House Bill 2187

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    Florida House of Representatives - 1999                HB 2187

        By the Committee on Crime & Punishment and Representative
    Ball





  1                      A bill to be entitled

  2         An act relating to capital collateral

  3         representation; amending s. 27.703, F.S.;

  4         requiring private counsel appointments to be in

  5         accordance with specified provisions; amending

  6         s. 27.710, F.S.; requiring notification of the

  7         trial court if an appointed attorney fails to

  8         execute a contract within a specified period;

  9         authorizing an attorney appointed to represent

10         a defendant in a postconviction capital

11         collateral proceeding to designate another

12         attorney to assist in the representation;

13         amending s. 27.711, F.S.; revising provisions

14         governing the award of attorney's fees;

15         providing that an additional payment for

16         miscellaneous expenses may be paid under

17         extraordinary circumstances from a separate

18         budget allocation; providing for payment of

19         certain tuition and other expenses for an

20         attorney who is actively representing a capital

21         defendant; providing for the transmittal of

22         files and documents to the successor attorney;

23         requiring the court to monitor the performance

24         of counsel appointed to represent a capital

25         defendant in a postconviction proceeding;

26         providing for payment of attorney's

27         miscellaneous expenses which were incurred

28         before a specified date; providing an effective

29         date.

30

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

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    Florida House of Representatives - 1999                HB 2187

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  1         Section 1.  Section 27.703, Florida Statutes, is

  2  amended to read:

  3         27.703  Conflict of interest and substitute counsel.--

  4         (1)  If, at any time during the representation of two

  5  or more persons, the capital collateral regional counsel

  6  determines that the interests of those persons are so adverse

  7  or hostile that they cannot all be counseled by the regional

  8  counsel or his or her staff without conflict of interest, the

  9  sentencing court shall, upon application by the regional

10  counsel, designate another regional counsel and, only if a

11  conflict exists with the other two counsels, appoint one or

12  more members of The Florida Bar to represent one or more of

13  such persons.

14         (2)  Appointed counsel shall be paid from funds

15  appropriated to the Justice Administrative Commission. The

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

17  1999, all appointments of private counsel under this section

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

19         (3)  Prior to employment, counsel appointed pursuant to

20  this section must have participated in at least five felony

21  jury trials, five felony appeals, or five capital

22  postconviction evidentiary hearings, or any combination of at

23  least five of such proceedings.

24         Section 2.  Subsections (4) and (6) of section 27.710,

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

26         27.710  Registry of attorneys applying to represent

27  persons in postconviction capital collateral proceedings;

28  certification of minimum requirements; appointment by trial

29  court.--

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

31  court to represent a capital defendant must enter into a

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    Florida House of Representatives - 1999                HB 2187

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  1  contract with the Comptroller. If the appointed attorney fails

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

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

  4  the Commission on the Administration of Justice in Capital

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

  6  the Commission on the Administration of Justice in Capital

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

  8  Comptroller shall function as contract manager and shall

  9  enforce performance of the terms and conditions of the

10  contract. By signing such contract, the attorney certifies

11  that he or she intends to continue the representation under

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

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

14  released by order of the trial court.

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

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

17  person in postconviction capital collateral proceedings.

18  However, an attorney appointed under this section may

19  designate another attorney to assist him or her if the

20  designated attorney meets the qualifications of this section.

21         Section 3.  Section 27.711, Florida Statutes, 1998

22  Supplement, is amended to read:

23         27.711  Terms and conditions of appointment of

24  attorneys as counsel in postconviction capital collateral

25  proceedings.--

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

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

28  represented in postconviction capital collateral proceedings

29  by an attorney appointed under s. 27.710.

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    Florida House of Representatives - 1999                HB 2187

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

  2  of the Commission on the Administration of Justice in Capital

  3  Cases.

  4         (c)  "Postconviction capital collateral proceedings"

  5  means one series of collateral litigation of an affirmed

  6  conviction and sentence of death, including the proceedings in

  7  the trial court that imposed the capital sentence, any

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

  9  certiorari review of the sentence by the United States Supreme

10  Court, and any authorized federal habeas corpus litigation

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

12  repetitive or successive collateral challenges to a conviction

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

14  and undisturbed by any collateral litigation.

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

16  27.710, the attorney must immediately file a notice of

17  appearance with the trial court indicating acceptance of the

18  appointment to represent the capital defendant throughout all

19  postconviction capital collateral proceedings, including

20  federal habeas corpus proceedings, in accordance with this

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

22         (3)  An attorney appointed to represent a capital

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

24  section only upon full performance by the attorney of the

25  duties specified in this section and approval of payment by

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

27  the attorney, subject to the availability of sufficient

28  funding specifically appropriated for this purpose.  The

29  Justice Administrative Commission shall notify the executive

30  director and the court if it appears that sufficient funding

31  has not been specifically appropriated for this purpose to pay

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    Florida House of Representatives - 1999                HB 2187

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

  2  appropriate documentation, including a current and detailed

  3  hourly accounting of time spent representing the capital

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

  5  exclusive means of compensating a court-appointed attorney who

  6  represents a capital defendant. When appropriate, a

  7  court-appointed attorney must seek further compensation from

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

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

10  courts.

