each regional office shall be administered 17 by a regional counsel. A regional counsel must representative, 18 the head of which shall be the capital collateral 19 representative for the state. The capital collateral 20 representative shall be, and must shall have been for the 21 preceding 5 years, a member in good standing of The Florida 22 Bar or a similar organization in another state. Each The 23 capital collateral regional counsel representative shall be 24 appointed by the Governor, and is subject to confirmation by 25 the Senate. The Supreme Court Judicial Nominating Commission 26 shall recommend to the Governor three qualified candidates for 27 each appointment as regional counsel. The Governor shall 28 appoint a regional counsel for each region from among the 29 recommendations, or, if it is in the best interest of the fair 30 administration of justice in capital cases, the Governor may 31 reject the nominations and request submission of three new 4 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 nominees by the Supreme Court Judicial Nominating Commission. 2 Each capital collateral regional counsel shall be appointed to 3 a term of 3 years., from three or more nominations submitted 4 by any or all elected public defenders and shall serve a term 5 of 4 years. Six months prior to the end of any such term, the 6 Governor shall accept nominations from any or all elected 7 public defenders for the office of capital collateral 8 representative for the next succeeding term and may appoint 9 the incumbent or any other nominated person for the next 10 succeeding term. Vacancies in the office of capital collateral 11 regional counsel representative shall be filled in the same 12 manner as appointments. A person appointed as a regional 13 counsel may not run capital collateral representative is 14 prohibited from running for or accept accepting appointment to 15 any state office for a period of 2 years following vacation of 16 office. The principal office of the capital collateral 17 representative shall be located in Tallahassee. The capital 18 collateral representative may establish such branch offices as 19 may, in his or her discretion, be warranted to fulfill 20 statutory duties herein. 21 Section 2. Section 27.702, Florida Statutes, 1996 22 Supplement, is amended to read: 23 27.702 Duties of the capital collateral regional 24 counsel; reports representative.-- 25 (1) The capital collateral regional counsel 26 representative shall represent, without additional 27 compensation, each person convicted and sentenced to death in 28 this state for the sole purpose of instituting and prosecuting 29 collateral actions challenging the legality of the judgment 30 and sentence imposed against such person in the state courts, 31 federal courts in this state, the United States Court of 5 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 Appeals for the Eleventh Circuit, and the United States 2 Supreme Court. Representation by the regional counsel capital 3 collateral representative shall commence automatically upon 4 termination of direct appellate proceedings in state or 5 federal courts. Within 91 days after the date the Supreme 6 Court issues a mandate on a direct appeal or the United States 7 Supreme Court denies a petition for certiorari, whichever is 8 later, the capital collateral regional counsel representative 9 shall file a notice of appearance in the trial court in which 10 the judgment and sentence were entered and shall secure all 11 direct-appeal files for collateral representation. Upon 12 receipt of files from the public defender or other counsel, 13 the capital collateral regional counsel representative shall 14 assign each such case to personnel in his or her office for 15 investigation, client contact, and any such further action as 16 the circumstances may warrant. The three capital collateral 17 regional counsels' offices shall function independently and be 18 separate budget entities, and the regional counsels shall be 19 the office heads for all purposes. The Justice Administrative 20 Commission shall provide administrative support and service to 21 the three offices to the extent requested by the regional 22 counsels. The three regional offices shall not be subject to 23 control, supervision, or direction by the Justice 24 Administrative Commission in any manner, including, but not 25 limited to, personnel, purchasing, transactions involving real 26 or personal property, and budgetary matters. 27 (2) The capital collateral regional counsel 28 representative shall represent each person convicted and 29 sentenced to death within the region in this state in 30 collateral postconviction proceedings, unless a court appoints 31 or permits other counsel to appear as counsel of record. 6 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 (3)(a) The capital collateral regional counsel 2 representative shall file motions seeking compensation for 3 representation and reimbursement for expenses pursuant to 18 4 U.S.C. s. 3006A when providing representation to indigent 5 persons in the federal courts, and shall deposit all such 6 payments received into the Capital Collateral Trust Fund 7 established for such purpose. 