House Bill 2039c1

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    Florida House of Representatives - 1999             CS/HB 2039

        By the Committee on Judiciary and Representative Crist






  1                      A bill to be entitled

  2         An act relating to postconviction proceedings;

  3         creating the "Death Penalty Appeals Reform Act

  4         of 1999"; amending s. 27.701, F.S., relating to

  5         capital collateral regional counsels; removing

  6         time limitation upon running for or holding

  7         state office by regional counsel, in order to

  8         permit a person appointed as regional counsel

  9         to run for or accept appointment to a state

10         office within 2 years following vacation of

11         office; amending s. 27.702, F.S., relating to

12         duties of the capital collateral regional

13         counsel; providing for certain representation

14         of persons sentenced to death to conform to

15         changes made by the act; providing a cross

16         reference; prohibiting any state employee, or

17         person contracting with a state officer, from

18         utilizing state resources to file, argue,

19         research, or prepare in any way a "successive

20         postconviction pleading," as defined, in state

21         or federal court; restricting utilization of

22         state resources to the filing of one

23         postconviction pleading in any of specified

24         courts; amending s. 27.708, F.S., relating to

25         access to prisoners and compliance by capital

26         collateral regional counsel with the Florida

27         Rules of Criminal Procedure; removing reference

28         to compliance with such rules and providing for

29         compliance by the regional counsel with ch.

30         924, F.S., to conform to changes made by the

31         act; amending s. 27.710, F.S., relating to

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  1         registry of attorneys applying to represent

  2         persons in postconviction capital collateral

  3         proceedings and notification to the Attorney

  4         General; revising guidelines and time

  5         limitation for certain notice relating to

  6         appointment of counsel to conform to changes

  7         made by the act; amending s. 27.711, F.S.,

  8         relating to terms and conditions of appointment

  9         of attorneys as counsel in postconviction

10         capital collateral proceedings; substituting

11         reference to timely filing of motion for

12         postconviction relief under the Florida Rules

13         of Criminal Procedure with reference to filing

14         under ch. 924, F.S., to conform to changes made

15         by the act; amending s. 79.01, F.S., relating

16         to application and writ of habeas corpus;

17         providing that a judgment of conviction or

18         sentence which has been affirmed on direct

19         appeal constitutes lawful authority to detain a

20         person for purposes of construing specified

21         provisions unless the trial court did not have

22         jurisdiction over the person or subject matter

23         jurisdiction, or unless the trial court

24         exceeded the maximum sentence allowed by

25         statute; amending s. 119.19, F.S., relating to

26         capital postconviction public records

27         production; substituting reference to certain

28         court rules with reference to ch. 924, F.S., to

29         conform to changes made by the act; conforming

30         terminology; removing requirements that the

31         Attorney General provide certain notification

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  1         to the Department of Corrections and that the

  2         department deliver certain public records to

  3         the capital postconviction records repository;

  4         providing for certain notification of

  5         compliance by law enforcement agencies to the

  6         state attorney in lieu of the Attorney General;

  7         removing certain requirements for notification

  8         or certification of compliance by the Secretary

  9         of Corrections, public defenders or private

10         counsel, state attorneys, the Attorney General,

11         and other persons or agencies; revising

12         guidelines and time limitations relating to

13         certain notification to law enforcement

14         agencies, provision of public records by law

15         enforcement agencies, written demands for

16         public records or additional records by counsel

17         representing defendants, and filing of

18         objections and hearings on demands; conforming

19         terminology; removing provisions relating to

20         pending court motions to conform to changes

21         made by the act; removing provisions relating

22         to filing of affidavits of diligent search of

23         the records repository by defendant's counsel;

24         removing provisions relating to court orders

25         for agency production of additional public

26         records; removing requirement that the trial

27         court resolve disputes arising under s. 119.19,

28         F.S.; revising responsibilities and duties of

29         defendant's counsel, including duties relating

30         to copying of records at the records

31         repository; prohibiting defendant's counsel

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  1         from soliciting another person to make a

  2         request for public records; providing for

  3         imposition of sanctions; providing that the

  4         provisions of s. 119.19, F.S., do not

  5         constitute grounds to expand the time

  6         limitations in ch. 924, F.S.; amending s.

  7         922.06, F.S., relating to stay of execution of

  8         death sentence; providing that the execution of

  9         a death sentence may be stayed only by the

10         Governor incident to a direct appeal, a

11         postconviction proceeding conducted in

12         accordance with specified provisions, or a

13         habeas corpus proceeding conducted in

14         accordance with specified provisions;

15         conforming terminology to changes made by the

16         act; reenacting s. 922.052(2), F.S., relating

17         to issuance of warrant of execution, to

18         incorporate said amendment in a reference;

19         amending s. 924.051, F.S., relating to terms

20         and conditions of appeals and collateral review

21         in criminal cases; removing provisions

22         prohibiting consideration of motion for

23         collateral or other postconviction relief in a

24         capital case under specified circumstances and

25         removing provisions prohibiting calling of

26         expert witness to testify unless approved by

27         the court; amending s. 924.055, F.S., relating

28         to postconviction review in capital cases;

29         providing legislative findings and intent;

30         creating ss. 924.056, 924.057, 924.058, and

31         924.059, F.S.; providing procedures for state

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  1         postconviction proceedings in capital cases in

  2         which the trial court imposes a sentence of

  3         death; requiring appointment of the capital

  4         collateral regional counsel as postconviction

  5         counsel within a specified period after

  6         imposition of a death sentence; providing an

  7         exception and prohibiting expenditure of state

  8         resources if the defendant declines the

  9         appointment of postconviction counsel;

10         requiring the defendant to waive

11         attorney-client privilege with trial counsel

12         regarding certain matters; requiring the

13         defendant to instruct his or her trial counsel

14         to assist and cooperate fully with

15         postconviction counsel; providing circumstances

16         under which the defendant is not entitled to

17         further postconviction legal representation

18         provided by the state; requiring the court to

19         order that postconviction counsel be excused

20         from representing the defendant, and

21         prohibiting expenditure of further state

22         resources for postconviction representation of

23         that defendant, under specified circumstances

24         when the defendant has requested removal of

25         counsel; restricting the number of pleadings

26         and appeals that appointed counsel may file to

27         one pleading seeking postconviction relief in

28         state court, one pleading seeking

29         postconviction relief in federal district

30         court, and, if deemed necessary and appropriate

31         under federal law, one appeal in the federal

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  1         circuit court of appeals; permitting the filing

