Senate Bill 1330er

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  1

  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 unless previously provided

  3  to the Capital Collateral Regional Counsel or post conviction

  4  private counsel. The Attorney General shall promptly provide

  5  written notification to each identified person or agency after

  6  receiving the information from the public defender, private

  7  counsel for the defendant, or state attorney and shall request

  8  that all public records in the possession of the person or

  9  agency which pertain to the case be copied, sealed, and

10  delivered to the records repository.

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

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

13  provide written notification to the Attorney General of

14  compliance with this subsection and shall certify that to the

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

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

17  records repository.

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

19  repository under this section which is confidential or exempt

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

21  the State Constitution must be separately boxed, without being

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

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

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

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

26  legal basis under which the public records are exempt.

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

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

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

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

31  only with a representative of the agency present at the


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

  2  associated with the transportation and inspection of such

  3  records by the trial court.

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

  5  regional counsel or private counsel is appointed to represent

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

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

  8  and is authorized by such counsel representing a defendant

  9  shall send a written demand for additional public records to

10  each person or agency submitting public records under

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

12  identified as having information pertinent to the case under

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

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

15  demand, deliver to the records repository any additional

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

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

18  or her knowledge and belief all additional public records have

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

20  public records are found, shall recertify that the public

21  records previously delivered are complete.

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

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

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

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

26  produce additional public records if it finds each of the

27  following:

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

29  timely and diligent search as provided in this section.

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

  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         (c)  The attorney general and state attorney shall

11  provide notification as provided in subsections (3) and (4) on

12  cases where the mandate has issued on the date that this

13  statute becomes effective, but where initial requests for

14  public records have not been made.

15         (d)  If, on the date that this statute becomes

16  effective, a defendant is represented by appointed CCRC or

17  private counsel, and he or she has initiated the public

18  records request process, counsel shall file within ninety days

19  of the effective date of this statute, a written demand for

20  any additional records that have not previously been the

21  subject of a notice to produce. An agency may file an

22  objection to such additional demand and the trial court shall

23  hold a hearing as provided by paragraph (b). This statute

24  shall not be a basis for renewing requests that have been

25  initiated previously or for relitigating issues pertaining to

26  production of public records upon which a court has ruled

27  prior to the effective date of the statute, or for stopping an

28  execution which has been scheduled based upon a warrant

29  executed by the governor prior to the effective date of the

30  Statute.

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  1         (e)  If, on the date that this statute becomes

  2  effective, the defendant has had a 3.850 motion denied and no

  3  3.850 motion is pending, no additional requests shall be made

  4  by CCRC or contracted private counsel until a death warrant is

  5  signed by the governor and an execution is scheduled. Within

  6  ten days of the signing of the death warrant, CCRC or

  7  contracted private counsel may request of a person or agency

  8  that the defendant has previously requested to produce records

  9  any records previously requested to which no objection was

10  raised or sustained, but which the agency has received or

11  produced since the previous request or which for any reason

12  the agency has in its possession and did not produce within

13  ten days of the receipt of the previous notice or such shorter

14  time period ordered by the court to comply with the time for

15  the scheduled execution. The person or agency shall produce

16  the record or shall file in the trial court an affidavit

17  stating that it does not have the requested record or that the

18  record has been produced previously.

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

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

21  counsel or the private counsel is prohibited from making any

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

23  is not required to produce additional public records except by

24  court order as provided in this subsection.

25         (b)  In order to obtain additional public records

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

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

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

29  private counsel shall file an affidavit in the trial court

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

31  search of the records repository and specifically identifies


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  1  those additional public records that are not at the repository

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

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

  4  to the discovery of admissible evidence. The affiant shall

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

  6  the filing of such affidavit in the trial court.

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

  8  the trial court shall order an agency to produce additional

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

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

11  timely and diligent search as provided in this section.

12         2.  The regional or private counsel's affidavit

13  identifies, with specificity, those additional public records

14  that are not at the repository.

15         3.  The additional public records sought are relevant

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

17  3.851 or appear reasonably calculated to lead to the discovery

18  of admissible evidence.

19         4.  The additional public-records request is not

20  overbroad or unduly burdensome.

21         (10)  The capital collateral regional counsel or

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

23  necessary equipment used by the capital collateral regional

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

25  repository.

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

27  arises under this section, unless the appellate court has

28  exclusive jurisdiction.

29         (12)  The capital collateral regional counsel or

30  private counsel shall not solicit another person to make a

31  request for public records on behalf of the regional counsel


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  1  or private counsel. The trial court shall impose appropriate

  2  sanctions against any regional counsel or private counsel

  3  found in violation of this subsection.

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

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

  6  following the granting of a pardon or reversal of the

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

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

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

10  the records held by the records repository which pertain to

11  that case.

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

13  records for capital postconviction defendants and does not

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

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

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

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

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

19  Rules of Criminal Procedure.

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

21  Statutes, is amended to read:

22         27.702  Duties of the capital collateral regional

23  counsel; reports.--

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

25  private counsel shall give written notification of each

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

27  filing the pleading to the Commission on the Administration of

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

29  the case.

30         (b)  Each capital collateral regional counsel shall

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


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

  2  the Administration of Justice in Capital Cases which details

  3  the number of hours worked by investigators and legal counsel

  4  per case and the amounts per case expended during the

  5  preceding quarter in investigating and litigating capital

  6  collateral cases.

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

  8  Florida Statutes, are amended to read:

  9         27.708  Access to prisoners; compliance with the

10  Florida Rules of Criminal Procedure in capital collateral

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

12         (2)  The capital collateral regional counsel and

13  contracted private counsel must timely comply with all

14  provisions of the Florida Rules of Criminal Procedure

15  governing collateral review of capital cases, including

16  provisions pertaining to requests for records under Rule

17  3.852, Florida Rules of Criminal Procedure.

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

19  collateral regional counsel or contracted private counsel

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

21  her client. All requests for records in capital postconviction

22  proceedings must be made in accordance with Rule 3.852,

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

24  sentenced to death is represented by an assistant capital

25  collateral regional counsel or other attorney appointed to

26  assist the regional counsel, the regional counsel must approve

27  the request.

28         Section 4.  Notice of hearings in capital cases;

29  expedited hearings.--

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  1         (1)  A notice of hearing must be filed

  2  contemporaneously with each pleading filed with the court in a

  3  capital case.

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

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

  6         Section 5.  From General Revenue Funds, $75,000 shall

  7  be provided to the Department of State in order to carry out

  8  the provisions of this bill.

  9         Section 6.  This act shall take effect October 1, 1998.

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