House Bill 1875

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    Florida House of Representatives - 2000                HB 1875

        By Representatives Heyman, Levine, Rayson, A. Greene,
    Wasserman Schultz, L. Miller, Bullard, Ritter, Hill,
    Henriquez, Brown, Eggelletion, Roberts, Kosmas, Betancourt,
    Effman, Wilson, Ritchie, Sobel, Reddick, C. Smith, Hafner,
    (Additional Sponsors on Last Printed Page)


  1                      A bill to be entitled

  2         An act relating to postconviction proceedings

  3         in capital cases; creating the "Death Penalty

  4         Justice Act of 2000"; providing instructions

  5         for the Supreme Court to review and revise

  6         criteria for judges assigned to the capital

  7         case division; amending s. 27.702, F.S., as

  8         amended; deleting a provision limiting the

  9         filing of certain postconviction or collateral

10         actions; amending s. 921.141, F.S.; requiring

11         that a jury recommendation of death be pursuant

12         to a unanimous vote of the jury; providing for

13         a recommendation for a life sentence if the

14         jury vote is less than unanimous; amending s.

15         922.095, F.S., as amended; providing a

16         specified period during which a person

17         convicted and sentenced to death may seek

18         collateral review; amending s. 924.055, F.S.,

19         as amended; revising legislative intent with

20         respect to the filing of postconviction claims;

21         deleting legislative intent with respect to the

22         expenditure of state resources; deleting a

23         requirement that the Attorney General report

24         violations of ch. 2000-3, Laws of Florida, to

25         the President of the Senate and the Speaker of

26         the House of Representatives; amending s.

27         924.056, F.S., as created by ch. 2000-3, Laws

28         of Florida; deleting provisions that deny a

29         defendant legal representation provided by the

30         state in postconviction proceedings if the

31         defendant requests without good cause the

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  1         removal of counsel; deleting provisions barring

  2         postconviction actions unless such actions are

  3         commenced within a specified period; directing

  4         the Supreme Court to revise and adopt certain

  5         rules of procedure; providing for the denial of

  6         certain motions; repealing s. 924.057, F.S., as

  7         created by ch. 2000-3, Laws of Florida,

  8         relating to limitations on postconviction cases

  9         in which the death sentence was imposed before

10         the effective date of ch. 2000-3, Laws of

11         Florida; directing the Supreme Court to revise

12         and adopt rules of procedure with respect to

13         postconviction claims; repealing s. 10 of ch.

14         2000-3, Laws of Florida; abrogating the repeal

15         of Rule 3.850, Rule 3.851, and Rule 3.852,

16         Florida Rules of Criminal Procedure, relating

17         to the granting of a new trial, collateral

18         relief after the death sentence has been

19         imposed, and production of public records in

20         capital postconviction proceedings; repealing

21         s. 27.51(5), F.S., relating to a prohibition on

22         the public defender representing certain

23         persons; providing an effective date.

24

25         WHEREAS, in order to ensure the fair, just, and humane

26  administration of capital punishment, it is necessary for the

27  Legislature to comprehensively address the processes by which

28  an offender is sentenced to death, and pursue postconviction

29  and collateral review of the judgment and the sentence of

30  death, NOW, THEREFORE,

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

  2

  3         Section 1.  Short title.--This act may be cited as the

  4  "Death Penalty Justice Act of 2000."

  5         Section 2.  The Florida Supreme Court is directed to

  6  review and revise criteria for the primary duties of each

  7  judge assigned to the capital case division regarding

  8  conducting all hearings on motions connected with the trial of

  9  a capital case, all collateral motions and hearings, the trial

10  of a capital case, and such other matters as will expedite

11  ordered finality in capital cases.