  2         of an appropriate petition in the United States

  3         Supreme Court if deemed necessary and

  4         permissible under federal law; requiring orders

  5         for expedited transcripts and provision of

  6         copies to postconviction counsel within a

  7         specified period; requiring all postconviction

  8         pleadings that challenge the judgment or

  9         sentence to be filed in the Florida Supreme

10         Court within a certain time period; providing

11         postconviction procedures applicable to cases

12         in which the trial court imposed a sentence of

13         death before July 1, 1999; revising guidelines

14         and time limitations; requiring filing of the

15         motion for postconviction relief in the trial

16         court, or filing of the claim alleging

17         ineffectiveness of counsel in the Supreme

18         Court, within 180 days after the effective date

19         of the act; prohibiting the filing of any

20         further motion, or amendment to a motion, for

21         postconviction relief after this 180-day

22         period; providing procedures for all

23         postconviction cases; prohibiting the circuit

24         court from entertaining a pleading filed in

25         violation of certain time limitations;

26         providing an exception to permit the defendant

27         one 30-day extension; permitting the Attorney

28         General to file any responsive pleading within

29         60 days after the filing of any postconviction

30         petition; providing for extensions of time;

31         prohibiting the consideration of amendments to

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  1         a pleading which are filed in violation of the

  2         time limitations; providing that factual

  3         allegations made by the defendant in any

  4         petition and not admitted by the state are

  5         deemed denied; prohibiting the expenditure of

  6         state resources in preparation or consideration

  7         of any pleading, claim, or amendment to a

  8         pleading filed in violation of specified

  9         provisions; requiring constructive waiver of

10         pleadings filed in violation of such

11         provisions; providing for denial of all

12         postconviction claims in that case by operation

13         of law; providing that the alleged inability of

14         postconviction counsel to provide legal

15         representation or obtain evidence or records

16         may not be a basis for consideration of

17         pleadings filed in violation of the time

18         limitations; prescribing a restriction upon the

19         amount and rate of compensation to which

20         private counsel is entitled if the

21         postconviction claim is denied by operation of

22         law, and prohibiting reappointment of the

23         private counsel in future capital

24         postconviction proceedings under certain

25         circumstances; specifying that a postconviction

26         claim may not be based on any ground that was

27         or could have been raised at trial or, if

28         properly preserved, on direct appeal; requiring

29         denial as a matter of law of such an unbased

30         claim and prohibiting the court from

31         considering it; requiring the defendant to

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  1         explain with specificity why each claim is

  2         based on a ground that was not or could not

  3         have been so raised; prohibiting the court from

  4         granting relief on a postconviction claim

  5         unless the defendant demonstrates clearly and

  6         convincingly that but for the alleged

  7         collateral error there would have been a

  8         different outcome at trial in the penalty

  9         phase; requiring the court to apply the rule of

10         harmless error to any capital postconviction

11         pleading; prohibiting any state court from

12         hearing a successive petition for

13         postconviction relief of any type in a capital

14         case; prohibiting the utilization by a state

15         employee, contracting party, or other person

16         receiving state compensation to file a

17         successive postconviction claim in a state or

18         federal court; requiring the Attorney General

19         to notify the Speaker of the House of

20         Representatives, the President of the Senate,

21         and the Commission on the Administration of

22         Justice regarding an attempt by such person

23         receiving state compensation to file a

24         successive postconviction claim in a state or

25         federal court; requiring the providing of

26         certain information to postconviction counsel

27         by the state attorney and the defendant's trial

28         counsel; requiring the circuit court to conduct

29         an evidentiary hearing within a specified

30         period if requested by the defendant; providing

31         that the defendant may call to testify at the

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  1         hearing only those witnesses identified in the

  2         postconviction pleading; providing that no

  3         expert witness may be called unless approved by

  4         the court; requiring the court to issue a final

  5         order denying or granting postconviction relief

  6         within 30 days after the conclusion of the

  7         hearing; requiring the Supreme Court to render

  8         a final decision denying or granting any

  9         postconviction relief or remanding the case

10         within a specified period; requiring the

11         circuit court to expedite any case so remanded

12         and make all factual findings and conclusions

13         of law within a specified period; requiring the

14         Supreme Court to render a final decision within

15         90 days of the circuit court's order on remand;

16         requiring the Attorney General to provide

17         Supreme Court orders to victim's family;

18         amending s. 27.7091, F.S., relating to

19         legislative recommendations to Supreme Court

20         regarding capital postconviction proceedings,

21         to correct a cross reference; repealing Rule

22         3.850, Florida Rules of Criminal Procedure,

23         relating to grant of new trial, to the extent

24         of inconsistency with the act; providing an

25         effective date.

26

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

28

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

30  Appeals Reform Act of 1999."

31

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  1         Section 2.  Section 27.701, Florida Statutes, is

  2  amended to read:

  3         27.701  Capital collateral regional counsels.--There

  4  are created three regional offices of capital collateral

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

  6  southern region of the state. The northern region shall

  7  consist of the First, Second, Third, Fourth, Eighth, and

  8  Fourteenth Judicial Circuits; the middle region shall consist

  9  of the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth,

10  Thirteenth, and Eighteenth Judicial Circuits; and the southern

11  region shall consist of the Eleventh, Fifteenth, Sixteenth,

12  Seventeenth, Nineteenth, and Twentieth Judicial Circuits.

13  Each regional office shall be administered by a regional

14  counsel. A regional counsel must be, and must have been for

15  the preceding 5 years, a member in good standing of The

16  Florida Bar or a similar organization in another state. Each

17  capital collateral regional counsel shall be appointed by the

18  Governor, and is subject to confirmation by the Senate. The

19  Supreme Court Judicial Nominating Commission shall recommend

20  to the Governor three qualified candidates for each

21  appointment as regional counsel. The Governor shall appoint a

22  regional counsel for each region from among the

23  recommendations, or, if it is in the best interest of the fair

24  administration of justice in capital cases, the Governor may

25  reject the nominations and request submission of three new

26  nominees by the Supreme Court Judicial Nominating Commission.

27  Each capital collateral regional counsel shall be appointed to

28  a term of 3 years. Vacancies in the office of capital

29  collateral regional counsel shall be filled in the same manner

30  as appointments. A person appointed as a regional counsel may

31

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  1  not run for or accept appointment to any state office for 2

  2  years following vacation of office.

  3         Section 3.  Subsection (1) of section 27.02, Florida

  4  Statutes, 1998 Supplement, is amended to read:

  5         27.702  Duties of the capital collateral regional

  6  counsel; reports.--

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

  8  represent each person convicted and sentenced to death in this

  9  state for the sole purpose of instituting and prosecuting

10  collateral actions challenging the legality of the judgment

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

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

13  Appeals for the Eleventh Circuit, and the United States

14  Supreme Court in compliance with chapter 924. In no event,

15  however, may any state employee, or person contracting with

16  any state officer, utilize state resources to file, argue,

17  research, or prepare in any way a successive postconviction

18  pleading, as defined in paragraph (b), in state or federal

19  court. No state employee may represent or assist in the

20  representation of a person for a successive postconviction

21  motion. The three capital collateral regional counsels'

22  offices shall function independently and be separate budget

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

24  for all purposes. The Justice Administrative Commission shall

25  provide administrative support and service to the three

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

27  three regional offices shall not be subject to control,

28  supervision, or direction by the Justice Administrative

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

30  personnel, purchasing, transactions involving real or personal

31  property, and budgetary matters.