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

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

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

14         (a)  Regardless of the stage of postconviction capital

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

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

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

18  the nature of a fee for a retainer agreement.

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

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

21  capital defendant's complete original motion for

22  postconviction relief under the Florida Rules of Criminal

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

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

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

26  matter that makes the filing of the original motion for

27  postconviction relief unnecessary or if the court otherwise

28  disposes of the case.

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

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

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    Florida House of Representatives - 1999                HB 2187

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

  2  for postconviction relief.

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

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

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

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

  7  defendant's motion for postconviction relief and the state

  8  petition for writ of habeas corpus.

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

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

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

12  trial court to hold further proceedings on the capital

13  defendant's motion for postconviction relief.

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

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

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

17  postconviction relief and the capital defendant's state

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

19  Court.

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

21  postconviction capital collateral proceedings in state court,

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

23  $2,500, after filing a petition for writ of certiorari in the

24  Supreme Court of the United States.

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

26  United States accepts for review the capital defendant's

27  collateral challenge of the conviction and sentence of death,

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

29  $5,000. This payment shall be full compensation for

30  representing the capital defendant throughout the certiorari

31  proceedings before the United States Supreme Court.

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    Florida House of Representatives - 1999                HB 2187

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  1

  2  The hours billed by a contracting attorney under this

  3  subsection may include time devoted to representation of the

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

  5  and who has been designated by the contracting attorney to

  6  assist him or her.

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

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

  9  representing a capital defendant. Upon approval by the trial

10  court, the attorney is entitled to payment from the

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

12  the purpose of paying for investigative services.

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

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

15  expenses, such as the costs of preparing transcripts,

16  compensating expert witnesses, and copying documents. Upon

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

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

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

20  extraordinary circumstances exist, the attorney is entitled to

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

22  from a separate budget allocation.

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

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

25  tuition and expenses for continuing legal education that

26  pertains to the representation of capital defendants. Upon

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

28  payment by the Comptroller for expenses for such tuition and

29  continuing legal education.

30         (8)(7)  By accepting court appointment under s. 27.710

31  to represent a capital defendant, the attorney agrees to

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    Florida House of Representatives - 1999                HB 2187

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  1  continue such representation under the terms and conditions

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

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

  4  attorney is permitted to withdraw from such representation by

  5  a court of competent jurisdiction. The withdrawing attorney

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

  7  successor attorney within 15 days after notice from the

  8  successor attorney. The successor attorney shall bear the cost

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

10         (9)(8)  An attorney may not represent more than five

11  capital defendants at any one time.

12         (10)(9)  This section does not authorize an attorney

13  who represents a capital defendant to file repetitive or

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

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

16  represents a capital defendant in postconviction capital

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

18  ineffective assistance of counsel.

19         (11)(10)  An attorney appointed under s. 27.710 to

20  represent a capital defendant may not represent the capital

21  defendant during a retrial, a resentencing proceeding, a

22  proceeding commenced under chapter 940, a proceeding

23  challenging a conviction or sentence other than the conviction

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

25  any civil litigation other than habeas corpus proceedings.

26         (12)  The court shall monitor the performance of

27  assigned counsel to ensure that the capital defendant is

28  receiving quality representation. The court shall also receive

29  and evaluate allegations that are made regarding the

30  performance of assigned counsel. The Comptroller, the

31  Department of Legal Affairs, the executive director of the

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    Florida House of Representatives - 1999                HB 2187

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  1  Commission on the Administration of Justice in Capital Cases,

  2  or any interested person may advise the court of any

  3  circumstance that could affect the quality of representation,

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

  5  misconduct, failure to meet continuing legal education

  6  requirements, solicitation to receive compensation from the

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

  8  timely manner.

  9         Section 4.  Any attorney who incurred miscellaneous

10  expenses under s. 27.711(6), Florida Statutes, before July 1,

11  1999, is entitled to payment for such miscellaneous expenses

12  up to the amount specified in this act.

13         Section 5.  This act shall take effect July 1, 1999.

14

15            *****************************************

16                          HOUSE SUMMARY

17
      Requires notification of the trial court when an
18    appointed attorney fails to execute a contract within a
      specified period of time. Requires private counsel
19    appointments to be in accordance with certain specified
      provisions. Revises the provisions governing the award of
20    attorney's fees. Authorizes an attorney appointed to
      represent a defendant in a postconviction capital
21    collateral proceeding to designate another attorney to
      assist in the defendant's representation. Provides for
22    the payment of miscellaneous expenses which may be paid
      under extraordinary circumstances. Provides for payment
23    of certain other expenses, including tuition, for an
      attorney actively representing a capital defendant in a
24    postconviction proceeding. Provides for payments of
      attorney's miscellaneous expenses which were incurred
25    before a specified date.

26

27

28

29

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