CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  The Committee on Civil Justice & Claims offered the following:

12

13         Amendment (with title amendment) 

14         On page 3, line 23,

15  remove from the bill:  everything after the enacting clause

16

17  and insert in lieu thereof:

18         Section 1.  The Division of Statutory Revision is

19  requested to designate part IV of chapter 27, Florida

20  Statutes, as "Capital Collateral Representation."

21         Section 2.  Subsections (1) and (2) of section 27.702,

22  Florida Statutes, are amended to read:

23         27.702  Duties of the capital collateral regional

24  counsel; reports.--

25         (1)  The capital collateral regional counsel shall

26  represent each person convicted and sentenced to death in this

27  state for the sole purpose of instituting and prosecuting

28  collateral actions challenging the legality of the judgment

29  and sentence imposed against such person in the state courts,

30  federal courts in this state, the United States Court of

31  Appeals for the Eleventh Circuit, and the United States

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  Supreme Court.  Representation by the regional counsel shall

 2  commence automatically upon termination of direct appellate

 3  proceedings in state or federal courts. Within 91 days after

 4  the date the Supreme Court issues a mandate on a direct appeal

 5  or the United States Supreme Court denies a petition for

 6  certiorari, whichever is later, the capital collateral

 7  regional counsel shall file a notice of appearance in the

 8  trial court in which the judgment and sentence were entered

 9  and shall secure all direct appeal files for collateral

10  representation.  Upon receipt of files from the public

11  defender or other counsel, the capital collateral regional

12  counsel shall assign each such case to personnel in his or her

13  office for investigation, client contact, and any further

14  action the circumstances warrant. The three capital collateral

15  regional counsels' offices shall function independently and be

16  separate budget entities, and the regional counsels shall be

17  the office heads for all purposes. The Justice Administrative

18  Commission shall provide administrative support and service to

19  the three offices to the extent requested by the regional

20  counsels. The three regional offices shall not be subject to

21  control, supervision, or direction by the Justice

22  Administrative Commission in any manner, including, but not

23  limited to, personnel, purchasing, transactions involving real

24  or personal property, and budgetary matters.

25         (2)  The capital collateral regional counsel shall

26  represent persons each person convicted and sentenced to death

27  within the region in collateral postconviction proceedings,

28  unless a court appoints or permits other counsel to appear as

29  counsel of record.

30         Section 3.  Section 27.710, Florida Statutes, is

31  created to read:

                                  2

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         27.710  Registry of attorneys applying to represent

 2  persons in postconviction capital collateral proceedings;

 3  certification of minimum requirements; appointment by trial

 4  court.--

 5         (1)  The executive director of the Commission on the

 6  Administration of Justice in Capital Cases shall compile and

 7  maintain a statewide registry of attorneys in private practice

 8  who have certified that they meet the minimum requirements of

 9  s. 27.704(2) and who are available for appointment by the

10  court under this section to represent persons convicted and

11  sentenced to death in this state in postconviction capital

12  collateral proceedings. To ensure that sufficient attorneys

13  are available for appointment by the court, when the number of

14  attorneys on the registry falls below 50, the executive

15  director shall notify the chief judge of each circuit by

16  letter and request the chief judge to promptly submit the

17  names of at least three private attorneys who regularly

18  practice criminal law in that circuit and who appear to meet

19  the minimum requirements to represent persons in

20  postconviction capital collateral proceedings. The executive

21  director shall send an application to each attorney identified

22  by the chief judge so that the attorney may register for

23  appointment as counsel in postconviction capital collateral

24  proceedings. As necessary, the executive director may also

25  advertise in legal publications and other appropriate media

26  for qualified attorneys interested in registering for

27  appointment as counsel in postconviction capital collateral

28  proceedings. Not later than September 1 of each year, and as

29  necessary thereafter, the executive director shall provide to

30  the Chief Justice of the Supreme Court, the chief judge and

31  state attorney in each judicial circuit, and the Attorney

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  General a current copy of its registry of attorneys who are

 2  available for appointment as counsel in postconviction capital

 3  collateral proceedings. The registry must be indexed by

 4  judicial circuit and must contain the requisite information

 5  submitted by the applicants in accordance with this section.

 6         (2)  To be eligible for court appointment as counsel in

 7  postconviction capital collateral proceedings, an attorney

 8  must certify on an application provided by the executive

 9  director that he or she satisfies the minimum requirements for

10  private counsel set forth in s. 27.704(2).

