Senate Bill 2054er

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  2         An act relating to capital collateral

  3         representation; amending s. 27.702, F.S.;

  4         redesignating the Commission on the

  5         Administration of Justice in Capital Cases as

  6         the Commission on Capital Cases; amending s.

  7         27.703, F.S.; requiring private counsel

  8         appointments to be in accordance with specified

  9         provisions; amending s. 27.709, F.S.;

10         conforming provisions to changes made by the

11         act; amending s. 27.710, F.S.; requiring

12         notification of the trial court if an appointed

13         attorney fails to execute a contract within a

14         specified period; authorizing an attorney

15         appointed to represent a defendant in a

16         postconviction capital collateral proceeding to

17         designate another attorney to assist in the

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

19         revising provisions governing the award of

20         attorney's fees; providing that an additional

21         payment for miscellaneous expenses may be paid

22         under extraordinary circumstances from a

23         separate budget allocation; providing for

24         payment of certain tuition and other expenses

25         for an attorney who is actively representing a

26         capital defendant; providing for the payment of

27         attorneys fees and costs when an attorney is

28         permitted to withdraw or is otherwise removed

29         from representation; providing for the

30         transmittal of files and documents to the

31         successor attorney; requiring the court to


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  1         monitor the performance of counsel appointed to

  2         represent a capital defendant in a

  3         postconviction proceeding; providing for

  4         payment of attorneys' miscellaneous expenses

  5         which were incurred before a specified date;

  6         providing an effective date.

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

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10         Section 1.  Subsection (4) of section 27.702, Florida

11  Statutes, 1998 Supplement, is amended to read:

12         27.702  Duties of the capital collateral regional

13  counsel; reports.--

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

15  private counsel shall give written notification of each

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

17  filing the pleading to the Commission on the Administration of

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

19  the case.

20         (b)  Each capital collateral regional counsel shall

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

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

23  the Administration of Justice in Capital Cases which details

24  the number of hours worked by investigators and legal counsel

25  per case and the amounts per case expended during the

26  preceding quarter in investigating and litigating capital

27  collateral cases.

28         Section 2.  Subsection (2) of section 27.703, Florida

29  Statutes, is amended to read:

30         27.703  Conflict of interest and substitute counsel.--

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  1         (2)  Appointed counsel shall be paid from funds

  2  appropriated to the Justice Administrative Commission. The

  3  hourly rate may not exceed $100. However, effective July 1,

  4  1999, all appointments of private counsel under this section

  5  shall be in accordance with ss. 27.710 and 27.711.

  6         Section 3.  Section 27.709, Florida Statutes, 1998

  7  Supplement, is amended to read:

  8         27.709  Commission on the Administration of Justice in

  9  Capital Cases.--

10         (1)(a)  There is created the Commission on the

11  Administration of Justice in Capital Cases, which shall

12  consist of the six following members:

13         1.  Two members appointed by the Governor.

14         2.  Two members appointed by the President of the

15  Senate from the membership of the Senate. One member shall be

16  a member of the majority party, and one member shall be a

17  member of the minority party.

18         3.  Two members appointed by the Speaker of the House

19  of Representatives from the membership of the House of

20  Representatives. One member shall be a member of the majority

21  party, and one member shall be a member of the minority party.

22         (b)  The chair of the commission shall be selected by

23  the members for a term of 1 year.

24         (c)  The commission shall meet quarterly, and other

25  meetings may be called by the chair upon giving at least 7

26  days' notice to all members and the public.

27         (d)  Members of the commission are entitled to per diem

28  and travel expenses to be paid by the appointing entity.

29         (e)  The initial members of the commission must be

30  appointed on or before October 1, 1997. Members of the

31  commission shall be appointed to serve terms of 4 years each,


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  1  except that a member's term shall expire upon leaving office

  2  as a member of the Senate or the House of Representatives. Two

  3  of the initial members, one from the Senate and one from the

  4  House of Representatives, shall be appointed for terms of 2

  5  years each. Two of the initial members, one from the Senate

  6  and one from the House of Representatives, shall be appointed

  7  for terms of 3 years each.

  8         (f)  The Office of Legislative Services shall provide

  9  staff support for the commission.