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  1         (b)  For purposes of this section, the term "successive

  2  postconviction pleading" means any postconviction pleading or

  3  amendment to a pleading in any case in which the death penalty

  4  has been imposed after the expiration of the time limits in

  5  chapter 924. State resources may be utilized to file one

  6  timely postconviction pleading in the state trial court, one

  7  timely postconviction pleading in the Florida Supreme Court,

  8  one postconviction pleading in the federal district court, one

  9  postconviction pleading in the federal circuit court of

10  appeals, if authorized, and one postconviction pleading in the

11  United States Supreme Court. A postconviction pleading is

12  timely if it is filed in accordance with chapter 924.

13         Section 4.  Section 27.708, Florida Statutes, 1998

14  Supplement, is amended to read:

15         27.708  Access to prisoners; compliance with the

16  Florida Rules of Criminal Procedure; records requests.--

17         (1)  Each capital collateral regional counsel and his

18  or her assistants may inquire of all persons sentenced to

19  death who are incarcerated and tender them advice and counsel

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

21  respect to persons who are represented by other counsel.

22         (2)  The capital collateral regional counsel and

23  contracted private counsel must timely comply with chapter 924

24  all provisions of the Florida Rules of Criminal Procedure

25  governing collateral review of capital cases.

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

27  collateral regional counsel or contracted private counsel

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

29  her client.

30         Section 5.  Section 27.710, Florida Statutes, 1998

31  Supplement, is amended to read:

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  1         27.710  Registry of attorneys applying to represent

  2  persons in postconviction capital collateral proceedings;

  3  certification of minimum requirements; appointment by trial

  4  court.--

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

  6  Administration of Justice in Capital Cases shall compile and

  7  maintain a statewide registry of attorneys in private practice

  8  who have certified that they meet the minimum requirements of

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

10  court under this section to represent persons convicted and

11  sentenced to death in this state in postconviction capital

12  collateral proceedings. To ensure that sufficient attorneys

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

14  attorneys on the registry falls below 50, the executive

15  director shall notify the chief judge of each circuit by

16  letter and request the chief judge to promptly submit the

17  names of at least three private attorneys who regularly

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

19  the minimum requirements to represent persons in

20  postconviction capital collateral proceedings. The executive

21  director shall send an application to each attorney identified

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

23  appointment as counsel in postconviction capital collateral

24  proceedings. As necessary, the executive director may also

25  advertise in legal publications and other appropriate media

26  for qualified attorneys interested in registering for

27  appointment as counsel in postconviction capital collateral

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

29  necessary thereafter, the executive director shall provide to

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

31  state attorney in each judicial circuit, and the Attorney

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

  2  available for appointment as counsel in postconviction capital

  3  collateral proceedings. The registry must be indexed by

  4  judicial circuit and must contain the requisite information

  5  submitted by the applicants in accordance with this section.

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

  7  postconviction capital collateral proceedings, an attorney

  8  must certify on an application provided by the executive

  9  director that he or she satisfies the minimum requirements for

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

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

12  appointment as counsel in postconviction capital collateral

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

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

15  represent a person in postconviction capital collateral

16  proceedings, shall continue such representation under the

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

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

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

20  not permit an attorney to withdraw from representation without

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

22  appropriate sanctions if it finds that an attorney has shown

23  bad faith with respect to continuing to represent a defendant

24  in a postconviction capital collateral proceeding. This

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

26  a capital collateral regional counsel following

27  discontinuation of representation if a conflict of interest no

28  longer exists with respect to the case.

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

30  court to represent a capital defendant must enter into a

31  contract with the Comptroller. The executive director of the

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  1  Commission on the Administration of Justice in Capital Cases

  2  shall develop the form of the contract, and the Comptroller

  3  shall function as contract manager and shall enforce

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

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

  6  intends to continue the representation under the terms and

  7  conditions set forth in the contract until the sentence is

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

  9  of the trial court.

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

11         (a)  Thirty Ninety-one days have elapsed since the

12  defendant has been sentenced to death and a capital collateral

13  regional counsel is not able to provide representation within

14  the time limitations provided in chapter 924 Supreme Court

15  issued a mandate on a direct appeal, or the Supreme Court of

16  the United States has denied a petition for certiorari,

17  whichever is later; or

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

19  previously represented by private counsel is currently

20  unrepresented in a postconviction capital collateral

21  proceeding.; or

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

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

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

25  924.055(2), and the defendant's complete original motion for

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

27

28  the executive director shall immediately notify the trial

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

30  immediately appoint an attorney, unless the time limitations

31  provided in chapter 924 have expired, selected from the

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  1  current registry, to represent such person in collateral

  2  actions challenging the legality of the judgment and sentence

  3  in the appropriate state and federal courts. The court shall

  4  have the authority to strike a notice of appearance filed by a

  5  Capital Collateral Regional Counsel, if the court finds the

  6  notice was not filed in good faith and may so notify the

  7  executive director that the client is no longer represented by

  8  the Office of Capital Collateral Regional Counsel.  In making

  9  an assignment, the court shall give priority to attorneys

10  whose experience and abilities in criminal law, especially in

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

12  with the responsibility of representing a person sentenced to

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

14  which contains specific findings that the appointed counsel

15  meets the statutory requirements and has the high ethical

16  standards necessary to represent a person sentenced to death.

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

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

19  person in postconviction capital collateral proceedings.

20         (7)  Within 30 days of this act becoming a law or

21  within 30 days of the appointment of the capital collateral

22  regional counsel in cases in which a person sentenced to death

23  did not have representation for postconviction motions, each

24  capital collateral regional counsel must certify whether the

25  postconviction motions and representation will be provided

26  within the time limitations provided in chapter 924. If

27  certification is not provided, then the court must appoint

28  private counsel.

29         Section 6.  Section 27.711, Florida Statutes, 1998

30  Supplement, is amended to read:

31

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  1         27.711  Terms and conditions of appointment of

  2  attorneys as counsel in postconviction capital collateral

  3  proceedings.--

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

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

  6  represented in postconviction capital collateral proceedings

  7  by an attorney appointed under s. 27.710.

