Senate Bill 2058

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    Florida Senate - 1998                                  SB 2058

    By Senator Williams





    4-866-98

  1                      A bill to be entitled

  2         An act relating to the representation of

  3         indigent persons charged with capital crimes;

  4         creating s. 925.0352, F.S.; providing for the

  5         Governor to assign a public defender from

  6         another circuit to represent an indigent

  7         defendant charged with a capital crime if a

  8         conflict of interest exists for the public

  9         defender in the circuit where the crime

10         occurred; providing for the assignment to

11         expire after a specified period; providing for

12         an assistant public defender to perform the

13         assignment; providing for the expenses of such

14         representation to be paid by an appropriation

15         to the circuit courts; amending s. 27.51, F.S.,

16         relating to the duties of the public defender;

17         conforming provisions to changes made by the

18         act; amending s. 915.035, F.S.; deleting a

19         requirement that a public defender move the

20         court to assign an attorney in private practice

21         to defend an indigent defendant charged with a

22         capital crime; amending ss. 925.036, 925.037,

23         F.S., relating to appointed counsel and the

24         payment of fees; conforming provisions to

25         changes made by the act; providing an effective

26         date.

27

28         WHEREAS, the costs incurred for criminal defense by a

29  public defender in a capital case are properly classified as

30  expenses under Article V of the State Constitution, and

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    Florida Senate - 1998                                  SB 2058
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  1         WHEREAS, the public defenders of this state are

  2  constitutional officers rather than county officers, and

  3         WHEREAS, the costs to a county for the public defense

  4  of indigent defendants charged with capital crimes bear no

  5  relationship to the functions of counties to provide certain

  6  facilities to public defenders or the rights of the accused to

  7  representation, and

  8         WHEREAS, county payment of appointed defense counsel in

  9  capital cases is inconsistent with the payment of salaries and

10  expenses for public defenders by legislative appropriation,

11  and

12         WHEREAS, rural counties have extremely scarce resources

13  with which to finance appointed defense counsel, and certain

14  less-populated counties could be bankrupted by a single

15  complex capital case if private counsel must be appointed,

16  which burden on county budgets endangers the constitutional

17  right to representation in capital cases, NOW, THEREFORE,

18

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

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21         Section 1.  Section 925.0352, Florida Statutes, is

22  created to read:

23         925.0352  Assigning public defenders to other circuits

24  in capital cases; public defenders to assist in other circuits

25  in capital cases.--

26         (1)(a)  If the court determines that the defendant in a

27  capital case is insolvent and desires counsel, it shall

28  appoint a public defender to represent the defendant. If the

29  public defender appointed to represent two or more defendants

30  found to be insolvent determines that his office is unable to

31  provide counsel to all of the defendants without a conflict of

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    Florida Senate - 1998                                  SB 2058
    4-866-98




  1  interest, or, if for any other good and sufficient reason the

  2  Governor determines that justice would be best served, the

  3  Governor may, by executive order filed with the Secretary of

  4  State, order an exchange of circuits or of courts between the

  5  public defender and any other public defender in the state or

  6  order an assignment of any public defender in the state to

  7  discharge the duties of the public defender with respect to

  8  one or more representations of an insolvent defendant charged

  9  with a capital crime as specified in the executive order of

10  the Governor.

11         (b)  Any exchange or assignment of any public defender

12  under this section to a particular circuit expires 6 months

13  after the date of the exchange or assignment unless an

14  extension is approved by order of the Supreme Court upon

15  application of the Governor showing good and sufficient cause

16  to extend such exchange or assignment.

17         (c)  When a public defender is exchanged or assigned,

18  he or she may designate one or more assistant public defenders

19  to perform the duties assigned under the executive order.

20         (2)  The Governor may for good and sufficient cause

21  require any public defender in the state to proceed to any

22  place in the state and assist the public defender in that

23  circuit in representing an indigent defendant in a capital

24  case. Any public defender in this state who is directed by the

25  Governor to assist any other public defender in representing

26  an indigent defendant in a capital case shall immediately

27  proceed to the place designated and assist the public defender

28  of the circuit in which such place is located.

29         (3)  When any public defender is required to go beyond

30  the limits of the circuit in which he or she holds office to

31  comply with this section, the expenses incurred shall be borne

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    Florida Senate - 1998                                  SB 2058
    4-866-98




  1  by the state and shall be paid from the appropriation provided

  2  by the state for circuit courts. The fees and costs of an

  3  exchanged or assigned public defender may not be borne by the

  4  county in which the trial is held or originated.

