Senate Bill 0356c1

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    Florida Senate - 1998                            CS for SB 356

    By the Committee on Criminal Justice and Senators Williams,
    Kirkpatrick and Brown-Waite




    307-1756A-98

  1                      A bill to be entitled

  2         An act relating to state postconviction

  3         proceedings; creating the "Death Penalty

  4         Appeals Reform Act of 1998"; amending s.

  5         27.7001, F.S.; revising legislative intent with

  6         respect to collateral representation to exclude

  7         postconviction proceedings in state court;

  8         amending s. 27.701, F.S.; making the regions of

  9         the capital collateral regional counsel offices

10         coincident with the jurisdictional areas of

11         certain federal court districts; amending s.

12         27.702, F.S., relating to duties of capital

13         collateral regional counsel; eliminating

14         certain duties for representation in state

15         court proceedings; revising time limitation for

16         application for relief in federal court;

17         prohibiting use of state funds by the capital

18         collateral regional counsel offices for

19         purposes of state court litigation; amending s.

20         27.704, F.S.; providing for contracts with

21         private counsel for representation in federal

22         postconviction proceedings; amending s. 27.707,

23         F.S.; providing for service of process of

24         certain subpoenas or court orders issued by

25         federal courts or federal judges; amending s.

26         12, ch. 97-313, Laws of Florida, to eliminate

27         legislative recommendation that the Florida

28         Supreme Court adopt by rule specified

29         provisions limiting the time for postconviction

30         proceedings in capital cases; amending s.

31         27.708, F.S., relating to access to prisoners

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  1         and compliance with Florida Rules of Criminal

  2         Procedure; removing certain provisions with

  3         respect to compliance with Florida Rules of

  4         Criminal Procedure; amending s. 79.01, F.S.,

  5         relating to application and writ for habeas

  6         corpus; providing that a judgment of conviction

  7         or sentence in a capital case which has been

  8         affirmed on direct appeal constitutes "lawful

  9         authority" to detain a person for purposes of

10         construing specified provisions; amending s.

11         924.051, F.S.; providing that provisions

12         relating to terms and conditions of appeals and

13         collateral review apply only in noncapital

14         cases; providing for elimination of capital

15         postconviction proceedings in state courts;

16         prohibiting a state court from reviewing or

17         examining the legality of a judgment or

18         sentence imposed in a capital case by a court

19         of competent jurisdiction, except pursuant to a

20         direct appeal or habeas corpus, as prescribed

21         and limited; amending s. 924.055, F.S.;

22         prohibiting state courts from reviewing or

23         examining the legality of a judgment or

24         sentence in a capital case by a court of

25         competent jurisdiction, except pursuant to a

26         direct appeal or habeas corpus, as prescribed

27         and limited; amending s. 924.066, F.S.,

28         relating to collateral relief; restricting

29         collateral relief to a prisoner in custody in a

30         noncapital case; repealing Rules 3.851 and

31         3.852, Florida Rules of Criminal Procedure,

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  1         relating to collateral relief after a death

  2         sentence has been imposed and records

  3         production in a capital postconviction

  4         proceeding; providing an effective date.

  5

  6         WHEREAS, convicted murderers sentenced to death are

  7  allowed to file multiple appeals of their convictions and

  8  sentences and to reargue factual and legal rulings, causing

  9  years of delay in death penalty cases in state courts, and

10         WHEREAS, the federal courts also review the conviction

11  and sentence of every convicted murderer sentenced to death in

12  this state, wherein the convicted murderer again challenges

13  factual and legal rulings of the state courts of this state,

14  and

15         WHEREAS, in cases such as Thompson v. Keohane, 64

16  U.S.L.W. 4027 (Nov. 29, 1995), the United States Supreme Court

17  has allowed state prisoners to relitigate state courts'

