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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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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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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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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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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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.
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16 HOUSE SUMMARY
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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.
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