11         (3)  An attorney who applies for registration and court

12  appointment as counsel in postconviction capital collateral

13  proceedings must certify that he or she is counsel of record

14  in not more than four such proceedings and, if appointed to

15  represent a person in postconviction capital collateral

16  proceedings, shall continue such representation under the

17  terms and conditions set forth in s. 27.711 until the sentence

18  is reversed, reduced, or carried out or unless permitted to

19  withdraw from representation by the trial court. The court may

20  not permit an attorney to withdraw from representation without

21  a finding of sufficient good cause. The court may impose

22  appropriate sanctions if it finds that an attorney has shown

23  bad faith with respect to continuing to represent a defendant

24  in a postconviction capital collateral proceeding. This

25  section does not preclude the court from reassigning a case to

26  a capital collateral regional counsel following

27  discontinuation of representation if a conflict of interest no

28  longer exists with respect to the case.

29         (4)  Each private attorney who is appointed by the

30  court to represent a capital defendant must enter into a

31  contract with the Comptroller. The executive director of the

                                  4

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  Commission on the Administration of Justice in Capital Cases

 2  shall develop the form of the contract and the Comptroller

 3  shall function as contract manager and shall enforce

 4  performance of the terms and conditions of the contract. By

 5  signing such contract, the attorney certifies that he or she

 6  intends to continue the representation under the terms and

 7  conditions set forth in the contract until the sentence is

 8  reversed, reduced, or carried out or until released by order

 9  of the trial court.

10         (5)  Upon notification by the Attorney General that:

11         (a)  Ninety-one days have elapsed since the Supreme

12  Court issued a mandate on a direct appeal, or the Supreme

13  Court of the United States has denied a petition for

14  certiorari, whichever is later;

15         (b)  A person under sentence of death who was

16  previously represented by private counsel is currently

17  unrepresented in a postconviction capital collateral

18  proceeding; or

19         (c)  The trial court has issued an order finding that a

20  year and a day have elapsed since the commencement of the

21  period for filing a motion for postconviction relief under s.

22  924.055(2), and the defendant's complete original motion for

23  postconviction relief has not been filed in the trial court,

24

25  the executive director shall immediately notify the trial

26  court that imposed the sentence of death that the court must

27  immediately appoint an attorney, selected from the current

28  registry, to represent such person in collateral actions

29  challenging the legality of the judgment and sentence in the

30  appropriate state and federal courts. The court shall have the

31  authority to strike a notice of appearance filed by a Capital

                                  5

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  Collateral Regional Counsel, if the court finds the notice was

 2  not filed in good faith and may so notify the executive

 3  director that the client is no longer represented by the

 4  Office of Capital Collateral Regional Counsel.  In making an

 5  assignment, the court shall give priority to attorneys whose

 6  experience and abilities in criminal law, especially in

 7  capital proceedings, are known by the court to be commensurate

 8  with the responsibility of representing a person sentenced to

 9  death. The trial court must issue an order of appointment

10  which contains specific findings that the appointed counsel

11  meets the statutory requirements and has the high ethical

12  standards necessary to represent a person sentenced to death.

13         (6)  More than one attorney may not be appointed and

14  compensated at any one time under s. 27.711 to represent a

15  person in postconviction capital collateral proceedings.

16         Section 4.  Section 27.711, Florida Statutes, is

17  created to read:

18         27.711  Terms and conditions of appointment of

19  attorneys as counsel in postconviction capital collateral

20  proceedings.--

21         (1)  As used in s. 27.710 and this section, the term:

22         (a)  "Capital defendant" means the person who is

23  represented in postconviction capital collateral proceedings

24  by an attorney appointed under s. 27.710.

25         (b)  "Executive director" means the executive director

26  of the Commission on the Administration of Justice in Capital

27  Cases.

28         (c)  "Postconviction capital collateral proceedings"

29  means one series of collateral litigation of an affirmed

30  conviction and sentence of death, including the proceedings in

31  the trial court that imposed the capital sentence, any

                                  6

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  appellate review of the sentence by the Supreme Court, any

 2  certiorari review of the sentence by the United States Supreme

 3  Court, and any authorized federal habeas corpus litigation

 4  with respect to the sentence. The term does not include

 5  repetitive or successive collateral challenges to a conviction

 6  and sentence of death which is affirmed by the Supreme Court

 7  and undisturbed by any collateral litigation.

 8         (2)  After appointment by the trial court under s.

 9  27.710, the attorney must immediately file a notice of

10  appearance with the trial court indicating acceptance of the

11  appointment to represent the capital defendant throughout all

12  postconviction capital collateral proceedings, including

13  federal habeas corpus proceedings, in accordance with this

14  section or until released by order of the trial court.

15         (3)  An attorney appointed to represent a capital

16  defendant is entitled to payment of the fees set forth in this

17  section only upon full performance by the attorney of the

18  duties specified in this section and approval of payment by

19  the trial court. The attorney shall maintain appropriate

20  documentation, including a current and detailed hourly

21  accounting of time spent representing the capital defendant.