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

  9  of the Commission on the Administration of Justice in Capital

10  Cases.

11         (c)  "Postconviction capital collateral proceedings"

12  means one series of collateral litigation involving a of an

13  affirmed conviction and sentence of death, excluding direct

14  appeal but including the proceedings in the trial court that

15  imposed the capital sentence, any appellate review of the

16  sentence by the Supreme Court, any certiorari review of the

17  sentence by the United States Supreme Court, and any

18  authorized federal habeas corpus litigation with respect to

19  the sentence. The term does not include repetitive or

20  successive collateral challenges to a conviction and sentence

21  of death which is affirmed by the Supreme Court and

22  undisturbed by any collateral litigation.

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

24  27.710, the attorney must immediately file a notice of

25  appearance with the trial court indicating acceptance of the

26  appointment to represent the capital defendant throughout all

27  postconviction capital collateral proceedings, including

28  federal habeas corpus proceedings, in accordance with this

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

30         (3)  An attorney appointed to represent a capital

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

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  1  section only upon full performance by the attorney of the

  2  duties specified in this section and approval of payment by

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

  4  the attorney, subject to the availability of sufficient

  5  funding specifically appropriated for this purpose.  The

  6  Justice Administrative Commission shall notify the executive

  7  director and the court if it appears that sufficient funding

  8  has not been specifically appropriated for this purpose to pay

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

10  appropriate documentation, including a current and detailed

11  hourly accounting of time spent representing the capital

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

13  exclusive means of compensating a court-appointed attorney who

14  represents a capital defendant. When appropriate, a

15  court-appointed attorney must seek further compensation from

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

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

18  courts.

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

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

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

22         (a)  Regardless of the stage of postconviction capital

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

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

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

26  of a fee for a retainer agreement.

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

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

29  capital defendant's complete original motion for

30  postconviction relief under the Florida Rules of Criminal

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

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  1  the trial court. Payment is only authorized for timely

  2  pleadings filed in accordance with chapter 924.

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

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

  5  granting or denying the capital defendant's motion for

  6  postconviction relief.

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

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

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

10  court's final order granting or denying the capital

11  defendant's motion for postconviction relief and the state

12  petition for writ of habeas corpus.

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

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

15  denial of the capital defendant's motion for postconviction

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

17  habeas corpus become final in the Supreme Court.

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

19  postconviction capital collateral proceedings in state court,

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

21  $2,500, after filing a petition for writ of certiorari in the

22  Supreme Court of the United States.

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

24  States accepts for review the capital defendant's collateral

25  challenge of the conviction and sentence of death, the

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

27  $5,000. This payment shall be full compensation for

28  representing the capital defendant throughout the certiorari

29  proceedings before the United States Supreme Court.

30

31

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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 7.  Section 79.01, Florida Statutes, is amended

11  to read:

12         79.01  Application and writ.--

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

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

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

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

17  of habeas corpus and shows by affidavit or evidence probable

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

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

20  application is made shall grant the writ forthwith, against

21  the person in whose custody the applicant is detained and

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

23  judges as the writ directs.

24         (2)  For purposes of this section, there is "lawful

25  authority" to detain a person after a judgment of conviction

26  or sentence which has been affirmed on direct appeal unless:

27         (a)  The trial court did not have jurisdiction over the

28  person.

29         (b)  The trial court did not have subject matter

30  jurisdiction.

31

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  1         (c)  The trial court exceeded the maximum sentence

  2  allowed by statute.

  3         Section 8.  Section 119.19, Florida Statutes, 1998

  4  Supplement, is amended to read:

  5         119.19  Capital postconviction public records

  6  production.--

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

  8  means:

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

10  sentence of death; or

11         (b)  If a motion under chapter 924 Rule 3.850 or Rule

12  3.851 has been filed and a different judge has already been

13  assigned to that motion, the judge who is assigned to rule on

14  that motion.

15         (2)  The Secretary of State shall establish and

16  maintain a records repository for the purpose of archiving

17  capital postconviction public records as provided for in this

18  section.

19         (3)(a)  Upon the imposition of a death sentence

20  issuance of the Florida Supreme Court's mandate, the Attorney

21  General shall promptly provide written notification to the

22  state attorney who prosecuted the case that a death sentence

23  has been affirmed. Upon receipt of such notification, the

24  state attorney shall promptly provide written notification to

25  each law enforcement agency involved in the case.

26         (b)  Within 30 90 days after receipt of notification,

27  each law enforcement agency involved in the case and the state

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

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

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

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

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

  2  mandate, the Attorney General shall promptly provide written

  3  notification to the Department of Corrections that a death row

  4  inmate's sentence has been affirmed.

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

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

  7  all public records determined by the department to be relevant

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

  9  3.851 and where such production would not be unduly burdensome

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

11         (4)(5)(a)  The chief law enforcement officer of each

12  law enforcement agency that was involved in the case, whether

13  through an investigation, arrest, prosecution, or

14  incarceration, shall notify the state attorney Attorney

15  General upon compliance with subsection (3) and shall certify

16  that to the best of his or her knowledge and belief all public

17  records in possession of the agency or in possession of any

18  employee of the agency have been copied, indexed, and

19  delivered to the records repository as required by subsection

20  (3).

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

22  provide written notification to the Attorney General upon

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

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

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

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

27         (c)  The Secretary of Corrections shall provide written

28  notification to the Attorney General upon compliance with

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

30  her knowledge and belief all public records in the

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

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  1  delivered to the records repository as required by paragraph

  2  (4)(b).

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

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

  5  public defender or private counsel for the defendant and the

  6  state attorney involved in the case shall provide written

  7  notification to the Attorney General of the name and address

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

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

10  information pertinent to the case unless previously provided

11  to the capital collateral regional counsel or postconviction

12  private counsel. The Attorney General shall promptly provide

13  written notification to each identified person or agency after

14  receiving the information from the public defender, private

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

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

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

18  delivered to the records repository.

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

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

21  provide written notification to the Attorney General of

22  compliance with this subsection and shall certify that to the

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

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

25  records repository.

26         (5)(7)(a)  Any public record delivered to the records

27  repository under this section which is confidential or exempt

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

29  the State Constitution must be separately boxed, without being

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

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

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

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

  3  legal basis under which the public records are exempt.

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

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

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

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

  8  only with a representative of the agency present at the

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

10  associated with the transportation and inspection of such

11  records by the trial court.

12         (6)(8)(a)  Within 30 90 days after a capital collateral

13  regional counsel or private counsel is appointed to represent

14  a defendant sentenced to death, such the regional counsel,

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

16  Florida Bar and is authorized by such counsel representing a

17  defendant shall send a written demand for additional public

18  records to each person or agency submitting public records

19  under subsection subsections (3) and (4) and to each person or

20  agency identified as having information pertinent to the case

21  under subsection (6). Each person or agency notified under

22  this subsection shall, within 30 90 days after receipt of the

23  written demand, deliver to the records repository any

24  additional public records in the possession of the person or

25  agency which pertain to the case and shall certify that to the

26  best of his or her knowledge and belief all additional public

27  records have been delivered to the Attorney General or, if no

28  additional public records are found, shall recertify that the

29  public records previously delivered are complete.