12         Section 3.  Subsection (1) of section 27.702, Florida

13  Statutes, as amended by section 2 of chapter 2000-3, Laws of

14  Florida, is amended to read:

15         27.702  Duties of the capital collateral regional

16  counsel; reports.--

17         (1)  The capital collateral regional counsel shall

18  represent each person convicted and sentenced to death in this

19  state for the sole purpose of instituting and prosecuting

20  collateral actions challenging the legality of the judgment

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

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

23  Appeals for the Eleventh Circuit, and the United States

24  Supreme Court. The capital collateral regional counsel and the

25  attorneys appointed pursuant to s. 27.710 shall file only

26  those postconviction or collateral actions authorized by

27  statute. The three capital collateral regional counsels'

28  offices shall function independently and be separate budget

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

30  for all purposes. The Justice Administrative Commission shall

31  provide administrative support and service to the three

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

  2  three regional offices shall not be subject to control,

  3  supervision, or direction by the Justice Administrative

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

  5  personnel, purchasing, transactions involving real or personal

  6  property, and budgetary matters.

  7         Section 4.  Section 921.141, Florida Statutes, is

  8  amended to read:

  9         921.141  Sentence of death or life imprisonment for

10  capital felonies; further proceedings to determine sentence.--

11         (1)  SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Unless

12  the death penalty is unavailable as a possible penalty as a

13  matter of law or the court has made a pretrial determination

14  that the aggravating circumstances in the case are

15  insufficient to justify the imposition of the death penalty,

16  upon conviction or adjudication of guilt of a defendant of a

17  capital felony, the court shall conduct a separate sentencing

18  proceeding to determine whether the defendant should be

19  sentenced to death or life imprisonment as authorized by s.

20  775.082. The proceeding shall be conducted by the trial judge

21  before the trial jury as soon as practicable.  If, through

22  impossibility or inability, the trial jury is unable to

23  reconvene for a hearing on the issue of penalty, having

24  determined the guilt of the accused, the trial judge may

25  summon a special juror or jurors as provided in chapter 913 to

26  determine the issue of the imposition of the penalty.  If the

27  trial jury has been waived, or if the defendant pleaded

28  guilty, the sentencing proceeding shall be conducted before a

29  jury impaneled for that purpose, unless waived by the

30  defendant.  In the proceeding, evidence may be presented as to

31  any matter that the court deems relevant to the nature of the

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  1  crime and the character of the defendant and shall include

  2  matters relating to any of the aggravating or mitigating

  3  circumstances enumerated in subsections (6) (5) and (7) (6).

  4  Any such evidence which the court deems to have probative

  5  value may be received, regardless of its admissibility under

  6  the exclusionary rules of evidence, provided the defendant is

  7  accorded a fair opportunity to rebut any hearsay statements.

  8  However, this subsection shall not be construed to authorize

  9  the introduction of any evidence secured in violation of the

10  Constitution of the United States or the Constitution of the

11  State of Florida.  The state and the defendant or the

12  defendant's counsel shall be permitted to present argument for

13  or against sentence of death.

14         (2)  ADVISORY SENTENCE BY THE JURY.--After hearing all

15  the evidence, the jury shall deliberate and render an advisory

16  sentence to the court, based upon the following matters:

17         (a)  Whether sufficient aggravating circumstances exist

18  as enumerated in subsection (6) (5);

19         (b)  Whether sufficient mitigating circumstances exist

20  which outweigh the aggravating circumstances found to exist;

21  and

22         (c)  Based on these considerations, whether the

23  defendant should be sentenced to life imprisonment or death.

24         (3)  JURY RECOMMENDATION.--A jury recommendation of

25  death must be by a unanimous vote of the members of the jury.

26  If the jury vote for death is less than unanimous, a life

27  recommendation shall be entered.

28         (4)(3)  FINDINGS IN SUPPORT OF SENTENCE OF

29  DEATH.--Notwithstanding the recommendation of a majority of

30  the jury, the court, after weighing the aggravating and

31  mitigating circumstances, shall enter a sentence of life

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  1  imprisonment or death, but if the court imposes a sentence of

  2  death, it shall set forth in writing its findings upon which

  3  the sentence of death is based as to the facts:

  4         (a)  That sufficient aggravating circumstances exist as

  5  enumerated in subsection (6) (5), and

  6         (b)  That there are insufficient mitigating

  7  circumstances to outweigh the aggravating circumstances.

  8

  9  In each case in which the court imposes the death sentence,

10  the determination of the court shall be supported by specific

11  written findings of fact based upon the circumstances in

12  subsections (6) (5) and (7) (6) and upon the records of the

13  trial and the sentencing proceedings. If the court does not

14  make the findings requiring the death sentence within 30 days

15  after the rendition of the judgment and sentence, the court

16  shall impose sentence of life imprisonment in accordance with

17  s. 775.082.

