Senate Bill 1328

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    Florida Senate - 1998                                  SB 1328

    By Senator Burt





    16-1385-98

  1                      A bill to be entitled

  2         An act relating to postconviction capital

  3         collateral proceedings; requesting that the

  4         Division of Statutory Revision designate part

  5         IV of ch. 27, F.S., as "Capital Collateral

  6         Representation"; amending s. 27.702, F.S.;

  7         deleting a requirement that specifies the time

  8         for the capital collateral regional counsel to

  9         commence the representation of a person

10         sentenced to death; creating s. 27.710, F.S.;

11         requiring that the Justice Administrative

12         Commission maintain a registry of attorneys in

13         private practice who are available to be

14         appointed to represent defendants in

15         postconviction capital collateral proceedings;

16         authorizing the commission to obtain names of

17         attorneys who may register for appointment;

18         providing eligibility requirements for

19         appointment as counsel in postconviction

20         capital collateral proceedings; providing for

21         appointment of an attorney selected from the

22         registry; providing that more than one attorney

23         may not be appointed at any one time to

24         represent a capital defendant; creating s.

25         27.711, F.S.; requiring that an attorney

26         appointed to represent a capital defendant file

27         a notice of appearance; providing a schedule of

28         fees to which the attorney is entitled for

29         specified appearances and representations;

30         providing that such fees constitute the

31         exclusive means of compensation for such

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    Florida Senate - 1998                                  SB 1328
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  1         representation; authorizing compensation as

  2         provided by federal law under certain

  3         circumstances; authorizing the use of

  4         investigative services and the payment of fees

  5         for such services; providing that by accepting

  6         appointment to represent a capital defendant

  7         the attorney agrees to continue such

  8         representation until the defendant's sentence

  9         is reversed, reduced, or carried out; limiting

10         the number of capital defendants that an

11         attorney may represent; prohibiting a claim of

12         ineffective assistance of counsel based on an

13         action by the attorney who represents a capital

14         defendant; prohibiting the attorney from

15         representing the capital defendant in certain

16         other proceedings; providing an effective date.

17

18  Be It Enacted by the Legislature of the State of Florida:

19

20         Section 1.  The Division of Statutory Revision is

21  requested to designate part IV of chapter 27, Florida

22  Statutes, as "Capital Collateral Representation."

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

24  Florida Statutes, are amended to read:

25         27.702  Duties of the capital collateral regional

26  counsel; reports.--

27         (1)  The capital collateral regional counsel shall

28  represent each person convicted and sentenced to death in this

29  state for the sole purpose of instituting and prosecuting

30  collateral actions challenging the legality of the judgment

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

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    Florida Senate - 1998                                  SB 1328
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  1  federal courts in this state, the United States Court of

  2  Appeals for the Eleventh Circuit, and the United States

  3  Supreme Court.  Representation by the regional counsel shall

  4  commence automatically upon termination of direct appellate

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

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

  7  or the United States Supreme Court denies a petition for

  8  certiorari, whichever is later, the capital collateral

  9  regional counsel shall file a notice of appearance in the

10  trial court in which the judgment and sentence were entered

11  and shall secure all direct-appeal files for collateral

12  representation.  Upon receipt of files from the public

13  defender or other counsel, the capital collateral regional

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

15  office for investigation, client contact, and any further

16  action the circumstances 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 shall

28  represent persons each person convicted and sentenced to death

29  within the region in collateral postconviction proceedings,

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

31  counsel of record.

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    Florida Senate - 1998                                  SB 1328
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  1         Section 3.  Section 27.710, Florida Statutes, is

  2  created to read:

  3         27.710  Registry of attorneys applying to represent

  4  persons in postconviction capital collateral proceedings;