30         (b)  Within 30 60 days after receiving the written

31  demand, the agency or person may file an objection in the

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  1  trial court. Within 10 30 days after the filing of an

  2  objection, the trial court shall hold a hearing and order an

  3  agency or person to produce additional public records if it

  4  finds each of the following:

  5         1.  The defendant's regional counsel or private counsel

  6  has made a timely and diligent search as provided in this

  7  section.

  8         2.  The defendant's regional or private counsel's

  9  written demand identifies, with specificity, those additional

10  public records that are not at the repository.

11         3.  The additional public records sought are relevant

12  to the subject matter of a proceeding under chapter 924 Rule

13  3.850 or Rule 3.851 or appear reasonably calculated to lead to

14  the discovery of admissible evidence.

15         4.  The additional public records request is not

16  overbroad or unduly burdensome.

17         (c)  The Attorney General and state attorney shall

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

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

20  statute becomes effective, but where initial requests for

21  public records have not been made.

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

23  effective, a defendant is represented by appointed capital

24  collateral regional counsel or private counsel, and he or she

25  has initiated the public records request process, counsel

26  shall file within 30 90 days of the effective date of this

27  statute, a written demand for any additional records that have

28  not previously been the subject of a notice to produce. An

29  agency may file an objection to such additional demand, and

30  the trial court shall hold a hearing as provided by paragraph

31  (b). This statute shall not be a basis for renewing requests

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  1  that have been initiated previously or for relitigating issues

  2  pertaining to production of public records upon which a court

  3  has ruled prior to the effective date of the statute, or for

  4  stopping an execution which has been scheduled based upon a

  5  warrant executed by the Governor prior to the effective date

  6  of the statute.

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

  8  effective, the defendant has had a Rule 3.850 motion denied

  9  and no Rule 3.850 motion is pending, no additional requests

10  shall be made by capital collateral regional counsel or

11  contracted private counsel until a death warrant is signed by

12  the Governor and an execution is scheduled. Within 10 days of

13  the signing of the death warrant, capital collateral regional

14  counsel or contracted private counsel may request of a person

15  or agency that the defendant has previously requested to

16  produce records any records previously requested to which no

17  objection was raised or sustained, but which the agency has

18  received or produced since the previous request or which for

19  any reason the agency has in its possession and did not

20  produce within 10 days of the receipt of the previous notice

21  or such shorter time period ordered by the court to comply

22  with the time for the scheduled execution. The person or

23  agency shall produce the record or shall file in the trial

24  court an affidavit stating that it does not have the requested

25  record or that the record has been produced previously.

26         (7)(9)(a)  After production of additional public

27  records or recertification as provided in subsection (8), The

28  defendant's regional counsel or the private counsel is

29  prohibited from making any further public records requests

30  except as authorized under this chapter. An agency is not

31

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  1  required to produce additional public records except by court

  2  order as provided in this subsection.

  3         (b)  In order to obtain additional public records

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

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

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

  7  private counsel shall file an affidavit in the trial court

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

  9  search of the records repository and specifically identifies

10  those additional public records that are not at the repository

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

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

13  to the discovery of admissible evidence. The affiant shall

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

15  the filing of such affidavit in the trial court.

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

17  the trial court shall order an agency to produce additional

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

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

20  timely and diligent search as provided in this section.

21         2.  The regional or private counsel's affidavit

22  identifies, with specificity, those additional public records

23  that are not at the repository.

24         3.  The additional public records sought are relevant

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

26  3.851 or appear reasonably calculated to lead to the discovery

27  of admissible evidence.

28         4.  The additional public records request is not

29  overboard or unduly burdensome.

30         (8)(10)  The defendant's capital collateral regional

31  counsel or private counsel shall provide the personnel,

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  1  supplies, and any necessary equipment used by the capital

  2  collateral regional counsel or private counsel to copy records

  3  held at the records repository.

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

  5  arises under this section, unless the appellate court has

  6  exclusive jurisdiction.

  7         (9)(12)  The defendant's capital collateral regional

  8  counsel or private counsel shall not solicit another person to

  9  make a request for public records on behalf of the regional

10  counsel or private counsel. The trial court shall impose

11  appropriate sanctions against any regional counsel or private

12  counsel found in violation of this subsection.

13         (10)(13)  Sixty days after a capital sentence is

14  carried out, 60 days after a defendant is released from

15  incarceration following the granting of a pardon or reversal

16  of the sentence, or 60 days after the defendant has been

17  resentenced to a term of years, the Attorney General shall

18  provide written notification to the Secretary of State, who

19  may then destroy the records held by the records repository

20  which pertain to that case.

21         (11)(14)  This section pertains only to the production

22  of records for capital postconviction defendants and does not

23  change or alter any time periods specified in chapter 924 Rule

24  3.850 or Rule 3.851, Florida Rules of Criminal Procedure.

25  Furthermore, this section does not affect, expand, or limit

26  the production of public records for any purposes other than

27  use in a proceeding held pursuant to chapter 924 Rule 3.850 or

28  Rule 3.851, Florida Rules of Criminal Procedure. Nothing in

29  this section shall constitute grounds to expand the time

30  limitations in chapter 924.

31

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  1         Section 9.  Section 922.06, Florida Statutes, is

  2  amended to read:

  3         922.06  Stay of execution of death sentence.--

  4         (1)  The execution of a death sentence may be stayed

  5  only by the Governor or incident to a direct an appeal, a

  6  postconviction proceeding conducted in accordance with chapter

  7  924, or a habeas corpus proceeding conducted in accordance

  8  with chapter 79.

  9         (2)(a)  If execution of the death sentence is stayed by

10  the Governor, and the Governor subsequently lifts or dissolves

11  the stay, the Governor shall immediately notify the Attorney

12  General that the stay has been lifted or dissolved. Within 10

13  days after such notification, the Governor must set the new

14  date for execution of the death sentence.

15         (b)  If execution of the death sentence is stayed

16  incident to a legal proceeding described in this section an

17  appeal, upon certification by the Attorney General that the

18  stay has been lifted or dissolved, within 10 days after such

19  certification, the Governor must set the new date for

20  execution of the death sentence.

21

22  When the new date for execution of the death sentence is set

23  by the Governor under this subsection, the Attorney General

24  shall notify the inmate's counsel of record of the date and

25  time of execution of the death sentence.

26         Section 10.  For the purpose of incorporating the

27  amendment to section 922.06, Florida Statutes, in a reference

28  thereto, subsection (2) of section 922.052, Florida Statutes,

29  is reenacted to read:

30         922.052  Issuance of warrant of execution.--

31

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  1         (2)  If, for any reason, the sentence is not executed

  2  during the week designated, the warrant shall remain in full

  3  force and effect and the sentence shall be carried out as

  4  provided in s. 922.06.