18         (5)(4)  REVIEW OF JUDGMENT AND SENTENCE.--The judgment

19  of conviction and sentence of death shall be subject to

20  automatic review by the Supreme Court of Florida and

21  disposition rendered within 2 years after the filing of a

22  notice of appeal.  Such review by the Supreme Court shall have

23  priority over all other cases and shall be heard in accordance

24  with rules promulgated by the Supreme Court.

25         (6)(5)  AGGRAVATING CIRCUMSTANCES.--Aggravating

26  circumstances shall be limited to the following:

27         (a)  The capital felony was committed by a person

28  previously convicted of a felony and under sentence of

29  imprisonment or placed on community control or on felony

30  probation.

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  1         (b)  The defendant was previously convicted of another

  2  capital felony or of a felony involving the use or threat of

  3  violence to the person.

  4         (c)  The defendant knowingly created a great risk of

  5  death to many persons.

  6         (d)  The capital felony was committed while the

  7  defendant was engaged, or was an accomplice, in the commission

  8  of, or an attempt to commit, or flight after committing or

  9  attempting to commit, any: robbery; sexual battery; aggravated

10  child abuse; abuse of an elderly person or disabled adult

11  resulting in great bodily harm, permanent disability, or

12  permanent disfigurement; arson; burglary; kidnapping; aircraft

13  piracy; or unlawful throwing, placing, or discharging of a

14  destructive device or bomb.

15         (e)  The capital felony was committed for the purpose

16  of avoiding or preventing a lawful arrest or effecting an

17  escape from custody.

18         (f)  The capital felony was committed for pecuniary

19  gain.

20         (g)  The capital felony was committed to disrupt or

21  hinder the lawful exercise of any governmental function or the

22  enforcement of laws.

23         (h)  The capital felony was especially heinous,

24  atrocious, or cruel.

25         (i)  The capital felony was a homicide and was

26  committed in a cold, calculated, and premeditated manner

27  without any pretense of moral or legal justification.

28         (j)  The victim of the capital felony was a law

29  enforcement officer engaged in the performance of his or her

30  official duties.

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  1         (k)  The victim of the capital felony was an elected or

  2  appointed public official engaged in the performance of his or

  3  her official duties if the motive for the capital felony was

  4  related, in whole or in part, to the victim's official

  5  capacity.

  6         (l)  The victim of the capital felony was a person less

  7  than 12 years of age.

  8         (m)  The victim of the capital felony was particularly

  9  vulnerable due to advanced age or disability, or because the

10  defendant stood in a position of familial or custodial

11  authority over the victim.

12         (n)  The capital felony was committed by a criminal

13  street gang member, as defined in s. 874.03.

14         (7)(6)  MITIGATING CIRCUMSTANCES.--Mitigating

15  circumstances shall be the following:

16         (a)  The defendant has no significant history of prior

17  criminal activity.

18         (b)  The capital felony was committed while the

19  defendant was under the influence of extreme mental or

20  emotional disturbance.

21         (c)  The victim was a participant in the defendant's

22  conduct or consented to the act.

23         (d)  The defendant was an accomplice in the capital

24  felony committed by another person and his or her

25  participation was relatively minor.

26         (e)  The defendant acted under extreme duress or under

27  the substantial domination of another person.

28         (f)  The capacity of the defendant to appreciate the

29  criminality of his or her conduct or to conform his or her

30  conduct to the requirements of law was substantially impaired.

31         (g)  The age of the defendant at the time of the crime.

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  1         (h)  The existence of any other factors in the

  2  defendant's background that would mitigate against imposition

  3  of the death penalty.

  4         (8)(7)  VICTIM IMPACT EVIDENCE.--Once the prosecution

  5  has provided evidence of the existence of one or more

  6  aggravating circumstances as described in subsection (6) (5),

  7  the prosecution may introduce, and subsequently argue, victim

  8  impact evidence.  Such evidence shall be designed to

  9  demonstrate the victim's uniqueness as an individual human

10  being and the resultant loss to the community's members by the

11  victim's death.  Characterizations and opinions about the

12  crime, the defendant, and the appropriate sentence shall not

13  be permitted as a part of victim impact evidence.