  5  certification of minimum requirements; appointment by trial

  6  court.--

  7         (1)  The Justice Administrative Commission shall

  8  compile and maintain a statewide registry of attorneys in

  9  private practice who have certified that they meet the minimum

10  requirements of s. 27.704(2) and who are available for

11  appointment by the court under this section to represent

12  persons convicted and sentenced to death in this state in

13  postconviction capital collateral proceedings. To ensure that

14  sufficient attorneys are available for appointment by the

15  court, when the number of attorneys on the registry falls

16  below 50, the Justice Administrative Commission shall notify

17  the chief judge of each circuit by letter and request the

18  chief judge to promptly submit the names of at least three

19  private attorneys who regularly practice criminal law in that

20  circuit and who appear to meet the minimum requirements to

21  represent persons in postconviction capital collateral

22  proceedings. The Justice Administrative Commission shall send

23  an application to each attorney identified by the chief judge

24  so that the attorney may register for appointment as counsel

25  in postconviction capital collateral proceedings. As

26  necessary, the Justice Administrative Commission may also

27  advertise in legal publications and other appropriate media

28  for qualified attorneys interested in registering for

29  appointment as counsel in postconviction capital collateral

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

31  necessary thereafter, the Justice Administrative Commission

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    Florida Senate - 1998                                  SB 1328
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  1  shall provide to the Chief Justice of the Supreme Court, the

  2  chief judge and state attorney in each judicial circuit, and

  3  the Attorney General a current copy of its registry of

  4  attorneys who are available for appointment as counsel in

  5  postconviction capital collateral proceedings. The registry

  6  must be indexed by judicial circuit and must contain the

  7  requisite information submitted by the applicants in

  8  accordance with this section.

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

10  postconviction capital collateral proceedings, an attorney

11  must certify on an application provided by the Justice

12  Administrative Commission that he or she satisfies the minimum

13  requirements for private counsel set forth in s. 27.704(2).

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

15  appointment as counsel in postconviction capital collateral

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

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

18  represent a person in postconviction capital collateral

19  proceedings, intends to continue such representation under the

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

21  is reversed, reduced, or carried out.

22         (4)  Upon notification by the Attorney General that:

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

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

25  Court of the United States has denied a petition for

26  certiorari, whichever is later; or

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

28  previously represented by private counsel is currently

29  unrepresented in a postconviction capital collateral

30  proceeding,

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    Florida Senate - 1998                                  SB 1328
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  1  the Justice Administrative Commission shall immediately notify

  2  the trial court that imposed the sentence of death that the

  3  court must immediately appoint an attorney, selected from the

  4  current registry, to represent such person in collateral

  5  actions challenging the legality of the judgment and sentence

  6  in the appropriate state and federal courts. In making an

  7  assignment, the court shall give priority to attorneys whose

  8  experience and abilities in criminal law, especially in

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

10  with the responsibility of representing a person sentenced to

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

12  which contains specific findings that the appointed counsel

13  meets the statutory requirements and has the high ethical

14  standards necessary to represent a person sentenced to death.

15         (5)  More than one attorney may not be appointed and

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

17  person in postconviction capital collateral proceedings.

18         Section 4.  Section 27.711, Florida Statutes, is

19  created to read:

20         27.711  Terms and conditions of appointment of

21  attorneys as counsel in postconviction capital collateral

22  proceedings.--

23         (1)  As used in this section, the term:

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

25  represented in postconviction capital collateral proceedings

26  by an attorney appointed under s. 27.710.

27         (b)  "Postconviction capital collateral proceedings"

28  means one series of collateral litigation of an affirmed

29  conviction and sentence of death, including the proceedings in

30  the trial court that imposed the capital sentence, any

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

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    Florida Senate - 1998                                  SB 1328
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  1  certiorari review of the sentence by the United States Supreme

  2  Court, and any authorized federal habeas corpus litigation

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

  4  repetitive or successive collateral challenges to a conviction

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

  6  and undisturbed by any collateral litigation.

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

  8  27.710, the attorney must immediately file a notice of

  9  appearance with the trial court indicating acceptance of the

10  appointment to represent the capital defendant throughout all

11  postconviction capital collateral proceedings in accordance

12  with this section or until released by order of the trial

13  court.

14         (3)  An attorney appointed to represent a capital

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

16  section only upon full performance by the attorney of the

17  duties specified in this section and submission of the

18  appropriate documentation to the Justice Administrative

19  Commission. Appropriate documentation must include a current

20  and detailed hourly accounting of time spent representing the

21  capital defendant. The fee and payment schedule in this

22  section is, for the state and any of its political

23  subdivisions, the exclusive means of compensating a

24  court-appointed attorney who represents a capital defendant.

25  When appropriate, a court-appointed attorney may seek further

26  compensation from the Federal Government, as provided in 18

27  U.S.C. s. 3006A or other federal law, in habeas corpus

28  litigation in the federal courts.