18  factual and legal rulings in the federal courts, and

19         WHEREAS, convicted murderers sentenced to death often

20  return to the state courts to file further appeals after

21  previously receiving extensive judicial review in state and

22  federal courts, and

23         WHEREAS, this duplicative system of judicial review of

24  state court judgments and sentences in criminal cases causes

25  unjustifiable delays in death penalty cases, causing further

26  suffering to victims and fostering disrespect of the courts

27  and the rule of law in this state, and

28         WHEREAS, the state courts have granted criminal

29  defendants in this state more rights than ever before in

30  history, including extensive pretrial discovery in which

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  1  defendants are entitled to examine all evidence long before

  2  trial, and

  3         WHEREAS, Florida provides free legal representation to

  4  criminal defendants, including free postconviction legal

  5  representation, to exercise these legal rights before trial,

  6  during trial, on direct appeal in state courts, on appeal to

  7  the United States Supreme Court, and on postconviction review

  8  in lower federal courts, and

  9         WHEREAS, the Board of Executive Clemency has the power

10  to pardon or commute any criminal sentence should the board

11  find sufficient grounds to justify granting such relief, and

12         WHEREAS, the Federal Constitution does not require this

13  state to allow repetitive appeals of criminal judgments and

14  sentences in capital cases, and

15         WHEREAS, the elimination of state court postconviction

16  review of criminal judgments and sentences in capital cases

17  that have previously been upheld on direct appeal will further

18  justice, finality, and the rule of law, NOW, THEREFORE,

19

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

21

22         Section 1.  This act may be cited as the "Death Penalty

23  Appeals Reform Act."

24         Section 2.  Section 27.7001, Florida Statutes, is

25  amended to read:

26         27.7001  Legislative intent.--It is the intent of the

27  Legislature to create part IV of this chapter, consisting of

28  ss. 27.7001-27.708, inclusive, to provide for the collateral

29  representation of any person convicted and sentenced to death

30  in this state, so that collateral legal proceedings to

31  challenge any Florida capital conviction and sentence may be

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  1  commenced in a timely manner and so as to assure the people of

  2  this state that the judgments of its courts may be regarded

  3  with the finality to which they are entitled in the interests

  4  of justice.  It is the further intent of the Legislature that

  5  collateral representation shall not include representation

  6  during retrials, resentencings, proceedings commenced under

  7  chapter 940, or civil litigation, or any postconviction

  8  proceedings in state court.

  9         Section 3.  Section 27.701, Florida Statutes, is

10  amended to read:

11         27.701  Capital collateral regional counsels.--There

12  are created three regional offices of capital collateral

13  counsel, which shall be located in a northern, middle, and

14  southern region of the state. The northern region shall

15  consist of the area under the jurisdiction of the United

16  States District Court, Northern District of Florida First,

17  Second, Third, Fourth, Eighth, and Fourteenth Judicial

18  Circuits; the middle region shall consist of the area under

19  the jurisdiction of the United States District Court, Middle

20  District of Florida Fifth, Sixth, Seventh, Ninth, Tenth,

21  Twelfth, Thirteenth, and Eighteenth Judicial Circuits; and the

22  southern region shall consist of the area under the

23  jurisdiction of the United States District Court, Southern

24  District of Florida Eleventh, Fifteenth, Sixteenth,

25  Seventeenth, Nineteenth, and Twentieth Judicial Circuits. Each

26  regional office shall be administered by a regional counsel. A

27  regional counsel must be, and must have been for the preceding

28  5 years, a member in good standing of The Florida Bar or a

29  similar organization in another state. Each capital collateral

30  regional counsel shall be appointed by the Governor, and is

31  subject to confirmation by the Senate. The Supreme Court

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  1  Judicial Nominating Commission shall recommend to the Governor

  2  three qualified candidates for each appointment as regional

  3  counsel. The Governor shall appoint a regional counsel for

  4  each region from among the recommendations, or, if it is in

  5  the best interest of the fair administration of justice in

  6  capital cases, the Governor may reject the nominations and

  7  request submission of three new nominees by the Supreme Court

  8  Judicial Nominating Commission. Each capital collateral

  9  regional counsel shall be appointed to a term of 3 years.