8 (b) The court having jurisdiction over any nonindigent 9 or indigent-but-able-to-contribute defendant who has been 10 receiving the services of the capital collateral regional 11 counsel may assess attorney's fees and costs against the 12 defendant at any stage in the proceedings as the court may 13 deem appropriate. The determination of indigency or 14 nonindigency of any defendant shall be made by the court 15 pursuant to s. 27.52. Liability for the costs of such 16 representation may be imposed in the form of a lien against 17 the property of the nonindigent or 18 indigent-but-able-to-contribute defendant, which lien shall be 19 enforceable as provided in s. 27.56 or s. 27.561. 20 (4) Each capital collateral regional counsel shall 21 provide a quarterly report to the President of the Senate, the 22 Speaker of the House of Representatives, and the Commission on 23 the Administration of Justice in Capital Cases which details 24 the number of hours worked by investigators and legal counsel 25 per case and the amounts per case expended during the 26 preceding quarter in investigating and litigating capital 27 collateral cases. 28 Section 3. Section 27.703, Florida Statutes, 1996 29 Supplement, is amended to read: 30 27.703 Conflict of interest and substitute counsel.-- 31 7 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 (1) If, at any time during the representation of two 2 or more persons, the capital collateral regional counsel 3 representative determines that the interests of those persons 4 are so adverse or hostile that they cannot all be counseled by 5 the regional counsel capital collateral representative or his 6 or her staff without conflict of interest, the sentencing 7 court shall, upon application therefor by the regional 8 counsel, designate another regional counsel and, only if a 9 conflict exists with the other two counsels, capital 10 collateral representative appoint one or more members of The 11 Florida Bar to represent one or more of such persons. 12 (2) Appointed counsel shall be paid from funds 13 appropriated to the Justice Administrative Commission. The 14 hourly rate may not exceed $100. 15 (3) Prior to employment, counsel appointed pursuant to 16 this section must have participated in at least five felony 17 jury trials, five felony appeals, or five capital 18 postconviction evidentiary hearings, or any combination of at 19 least five of such proceedings. 20 Section 4. Section 27.704, Florida Statutes, is 21 amended to read: 22 27.704 Appointment of assistants and other staff; 23 method of payments.--Each capital collateral regional counsel 24 may: 25 (1) The capital collateral representative is 26 authorized to Appoint, employ, and establish, in such numbers 27 as he or she determines shall determine, full-time or 28 part-time assistant counsel capital collateral 29 representatives, investigators, and other clerical and support 30 personnel who shall be paid from funds appropriated for that 31 purpose. A full-time assistant capital collateral counsel 8 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 must representatives shall be a member members in good 2 standing of The Florida Bar, with not less than 3 2 years' 3 experience in the practice of criminal law, and, prior to 4 employment, must have participated in at least five felony 5 jury trials, five felony appeals, or five capital 6 postconviction evidentiary hearings or any combination of at 7 least five of such proceedings. Law school graduates who do 8 not have the qualifications of a full-time assistant capital 9 collateral counsel may be employed as members of the legal 10 staff but may not be designated as sole counsel for any 11 person. 12 (2) Contract with private counsel who are members in 13 good standing of The Florida Bar or with public defenders for 14 the purpose of providing prompt and cost-effective 15 representation for individuals who are sentenced to death in 16 this state. A private counsel or public defender under 17 contract with the regional counsel must have at least 3 years' 18 experience in the practice of criminal law, and, prior to the 19 contract, must have participated in at least five felony jury 20 trials, five felony appeals, or five capital postconviction 21 evidentiary hearings or any combination of at least five of 22 such proceedings. 23 (3)(2) The capital collateral representative is 24 authorized to Appoint pro bono part-time assistant counsel 25 capital collateral representatives, who must shall be members 26 in good standing of The Florida Bar, and who shall serve 27 without compensation at the discretion of the capital 28 collateral regional counsel representative. 29 Section 5. Section 27.705, Florida Statutes, is 30 amended to read: 31 9 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 27.705 Salaries of the capital collateral regional 2 counsel representative and assistant capital collateral 3 counsel representatives.