  5         Section 11.  Section 924.051, Florida Statutes, is

  6  amended to read:

  7         924.051  Terms and conditions of appeals and collateral

  8  review in criminal cases.--

  9         (1)  As used in this section:

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

11  court that harmfully affected the judgment or sentence.

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

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

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

15  objection to evidence was sufficiently precise that it fairly

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

17  therefor.

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

19  collateral review created in this chapter may only be

20  implemented in strict accordance with the terms and conditions

21  of this section.

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

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

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

25  constitute fundamental error. A judgment or sentence may be

26  reversed on appeal only when an appellate court determines

27  after a review of the complete record that prejudicial error

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

29  not properly preserved, would constitute fundamental error.

30         (4)  If a defendant pleads nolo contendere without

31  expressly reserving the right to appeal a legally dispositive

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  1  issue, or if a defendant pleads guilty without expressly

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

  3  defendant may not appeal the judgment or sentence.

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

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

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

  7         (6)(a)  In a noncapital case, a petition or motion for

  8  collateral or other postconviction relief may not be

  9  considered if it is filed more than 2 years after the judgment

10  and sentence became final, unless the petition or motion

11  alleges that:

12         (a)1.  The facts upon which the claim is predicated

13  were unknown to the petitioner or his or her attorney and

14  could not have been ascertained by the exercise of due

15  diligence;

16         (b)2.  The fundamental constitutional right asserted

17  was not established within the period provided for in this

18  subsection and has been held to apply retroactively; or

19         (c)3.  The sentence imposed was illegal because it

20  either exceeded the maximum or fell below the minimum

21  authorized by statute for the criminal offense at issue.

22  Either the state or the defendant may petition the trial court

23  to vacate an illegal sentence at any time.

24         (b)  In a capital case in which the sentence of death

25  has been imposed: imposed:

26         1.  A motion for collateral or other postconviction

27  relief may not be considered if the motion is filed more than

28  1 year after the judgment and sentence became final, unless

29  the facts upon which the claim is predicated were unknown to

30  the petitioner or his or her attorney and could not have been

31  ascertained by the exercise of due diligence, or the

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  1  fundamental constitutional right asserted was not established

  2  within the period provided for in this subsection and has been

  3  held to apply retroactively.

  4         2.  An expert witness may not be called to testify

  5  unless approved by the court.

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

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

  8  the burden of demonstrating that a prejudicial error occurred

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

10  reversed absent an express finding that a prejudicial error

11  occurred in the trial court.

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

13  and conditions of direct appeal and collateral review be

14  strictly enforced, including the application of procedural

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

16  resolved at the first opportunity.  It is also the

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

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

19  state.

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

21  its political subdivisions may not be used, directly or

22  indirectly, in appellate or collateral proceedings unless the

23  use is constitutionally or statutorily mandated.

24         Section 12.  Section 924.055, Florida Statutes, is

25  amended to read:

26         924.055  Postconviction review in capital cases;

27  legislative findings and intent Time limitations for

28  postconviction proceedings in capital cases.--

29         (1)  The Legislature finds that postconviction delays

30  in state court in capital cases have increased without

31  justification, despite the state's substantial efforts and

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  1  allocations of resources since 1987 to provide postconviction

  2  legal representation to indigent prisoners sentenced to death.

  3  The Legislature further finds that previous legislation

  4  enacted in 1996 requiring the state courts to resolve capital

  5  postconviction litigation in a timely fashion has failed to

  6  reduce delays in capital cases.

  7         (2)  The Legislature finds that, because of multiple

  8  filings in postconviction capital proceedings, the average

  9  convicted murderer sentenced to death and executed since 1994

10  has been allowed to initiate 10 separate proceedings in state

11  and federal courts. These proceedings have delayed the

12  execution of death sentences an average of over 13 years since

13  1994. The vast majority of these proceedings are

14  postconviction motions. The Legislature finds that these

15  delays have allowed persons sentenced to death to abuse

16  judicial postconviction proceedings, resulting in unwarranted

17  delays that diminish respect for the rule of law and the

18  importance of the criminal trial and appellate process. These

19  delays further traumatize victims' families and deny justice

20  to the people of this state.

21         (3)  The Legislature finds that the United States

22  Constitution does not limit the states' authority to restrict

23  postconviction legal remedies in capital cases, nor does it

24  require the state to expend resources to provide

25  postconviction legal representation to convicted murderers

26  sentenced to death. The Legislature recognizes that in Murray

27  v. Giarratano, 492 U.S. 1,10 (1989), Chief Justice Rehnquist

28  stated that: "State collateral proceedings are not

29  constitutionally required as an adjunct to the state criminal

30  proceedings and serve a different and more limited purpose

31  than either the trial or appeal." The Legislature further

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  1  recognizes that, in that same case, at 492 U.S. 1,13, Justice

  2  O'Connor stated that: "A postconviction proceeding is not part

  3  of the criminal process itself, but is instead a civil action

  4  designed to overturn a presumptively valid criminal judgment"

  5  and "Nothing in the Constitution requires the states to

  6  provide such proceedings."

  7         (4)  The Legislature finds that it is the criminal

  8  trial and direct appeal, and not the state postconviction

  9  proceedings, that are and should be the primary focus in all

10  capital criminal cases in this state. The Legislature finds

11  that state postconviction proceedings are civil in nature and

12  a matter of substantive law subject to limitations provided by

13  general law.

14         (5)  It is the intent of the Legislature to eliminate

15  the abuse of postconviction judicial proceedings and the

16  unwarranted delays in capital cases. The Legislature finds

17  that, in order to restore finality to capital cases, any

18  postconviction action in a capital case must be resolved

19  within 1 year after the Florida Supreme Court upholds a death

20  sentence. The Legislature further intends that no more than

21  one postconviction action may be filed in any capital case,

22  and that repetitive postconviction pleadings are not required

23  under the United States Constitution and cause undue delay.

24         (6)  The Legislature recognizes that any allegations

25  regarding actual innocence in capital cases raised after the

26  postconviction process is complete may be filed with the

27  Executive Board of Clemency, which has the power to pardon or

28  commute any criminal sentence should the board find sufficient

29  grounds to justify granting such relief.

30         (7)  The Legislature finds that all postconviction

31  remedies in capital cases must be filed in strict conformity

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  1  with the time limits provided in this act, and that the courts

  2  of this state must resolve these cases in conformity with

  3  these time limitations. It is the intent of the Legislature

  4  that the time limitations and prohibitions on successive

  5  capital postconviction proceedings provided in this section be

  6  strictly enforced. No court shall delay capital postconviction

  7  proceedings for any reason not authorized in this act. The

  8  Legislature finds that the right to demand public records,

  9  does not include the right to delay state capital

10  postconviction proceedings. Public records requests shall not

11  provide a basis to extend any of the time limitations provided

12  in this chapter.