10  Vacancies in the office of capital collateral regional counsel

11  shall be filled in the same manner as appointments.  A person

12  appointed as a regional counsel may not run for or accept

13  appointment to any state office for 2 years following vacation

14  of office.

15         Section 4.  Section 27.702, Florida Statutes, is

16  amended to read:

17         27.702  Duties of the capital collateral regional

18  counsel; reports.--

19         (1)  The capital collateral regional counsel shall

20  represent each person convicted and sentenced to death by a

21  court of in this state for the sole purpose of instituting and

22  prosecuting collateral actions challenging the legality of the

23  judgment and sentence imposed against such person in the state

24  courts, federal courts in this state, the United States Court

25  of Appeals for the Eleventh Circuit, and the United States

26  Supreme Court.  Representation by the regional counsel shall

27  commence automatically upon termination of direct appellate

28  proceedings in state or federal courts. Within 180 91 days

29  after the date the Supreme Court issues a mandate on a direct

30  appeal or the United States Supreme Court denies a petition

31  for certiorari, whichever is later, the capital collateral

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  1  regional counsel shall file a notice of appearance in the

  2  trial court in which the judgment and sentence were entered

  3  and shall secure all direct-appeal files for collateral

  4  representation and file a petition or motion for any

  5  appropriate relief in federal court, unless the capital

  6  collateral regional counsel determines there are no grounds

  7  for federal relief. The capital collateral regional counsel

  8  shall comply with all applicable federal laws and rules.  Upon

  9  receipt of files from the public defender or other counsel,

10  the capital collateral regional counsel shall assign each such

11  case to personnel in his or her office for investigation,

12  client contact, and any further action the circumstances

13  warrant. The three capital collateral regional counsels'

14  offices shall function independently and be separate budget

15  entities, and the regional counsels shall be the office heads

16  for all purposes. The Justice Administrative Commission shall

17  provide administrative support and service to the three

18  offices to the extent requested by the regional counsels. The

19  three regional offices shall not be subject to control,

20  supervision, or direction by the Justice Administrative

21  Commission in any manner, including, but not limited to,

22  personnel, purchasing, transactions involving real or personal

23  property, and budgetary matters.

24         (2)  The capital collateral regional counsel shall

25  represent each person convicted and sentenced to death by a

26  court of this state within the counsel's region, who has

27  grounds to seek appropriate federal relief, in federal court

28  collateral postconviction proceedings only, unless a court

29  appoints or permits other counsel to appear as counsel of

30  record.

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  1         (3)(a)  The capital collateral regional counsel shall

  2  file motions seeking compensation for representation and

  3  reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when

  4  providing representation to indigent persons in the federal

  5  courts, and shall deposit all such payments received into the

  6  Capital Collateral Trust Fund established for such purpose.

  7         (b)  The court having jurisdiction over any nonindigent

  8  or indigent-but-able-to-contribute defendant who has been

  9  receiving the services of the capital collateral regional

10  counsel may assess attorney's fees and costs against the

11  defendant at any stage in the proceedings as the court may

12  deem appropriate. The determination of indigency or

13  nonindigency of any defendant shall be made by the court

14  pursuant to s. 27.52. Liability for the costs of such

15  representation may be imposed in the form of a lien against

16  the property of the nonindigent or

17  indigent-but-able-to-contribute defendant, which lien shall be

18  enforceable as provided in s. 27.56 or s. 27.561.

19         (4)  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         (5)  Unless otherwise authorized by the Legislature,

28  the capital collateral regional counsel offices and their

29  personnel are prohibited from using, expending, or otherwise

30  committing any state funds for purposes of litigating cases in

31  the courts of this state, or from entering into any agreement

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  1  or contract that would result directly or indirectly in the

  2  ultimate use, expenditure, or commitment of any state funds

  3  for such purposes.