-- 4 (1) Each The capital collateral regional counsel 5 representative shall be paid a salary by the state, which 6 shall be as provided in the General Appropriations Act and 7 shall be paid in equal monthly installments. 8 (2) Full-time assistant capital collateral counsel 9 representatives shall be compensated in an amount set by the 10 capital collateral regional counsel, which may representative 11 not to exceed 100 percent of the salary of the capital 12 collateral regional counsel representative and shall be paid 13 from funds appropriated for that purpose. 14 (3) All payments of the salary of each of the capital 15 collateral regional counsel representative and employees of 16 his or her office, and payments for other necessary expenses 17 of office from state funds appropriated therefor, are shall be 18 considered as being for a valid public purpose. Travel 19 expenses for official business within and outside the state 20 shall be paid in accordance with the provisions of s. 112.061. 21 For purposes of s. 112.061 only, part-time assistant capital 22 collateral counsel representatives shall be considered 23 employees of the regional office of capital collateral counsel 24 representative. 25 (4) Each The capital collateral regional counsel 26 representative shall develop a classification and pay plan to 27 be submitted on or before January 1 of each year to the 28 Justice Administrative Commission, the office of the President 29 of the Senate, and the office of the Speaker of the House of 30 Representatives. Such plan shall be developed in accordance 31 10 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 with policies and procedures of the Executive Office of the 2 Governor established pursuant to s. 216.181. 3 Section 6. Section 27.706, Florida Statutes, is 4 amended to read: 5 27.706 Private practice of law prohibited.--Each The 6 capital collateral regional counsel representative and all 7 full-time assistants appointed by him or her shall serve on a 8 full-time basis and may not engage are prohibited from 9 engaging in the private practice of law. 10 Section 7. Section 27.707, Florida Statutes, is 11 amended to read: 12 27.707 Investigators; service of process.--Each 13 investigator employed by the capital collateral regional 14 counsel has representative shall have full authority to serve 15 any subpoena witness subpoenaed or court order issued by any 16 court or judge in any case for which the office has 17 responsibility for providing representation. 18 Section 8. Section 27.708, Florida Statutes, is 19 amended to read: 20 27.708 Access to prisoners; compliance with the 21 Florida Rules of Criminal Procedure in capital collateral 22 litigation; records requests; approval of records requests.-- 23 (1) Each The capital collateral regional counsel 24 representative and his or her assistants may shall be 25 empowered to inquire of all persons sentenced to death who are 26 incarcerated and to tender them advice and counsel at any 27 reasonable time, but the provisions of this section does shall 28 not apply with respect to persons who are represented by other 29 counsel. 30 (2) The capital collateral regional counsel and 31 contracted private counsel must timely comply with all 11 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 provisions of the Florida Rules of Criminal Procedure 2 governing collateral review of capital cases, including 3 provisions pertaining to requests for records under Florida 4 Rule of Criminal Procedure 3.852. 5 (3) All requests for records in capital postconviction 6 proceedings must be made in accordance with Florida Rule of 7 Criminal Procedure 3.852, and, if the person sentenced to 8 death is represented by an assistant capital collateral 9 regional counsel or other attorney appointed to assist the 10 regional counsel, the regional counsel must approve the 11 request. 12 Section 9. (1)(a) There is created the Commission on 13 the Administration of Justice in Capital Cases, which shall 14 consist of the six following members: 15 1. Two members appointed by the Governor. 16 2. Two members appointed by the President of the 17 Senate from the membership of the Senate. One member shall be 18 a member of the majority party and one member shall be a 19 member of the minority party. 20 3. Two members appointed by the Speaker of the House 21 of Representatives from the membership of the House of 22 Representatives. One member shall be a member of the majority 23 party and one member shall be a member of the minority party. 24 (b) The chair of the commission shall be selected by 25 the members for a term of 1 year. 26 (c) The commission shall meet quarterly, and other 27 meetings may be called by the chair upon giving at least 7 28 days' notice to all members and the public. 29 (d) Members of the commission are entitled to per diem 30 and travel expenses to be paid by the appointing entity. 