Senate Bill 2054c1

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    Florida Senate - 1999                           CS for SB 2054

    By the Committee on Criminal Justice and Senator Burt





    307-1803-99

  1                      A bill to be entitled

  2         An act relating to capital collateral

  3         representation; amending s. 27.710, F.S.;

  4         requiring notification of the trial court if an

  5         appointed attorney fails to execute a contract

  6         within a specified period; authorizing an

  7         attorney appointed to represent a defendant in

  8         a postconviction capital collateral proceeding

  9         to designate another attorney to assist in the

10         representation; amending s. 27.711, F.S.;

11         revising provisions governing the award of

12         attorney's fees; providing that an additional

13         payment for miscellaneous expenses may be paid

14         under extraordinary circumstances from a

15         separate budget allocation; providing for

16         payment of certain tuition and other expenses

17         for an attorney who is actively representing a

18         capital defendant; providing for the

19         transmittal of files and documents to the

20         successor attorney; requiring the court to

21         monitor the performance of counsel appointed to

22         represent a capital defendant in a

23         postconviction proceeding; providing for

24         payment of attorneys' miscellaneous expenses

25         which were incurred before a specified date;

26         providing an effective date.

27

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

29

30         Section 1.  Subsections (4) and (6) of section 27.710,

31  Florida Statutes, 1998 Supplement, are amended to read:

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    Florida Senate - 1999                           CS for SB 2054
    307-1803-99




  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         (4)  Each private attorney who is appointed by the

  6  court to represent a capital defendant must enter into a

  7  contract with the Comptroller. If the appointed attorney fails

  8  to execute the contract within 30 days after the date the

  9  contract is mailed to the attorney, the executive director of

10  the Commission on the Administration of Justice in Capital

11  Cases shall notify the trial court. The executive director of

12  the Commission on the Administration of Justice in Capital

13  Cases shall develop the form of the contract, and the

14  Comptroller shall function as contract manager and shall

15  enforce performance of the terms and conditions of the

16  contract. By signing such contract, the attorney certifies

17  that he or she intends to continue the representation under

18  the terms and conditions set forth in the contract until the

19  sentence is reversed, reduced, or carried out or until

20  released by order of the trial court.

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

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

23  person in postconviction capital collateral proceedings.

24  However, an attorney appointed under this section may

25  designate another attorney to assist him or her if the

26  designated attorney meets the qualifications of this section.

27         Section 2.  Section 27.711, Florida Statutes, 1998

28  Supplement, is amended to read:

29         27.711  Terms and conditions of appointment of

30  attorneys as counsel in postconviction capital collateral

31  proceedings.--

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    Florida Senate - 1999                           CS for SB 2054
    307-1803-99




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

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

  3  represented in postconviction capital collateral proceedings

  4  by an attorney appointed under s. 27.710.

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

  6  of the Commission on the Administration of Justice in Capital

  7  Cases.

  8         (c)  "Postconviction capital collateral proceedings"

  9  means one series of collateral litigation of an affirmed

10  conviction and sentence of death, including the proceedings in

11  the trial court that imposed the capital sentence, any

12  appellate review of the sentence by the Supreme Court, any

13  certiorari review of the sentence by the United States Supreme

14  Court, and any authorized federal habeas corpus litigation

15  with respect to the sentence. The term does not include

16  repetitive or successive collateral challenges to a conviction

17  and sentence of death which is affirmed by the Supreme Court

18  and undisturbed by any collateral litigation.

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

20  27.710, the attorney must immediately file a notice of

21  appearance with the trial court indicating acceptance of the

22  appointment to represent the capital defendant throughout all

23  postconviction capital collateral proceedings, including

24  federal habeas corpus proceedings, in accordance with this

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

26         (3)  An attorney appointed to represent a capital

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

28  section only upon full performance by the attorney of the

29  duties specified in this section and approval of payment by

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

31  the attorney, subject to the availability of sufficient

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    Florida Senate - 1999                           CS for SB 2054
    307-1803-99




  1  funding specifically appropriated for this purpose.  The

  2  Justice Administrative Commission shall notify the executive

  3  director and the court if it appears that sufficient funding

  4  has not been specifically appropriated for this purpose to pay

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

  6  appropriate documentation, including a current and detailed

  7  hourly accounting of time spent representing the capital

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

  9  exclusive means of compensating a court-appointed attorney who

10  represents a capital defendant. When appropriate, a

11  court-appointed attorney must seek further compensation from

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

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

14  courts.

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

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

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

18         (a)  Regardless of the stage of postconviction capital

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

20  hour, up to a maximum of $2,500, after upon accepting

21  appointment and filing a notice of appearance. This fee is in

22  the nature of a fee for a retainer agreement.

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

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

25  capital defendant's complete original motion for

26  postconviction relief under the Florida Rules of Criminal

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

28  the trial court. However, an attorney is entitled to fees

29  under this paragraph if the court schedules a hearing on a

30  matter that makes the filing of the original motion for

31

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    Florida Senate - 1999                           CS for SB 2054
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  1  postconviction relief unnecessary or if the court otherwise

  2  disposes of the case.

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

  4  maximum of $20,000 $10,000, after the trial court issues a

  5  final order granting or denying the capital defendant's motion

  6  for postconviction relief.

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

  8  maximum of $20,000 $4,000, after timely filing in the Supreme

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

10  trial 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 $10,000, after the trial court issues an order,

15  pursuant to a remand from the Supreme Court, which directs the

16  trial court to hold further proceedings on the capital

17  defendant's motion for postconviction relief.

