Senate Bill 1328c1

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    Florida Senate - 1998                           CS for SB 1328

    By the Committee on Criminal Justice and Senator Burt





    307-1688-98

  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 executive director of the

12         Commission on the Administration of Justice in

13         Capital Cases maintain a registry of attorneys

14         in private practice who are available to be

15         appointed to represent defendants in

16         postconviction capital collateral proceedings;

17         authorizing the executive director to obtain

18         names of attorneys who may register for

19         appointment; providing eligibility requirements

20         for appointment as counsel in postconviction

21         capital collateral proceedings; providing for

22         appointment of an attorney selected from the

23         registry; providing that more than one attorney

24         may not be appointed at any one time to

25         represent a capital defendant; creating s.

26         27.711, F.S.; requiring that an attorney

27         appointed to represent a capital defendant file

28         a notice of appearance; providing a schedule of

29         fees to which the attorney is entitled for

30         specified appearances and representations;

31         providing that such fees constitute the

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    Florida Senate - 1998                           CS for SB 1328
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  1         exclusive means of compensation for such

  2         representation; authorizing compensation as

  3         provided by federal law under certain

  4         circumstances; authorizing the use of

  5         investigative services and the payment of fees

  6         for such services; providing that by accepting

  7         appointment to represent a capital defendant

  8         the attorney agrees to continue such

  9         representation until the defendant's sentence

10         is reversed, reduced, or carried out; limiting

11         the number of capital defendants that an

12         attorney may represent; prohibiting a claim of

13         ineffective assistance of counsel based on an

14         action by the attorney who represents a capital

15         defendant; prohibiting the attorney from

16         representing the capital defendant in certain

17         other proceedings; providing an effective date.

18

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

20

21         Section 1.  The Division of Statutory Revision is

22  requested to designate part IV of chapter 27, Florida

23  Statutes, as "Capital Collateral Representation."

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

25  Florida Statutes, are amended to read:

26         27.702  Duties of the capital collateral regional

27  counsel; reports.--

28         (1)  The capital collateral regional counsel shall

29  represent each person convicted and sentenced to death in this

30  state for the sole purpose of instituting and prosecuting

31  collateral actions challenging the legality of the judgment

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    Florida Senate - 1998                           CS for SB 1328
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  1  and sentence imposed against such person in the state courts,

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

  3  Appeals for the Eleventh Circuit, and the United States

  4  Supreme Court.  Representation by the regional counsel shall

  5  commence automatically upon termination of direct appellate

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

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

  8  or the United States Supreme Court denies a petition for

  9  certiorari, whichever is later, the capital collateral

10  regional counsel shall file a notice of appearance in the

11  trial court in which the judgment and sentence were entered

12  and shall secure all direct-appeal files for collateral

13  representation.  Upon receipt of files from the public

14  defender or other counsel, the capital collateral regional

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

16  office for investigation, client contact, and any further

17  action the circumstances warrant. The three capital collateral

18  regional counsels' offices shall function independently and be

19  separate budget entities, and the regional counsels shall be

20  the office heads for all purposes. The Justice Administrative

21  Commission shall provide administrative support and service to

22  the three offices to the extent requested by the regional

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

24  control, supervision, or direction by the Justice

25  Administrative Commission in any manner, including, but not

26  limited to, personnel, purchasing, transactions involving real

27  or personal property, and budgetary matters.

28         (2)  The capital collateral regional counsel shall

29  represent persons each person convicted and sentenced to death

30  within the region in collateral postconviction proceedings,

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    Florida Senate - 1998                           CS for SB 1328
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  1  unless a court appoints or permits other counsel to appear as

  2  counsel of record.