  5         Section 2.  Subsection (2) of section 27.51, Florida

  6  Statutes, is amended to read:

  7         27.51  Duties of public defender.--

  8         (2)  The court may not appoint the public defender to

  9  represent, even on a temporary basis, any person who is not

10  indigent.  The court, however, may appoint private counsel in

11  capital cases as provided in s. 925.035 or s. 925.0352.

12         Section 3.  Subsections (1) and (6) of section 925.035,

13  Florida Statutes, are amended to read:

14         925.035  Appointment and compensation of an attorney in

15  capital cases; appeals from judgments imposing the death

16  penalty.--

17         (1)  If the court determines that the defendant in a

18  capital case is insolvent and desires counsel, it shall

19  appoint a public defender to represent the defendant.  If the

20  public defender appointed to represent two or more defendants

21  found to be insolvent determines that neither the public

22  defender nor her or his staff can counsel all of the accused

23  without conflict of interest, the Governor shall assign a

24  public defender from another circuit as provided in s.

25  925.0352 it shall be the public defender's duty to move the

26  court to appoint one or more members of The Florida Bar, who

27  are in no way affiliated with the public defender in her or

28  his capacity as such or in her or his private practice, to

29  represent those accused.  The attorney shall be allowed

30  compensation, as provided for in s. 925.036 for representing a

31  defendant.

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    Florida Senate - 1998                                  SB 2058
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  1         (6)  All compensation and costs provided for in this

  2  section, except as provided in subsection (4) or s.

  3  925.0352(3), shall be paid by the county in which the trial is

  4  held unless the trial was moved to that county on the ground

  5  that a fair and impartial trial could not be held in another

  6  county, in which event the compensation and costs shall be

  7  paid by the original county from which the cause was removed.

  8         Section 4.  Subsection (1) of section 925.036, Florida

  9  Statutes, is amended to read:

10         925.036  Appointed counsel; compensation; reassignment

11  of case prohibited.--

12         (1)  An attorney appointed pursuant to s. 925.035, s.

13  925.0352, or s. 27.53 shall, at the conclusion of the

14  representation, be compensated at an hourly rate fixed by the

15  chief judge or senior judge of the circuit in an amount not to

16  exceed the prevailing hourly rate for similar representation

17  rendered in the circuit; however, such compensation shall not

18  exceed the maximum fee limits established by this section.  In

19  addition, such attorney shall be reimbursed for expenses

20  reasonably incurred, including the costs of transcripts

21  authorized by the court.  If the attorney is representing a

22  defendant charged with more than one offense in the same case,

23  the attorney shall be compensated at the rate provided for the

24  most serious offense for which she or he represented the

25  defendant. This section does not allow stacking of the fee

26  limits established by this section.

27         Section 5.  Subsection (1) of section 925.037, Florida

28  Statutes, is amended to read:

29         925.037  Reimbursement of counties for fees paid to

30  appointed counsel; circuit conflict committees.--

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    Florida Senate - 1998                                  SB 2058
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  1         (1)  Funds shall be appropriated each fiscal year to

  2  reimburse counties for fees paid to certain court-appointed

  3  attorneys. In order for a fee paid by a county to be

  4  reimbursable from such funds, the attorney must have been

  5  appointed pursuant to s. 27.53(3), or s. 925.035, or s.

  6  925.0352; must have been approved for such appointment by the

  7  circuit conflict committee prior to appointment;, and must

  8  have been compensated within the maximum fee limits provided

  9  by s. 925.036, except that a fee is also reimbursable from

10  such funds if paid by a county pursuant to a finding by a

11  circuit court that the criminal case involved extraordinary

12  circumstances such that the fee limits were inapplicable as a

13  matter of law.

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

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17                          SENATE SUMMARY

18    Authorizes the Governor, by executive order, to assign a
      public defender from an outside circuit to represent an
19    indigent defendant charged with a capital crime if a
      conflict exists for the public defender within the
20    circuit where the crime occurred. Provides for the
      assignment to expire after 6 months, unless an extension
21    is approved by the Governor. Provides for the costs of
      such representation to be paid by an appropriation to the
22    circuit courts.

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