13         (8)  It is the further intent of the Legislature that

14  no state resources be expended in violation of this act. In

15  the event that any state employee or party contracting with

16  the state willfully and substantially violates the provisions

17  of this act, the Attorney General shall notify the Speaker of

18  the House of Representatives, the President of the Senate, and

19  the Commission on the Administration of Justice. In addition,

20  the Legislature authorizes the Attorney General to file a writ

21  of prohibition in the Florida Supreme Court when there is a

22  violation of the time limitations or the prohibition against

23  successive capital postconviction proceedings provided in this

24  act.

25         (1)  The Legislature recognizes that unjustified delay

26  in postconviction proceedings in capital cases frustrates

27  justice and diminishes public confidence in the criminal

28  justice system. It is the intent of the Legislature that

29  postconviction proceedings in capital cases progress in a fair

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

31

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  1  participants in such proceedings abide by the time limitations

  2  set forth in this section.

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

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

  5  Supreme Court denies a petition for certiorari, whichever is

  6  later, all postconviction motions and petitions that challenge

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

  8  the appropriate court.

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

10  response to a postconviction motion that challenges the

11  judgment or sentence, the circuit court shall conduct all

12  necessary hearings and render a decision.

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

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

15  is filed in a postconviction proceeding, the Supreme Court

16  shall render a decision.

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

18  habeas corpus in the district court of the United States

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

20  mandate in a postconviction proceeding.

21         Section 13.  Section 924.056, Florida Statutes, is

22  created to read:

23         924.056  Postconviction proceedings for which sentence

24  of death was imposed on or after July 1, 1999.--

25         (1)  In every capital case in which the trial court

26  imposes a sentence of death on or after July 1, 1999, the

27  following procedures shall apply in all postconviction

28  proceedings in state court:

29         (a)  Within 15 days after imposing a sentence of death,

30  the court shall appoint as postconviction counsel the office

31  of the capital collateral regional counsel, unless the

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  1  defendant affirmatively states that he or she refuses to

  2  accept postconviction legal representation. If the defendant

  3  declines the appointment of postconviction counsel, no further

  4  state resources shall be expended for such purposes. In the

  5  event that the office of the capital collateral regional

  6  counsel informs the court that it is unable to represent the

  7  defendant, or declines to accept the appointment by the trial

  8  court, the court shall appoint private counsel as

  9  postconviction counsel. The state attorney or Attorney General

10  shall notify the Speaker of the House of Representatives, the

11  President of the Senate, and the Commission on the

12  Administration of Justice whenever the office of the capital

13  collateral regional counsel is not appointed as postconviction

14  counsel in a capital case.

15         (b)  The defendant must waive the attorney-client

16  privilege with the defendant's trial counsel regarding any

17  matter which the postconviction counsel determines he or she

18  must investigate. The defendant must instruct his or her trial

19  counsel to cooperate with and assist postconviction counsel.

20  If the defendant declines or fails to waive the

21  attorney-client privilege or obstructs the efforts of

22  postconviction counsel, or if the sentencing court finds the

23  defendant is not cooperating with postconviction counsel, the

24  defendant shall not be entitled to any further postconviction

25  legal representation provided by the state in postconviction

26  proceedings. If the defendant requests that any attorney

27  appointed under this subsection be removed or replaced, the

28  court shall warn the defendant that no further state resources

29  may be expended for postconviction representation for that

30  defendant, unless the defendant withdraws the request to

31  remove or replace postconviction counsel. If the defendant

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  1  does not withdraw his or her request immediately, then any

  2  state-provided attorney must be removed and no further state

  3  resources may be expended for the defendant's postconviction

  4  representation.

  5         (c)  The counsel appointed to represent the defendant

  6  in capital postconviction proceedings is authorized to file

  7  one pleading seeking postconviction relief in state court,

  8  including one appeal to the Florida Supreme Court, one

  9  pleading seeking postconviction relief in the appropriate

10  federal district court, and one appeal, if deemed necessary

11  and appropriate under federal law, in the federal circuit

12  court of appeals having jurisdiction over the case. If deemed

13  necessary and permissible under federal law, postconviction

14  counsel may file one appropriate petition in the United States

15  Supreme Court. Postconviction counsel provided by the state

16  shall not be authorized to expend or utilize state resources

17  to file any further postconviction pleadings in any court.

18         (d)  The court shall order the court reporter to

19  expedite the transcript of all proceedings in the case and

20  provide a copy of all transcripts to postconviction counsel

21  within 30 days after the date the sentence of death is

22  imposed. The courts and clerks of court are encouraged to

23  utilize state-of-the-art technology to assist in complying

24  with this and any other time limitation.

25         (2)  Within 6 months after the filing of the initial

26  brief by the appellant in the Supreme Court, all

27  postconviction pleadings that challenge the judgment or death

28  sentence must be filed in the sentencing court, including any

29  allegations that the defendant's trial counsel was

30  ineffective, that the state withheld evidence in violation of

31  the United States Constitution, or that newly discovered

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  1  evidence demonstrates that no rational fact finder could have

  2  found the defendant guilty beyond a reasonable doubt. Any

  3  postconviction motion challenging the effectiveness of the

  4  defendant's counsel on direct appeal must be filed within this

  5  time period as well.

  6         Section 14.  Section 924.057, Florida Statutes, is

  7  created to read:

  8         924.057  Postconviction procedure for cases where the

  9  death sentence was imposed before July 1, 1999.--In every

10  capital case in which the trial court imposed a sentence of

11  death before July 1, 1999, the motion for postconviction

12  relief, if any, must be filed in the trial court or, if the

13  claim alleges the ineffectiveness of direct appeal counsel in

14  the Supreme Court, within 180 days after the effective date of

15  this act. No further motion, or amendment to a motion, for

16  postconviction relief may be filed after this 180-day period

17  following the effective date of this act.

18         Section 15.  Section 924.058, Florida Statutes, is

19  created to read:

20         924.058  Procedure for all capital postconviction

21  cases.--

22         (1)  A claim or demand regarding public records or

23  other matters does not constitute legal cause for a court to

24  consider any postconviction pleading filed in violation of

25  this chapter.

26         (2)(a)  The circuit court shall not entertain any

27  pleading filed in violation of s. 924.057 or s. 924.056(2),

28  except that the court may grant the defendant one 30-day

29  extension of time based on good cause shown. The state

30  attorney or Attorney General shall be permitted to file any

31  responsive pleading within 60 days after the filing of any

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  1  postconviction motion. Matters alleged by the defendant and

  2  not admitted by the state shall be deemed denied. The court

  3  may grant the state attorney or Attorney General a 30-day

  4  extension of time based on good cause shown.