  4         Section 5.  Section 27.704, Florida Statutes, is

  5  amended to read:

  6         27.704  Appointment of assistants and other staff;

  7  method of payments.--Each capital collateral regional counsel

  8  may:

  9         (1)  Appoint, employ, and establish, in such numbers as

10  he or she determines, full-time or part-time assistant

11  counsel, investigators, and other clerical and support

12  personnel who shall be paid from funds appropriated for that

13  purpose.  A full-time assistant capital collateral counsel

14  must be a member in good standing of The Florida Bar, with not

15  less than 3 years' experience in the practice of criminal law,

16  and, prior to employment, must have participated in at least

17  five felony jury trials, five felony appeals, or five capital

18  postconviction evidentiary hearings or any combination of at

19  least five of such proceedings. Law school graduates who do

20  not have the qualifications of a full-time assistant capital

21  collateral counsel may be employed as members of the legal

22  staff but may not be designated as sole counsel for any

23  person.

24         (2)  Contract with private counsel who are members in

25  good standing of The Florida Bar or with public defenders for

26  the purpose of providing prompt and cost-effective

27  representation for individuals who are sentenced to death in

28  this state in federal postconviction proceedings. A private

29  counsel or public defender under contract with the regional

30  counsel must have at least 3 years' experience in the practice

31  of criminal law, and, prior to the contract, must have

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  1  participated in at least five felony jury trials, five felony

  2  appeals, or five capital postconviction evidentiary hearings

  3  or any combination of at least five of such proceedings.

  4         (3)  Appoint pro bono assistant counsel, who must be

  5  members in good standing of The Florida Bar, and who shall

  6  serve without compensation at the discretion of the capital

  7  collateral regional counsel.

  8         Section 6.  Section 27.707, Florida Statutes, is

  9  amended to read:

10         27.707  Investigators; service of process.--Each

11  investigator employed by the capital collateral regional

12  counsel has full authority to serve any subpoena or court

13  order issued by any federal court or federal judge in any case

14  for which the office has responsibility for providing

15  representation.

16         Section 7.  Section 12 of chapter 97-313, Laws of

17  Florida, is amended to read:

18         Section 12.  In the interest of promoting justice and

19  integrity with respect to capital collateral representation,

20  the Legislature recommends that the Supreme Court:

21         (1)  Adopt by rule the provisions of section 924.055,

22  Florida Statutes, which limit the time for postconviction

23  proceedings in capital cases.

24         (2)  award pro bono service credit for time spent by an

25  attorney in providing legal representation to an individual

26  sentenced to death in this state, regardless of whether the

27  attorney receives compensation for such representation.

28         Section 8.  Section 27.708, Florida Statutes, is

29  amended to read:

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  1         27.708  Access to prisoners; compliance with the

  2  Florida Rules of Criminal Procedure in capital collateral

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

  4         (1)  Each capital collateral regional counsel and his

  5  or her assistants may inquire of all persons sentenced to

  6  death who are incarcerated and tender them advice and counsel

  7  at any reasonable time, but this section does not apply with

  8  respect to persons who are represented by other counsel.

  9         (2)  The capital collateral regional counsel and

10  contracted private counsel must timely comply with all

11  provisions of the Florida Rules of Criminal Procedure

12  governing collateral review of capital cases, including

13  provisions pertaining to requests for records under Florida

14  Rule of Criminal Procedure 3.852.

15         (3)  All requests for records in capital postconviction

16  proceedings must be made in accordance with Florida Rule of

17  Criminal Procedure 3.852, and, if the person sentenced to

18  death is represented by an assistant capital collateral

19  regional counsel or other attorney appointed to assist the

20  regional counsel, the regional counsel must approve the

21  request.

22         Section 9.  Section 79.01, Florida Statutes, is amended

23  to read:

24         79.01  Application and writ.--

25         (1)  When any person detained in custody, whether

26  charged with a criminal offense or not, applies to the Supreme

27  Court or any justice thereof, or to any district court of

28  appeal or any judge thereof or to any circuit judge for a writ

29  of habeas corpus and shows by affidavit or evidence probable

30  cause to believe that he or she is detained without lawful

31  authority, the court, justice, or judge to whom such

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  1  application is made shall grant the writ forthwith, against

  2  the person in whose custody the applicant is detained and

  3  returnable immediately before any of the courts, justices, or

  4  judges as the writ directs.