14         (9)(8)  APPLICABILITY.--This section does not apply to

15  a person convicted or adjudicated guilty of a capital drug

16  trafficking felony under s. 893.135.

17         Section 5.  Section 922.095, Florida Statutes, as

18  amended by section 4 of chapter 2000-3, Laws of Florida, is

19  amended to read:

20         922.095  Grounds for death warrant; limitations of

21  actions.--A person who is convicted and sentenced to death

22  must pursue all possible collateral remedies in state and

23  federal court in a timely manner within the time limits

24  provided by statute. If any court refuses to grant relief in a

25  collateral postconviction proceeding, the convicted person has

26  90 days in which to seek further collateral review. Failure to

27  seek further collateral review within the 90-day period relief

28  within the statutory time limits constitutes grounds for

29  issuance of a death warrant under s. 922.052 or s. 922.14. Any

30  claim not pursued within the statutory time limits is barred.

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  1  No claim filed after the time required by law shall be grounds

  2  for a judicial stay of any warrant.

  3         Section 6.  Section 924.055, Florida Statutes, as

  4  amended by section 5 of chapter 2000-3, Laws of Florida, is

  5  amended to read:

  6         924.055  Postconviction review in capital cases;

  7  legislative findings and intent.--

  8         (1)  It is the intent of the Legislature to reduce

  9  delays in capital cases and to ensure that all appeals and

10  postconviction actions in capital cases are resolved within 5

11  years after the date a sentence of death is imposed in the

12  circuit court. All capital postconviction actions must be

13  filed as early as possible after the imposition of a sentence

14  of death which may be during a direct appeal of the conviction

15  and sentence. A person sentenced to death or that person's

16  capital postconviction counsel must file any postconviction

17  legal action in compliance with the statutes of limitation

18  established in s. 924.056 and elsewhere in this chapter.

19  Except as expressly allowed by s. 924.056(5), a person

20  sentenced to death or that person's capital postconviction

21  counsel may not file more than one postconviction action in a

22  sentencing court and one appeal therefrom to the Florida

23  Supreme Court, unless authorized by law.

24         (2)  It is the further intent of the Legislature that

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

26  the event that any state employee or party contracting with

27  the state violates the provisions of this act, the Attorney

28  General shall deliver to the Speaker of the House of

29  Representatives and the President of the Senate a copy of any

30  court pleading or order that describes or adjudicates a

31  violation.

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  1         Section 7.  Section 924.056, Florida Statutes, as

  2  created by section 6 of chapter 2000-3, Laws of Florida, is

  3  amended to read:

  4         924.056  Commencement of capital postconviction actions

  5  for which sentence of death is imposed on or after the

  6  effective date of chapter 2000-3, Laws of Florida this act;

  7  limitations on actions.--

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

  9  imposes a sentence of death on or after the effective date of

10  chapter 2000-3, Laws of Florida this act, this section shall

11  govern all postconviction proceedings in state court.

12         (a)  The Supreme Court shall revise and adopt rules of

13  procedure related to time limitations on all proceedings and

14  actions related to postconviction proceedings. Within 15 days

15  after imposing a sentence of death, the sentencing court shall

16  appoint the appropriate office of the capital collateral

17  regional counsel or private postconviction counsel, unless the

18  defendant declines to accept postconviction legal

19  representation in which case the state shall not provide

20  postconviction legal representation. Within 30 days after the

21  appointment, the capital collateral regional counsel shall

22  file a notice of appearance in the trial court or a motion to

23  withdraw based on a conflict of interest or for good cause.

24  The court shall appoint private counsel pursuant to part IV of

25  chapter 27 in any case in which the capital collateral

26  regional counsel files a motion to withdraw, or otherwise

27  informs the court that the capital collateral regional counsel

28  cannot comply with the provisions of chapter 924 or in which

29  the court determines that the agency cannot comply with

30  chapter 924 or other applicable laws.