22  The fee and payment schedule in this section is the exclusive

23  means of compensating a court-appointed attorney who

24  represents a capital defendant. When appropriate, a

25  court-appointed attorney must seek further compensation from

26  the Federal Government, as provided in 18 U.S.C. s. 3006A or

27  other federal law, in habeas corpus litigation in the federal

28  courts.

29         (4)  Upon approval by the trial court, an attorney

30  appointed to represent a capital defendant under s. 27.710 is

31  entitled to payment of the following fees by the Comptroller:

                                  7

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         (a)  Regardless of the stage of postconviction capital

 2  collateral proceedings, the attorney is entitled to $100 per

 3  hour, up to a maximum of $2,500, upon accepting appointment

 4  and filing a notice of appearance. This fee is in the nature

 5  of a fee for a retainer agreement.

 6         (b)  The attorney is entitled to $100 per hour, up to a

 7  maximum of $20,000, after timely filing in the trial court the

 8  capital defendant's complete original motion for

 9  postconviction relief under the Florida Rules of Criminal

10  Procedure. The motion must raise all issues to be addressed by

11  the trial court.

12         (c)  The attorney is entitled to $100 per hour, up to a

13  maximum of $10,000, after the trial court issues a final order

14  granting or denying the capital defendant's motion for

15  postconviction relief.

16         (d)  The attorney is entitled to $100 per hour, up to a

17  maximum of $4,000, after timely filing in the Supreme Court

18  the capital defendant's brief or briefs that address the trial

19  court's final order granting or denying the capital

20  defendant's motion for postconviction relief and the state

21  petition for writ of habeas corpus.

22         (e)  The attorney is entitled to $100 per hour, up to a

23  maximum of $20,000, after the appeal of the trial court's

24  denial of the capital defendant's motion for postconviction

25  relief and the capital defendant's state petition for writ of

26  habeas corpus become final in the Supreme Court.

27         (f)  At the conclusion of the capital defendant's

28  postconviction capital collateral proceedings in state court,

29  the attorney is entitled to $100 per hour, up to a maximum of

30  $2,500, after filing a petition for writ of certiorari in the

31  Supreme Court of the United States.

                                  8

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         (g)  If, at any time, the Supreme Court of the United

 2  States accepts for review the capital defendant's collateral

 3  challenge of the conviction and sentence of death, the

 4  attorney is entitled to $100 per hour, up to a maximum of

 5  $5,000. This payment shall be full compensation for

 6  representing the capital defendant throughout the certiorari

 7  proceedings before the United States Supreme Court.

 8

 9  The hours billed by a contracting attorney under this

10  subsection may include time devoted to representation of the

11  defendant by another attorney who is qualified under s. 27.710

12  and who has been designated by the contracting attorney to

13  assist him or her.

14         (5)  An attorney who represents a capital defendant may

15  use the services of one or more investigators to assist in

16  representing a capital defendant. Upon approval by the trial

17  court, the attorney is entitled to payment from the

18  Comptroller of $40 per hour, up to a maximum of $15,000, for

19  the purpose of paying for investigative services.

20         (6)  An attorney who represents a capital defendant is

21  entitled to a maximum of $5,000 for miscellaneous expenses,

22  such as the costs of preparing transcripts, compensating

23  expert witnesses, and copying documents. Upon approval by the

24  trial court, the attorney is entitled to payment by the

25  Comptroller for miscellaneous expenses.

26         (7)  By accepting court appointment under s. 27.710 to

27  represent a capital defendant, the attorney agrees to continue

28  such representation under the terms and conditions set forth

29  in this section until the capital defendant's sentence is

30  reversed, reduced, or carried out, and the attorney is

31  permitted to withdraw from such representation by a court of

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  competent jurisdiction.

 2         (8)  An attorney may not represent more than five

 3  capital defendants at any one time.

 4         (9)  This section does not authorize an attorney who

 5  represents a capital defendant to file repetitive or frivolous

 6  pleadings that are not supported by law or by the facts of the

 7  case. An action taken by an attorney who represents a capital

 8  defendant in postconviction capital collateral proceedings may

 9  not be the basis for a claim of ineffective assistance of

10  counsel.

11         (10)  An attorney appointed under s. 27.710 to

12  represent a capital defendant may not represent the capital

13  defendant during a retrial, a resentencing proceeding, a

14  proceeding commenced under chapter 940, a proceeding

15  challenging a conviction or sentence other than the conviction

16  and sentence of death for which the appointment was made, or

17  any civil litigation other than habeas corpus proceedings.