  5         (2)  For purposes of construing this section as it

  6  relates to habeas corpus applications filed by capital

  7  defendants, a judgment of conviction or sentence in a capital

  8  case which has been affirmed on direct appeal constitutes

  9  "lawful authority."

10         Section 10.  Section 924.051, Florida Statutes, is

11  amended to read:

12         924.051  Terms and conditions of appeals and collateral

13  review in criminal cases.--

14         (1)  As used in this section:

15         (a)  "Prejudicial error" means an error in the trial

16  court that harmfully affected the judgment or sentence.

17         (b)  "Preserved" means that an issue, legal argument,

18  or objection to evidence was timely raised before, and ruled

19  on by, the trial court, and that the issue, legal argument, or

20  objection to evidence was sufficiently precise that it fairly

21  apprised the trial court of the relief sought and the grounds

22  therefor.

23         (2)  The right to direct appeal and the provisions for

24  collateral review created in this chapter may only be

25  implemented in strict accordance with the terms and conditions

26  of this section.

27         (3)  An appeal may not be taken from a judgment or

28  order of a trial court unless a prejudicial error is alleged

29  and is properly preserved or, if not properly preserved, would

30  constitute fundamental error. A judgment or sentence may be

31  reversed on appeal only when an appellate court determines

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  1  after a review of the complete record that prejudicial error

  2  occurred and was properly preserved in the trial court or, if

  3  not properly preserved, would constitute fundamental error.

  4         (4)  If a defendant pleads nolo contendere without

  5  expressly reserving the right to appeal a legally dispositive

  6  issue, or if a defendant pleads guilty without expressly

  7  reserving the right to appeal a legally dispositive issue, the

  8  defendant may not appeal the judgment or sentence.

  9         (5)  Collateral relief is not available on grounds that

10  were or could have been raised at trial and, if properly

11  preserved, on direct appeal of the conviction and sentence.

12         (6)  A petition or motion for collateral or other

13  postconviction relief may not be considered if it is filed

14  more than 2 years after the judgment and sentence became final

15  in a noncapital case or more than 1 year after the judgment

16  and sentence became final in a capital case in which a death

17  sentence was imposed unless it alleges that:

18         (a)  The facts upon which the claim is predicated were

19  unknown to the petitioner or his attorney and could not have

20  been ascertained by the exercise of due diligence;

21         (b)  The fundamental constitutional right asserted was

22  not established within the period provided for in this

23  subsection and has been held to apply retroactively; or

24         (c)  The sentence imposed was illegal because it either

25  exceeded the maximum or fell below the minimum authorized by

26  statute for the criminal offense at issue.  Either the state

27  or the defendant may petition the trial court to vacate an

28  illegal sentence at any time.

29         (7)  In a direct appeal or a collateral proceeding, the

30  party challenging the judgment or order of the trial court has

31  the burden of demonstrating that a prejudicial error occurred

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  1  in the trial court. A conviction or sentence may not be

  2  reversed absent an express finding that a prejudicial error

  3  occurred in the trial court.

  4         (8)  It is the intent of the Legislature that all terms

  5  and conditions of direct appeal and collateral review be

  6  strictly enforced, including the application of procedural

  7  bars, to ensure that all claims of error are raised and

  8  resolved at the first opportunity.  It is also the

  9  Legislature's intent that all procedural bars to direct appeal

10  and collateral review be fully enforced by the courts of this

11  state.

12         (9)  Funds, resources, or employees of this state or

13  its political subdivisions may not be used, directly or

14  indirectly, in appellate or collateral proceedings unless the

15  use is constitutionally or statutorily mandated.

