Senate Bill 1330e1

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  1                      A bill to be entitled

  2         An act relating to the administration of

  3         capital cases; creating s. 119.19, F.S.;

  4         defining terms; requiring that the Secretary of

  5         State establish a records repository for

  6         archiving capital postconviction records;

  7         requiring that the law enforcement agencies and

  8         the state attorney copy and deliver to the

  9         records repository public records produced in

10         capital cases; requiring the Department of

11         Corrections to copy and deliver to the records

12         repository public records that pertain to the

13         defendant; providing requirements for notifying

14         the Attorney General upon delivery of such

15         records to the repository; requiring that the

16         Attorney General request public records from

17         certain additional persons and agencies;

18         providing requirements for sealing confidential

19         records and records that are exempt from

20         disclosure under the Public Records Law;

21         prohibiting the opening of such records without

22         a court order; providing for written demand for

23         additional public records; prohibiting the

24         capital collateral regional counsel or private

25         counsel from obtaining the production of

26         additional public records in a capital case

27         until after filing an affidavit and obtaining a

28         court order; requiring that the capital

29         collateral regional counsel or private counsel

30         provide the personnel and equipment for copying

31         records held at the repository; providing for


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  1         resolving certain disputes with respect to the

  2         production of records; prohibiting the capital

  3         collateral regional counsel or private counsel

  4         from soliciting another person to make a

  5         request for public records on the counsel's

  6         behalf; providing for sanctions; specifying

  7         circumstances under which the Secretary of

  8         State may destroy records held by a repository;

  9         clarifying the application of provisions

10         governing the production of records in capital

11         postconviction proceedings; amending s. 27.702,

12         F.S.; requiring that the capital collateral

13         regional counsel or private counsel notify the

14         Commission on the Administration of Justice in

15         Capital Cases and the trial court of pleadings

16         filed in capital cases; requiring that a notice

17         of hearing be filed with each pleading;

18         requiring that the trial court expedite the

19         hearings in capital cases; amending s. 27.708,

20         F.S.; deleting references to Rule 3.852;

21         limiting certain public-records requests made

22         on behalf of clients; providing an

23         appropriation; providing an effective date.

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

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27         Section 1.  Section 119.19, Florida Statutes, is

28  created to read:

29         119.19  Capital postconviction public-records

30  production.--

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  1         (1)  As used in this section, the term "trial court"

  2  means:

  3         (a)  The judge who entered the judgment and imposed the

  4  sentence of death; or

  5         (b)  If a motion under Rule 3.850 or Rule 3.851 has

  6  been filed and a different judge has already been assigned to

  7  that motion, the judge who is assigned to rule on that motion.

  8         (2)  The Secretary of State shall establish and

  9  maintain a records repository for the purpose of archiving

10  capital postconviction public records as provided for in this

11  section.

12         (3)(a)  Upon issuance of the Florida Supreme Court's

13  mandate, the Attorney General shall promptly provide written

14  notification to the state attorney who prosecuted the case

15  that a death sentence has been affirmed. Upon receipt of such

16  notification, the state attorney shall promptly provide

17  written notification to each law enforcement agency involved

18  in the case.

19         (b)  Within 90 days after receipt of notification each

20  law enforcement agency involved in the case and the state

21  attorney who prosecuted the case shall copy, seal, and deliver

22  to the repository all public records, except for those filed

23  in the trial court, which were produced in the investigation

24  or prosecution of the case. Each agency shall bear the costs.

25         (4)(a)  Upon issuance of the Florida Supreme Court's

26  mandate, the Attorney General shall promptly provide written

27  notification to the Department of Corrections that a death row

28  inmate's sentence has been affirmed.

29         (b)  Within 90 days after notification, the Department

30  of Corrections shall copy, seal, and deliver to the repository

31  all public records determined by the department to be relevant


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  1  to the subject matter of a proceeding under Rule 3.850 or Rule

  2  3.851 and where such production would not be unduly burdensome

  3  for the department. The department shall bear the costs.

  4         (5)(a)  The chief law enforcement officer of each law

  5  enforcement agency that was involved in the case, whether

  6  through an investigation, arrest, prosecution, or

  7  incarceration, shall notify the Attorney General upon

  8  compliance with subsection (3) and shall certify that to the

  9  best of his or her knowledge and belief all public records in

10  possession of the agency or in possession of any employee of

11  the agency have been copied, indexed, and delivered to the

12  records repository as required by subsection (3).

13         (b)  The state attorney who prosecuted the case shall

14  provide written notification to the Attorney General upon

15  compliance with subsection (3) and shall certify that to the

16  best of his or her knowledge and belief all public records in

17  his or her possession have been copied, indexed, and delivered

18  to the records repository as required by subsection (3).