18         Section 5.  (1)(a)  There is created the Commission on

19  Legislative Reform of Judicial Administration, which shall

20  consist of twelve of the following members:

21         1.  Three members appointed by the Chief Justice of the

22  Florida Supreme Court.

23         2.  Three members appointed by the Speaker of the House

24  of Representatives.

25         3.  Three members appointed by the President of the

26  Senate.

27         4.  One member appointed by the Governor.

28         5.  One member appointed by the Public Defender's

29  Attorneys Association.

30         6.  One member appointed by the Florida Prosecuting

31  Attorneys' Association.

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         (b)  The Chair of the Commission shall be selected by

 2  the members.

 3         (c)  The Commission shall meet at least monthly, and

 4  other meetings may be called by the chair upon giving at least

 5  7 days notice to all members and the public.

 6         (d)  Members of the commission are entitled to per diem

 7  and travel expenses to be paid by the appointing authority.

 8  (e)  The initial members of the commission shall be appointed

 9  on or before July 15, 1998. A member's term shall expire upon

10  submission of the report to the Legislature.

11         (f)  The staff of the Commission of the Administration

12  of Justice in Capital Cases shall staff the commission.

13         (2)  The Commission shall study the feasibility of

14  judicial administration reforms, including but not limited to,

15  appropriate minimum standards, if any, for counsel in capital

16  cases; the feasibility of authorizing cross circuit

17  assignments of Public Defenders to minimize the cost of

18  representation in conflicts-of-interest cases; the potential

19  resolutions of the inability of the Office of the Public

20  Defender for the Tenth Judicial Circuit to represent indigent

21  criminal defendants on appeal in a timely fashion, and other

22  issues regarding indigent criminal appeals; and other judicial

23  reforms that could expedite justice and reduce costs in

24  judicial administration.  The Commission shall submit a report

25  to the Speaker of the House of Representatives and the

26  President of the Senate no later than January 1, 1999,

27  containing their recommendations.  The Commission's authority

28  will expire on January 4, 1999, and the term of office of each

29  member will expire on that date.

30         Section 6.  This act shall take effect July 1, 1998.

31

                                  11

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3         On page 1, line 2, through page 3, line 21,

 4  remove from the title of the bill:  all of said lines

 5

 6  and insert in lieu thereof:

 7         An act relating to judicial administration;

 8         requesting that the Division of Statutory

 9         Revision designate part IV of ch. 27, F.S., as

10         "Capital Collateral Representation"; amending

11         s. 27.702, F.S.; deleting a requirement that

12         specifies the time for the capital collateral

13         regional counsel to commence the representation

14         of a person sentenced to death; creating s.

15         27.710, F.S.; requiring that the executive

16         director of the Commission on the

17         Administration of Justice in Capital Cases

18         maintain a registry of attorneys in private

19         practice who are available to be appointed to

20         represent defendants in postconviction capital

21         collateral proceedings; authorizing the

22         executive director to obtain names of attorneys

23         who may register for appointment; providing

24         eligibility requirements for appointment as

25         counsel in postconviction capital collateral

26         proceedings; providing for appointment of an

27         attorney selected from the registry; limiting

28         the circumstances under which the court may

29         permit an attorney to withdraw from

30         representation following appointment;

31         authorizing the court to impose sanctions;

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         requiring that appointed counsel enter into a

 2         contract with the Comptroller; providing for

 3         the Comptroller to enforce performance of the

 4         contract; providing that more than one attorney

 5         may not be appointed at any one time to

 6         represent a capital defendant; creating s.

 7         27.711, F.S.; requiring that an attorney

 8         appointed to represent a capital defendant file

 9         a notice of appearance; providing a schedule of

10         fees to which the attorney is entitled for

11         specified appearances and representations;

12         requiring that the trial court approve the

13         payment of costs and fees; providing that such

14         fees constitute the exclusive means of

15         compensation for such representation;

16         authorizing compensation as provided by federal

17         law under certain circumstances; authorizing

18         the use of investigative services and the

19         payment of fees for such services; providing

20         that by accepting appointment to represent a

21         capital defendant the attorney agrees to

22         continue such representation until the

23         defendant's sentence is reversed, reduced, or

24         carried out; limiting the number of capital

25         defendants that an attorney may represent;

26         prohibiting a claim of ineffective assistance

27         of counsel based on an action by the attorney

28         who represents a capital defendant; prohibiting

29         the attorney from representing the capital

30         defendant in certain other proceedings;

31         creating the Commission on Legislative Reform

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                                                   HOUSE AMENDMENT

                                 Bill No. CS for SB 1328, 1st Eng.

    Amendment No. 1 (for drafter's use only)





 1         of Judicial Administrating to study judicial

 2         administration reform; providing an effective

 3         date.

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