  5         (b)  State resources may not be expended and state

  6  employees may not assist in preparation or in consideration of

  7  any pleading, claim, or amendment to any capital

  8  postconviction pleading filed in violation of s. 924.056(2) or

  9  s. 924.057, except that the Attorney General may appear to

10  inform the court that the court may not consider any

11  postconviction motion or amended motion filed in violation of

12  this act. A postconviction pleading filed by the defendant in

13  violation of the time limitations provided in s. 924.056(2) or

14  s. 924.057 shall be considered waived, and all postconviction

15  claims in that case shall be deemed denied by operation of

16  law. The alleged inability of postconviction counsel to

17  provide legal representation to a defendant, or to obtain any

18  evidence or records, shall not be a basis for a court to

19  consider a pleading filed in violation of the time limitations

20  provided in s. 924.056(2) or s. 926.057.  If private counsel

21  has represented the postconviction defendant and the claim is

22  denied by operation of law, the private counsel shall be

23  entitled only to compensation for services rendered at a rate

24  of $100 per hour, not to exceed the statutory maximum amounts

25  provided in s. 27.711. Any private counsel who represents a

26  defendant whose claim is denied by operation of law for

27  failure to comply with these time limitations may not be

28  appointed to represent any defendant in any future capital

29  postconviction proceeding in state court.

30         (c)  Any failure by a defendant to file the motion

31  within the time limitations provided by s. 924.056(2) or s.

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  1  924.057 constitutes a waiver of all postconviction claims, and

  2  all such claims shall be deemed denied by operation of law. A

  3  claim by a defendant or defendant's postconviction counsel

  4  that the postconviction counsel is unable to meet this time

  5  limitation does not constitute legal cause for a court to

  6  allow a motion, pleading, amendment, or other postconviction

  7  pleading to be filed in violation of s. 924.056(2) or s.

  8  924.057.

  9         (3)  A postconviction claim may not be based on any

10  grounds that were or could have been raised at trial or, if

11  properly preserved, on direct appeal of the conviction and

12  sentence. Any claim based on such a ground shall be denied as

13  a matter of law and may not be considered by any state court.

14  The defendant shall explain with specificity why each claim

15  raised is based on a ground that was not or could not have

16  been raised at trial or, if properly preserved, on direct

17  appeal of the conviction and sentence.

18         (4)  Relief may not be granted based on any

19  postconviction claim unless the defendant demonstrates by

20  clear and convincing evidence that but for the alleged

21  collateral error the outcome of the trial or the penalty phase

22  would have been different. The court shall apply the rule of

23  harmless error to any postconviction pleading filed in a

24  capital case.

25         (a)  A successive petition for postconviction relief in

26  a capital case may not be heard in any state court. State

27  resources may not be utilized by any state employee,

28  contracting party, or other person receiving state

29  compensation to file a successive postconviction claim or an

30  amendment to a postconviction claim filed in violation of the

31  time limits provided in s. 924.056(2) or s. 924.057.

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  1         (b)  The Attorney General shall notify the Speaker of

  2  the House of Representatives, the President of the Senate, and

  3  the Commission on the Administration of Justice regarding any

  4  attempt by a state employee, contracting party, or other

  5  person receiving state compensation to file a successive

  6  postconviction claim in a capital case. A private counsel or

  7  other person filing a successive postconviction pleading in a

  8  capital case shall be prohibited from receiving any state

  9  compensation in any future postconviction legal proceeding.

10         (c)  Within 30 days after the effective date of this

11  act or within 15 days after the appointment of counsel for

12  cases in which the death sentence is imposed after July 1,

13  1999, the state attorney, if he or she has not already

14  provided such information to postconviction counsel, shall

15  provide postconviction counsel with copies of all pretrial and

16  trial discovery provided to the defendant's trial counsel and

17  all contents of the state attorney's file containing

18  information regarding the capital criminal charges against the

19  defendant, except for those materials which the state attorney

20  has a legal right to withhold from disclosure. The defendant's

21  trial counsel shall provide copies of all appropriate records

22  and documents to postconviction counsel.

23         Section 16.  Section 924.059, Florida Statutes, is

24  created to read:

25         924.059  Time limitations for court decisions in

26  postconviction cases in which the death penalty has been

27  imposed.--

28         (1)(a)  Within 30 days after the filing of the state's

29  responsive pleading, the circuit court shall conduct an

30  evidentiary hearing, if requested by the defendant, regarding

31  those grounds properly alleged in a capital postconviction

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  1  proceeding as defined in this section, unless the circuit

  2  court has ruled that no evidentiary hearing was required

  3  before the effective date of this act. Only those witnesses

  4  identified by the defendant in the postconviction pleading may

  5  be called by the defendant to testify during the evidentiary

  6  hearing. An expert witness may not be called to testify unless

  7  approved by the court.

  8         (b)  Within 30 days after the conclusion of the

  9  evidentiary hearing, the circuit court shall make any

10  necessary factual findings and issue a final order denying or

11  granting postconviction relief to the defendant.

12         (2)  Within 90 days after the date the circuit court

13  issues its final order adjudicating all postconviction claims

14  and the Florida Supreme Court receives the record, the Florida

15  Supreme Court shall render a final decision denying or

16  granting any postconviction relief, or remanding the case to

17  the circuit court for further proceedings. Any case remanded

18  to the circuit court shall be expedited by that court, which

19  shall make all factual findings and conclusions of law within

20  60 days after the date the Supreme Court remands the

21  proceeding. The Supreme Court shall render a final decision

22  within 90 days after receipt of the circuit court's order on

23  remand.

24

25  The Attorney General shall provide a copy of the Supreme

26  Court's orders to the deceased victim's family.

27         Section 17.  Subsection (1) of section 27.7091, Florida

28  Statutes, is amended to read:

29         27.7091  Legislative recommendations to Supreme Court;

30  postconviction proceedings; pro bono service credit.--In the

31  interest of promoting justice and integrity with respect to

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  1  capital collateral representation, the Legislature recommends

  2  that the Supreme Court:

  3         (1)  Adopt by rule the provisions of chapter 924 s.

  4  924.055, which limit the time for postconviction proceedings

  5  in capital cases.

  6         Section 18.  Rule 3.850, Florida Rules of Criminal

  7  Procedure, relating to the grant of a new trial, is repealed

  8  to the extent that it is inconsistent with this act. Rule

  9  3.851, Florida Rules of Criminal Procedure, relating to

10  collateral relief after death sentence has been imposed, is

11  repealed.

12         Section 19.  This act shall take effect July 1, 1999;

13  section 18 shall take effect on that date only if this act is

14  passed by the affirmative vote of two-thirds of the membership

15  of each house of the Legislature.

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