18         (f)(e)  The attorney is entitled to $100 per hour, up

19  to a maximum of $4,000 $20,000, after the appeal of the trial

20  court's denial of the capital defendant's motion for

21  postconviction relief and the capital defendant's state

22  petition for writ of habeas corpus become final in the Supreme

23  Court.

24         (g)(f)  At the conclusion of the capital defendant's

25  postconviction capital collateral proceedings in state court,

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

27  $2,500, after filing a petition for writ of certiorari in the

28  Supreme Court of the United States.

29         (h)(g)  If, at any time, the Supreme Court of the

30  United States accepts for review the capital defendant's

31  collateral challenge of the conviction and sentence of death,

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    Florida Senate - 1999                           CS for SB 2054
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  1  the attorney is entitled to $100 per hour, up to a maximum of

  2  $5,000. This payment shall be full compensation for

  3  representing the capital defendant throughout the certiorari

  4  proceedings before the United States Supreme Court.

  5

  6  The hours billed by a contracting attorney under this

  7  subsection may include time devoted to representation of the

  8  defendant by another attorney who is qualified under s. 27.710

  9  and who has been designated by the contracting attorney to

10  assist him or her.

11         (5)  An attorney who represents a capital defendant may

12  use the services of one or more investigators to assist in

13  representing a capital defendant. Upon approval by the trial

14  court, the attorney is entitled to payment from the

15  Comptroller of $40 per hour, up to a maximum of $15,000, for

16  the purpose of paying for investigative services.

17         (6)  An attorney who represents a capital defendant is

18  entitled to a maximum of $15,000 $5,000 for miscellaneous

19  expenses, such as the costs of preparing transcripts,

20  compensating expert witnesses, and copying documents. Upon

21  approval by the trial court, the attorney is entitled to

22  payment by the Comptroller of up to $15,000 for miscellaneous

23  expenses, except that, if the trial court finds that

24  extraordinary circumstances exist, the attorney is entitled to

25  payment in excess of $15,000, and such funds must be drawn

26  from a separate budget allocation.

27         (7)  An attorney who is actively representing a capital

28  defendant is entitled to a maximum of $500 per fiscal year for

29  tuition and expenses for continuing legal education that

30  pertains to the representation of capital defendants. Upon

31  approval by the trial court, the attorney is entitled to

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    Florida Senate - 1999                           CS for SB 2054
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  1  payment by the Comptroller for expenses for such tuition and

  2  continuing legal education.

  3         (8)(7)  By accepting court appointment under s. 27.710

  4  to represent a capital defendant, the attorney agrees to

  5  continue such representation under the terms and conditions

  6  set forth in this section until the capital defendant's

  7  sentence is reversed, reduced, or carried out, and the

  8  attorney is permitted to withdraw from such representation by

  9  a court of competent jurisdiction. The withdrawing attorney

10  shall deliver all files, notes, documents, and research to the

11  successor attorney within 15 days after notice from the

12  successor attorney. The successor attorney shall bear the cost

13  of transmitting the files, notes, documents, and research.

14         (9)(8)  An attorney may not represent more than five

15  capital defendants at any one time.

16         (10)(9)  This section does not authorize an attorney

17  who represents a capital defendant to file repetitive or

18  frivolous pleadings that are not supported by law or by the

19  facts of the case. An action taken by an attorney who

20  represents a capital defendant in postconviction capital

21  collateral proceedings may not be the basis for a claim of

22  ineffective assistance of counsel.

23         (11)(10)  An attorney appointed under s. 27.710 to

24  represent a capital defendant may not represent the capital

25  defendant during a retrial, a resentencing proceeding, a

26  proceeding commenced under chapter 940, a proceeding

27  challenging a conviction or sentence other than the conviction

28  and sentence of death for which the appointment was made, or

29  any civil litigation other than habeas corpus proceedings.

30         (12)  The court shall monitor the performance of

31  assigned counsel to ensure that the capital defendant is

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    Florida Senate - 1999                           CS for SB 2054
    307-1803-99




  1  receiving quality representation. The court shall also receive

  2  and evaluate allegations that are made regarding the

  3  performance of assigned counsel. The Comptroller, the

  4  Department of Legal Affairs, the executive director of the

  5  Commission on the Administration of Justice in Capital Cases,

  6  or any interested person may advise the court of any

  7  circumstance that could affect the quality of representation,

  8  including, but not limited to, false or fraudulent billing,

  9  misconduct, failure to meet continuing legal education

10  requirements, solicitation to receive compensation from the

11  capital defendant, or failure to file appropriate motions in a

12  timely manner.

13         Section 3.  Any attorney who incurred miscellaneous

14  expenses under section 27.711(6), Florida Statutes, before

15  July 1, 1999, is entitled to payment for such miscellaneous

16  expenses up to the amount specified in this act.

17         Section 4.  This act shall take effect July 1, 1999.

18

19          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
20                         Senate Bill 2054

21

22  -     Clarifies an ambiguity in section 27.711(4)(a), F.S., by
          deleting a reference to "retainer fee" and providing
23        that the registry attorney is entitled to fees up to
          $2500 for work done in the early stages of the
24        litigation. This provision does not increase the
          attorney fees currently authorized for such work.
25
    -     Authorizes the court to pay an attorney for work
26        performed in negotiating for a court hearing or other
          disposition which in turn makes a post conviction motion
27        unnecessary. This provision clarifies that it is not
          necessary for an attorney to actually file a post
28        conviction motion if the parties otherwise dispose of
          the case.
29
    -     Clarifies that an attorney working on a pending case who
30        incurs expenses prior to the bill's effective date, will
          be entitled to payment up to the $15,000 cap on
31        miscellaneous expenses.

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