29         (4)  An attorney appointed to represent a capital

30  defendant under s. 27.710 is entitled to payment of the

31  following fees by the Justice Administrative Commission:

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    Florida Senate - 1998                                  SB 1328
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  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 submitting to the Justice Administrative Commission copies

  5  of the trial court's order of assignment and the attorney's

  6  notice of appearance. This fee is in the nature of a fee for a

  7  retainer agreement.

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

  9  maximum of $2,500, after timely filing in the trial court the

10  capital defendant's complete original motion for

11  postconviction relief under the Florida Rules of Criminal

12  Procedure and upon submitting an affidavit to the Justice

13  Administrative Commission which states that such motion fully

14  raises all issues to be addressed by the trial court and is

15  timely filed.

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

17  maximum of $2,500, after the trial court issues a final order

18  granting or denying the capital defendant's motion for

19  postconviction relief and upon submitting to the Justice

20  Administrative Commission a copy of the trial court's final

21  order granting or denying the capital defendant's original

22  motion for postconviction relief.

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

24  maximum of $2,500, after timely filing in the Supreme Court

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

26  court's final order granting or denying the capital

27  defendant's motion for postconviction relief and the state

28  petition for writ of habeas corpus. The attorney is entitled

29  to such payment upon submitting an affidavit to the Justice

30  Administrative Commission which states that such brief was

31  timely filed.

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

  2  maximum of $2,500, after the appeal of the trial court's

  3  denial of the capital defendant's motion for postconviction

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

  5  habeas corpus become final in the Supreme Court. The attorney

  6  is entitled to such payment upon submitting a copy of the

  7  mandate of the Supreme Court to the Justice Administrative

  8  Commission.

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

10  postconviction capital collateral proceedings in state court,

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

12  $2,500, after filing a petition for writ of certiorari in the

13  Supreme Court of the United States and upon submitting an

14  affidavit to the Justice Administrative Commission which

15  states that such petition was timely filed.

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

17  States accepts for review the capital defendant's collateral

18  challenge of the conviction and sentence of death, the

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

20  $2,500, upon submitting to the Justice Administrative

21  Commission an affidavit that states that the case has been

22  accepted for review. This payment shall be full compensation

23  for representing the capital defendant throughout the

24  certiorari proceedings before the United States Supreme Court.

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

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

27  representing a capital defendant who is collaterally

28  challenging his or her judgment and sentence of death. Upon

29  submission by the attorney of an affidavit to the Justice

30  Administrative Commission which states that the services of an

31  investigator are necessary to properly prepare the capital

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    Florida Senate - 1998                                  SB 1328
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  1  defendant's original postconviction collateral challenge to

  2  the conviction and sentence in the trial court, the attorney

  3  is entitled to payment from the Justice Administrative

  4  Commission of $20 per hour, up to a maximum of $1,000, for the

  5  purpose of paying for investigative services.

  6         (6)  By accepting court appointment under s. 27.710 to

  7  represent a capital defendant, the attorney agrees to continue

  8  such representation under the terms and conditions set forth

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

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

11  permitted to withdraw from such representation by a court of

12  competent jurisdiction.

13         (7)  An attorney may not represent more than five

14  capital defendants at any one time.

15         (8)  This section does not authorize an attorney who

16  represents a capital defendant to file repetitive or frivolous

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

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

19  defendant in postconviction capital collateral proceedings may

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

21  counsel.

22         (9)  An attorney appointed under s. 27.710 to represent

23  a capital defendant may not represent the capital defendant

24  during a retrial, a resentencing proceeding, a proceeding

25  commenced under chapter 940, a proceeding challenging a

26  conviction or sentence other than the conviction and sentence

27  of death for which the appointment was made, or any civil

28  litigation other than habeas corpus proceedings.

29         Section 5.  This act shall take effect July 1, 1998.

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  2                          SENATE SUMMARY

  3    Requires that the Justice Administrative Commission
      maintain a statewide registry of attorneys in private
  4    practice who are qualified and available to represent
      persons sentenced to death in postconviction collateral
  5    proceedings. Provides for the trial court to select an
      attorney from the registry and issue an order or
  6    appointment. Provides that, by accepting such
      appointment, the attorney agrees to represent the capital
  7    defendant until the defendant's sentence is reversed,
      reduced, or carried out. Specifies the amount of fees
  8    that may be paid to the attorney who represents a capital
      defendant at specified stages of litigation. Prohibits an
  9    attorney from representing more than five capital
      defendants at any one time. Provides that an action by
10    the attorney may not be the basis for a claim of
      ineffective assistance of counsel. (See bill for
11    details.)

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