10         (2)  The commission shall review the administration of

11  justice in capital collateral cases, receive relevant public

12  input, review the operation of the capital collateral regional

13  counsel, and advise and make recommendations to the Governor,

14  Legislature, and Supreme Court. In addition, the commission

15  shall receive complaints regarding the practice of any office

16  of regional counsel and shall refer any complaint to The

17  Florida Bar, the State Supreme Court, or the Commission on

18  Ethics, as appropriate.

19         (3)  The Commission on the Administration of Justice in

20  Capital Cases shall conduct a study to evaluate whether the

21  elimination of state postconviction proceedings in death

22  penalty cases will reduce delays in carrying out a sentence of

23  death in capital cases. In conducting the study, the

24  commission shall take public testimony from any interested

25  party. The commission shall review the average number of

26  postconviction motions and writs filed in capital cases, prior

27  legislative and judicial attempts to reduce delays in capital

28  cases, and the length of time required for capital

29  postconviction claims in state and federal court.  The

30  commission shall consider average delays in capital cases,

31  whether those delays have increased in the last 10 years, and


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  1  the reasons for any increase in delays.  The study shall

  2  include a report which addresses the legal, fiscal, and

  3  practical considerations concerning the elimination of state

  4  postconviction proceedings, and the recommendation of the

  5  commission.  Public notice shall be provided, in a manner

  6  agreed to by the commission, for all hearings where the

  7  commission intends to hear public testimony concerning the

  8  elimination of state postconviction proceedings in death

  9  penalty cases for purposes of this study. The report shall be

10  submitted to the Speaker of the House of Representatives, the

11  President of the Senate, and the minority leaders in the House

12  and the Senate by December 1, 1998.

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

14  27.710, Florida Statutes, 1998 Supplement, are amended to

15  read:

16         27.710  Registry of attorneys applying to represent

17  persons in postconviction capital collateral proceedings;

18  certification of minimum requirements; appointment by trial

19  court.--

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

21  Administration of Justice in Capital Cases shall compile and

22  maintain a statewide registry of attorneys in private practice

23  who have certified that they meet the minimum requirements of

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

25  court under this section to represent persons convicted and

26  sentenced to death in this state in postconviction capital

27  collateral proceedings. To ensure that sufficient attorneys

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

29  attorneys on the registry falls below 50, the executive

30  director shall notify the chief judge of each circuit by

31  letter and request the chief judge to promptly submit the


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  1  names of at least three private attorneys who regularly

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

  3  the minimum requirements to represent persons in

  4  postconviction capital collateral proceedings. The executive

  5  director shall send an application to each attorney identified

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

  7  appointment as counsel in postconviction capital collateral

  8  proceedings. As necessary, the executive director may also

  9  advertise in legal publications and other appropriate media

10  for qualified attorneys interested in registering for

11  appointment as counsel in postconviction capital collateral

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

13  necessary thereafter, the executive director shall provide to

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

15  state attorney in each judicial circuit, and the Attorney

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

17  available for appointment as counsel in postconviction capital

18  collateral proceedings. The registry must be indexed by

19  judicial circuit and must contain the requisite information

20  submitted by the applicants in accordance with this section.

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

22  court to represent a capital defendant must enter into a

23  contract with the Comptroller. If the appointed attorney fails

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

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

26  the Commission on Capital Cases shall notify the trial court.

27  The executive director of the Commission on the Administration

28  of Justice in Capital Cases shall develop the form of the

29  contract, and the Comptroller shall function as contract

30  manager and shall enforce performance of the terms and

31  conditions of the contract. By signing such contract, the


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  1  attorney certifies that he or she intends to continue the

  2  representation under the terms and conditions set forth in the

  3  contract until the sentence is reversed, reduced, or carried

  4  out or until released by order of the trial court.

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

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

  7  person in postconviction capital collateral proceedings.

  8  However, an attorney appointed under this section may

  9  designate another attorney to assist him or her if the

10  designated attorney meets the qualifications of this section.

11         Section 5.  Section 27.711, Florida Statutes, 1998

12  Supplement, is amended to read:

13         27.711  Terms and conditions of appointment of

14  attorneys as counsel in postconviction capital collateral

15  proceedings.--

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

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

18  represented in postconviction capital collateral proceedings

19  by an attorney appointed under s. 27.710.

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

21  of the Commission on the Administration of Justice in Capital

22  Cases.

23         (c)  "Postconviction capital collateral proceedings"

24  means one series of collateral litigation of an affirmed

25  conviction and sentence of death, including the proceedings in

26  the trial court that imposed the capital sentence, any

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

28  certiorari review of the sentence by the United States Supreme

29  Court, and any authorized federal habeas corpus litigation

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

31  repetitive or successive collateral challenges to a conviction


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

  2  and undisturbed by any collateral litigation.