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  1         (b)  The defendant who accepts the appointment of

  2  postconviction counsel must cooperate with and assist, within

  3  his or her ability, such postconviction counsel. If the

  4  sentencing court finds the defendant is knowingly and

  5  intentionally obstructing the postconviction process, the

  6  defendant shall not be entitled to any further postconviction

  7  legal representation provided by the state. Each attorney

  8  participating in a capital case on behalf of a defendant must

  9  provide all information pertaining to the capital case which

10  the attorney obtained during the representation of that

11  defendant to that defendant's capital postconviction counsel.

12  Postconviction counsel must maintain the confidentiality of

13  any confidential information received from any attorney for

14  that defendant and is subject to the same penalties as the

15  providing attorney for violating confidentiality. If the

16  defendant requests without good cause that any attorney

17  appointed under this subsection be removed or replaced, the

18  court shall notify the defendant that no further state

19  resources may be expended for postconviction representation

20  for that defendant, unless the defendant withdraws the request

21  to remove or replace postconviction counsel. If the defendant

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

23  appointed attorney must be removed from the case and no

24  further state resources may be expended for the defendant's

25  postconviction representation. The prosecuting attorney and

26  the defendant's trial counsel shall provide the defendant or,

27  if represented, the defendant's capital postconviction counsel

28  with copies of all pretrial and trial discovery and all

29  contents of the prosecuting attorney's file, except for

30  information that the prosecuting attorney has a legal right

31  under state or federal law to withhold from disclosure.

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  1         (2)  The clerk of the court shall provide a copy of the

  2  record on appeal to the capital postconviction attorney and

  3  the state attorney and Attorney General within 60 days after

  4  the sentencing court appoints postconviction counsel. However,

  5  the court may grant an extension of up to 30 days when

  6  extraordinary circumstances exist.

  7         (3)(a)  With respect to all capital postconviction

  8  actions commenced after the effective date of this act, a

  9  capital postconviction action is not commenced until the

10  defendant or the defendant's postconviction counsel files a

11  fully pled postconviction action in the sentencing court or,

12  as provided in subsection (4), the Florida Supreme Court. For

13  the purposes of this subsection, a fully pled capital

14  postconviction action is one which complies with s. 924.058(1)

15  s. 924.058(2) or any superseding rule adopted by the Florida

16  Supreme Court. Except as provided by subsection (4) or

17  subsection (5), all capital postconviction actions shall be

18  barred unless they are commenced within 180 days after the

19  filing of the appellant's initial brief in the Florida Supreme

20  Court on direct appeal of the defendant's capital conviction

21  and sentence. The fully pled postconviction action must raise

22  all cognizable claims that the defendant's judgment or

23  sentence was entered in violation of the Constitution or laws

24  of the United States or the Constitution or the laws of the

25  state, including any claim of ineffective assistance of trial

26  counsel, allegations of innocence, or that the state withheld

27  evidence favorable to the defendant. No claim may be

28  considered in such action which could have or should have been

29  raised before trial, at trial, or if preserved on direct

30  appeal. For the purposes of this subsection, a capital

31  postconviction action is not fully pled unless it satisfies

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  1  the requirements of s. 924.058(2) or any superseding rule of

  2  court.

  3         (b)  No claim of ineffective assistance of collateral

  4  postconviction counsel may be raised in a state court.

  5         (c)  The pendency of public records requests or

  6  litigation, or the pendency of other litigation, or the

  7  failure of the defendant or the defendant's postconviction

  8  counsel to timely prosecute a case shall not constitute cause

  9  for the court to grant any request for an extension of time or

10  other delay. No appeal may be taken from a court's ruling

11  denying such a request for an extension of time or other

12  delay.

13         (d)  The time for commencement, of the postconviction

14  action, may not be tolled for any reason or cause. All claims

15  raised by amendment of a defendant's capital postconviction

16  action are barred if the claims are raised outside the time

17  limitations provided by statute for the filing of capital

18  postconviction actions.

19         (4)  All capital postconviction actions raising any

20  claim of ineffective assistance of direct appeal counsel are

21  barred unless they are commenced in conformity with this

22  subsection. The defendant or the defendant's capital

23  postconviction counsel shall file an action in the Florida

24  Supreme Court raising any claim of ineffective assistance of

25  direct appeal counsel within 45 days after mandate issues

26  affirming the death sentence in the direct appeal.