  3         Section 3.  Section 27.710, Florida Statutes, is

  4  created to read:

  5         27.710  Registry of attorneys applying to represent

  6  persons in postconviction capital collateral proceedings;

  7  certification of minimum requirements; appointment by trial

  8  court.--

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

10  Administration of Justice in Capital Cases shall compile and

11  maintain a statewide registry of attorneys in private practice

12  who have certified that they meet the minimum requirements of

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

14  court under this section to represent persons convicted and

15  sentenced to death in this state in postconviction capital

16  collateral proceedings. To ensure that sufficient attorneys

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

18  attorneys on the registry falls below 50, the executive

19  director shall notify the chief judge of each circuit by

20  letter and request the chief judge to promptly submit the

21  names of at least three private attorneys who regularly

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

23  the minimum requirements to represent persons in

24  postconviction capital collateral proceedings. The executive

25  director shall send an application to each attorney identified

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

27  appointment as counsel in postconviction capital collateral

28  proceedings. As necessary, the executive director may also

29  advertise in legal publications and other appropriate media

30  for qualified attorneys interested in registering for

31  appointment as counsel in postconviction capital collateral

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

  2  necessary thereafter, the executive director shall provide to

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

  4  state attorney in each judicial circuit, and the Attorney

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

  6  available for appointment as counsel in postconviction capital

  7  collateral proceedings. The registry must be indexed by

  8  judicial circuit and must contain the requisite information

  9  submitted by the applicants in accordance with this section.

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

11  postconviction capital collateral proceedings, an attorney

12  must certify on an application provided by the executive

13  director that he or she satisfies the minimum requirements for

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

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

16  appointment as counsel in postconviction capital collateral

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

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

19  represent a person in postconviction capital collateral

20  proceedings, intends to continue such representation under the

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

22  is reversed, reduced, or carried out.

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

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

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

26  Court of the United States has denied a petition for

27  certiorari, whichever is later; or

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

29  previously represented by private counsel is currently

30  unrepresented in a postconviction capital collateral

31  proceeding,

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  2  the executive director shall immediately notify the trial

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

  4  immediately appoint an attorney, selected from the current

  5  registry, to represent such person in collateral actions

  6  challenging the legality of the judgment and sentence in the

  7  appropriate state and federal courts. In making an assignment,

  8  the court shall give priority to attorneys whose experience

  9  and abilities in criminal law, especially in capital

10  proceedings, are known by the court to be commensurate with

11  the responsibility of representing a person sentenced to

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

13  which contains specific findings that the appointed counsel

14  meets the statutory requirements and has the high ethical

15  standards necessary to represent a person sentenced to death.

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

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

18  person in postconviction capital collateral proceedings.

19         Section 4.  Section 27.711, Florida Statutes, is

20  created to read:

21         27.711  Terms and conditions of appointment of

22  attorneys as counsel in postconviction capital collateral

23  proceedings.--

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

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

26  represented in postconviction capital collateral proceedings

27  by an attorney appointed under s. 27.710.

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

29  of the Commission on the Administration of Justice in Capital

30  Cases.

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    Florida Senate - 1998                           CS for SB 1328
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  1         (c)  "Postconviction capital collateral proceedings"

  2  means one series of collateral litigation of an affirmed

  3  conviction and sentence of death, including the proceedings in

  4  the trial court that imposed the capital sentence, any

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

  6  certiorari review of the sentence by the United States Supreme

  7  Court, and any authorized federal habeas corpus litigation

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

  9  repetitive or successive collateral challenges to a conviction

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

11  and undisturbed by any collateral litigation.

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

13  27.710, the attorney must immediately file a notice of

14  appearance with the trial court indicating acceptance of the

15  appointment to represent the capital defendant throughout all

16  postconviction capital collateral proceedings in accordance

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

18  court.

19         (3)  An attorney appointed to represent a capital

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

21  section only upon full performance by the attorney of the

22  duties specified in this section and submission of the

23  appropriate documentation to the Justice Administrative

24  Commission and the executive director. Appropriate

25  documentation must include a current and detailed hourly

26  accounting of time spent representing the capital defendant.

27  The fee and payment schedule in this section is, for the state

28  and any of its political subdivisions, the exclusive means of

29  compensating a court-appointed attorney who represents a

30  capital defendant. When appropriate, a court-appointed

31  attorney may seek further compensation from the Federal

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  1  Government, as provided in 18 U.S.C. s. 3006A or other federal

  2  law, in habeas corpus litigation in the federal courts.