19         (c)  The Secretary of Corrections shall provide written

20  notification to the Attorney General upon compliance with

21  subsection (4) and shall certify that to the best of his or

22  her knowledge and belief all public records in the

23  department's possession have been copied, indexed, and

24  delivered to the records repository as required by paragraph

25  (4)(b).

26         (6)(a)  Within 90 days after issuance of the Florida

27  Supreme Court's mandate affirming a death sentence, both the

28  public defender or private counsel for the defendant and the

29  state attorney involved in the case shall provide written

30  notification to the Attorney General of the name and address

31  of any person or agency in addition to those persons and


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  1  agencies listed in subsections (3) and (4) which may have

  2  information pertinent to the case. The Attorney General shall

  3  promptly provide written notification to each identified

  4  person or agency after receiving the information from the

  5  public defender, private counsel for the defendant, or state

  6  attorney and shall request that all public records in the

  7  possession of the person or agency which pertain to the case

  8  be copied, sealed, and delivered to the records repository.

  9         (b)  Within 90 days after receiving a request for

10  public records under paragraph (a), the person or agency shall

11  provide written notification to the Attorney General of

12  compliance with this subsection and shall certify that to the

13  best of his or her knowledge and belief all public records

14  requested have been copied, indexed, and delivered to the

15  records repository.

16         (7)(a)  Any public record delivered to the records

17  repository under this section which is confidential or exempt

18  from the requirements of s. 119.07(1) and s. 24(a), Art. I of

19  the State Constitution must be separately boxed, without being

20  redacted, and sealed. The outside of the box must clearly

21  identify the public records as exempt, and the seal may not be

22  broken without an order of the trial court. The outside of the

23  box must identify the nature of the public records and the

24  legal basis under which the public records are exempt.

25         (b)  Upon the entry of an appropriate court order,

26  sealed boxes subject to an inspection by the trial court shall

27  be shipped to the respective clerk of court. Such a box may be

28  opened only for an inspection by the trial court in camera and

29  only with a representative of the agency present at the

30  unsealing by the court. The moving party shall bear all costs

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  1  associated with the transportation and inspection of such

  2  records by the trial court.

  3         (8)(a)  Within 90 days after a capital collateral

  4  regional counsel or private counsel is appointed to represent

  5  a defendant sentenced to death, the regional counsel, private

  6  counsel, or other counsel who is a member of The Florida Bar

  7  and is authorized by such counsel representing a defendant

  8  shall send a written demand for additional public records to

  9  each person or agency submitting public records under

10  subsections (3) and (4) and to each person or agency

11  identified as having information pertinent to the case under

12  subsection (6). Each person or agency notified under this

13  subsection shall, within 90 days after receipt of the written

14  demand, deliver to the records repository any additional

15  public records in the possession of the person or agency which

16  pertain to the case and shall certify that to the best of his

17  or her knowledge and belief all additional public records have

18  been delivered to the Attorney General or, if no additional

19  public records are found, shall recertify that the public

20  records previously delivered are complete.

21         (b)  Within 60 days after receiving the written demand,

22  the agency or person may file an objection in the trial court.

23  Within 30 days after the filing of an objection, the trial

24  court shall hold a hearing and order an agency or person to

25  produce additional public records if it finds each of the

26  following:

27         1.  The regional counsel or private counsel has made a

28  timely and diligent search as provided in this section.

29         2.  The regional or private counsel's written demand

30  identifies, with specificity, those additional public records

31  that are not at the repository.


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  1         3.  The additional public records sought are relevant

  2  to the subject matter of a proceeding under Rule 3.850 or Rule

  3  3.851 or appear reasonably calculated to lead to the discovery

  4  of admissible evidence.

  5         4.  The additional public-records request is not

  6  overbroad or unduly burdensome.

  7         (9)(a)  After production of additional public records

  8  or recertification as provided in subsection (8), the regional

  9  counsel or the private counsel is prohibited from making any

10  further public-records requests under this chapter. An agency

11  is not required to produce additional public records except by

12  court order as provided in this subsection.

13         (b)  In order to obtain additional public records

14  beyond those provided under subsection (8), the regional

15  counsel, private counsel, or other counsel who is a member of

16  The Florida Bar and is authorized by the regional counsel or

17  private counsel shall file an affidavit in the trial court

18  which attests that he or she has made a timely and diligent

19  search of the records repository and specifically identifies

20  those additional public records that are not at the repository

21  and are relevant to the subject matter of a proceeding under

22  Rule 3.850 or Rule 3.851 or are reasonably calculated to lead

23  to the discovery of admissible evidence. The affiant shall

24  provide a copy of the affidavit to all affected agencies upon

25  the filing of such affidavit in the trial court.