27         (5)  A second or successive motion shall be denied if

28  the judge finds that it fails to allege new or different

29  grounds for relief and the prior determination was on the

30  merits or, if new and different grounds are alleged, the court

31  finds that the failure of the movant or the attorney to assert

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  1  those grounds in a prior motion constitutes an abuse of the

  2  procedure governed by these rules.  The facts underlying any

  3  second or successive motion must have been unknown to the

  4  movant or the attorney and must not have been ascertainable

  5  through the exercise of due diligence, or the fundamental

  6  constitutional right asserted in the second or successive

  7  motion has been newly announced and has been held to apply

  8  retroactively.  In a second or successive motion, the movant

  9  or the attorney must allege that the facts underlying the

10  claim, if proven and viewed in light of the evidence as a

11  whole, is of such a nature that it would probably result in an

12  acquittal on retrial due to the defendant's innocence of the

13  underlying offense; that the facts underlying the claim, if

14  proven and viewed in light of the evidence as a whole, are of

15  such a nature that they would probably result in the

16  imposition of a different sentence; or that the fundamental

17  fairness of the original proceedings has been so compromised

18  in light of the newly asserted facts that the ends of justice

19  require that a new trial or sentencing proceeding be ordered.

20  The time period for filing a second or successive motion shall

21  be 90 days from the discovery of the new or different grounds

22  as alleged in the motion, or from the announcement of a newly

23  announced fundamental constitutional right that has been held

24  to apply retroactively. Regardless of when a sentence is

25  imposed, all successive capital postconviction actions are

26  barred unless commenced by filing a fully pled postconviction

27  action within 90 days after the facts giving rise to the cause

28  of action were discovered or should have been discovered with

29  the exercise of due diligence. Such claim shall be barred

30  pursuant to subsection (3) or s. 924.057 unless the facts

31  underlying the claim, if proven and viewed in light of the

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  1  evidence as a whole, would be sufficient to establish by clear

  2  and convincing evidence that, but for constitutional error, no

  3  reasonable fact finder would have found the defendant guilty

  4  of the underlying offense. Additionally, the facts underlying

  5  this claim must have been unknown to the defendant or his or

  6  her attorney and must be such that they could not have been

  7  ascertained by the exercise of due diligence prior to filing

  8  the earlier postconviction motion. The time period allowed for

  9  filing a successive collateral postconviction action shall not

10  be grounds for a stay.

11         Section 8.  Section 924.057, Florida Statutes, as

12  created by section 7 of chapter 2000-3, Laws of Florida, is

13  repealed.

14         Section 9.  Capital postconviction claims.--The Supreme

15  Court shall revise and adopt rules of procedure in conformity

16  with the provisions of this act related to procedures

17  regulating postconviction relief.

18         Section 10.  Section 10 of chapter 2000-3, Laws of

19  Florida, is repealed.

20         Section 11.  Subsection (5) of section 27.51, Florida

21  Statutes, as amended by section 12 of chapter 2000-3, Laws of

22  Florida, is repealed.

23         Section 12.  This act shall take effect upon becoming a

24  law.

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27

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates the Death Penalty Justice Act of 2000. Directs
  4    the Supreme Court to revise and adopt described rules
      with respect to capital cases. Deletes various
  5    limitations on the filing of motions and collateral
      actions in capital cases. Requires that a jury
  6    recommendation of death be made by a unanimous vote of
      the jury. Provides for a recommendation for a life
  7    sentence if the jury vote is less than unanimous.
      Provides for further collateral review of certain cases
  8    in which a court has refused to grant relief. Deletes
      provisions that deny a defendant in a capital case legal
  9    representation if the defendant requests the removal of
      counsel. Abrogates the repeal of Rule 3.850, Rule 3.851,
10    and Rule 3.852, Florida Rules of Criminal Procedure,
      which relate to new trials in capital cases, collateral
11    relief after the death sentence has been imposed, and the
      production of public records in capital postconviction
12    proceedings. See bill for details.

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16                       ADDITIONAL SPONSORS

17  Greenstein, Bloom, Bush, Lawson, Jacobs, Chestnut, Frankel,
    Stafford and Lee
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