  3         (4)  An attorney appointed to represent a capital

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

  5  following fees by the Justice Administrative Commission:

  6         (a)  Regardless of the stage of postconviction capital

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

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

  9  and submitting to the executive director and the Justice

10  Administrative Commission copies of the trial court's order of

11  assignment and the attorney's notice of appearance. This fee

12  is in the nature of a fee for a retainer agreement.

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

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

15  capital defendant's complete original motion for

16  postconviction relief under the Florida Rules of Criminal

17  Procedure and upon submitting to the executive director and

18  the Justice Administrative Commission an affidavit that states

19  that such motion fully raises all issues to be addressed by

20  the trial court and is timely filed.

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

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

23  granting or denying the capital defendant's motion for

24  postconviction relief and upon submitting to the executive

25  director and the Justice Administrative Commission a copy of

26  the trial court's final order granting or denying the capital

27  defendant's original motion for postconviction relief.

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

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

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

31  court's final order granting or denying the capital

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    Florida Senate - 1998                           CS for SB 1328
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  1  defendant's motion for postconviction relief and the state

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

  3  to such payment upon submitting to the executive director and

  4  the Justice Administrative Commission an affidavit that states

  5  that such brief was timely filed.

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

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

  8  denial of the capital defendant's motion for postconviction

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

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

11  is entitled to such payment upon submitting to the executive

12  director and the Justice Administrative Commission a copy of

13  the mandate of the Supreme Court.

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

15  postconviction capital collateral proceedings in state court,

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

17  $2,500, after filing a petition for writ of certiorari in the

18  Supreme Court of the United States and upon submitting to the

19  executive director and the Justice Administrative Commission

20  an affidavit that states that such petition was timely filed.

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

22  States accepts for review the capital defendant's collateral

23  challenge of the conviction and sentence of death, the

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

25  $5,000, upon submitting to the executive director and the

26  Justice Administrative Commission an affidavit that states

27  that the case has been accepted for review. This payment shall

28  be full compensation for representing the capital defendant

29  throughout the certiorari proceedings before the United States

30  Supreme Court.

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    Florida Senate - 1998                           CS for SB 1328
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  1         (5)  An attorney who represents a capital defendant may

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

  3  representing a capital defendant who is collaterally

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

  5  submission by the attorney to the executive director and the

  6  Justice Administrative Commission an affidavit that states

  7  that the services of an investigator are necessary to properly

  8  prepare the capital defendant's original postconviction

  9  collateral challenge to the conviction and sentence in the

10  trial court, the attorney is entitled to payment from the

11  Justice Administrative Commission of $40 per hour, up to a

12  maximum of $15,000, for the purpose of paying for

13  investigative services.

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

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

16  such as the costs of preparing transcripts, compensating

17  expert witnesses, and copying documents. Upon submission by

18  the attorney to the executive director and the Justice

19  Administrative Commission of an affidavit that states the

20  nature of the expenses, the attorney is entitled to payment by

21  the Justice Administrative Commission.

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

23  represent a capital defendant, the attorney agrees to continue

24  such representation under the terms and conditions set forth

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

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

27  permitted to withdraw from such representation by a court of

28  competent jurisdiction.

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

30  capital defendants at any one time.

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

  2  represents a capital defendant to file repetitive or frivolous

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

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

  5  defendant in postconviction capital collateral proceedings may

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

  7  counsel.

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

  9  represent a capital defendant may not represent the capital

10  defendant during a retrial, a resentencing proceeding, a

11  proceeding commenced under chapter 940, a proceeding

12  challenging a conviction or sentence other than the conviction

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

14  any civil litigation other than habeas corpus proceedings.

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

16

17          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
18                         Senate Bill 1328

19

20  .    Shifts the responsibility for compiling and maintaining
         the attorney registry from the Justice Administrative
21       Commission to the executive director of the
         Administration of Justice in Capital Cases.
22
    .    Provides that the executive director of the
23       Administration of Justice in Capital Cases instead of the
         Justice Administrative Commission must notify the court
24       that private counsel must be appointed.

25  .    Amends the fee schedule to increase the maximum fee cap
         for the various stages of the appeal.
26
    .    Provides for the payment of miscellaneous expenses to the
27       attorney.

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