26         (c)  Within 30 days after the filing of an affidavit,

27  the trial court shall order an agency to produce additional

28  public records only if it finds each of the following:

29         1.  The regional counsel or private counsel has made a

30  timely and diligent search as provided in this section.

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  1         2.  The regional or private counsel's affidavit

  2  identifies, with specificity, those additional public records

  3  that are not at the repository.

  4         3.  The additional public records sought are relevant

  5  to the subject matter of a proceeding under Rule 3.850 or Rule

  6  3.851 or appear reasonably calculated to lead to the discovery

  7  of admissible evidence.

  8         4.  The additional public-records request is not

  9  overbroad or unduly burdensome.

10         (10)  The capital collateral regional counsel or

11  private counsel shall provide the personnel, supplies, and any

12  necessary equipment used by the capital collateral regional

13  counsel or private counsel to copy records held at the records

14  repository.

15         (11)  The trial court shall resolve any dispute that

16  arises under this section, unless the appellate court has

17  exclusive jurisdiction.

18         (12)  The capital collateral regional counsel or

19  private counsel shall not solicit another person to make a

20  request for public records on behalf of the regional counsel

21  or private counsel. The trial court shall impose appropriate

22  sanctions against any regional counsel or private counsel

23  found in violation of this subsection.

24         (13)  Sixty days after a capital sentence is carried

25  out, 60 days after a defendant is released from incarceration

26  following the granting of a pardon or reversal of the

27  sentence, or 60 days after the defendant has been resentenced

28  to a term of years, the Attorney General shall provide written

29  notification to the Secretary of State, who may then destroy

30  the records held by the records repository which pertain to

31  that case.


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  1         (14)  This section pertains only to the production of

  2  records for capital postconviction defendants and does not

  3  change or alter any times periods specified in Rule 3.850 or

  4  Rule 3.851, Florida Rules of Criminal Procedure. Furthermore,

  5  this section does not affect, expand, or limit the production

  6  of public records for any purposes other than use in a

  7  proceeding held pursuant to Rule 3.850 or Rule 3.851, Florida

  8  Rules of Criminal Procedure.

  9         Section 2.  Subsection (4) of section 27.702, Florida

10  Statutes, is amended to read:

11         27.702  Duties of the capital collateral regional

12  counsel; reports.--

13         (4)(a)  The capital collateral regional counsel or

14  private counsel shall give written notification of each

15  pleading filed by that office and the name of the person

16  filing the pleading to the Commission on the Administration of

17  Justice in Capital Cases and to the trial court assigned to

18  the case.

19         (b)  Each capital collateral regional counsel shall

20  provide a quarterly report to the President of the Senate, the

21  Speaker of the House of Representatives, and the Commission on

22  the Administration of Justice in Capital Cases which details

23  the number of hours worked by investigators and legal counsel

24  per case and the amounts per case expended during the

25  preceding quarter in investigating and litigating capital

26  collateral cases.

27         Section 3.  Subsections (2) and (3) of section 27.708,

28  Florida Statutes, are amended to read:

29         27.708  Access to prisoners; compliance with the

30  Florida Rules of Criminal Procedure in capital collateral

31  litigation; records requests; approval of records requests.--


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  1         (2)  The capital collateral regional counsel and

  2  contracted private counsel must timely comply with all

  3  provisions of the Florida Rules of Criminal Procedure

  4  governing collateral review of capital cases, including

  5  provisions pertaining to requests for records under Rule

  6  3.852, Florida Rules of Criminal Procedure.

  7         (3)  Except as provided in s. 119.19, the capital

  8  collateral regional counsel or contracted private counsel

  9  shall not make any public-records request on behalf of his or

10  her client. All requests for records in capital postconviction

11  proceedings must be made in accordance with Rule 3.852,

12  Florida Rules of Criminal Procedure, and, if the person

13  sentenced to death is represented by an assistant capital

14  collateral regional counsel or other attorney appointed to

15  assist the regional counsel, the regional counsel must approve

16  the request.

17         Section 4.  Notice of hearings in capital cases;

18  expedited hearings.--

19         (1)  A notice of hearing must be filed

20  contemporaneously with each pleading filed with the court in a

21  capital case.

22         (2)  The trial court shall make every effort to

23  expedite any hearing held by the court in a capital case.

24         Section 5.  Funds sufficient to carry out the

25  provisions of this act are appropriated from the General

26  Revenue Fund to the Secretary of State.

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

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