Senate Bill 1328er

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  1

  2         An act relating to judicial administration;

  3         requesting that the Division of Statutory

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

  5         "Capital Collateral Representation"; amending

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

  7         specifies the time for the capital collateral

  8         regional counsel to commence the representation

  9         of a person sentenced to death; creating s.

10         27.710, F.S.; requiring that the executive

11         director of the Commission on the

12         Administration of Justice in Capital Cases

13         maintain a registry of attorneys in private

14         practice who are available to be appointed to

15         represent defendants in postconviction capital

16         collateral proceedings; authorizing the

17         executive director to obtain names of attorneys

18         who may register for appointment; providing

19         eligibility requirements for appointment as

20         counsel in postconviction capital collateral

21         proceedings; providing for appointment of an

22         attorney selected from the registry; limiting

23         the circumstances under which the court may

24         permit an attorney to withdraw from

25         representation following appointment;

26         authorizing the court to impose sanctions;

27         requiring that appointed counsel enter into a

28         contract with the Comptroller; providing for

29         the Comptroller to enforce performance of the

30         contract; providing that more than one attorney

31         may not be appointed at any one time to


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  1         represent a capital defendant; creating s.

  2         27.711, F.S.; requiring that an attorney

  3         appointed to represent a capital defendant file

  4         a notice of appearance; providing a schedule of

  5         fees to which the attorney is entitled for

  6         specified appearances and representations;

  7         requiring that the trial court approve the

  8         payment of costs and fees; providing that such

  9         fees constitute the exclusive means of

10         compensation for such representation;

11         authorizing compensation as provided by federal

12         law under certain circumstances; authorizing

13         the use of investigative services and the

14         payment of fees for such services; providing

15         that by accepting appointment to represent a

16         capital defendant the attorney agrees to

17         continue such representation until the

18         defendant's sentence is reversed, reduced, or

19         carried out; limiting the number of capital

20         defendants that an attorney may represent;

21         prohibiting a claim of ineffective assistance

22         of counsel based on an action by the attorney

23         who represents a capital defendant; prohibiting

24         the attorney from representing the capital

25         defendant in certain other proceedings;

26         creating the Commission on Legislative Reform

27         of Judicial Administrating to study judicial

28         administration reform; providing an

29         appropriation; providing an effective date.

30

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


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  1         Section 1.  The Division of Statutory Revision is

  2  requested to designate part IV of chapter 27, Florida

  3  Statutes, as "Capital Collateral Representation."

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

  5  Florida Statutes, are amended to read:

  6         27.702  Duties of the capital collateral regional

  7  counsel; reports.--

  8         (1)  The capital collateral regional counsel shall

  9  represent each person convicted and sentenced to death in this

10  state for the sole purpose of instituting and prosecuting

11  collateral actions challenging the legality of the judgment

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

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

14  Appeals for the Eleventh Circuit, and the United States

15  Supreme Court.  Representation by the regional counsel shall

16  commence automatically upon termination of direct appellate

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

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

19  or the United States Supreme Court denies a petition for

20  certiorari, whichever is later, the capital collateral

21  regional counsel shall file a notice of appearance in the

22  trial court in which the judgment and sentence were entered

23  and shall secure all direct appeal files for collateral

24  representation.  Upon receipt of files from the public

25  defender or other counsel, the capital collateral regional

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

27  office for investigation, client contact, and any further

28  action the circumstances warrant. The three capital collateral

29  regional counsels' offices shall function independently and be

30  separate budget entities, and the regional counsels shall be

31  the office heads for all purposes. The Justice Administrative


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  1  Commission shall provide administrative support and service to

  2  the three offices to the extent requested by the regional

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

  4  control, supervision, or direction by the Justice

  5  Administrative Commission in any manner, including, but not

  6  limited to, personnel, purchasing, transactions involving real

  7  or personal property, and budgetary matters.

  8         (2)  The capital collateral regional counsel shall

  9  represent persons each person convicted and sentenced to death

10  within the region in collateral postconviction proceedings,

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

12  counsel of record.