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

  4  27.710, the attorney must immediately file a notice of

  5  appearance with the trial court indicating acceptance of the

  6  appointment to represent the capital defendant throughout all

  7  postconviction capital collateral proceedings, including

  8  federal habeas corpus proceedings, in accordance with this

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

10         (3)  An attorney appointed to represent a capital

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

12  section only upon full performance by the attorney of the

13  duties specified in this section and approval of payment by

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

15  the attorney, subject to the availability of sufficient

16  funding specifically appropriated for this purpose.  The

17  Justice Administrative Commission shall notify the executive

18  director and the court if it appears that sufficient funding

19  has not been specifically appropriated for this purpose to pay

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

21  appropriate documentation, including a current and detailed

22  hourly accounting of time spent representing the capital

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

24  exclusive means of compensating a court-appointed attorney who

25  represents a capital defendant. When appropriate, a

26  court-appointed attorney must seek further compensation from

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

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

29  courts.

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

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

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

  4         (a)  Regardless of the stage of postconviction capital

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

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

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

  8  the nature of a fee for a retainer agreement.

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

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

11  capital defendant's complete original motion for

12  postconviction relief under the Florida Rules of Criminal

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

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

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

16  matter that makes the filing of the original motion for

17  postconviction relief unnecessary or if the court otherwise

18  disposes of the case.

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

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

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

22  for postconviction relief.

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

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

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

26  trial court's final order granting or denying the capital

27  defendant's motion for postconviction relief and the state

28  petition for writ of habeas corpus.

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

30  maximum of $10,000, after the trial court issues an order,

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


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  1  trial court to hold further proceedings on the capital

  2  defendant's motion for postconviction relief.

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

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

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

  6  postconviction relief and the capital defendant's state

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

  8  Court.

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

10  postconviction capital collateral proceedings in state court,

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

12  $2,500, after filing a petition for writ of certiorari in the

13  Supreme Court of the United States.

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

15  United States accepts for review the capital defendant's

16  collateral challenge of the conviction and sentence of death,

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

18  $5,000. This payment shall be full compensation for

19  representing the capital defendant throughout the certiorari

20  proceedings before the United States Supreme Court.

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22  The hours billed by a contracting attorney under this

23  subsection may include time devoted to representation of the

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

25  and who has been designated by the contracting attorney to

26  assist him or her.

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

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

29  representing a capital defendant. Upon approval by the trial

30  court, the attorney is entitled to payment from the

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

  2  the purpose of paying for investigative services.

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

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

  5  expenses, such as the costs of preparing transcripts,

  6  compensating expert witnesses, and copying documents. Upon

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

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

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

10  extraordinary circumstances exist, the attorney is entitled to

11  payment in excess of $15,000.

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

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

14  tuition and expenses for continuing legal education that

15  pertains to the representation of capital defendants. Upon

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

17  payment by the Comptroller for expenses for such tuition and

18  continuing legal education.

19         (8)(7)  By accepting court appointment under s. 27.710

20  to represent a capital defendant, the attorney agrees to

21  continue such representation under the terms and conditions

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

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

24  attorney is permitted to withdraw from such representation by

25  a court of competent jurisdiction. However, if an attorney is

26  permitted to withdraw or is otherwise removed from

27  representation prior to full performance of the duties

28  specified in this section, the trial court shall approve

29  payment of fees and costs for work performed, which may not

30  exceed the amounts specified in this section. An attorney who

31  withdraws or is removed from representation shall deliver all


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  1  files, notes, documents, and research to the successor

  2  attorney within 15 days after notice from the successor

  3  attorney. The successor attorney shall bear the cost of

  4  transmitting the files, notes, documents, and research.

  5         (9)(8)  An attorney may not represent more than five

  6  capital defendants at any one time.

  7         (10)(9)  This section does not authorize an attorney

  8  who represents a capital defendant to file repetitive or

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

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

11  represents a capital defendant in postconviction capital

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

13  ineffective assistance of counsel.

14         (11)(10)  An attorney appointed under s. 27.710 to

15  represent a capital defendant may not represent the capital

16  defendant during a retrial, a resentencing proceeding, a

17  proceeding commenced under chapter 940, a proceeding

18  challenging a conviction or sentence other than the conviction

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

20  any civil litigation other than habeas corpus proceedings.

21         (12)  The court shall monitor the performance of

22  assigned counsel to ensure that the capital defendant is

23  receiving quality representation. The court shall also receive

24  and evaluate allegations that are made regarding the

25  performance of assigned counsel. The Comptroller, the

26  Department of Legal Affairs, the executive director, or any

27  interested person may advise the court of any circumstance

28  that could affect the quality of representation, including,

29  but not limited to, false or fraudulent billing, misconduct,

30  failure to meet continuing legal education requirements,

31  solicitation to receive compensation from the capital


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  1  defendant, or failure to file appropriate motions in a timely

  2  manner.

  3         Section 6.  Any attorney who incurred miscellaneous

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

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

  6  expenses up to the amount specified in this act.

  7         Section 7.  This act shall take effect July 1, 1999.

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