16         (10)  This section applies only to noncapital cases. A

17  state postconviction proceeding is not available in any

18  capital case. A state court may not review or examine the

19  legality of a judgment or sentence imposed in a capital case

20  by a court of competent jurisdiction except pursuant to a

21  direct appeal of the judgment or sentence to the court having

22  appellate jurisdiction over that capital case, or to the

23  extent that such review is available and permissible by habeas

24  corpus application, subject to the limitations provided in s.

25  79.01(2).

26         Section 11.  Section 924.055, Florida Statutes, is

27  amended to read:

28         924.055  Time limitations for Postconviction

29  proceedings in capital cases prohibited in state courts.--

30         (1)  The Legislature recognizes that unjustified delay

31  in postconviction proceedings in capital cases frustrates

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  1  justice and diminishes public confidence in the criminal

  2  justice system. State postconviction proceedings are not

  3  available in capital cases. A state court may not review or

  4  examine the legality of a judgment or sentence imposed in a

  5  capital case except pursuant to a direct appeal of the

  6  judgment or sentence to the court having appellate

  7  jurisdiction over that capital case, or to the extent that

  8  such review is available or permissible by habeas corpus

  9  application, subject to the limitations provided in s.

10  79.01(2).   It is the intent of the Legislature that

11  postconviction proceedings in capital cases progress in a fair

12  but timely fashion and that, absent extreme circumstances, the

13  participants in such proceedings abide by the time limitations

14  set forth in this section.

15         (2)  Within 1 year after the date the Supreme Court

16  issues a mandate on a direct appeal or the United States

17  Supreme Court denies a petition for certiorari, whichever is

18  later, all postconviction motions and petitions that challenge

19  the judgment, sentence, or appellate decision must be filed in

20  the appropriate court.

21         (3)  Within 90 days after the date the state files a

22  response to a postconviction motion that challenges the

23  judgment or sentence, the circuit court shall conduct all

24  necessary hearings and render a decision.

25         (4)  Within 200 days after the date a notice is filed

26  appealing an order of the trial court or an extraordinary writ

27  is filed in a postconviction proceeding, the Supreme Court

28  shall render a decision.

29         (5)  A convicted person must file any petition for

30  habeas corpus in the district court of the United States

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  1  within 90 days after the date the Supreme Court issues a

  2  mandate in a postconviction proceeding.

  3         Section 12.  Section 924.066, Florida Statutes, is

  4  amended to read:

  5         924.066  Collateral relief.--

  6         (1)  Subject to the terms and conditions set forth in

  7  this chapter, a prisoner in custody in a noncapital case may

  8  seek relief based upon claims that the judgment of conviction

  9  or sentence was imposed in violation of the Constitution or

10  law of the United States or the State of Florida.

11         (2)  Either the state or a prisoner in custody in a

12  noncapital case may obtain review in the next higher state

13  court of a trial court's adverse ruling granting or denying

14  collateral relief.  The state may obtain review of any trial

15  court ruling that fails to enforce a procedural bar.

16         (3)  A prisoner in custody person in a noncapital case

17  who is seeking collateral review under this chapter has no

18  right to a court-appointed lawyer.

19         Section 13.  Rules 3.851 and 3.852, Florida Rules of

20  Criminal Procedure, relating to collateral relief after a

21  death sentence has been imposed and the production of records

22  in capital postconviction proceedings, are repealed.

23         Section 14.  This act shall take effect July 1 of the

24  year in which enacted, except that section 13 shall take

25  effect only if this act is passed by the affirmative vote of

26  two-thirds of the membership of each house of the Legislature.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 356

  3

  4  .    Provides that limitations on habeas corpus applications
         apply only to capital defendants.
  5
    .    Provides that elimination of state postconviction
  6       remedies applies only to capital defendants.

  7  .    Provides that Rule 3.850 remains a vehicle for
         postconviction challenges by non-capital defendants.
  8
    .    Eliminates provisions in the bill that would potentially
  9       subject attorneys in capital proceedings to disciplinary
         action for admitting to providing ineffective assistance
10       of counsel.

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