13         Section 3.  Section 27.710, Florida Statutes, is

14  created to read:

15         27.710  Registry of attorneys applying to represent

16  persons in postconviction capital collateral proceedings;

17  certification of minimum requirements; appointment by trial

18  court.--

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

20  Administration of Justice in Capital Cases shall compile and

21  maintain a statewide registry of attorneys in private practice

22  who have certified that they meet the minimum requirements of

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

24  court under this section to represent persons convicted and

25  sentenced to death in this state in postconviction capital

26  collateral proceedings. To ensure that sufficient attorneys

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

28  attorneys on the registry falls below 50, the executive

29  director shall notify the chief judge of each circuit by

30  letter and request the chief judge to promptly submit the

31  names of at least three private attorneys who regularly


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

  2  the minimum requirements to represent persons in

  3  postconviction capital collateral proceedings. The executive

  4  director shall send an application to each attorney identified

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

  6  appointment as counsel in postconviction capital collateral

  7  proceedings. As necessary, the executive director may also

  8  advertise in legal publications and other appropriate media

  9  for qualified attorneys interested in registering for

10  appointment as counsel in postconviction capital collateral

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

12  necessary thereafter, the executive director shall provide to

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

14  state attorney in each judicial circuit, and the Attorney

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

16  available for appointment as counsel in postconviction capital

17  collateral proceedings. The registry must be indexed by

18  judicial circuit and must contain the requisite information

19  submitted by the applicants in accordance with this section.

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

21  postconviction capital collateral proceedings, an attorney

22  must certify on an application provided by the executive

23  director that he or she satisfies the minimum requirements for

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

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

26  appointment as counsel in postconviction capital collateral

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

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

29  represent a person in postconviction capital collateral

30  proceedings, shall continue such representation under the

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


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

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

  3  not permit an attorney to withdraw from representation without

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

  5  appropriate sanctions if it finds that an attorney has shown

  6  bad faith with respect to continuing to represent a defendant

  7  in a postconviction capital collateral proceeding. This

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

  9  a capital collateral regional counsel following

10  discontinuation of representation if a conflict of interest no

11  longer exists with respect to the case.

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

13  court to represent a capital defendant must enter into a

14  contract with the Comptroller. The executive director of the

15  Commission on the Administration of Justice in Capital Cases

16  shall develop the form of the contract and the Comptroller

17  shall function as contract manager and shall enforce

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

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

20  intends to continue the representation under the terms and

21  conditions set forth in the contract until the sentence is

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

23  of the trial court.

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

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

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

27  Court of the United States has denied a petition for

28  certiorari, whichever is later;

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

30  previously represented by private counsel is currently

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  1  unrepresented in a postconviction capital collateral

  2  proceeding; or

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

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

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

  6  924.055(2), and the defendant's complete original motion for

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

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  9  the executive director shall immediately notify the trial

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

11  immediately appoint an attorney, selected from the current

12  registry, to represent such person in collateral actions

13  challenging the legality of the judgment and sentence in the

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

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

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

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

18  director that the client is no longer represented by the

19  Office of Capital Collateral Regional Counsel.  In making an

20  assignment, the court shall give priority to attorneys whose

21  experience and abilities in criminal law, especially in

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

23  with the responsibility of representing a person sentenced to

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

25  which contains specific findings that the appointed counsel

26  meets the statutory requirements and has the high ethical

27  standards necessary to represent a person sentenced to death.

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

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

30  person in postconviction capital collateral proceedings.

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  1         Section 4.  Section 27.711, Florida Statutes, is

  2  created to read:

  3         27.711  Terms and conditions of appointment of

  4  attorneys as counsel in postconviction capital collateral

  5  proceedings.--

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

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

  8  represented in postconviction capital collateral proceedings

  9  by an attorney appointed under s. 27.710.

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

11  of the Commission on the Administration of Justice in Capital

12  Cases.

13         (c)  "Postconviction capital collateral proceedings"

14  means one series of collateral litigation of an affirmed

15  conviction and sentence of death, including the proceedings in

16  the trial court that imposed the capital sentence, any

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

18  certiorari review of the sentence by the United States Supreme

19  Court, and any authorized federal habeas corpus litigation

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

21  repetitive or successive collateral challenges to a conviction

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

23  and undisturbed by any collateral litigation.