31 12 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 (e) The initial members of the commission must be 2 appointed on or before October 1, 1997. Members of the 3 commission shall be appointed to serve terms of 4 years each, 4 except that a member's term shall expire upon leaving office 5 as a member of the Senate or the House of Representatives. Two 6 of the initial members, one from the Senate and one from the 7 House of Representatives, shall be appointed for terms of 2 8 years each. Two of the initial members, one from the Senate 9 and one from the House of Representatives, shall be appointed 10 for terms of 3 years each. 11 (f) The Joint Legislative Management Committee shall 12 staff the commission. 13 (2) The commission shall review the administration of 14 justice in capital collateral cases, receive relevant public 15 input, review the operation of the capital collateral regional 16 counsel, and advise and make recommendations to the Governor, 17 Legislature, and Supreme Court. In addition, the commission 18 shall receive complaints regarding the practice of any office 19 of regional counsel and shall refer any complaint to The 20 Florida Bar, the State Supreme Court, or the Commission on 21 Ethics, as appropriate. 22 Section 10. Present subsections (6), (7), and (8) of 23 section 16.01, Florida Statutes, are renumbered as subsections 24 (7), (8), and (9), respectively, and a new subsection (6) is 25 added to that section, to read: 26 16.01 Residence, office, and duties of Attorney 27 General.--The Attorney General: 28 (6) Shall act as co-counsel of record in capital 29 collateral proceedings. 30 Section 11. Subsection (6) of section 924.051, Florida 31 Statutes, 1996 Supplement, is amended to read: 13 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 924.051 Terms and conditions of appeals and collateral 2 review in criminal cases.-- 3 (6)(a) In a noncapital case, a petition or motion for 4 collateral or other postconviction relief may not be 5 considered if it is filed more than 2 years after the judgment 6 and sentence became final, in a noncapital case or more than 1 7 year after the judgment and sentence became final in a capital 8 case in which a death sentence was imposed unless the petition 9 or motion it alleges that: 10 1.(a) The facts upon which the claim is predicated 11 were unknown to the petitioner or his attorney and could not 12 have been ascertained by the exercise of due diligence; 13 2.(b) The fundamental constitutional right asserted 14 was not established within the period provided for in this 15 subsection and has been held to apply retroactively; or 16 3.(c) The sentence imposed was illegal because it 17 either exceeded the maximum or fell below the minimum 18 authorized by statute for the criminal offense at issue. 19 Either the state or the defendant may petition the trial court 20 to vacate an illegal sentence at any time. 21 (b) In a capital case in which the sentence of death 22 has been imposed: 23 1. A motion for collateral or other postconviction 24 relief may not be considered if the motion is filed more than 25 1 year after the judgment and sentence became final, unless 26 the facts upon which the claim is predicated were unknown to 27 the petitioner or his or her attorney and could not have been 28 ascertained by the exercise of due diligence, or the 29 fundamental constitutional right asserted was not established 30 within the period provided for in this subsection and has been 31 held to apply retroactively. 14 CODING: Words stricken are deletions; words underlined are additions. CS/HB 1091, First Engrossed 1 2. An expert witness may not be called to testify 2 unless approved by the court. 3 Section 12. In the interest of promoting justice and 4 integrity with respect to capital collateral representation, 5 the Legislature recommends that the Supreme Court: 6 (1) Adopt by rule the provisions of section 924.055, 7 Florida Statutes, which limit the time for postconviction 8 proceedings in capital cases. 9 (2) Award pro bono service credit for time spent by an 10 attorney in providing legal representation to an individual 11 sentenced to death in this state, regardless of whether the 12 attorney receives compensation for such representation. 13 Section 13. Transition.--The Governor shall appoint 14 each capital collateral regional counsel no later than August 15 1, 1997. Each regional counsel shall assume office on October 16 1, 1997. The Governor is authorized to appoint three interim 17 capital collateral regional counsel who are authorized to 18 carry out the duties provided in this act until September 30, 19 1997. In order to maintain continuity, all attorneys assigned 20 to represent clients as of June 30, 1997, shall continue to 21 provide such representation until substitute counsel is 22 ordered by the court or until the interim or appointed 23 regional counsel removes the attorney from the case. 24 Section 14. This act shall take effect July 1, 1997. 25 26 27 28 29 30 31 15