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

25  27.710, the attorney must immediately file a notice of

26  appearance with the trial court indicating acceptance of the

27  appointment to represent the capital defendant throughout all

28  postconviction capital collateral proceedings, including

29  federal habeas corpus proceedings, in accordance with this

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

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  1         (3)  An attorney appointed to represent a capital

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

  3  section only upon full performance by the attorney of the

  4  duties specified in this section and approval of payment by

  5  the trial court, and the submission of a payment request by

  6  the attorney, subject to the availability of sufficient

  7  funding specifically appropriated for this purpose.  The

  8  Justice Administrative Commission shall notify the Executive

  9  Director and the court if it appears that sufficient funding

10  has not been specifically appropriated for this purpose to pay

11  any fees which may be incurred. The attorney shall maintain

12  appropriate documentation, including a current and detailed

13  hourly accounting of time spent representing the capital

14  defendant. The fee and payment schedule in this section is the

15  exclusive means of compensating a court-appointed attorney who

16  represents a capital defendant. When appropriate, a

17  court-appointed attorney must seek further compensation from

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

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

20  courts.

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

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

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

24         (a)  Regardless of the stage of postconviction capital

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

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

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

28  of a fee for a retainer agreement.

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

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

31  capital defendant's complete original motion for


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  1  postconviction relief under the Florida Rules of Criminal

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

  3  the trial court.

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

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

  6  granting or denying the capital defendant's motion for

  7  postconviction relief.

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

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

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

11  court's final order granting or denying the capital

12  defendant's motion for postconviction relief and the state

13  petition for writ of habeas corpus.

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

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

16  denial of the capital defendant's motion for postconviction

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

18  habeas corpus become final in the Supreme Court.

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

20  postconviction capital collateral proceedings in state court,

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

22  $2,500, after filing a petition for writ of certiorari in the

23  Supreme Court of the United States.

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

25  States accepts for review the capital defendant's collateral

26  challenge of the conviction and sentence of death, the

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

28  $5,000. This payment shall be full compensation for

29  representing the capital defendant throughout the certiorari

30  proceedings before the United States Supreme Court.

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  1  The hours billed by a contracting attorney under this

  2  subsection may include time devoted to representation of the

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

  4  and who has been designated by the contracting attorney to

  5  assist him or her.

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

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

  8  representing a capital defendant. Upon approval by the trial

  9  court, the attorney is entitled to payment from the

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

11  the purpose of paying for investigative services.

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

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

14  such as the costs of preparing transcripts, compensating

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

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

17  Comptroller for miscellaneous expenses.

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

19  represent a capital defendant, the attorney agrees to continue

20  such representation under the terms and conditions set forth

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

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

23  permitted to withdraw from such representation by a court of

24  competent jurisdiction.

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

26  capital defendants at any one time.

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

28  represents a capital defendant to file repetitive or frivolous

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

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

31  defendant in postconviction capital collateral proceedings may


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

  2  counsel.

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

  4  represent a capital defendant may not represent the capital

  5  defendant during a retrial, a resentencing proceeding, a

  6  proceeding commenced under chapter 940, a proceeding

  7  challenging a conviction or sentence other than the conviction

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

  9  any civil litigation other than habeas corpus proceedings.

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

11  Legislative Reform of Judicial Administration, which shall

12  consist of twelve of the following members:

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

14  Florida Supreme Court.

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

16  of Representatives.

17         3.  Three members appointed by the President of the

18  Senate.

19         4.  One member appointed by the Governor.

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

21  Attorneys Association.

22         6.  One member appointed by the Florida Prosecuting

23  Attorneys' Association.

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

25  the members.

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

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

28  7 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 authority.

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  1         (e)  The initial members of the commission shall be

  2  appointed on or before July 15, 1998. A member's term shall

  3  expire upon submission of the report to the Legislature.

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

  5  of Justice in Capital Cases shall staff the commission.

  6         (2)  The Commission shall study the feasibility of

  7  judicial administration reforms, including but not limited to,

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

  9  cases; the feasibility of authorizing cross circuit

10  assignments of Public Defenders to minimize the cost of

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

12  resolutions of the inability of the Office of the Public

13  Defender for the Tenth Judicial Circuit to represent indigent

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

15  issues regarding indigent criminal appeals; and other judicial

16  reforms that could expedite justice and reduce costs in

17  judicial administration.  The Commission shall submit a report

18  to the Speaker of the House of Representatives and the

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

20  containing their recommendations.  The Commission's authority

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

22  member will expire on that date.

23         Section 6.  There is hereby appropriated $500,000 from

24  the General Revenue Fund to the Justice Administration

25  Commission for the purpose of implementing this act.

26         Section 7.  This act shall take effect July 1, 1998.

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