House Bill 0001A

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    Florida House of Representatives - 2000                 HB 1-A

        By Representatives Crist, Ball, Trovillion, Futch,
    Merchant, Crady, Feeney, Byrd, Maygarden, Cantens, Kilmer, C.
    Green, Dockery, Argenziano, Detert, Fiorentino, Murman,
    Waters, Sembler, Wise, Lynn, Bense, Goodlette, J. Miller,
    Morroni and Villalobos


  1                      A bill to be entitled

  2         An act relating to the death penalty; creating

  3         the "Death Penalty Reform Act of 2000";

  4         amending s. 922.10, F.S., relating to the

  5         execution of the death sentence; creating s.

  6         922.101, F.S.; providing for execution of death

  7         sentence by lethal injection if electrocution

  8         is not selected; prohibiting a reduction of the

  9         death sentence as a result of a determination

10         that a method of execution is unconstitutional;

11         creating s. 922.103, F.S.; providing

12         legislative intent with respect to the

13         interpretation of laws altering a method of

14         execution of the death penalty; creating s.

15         922.104, F.S.; providing a procedure for

16         execution of the death sentence by lethal

17         injection; amending s. 922.105, F.S., relating

18         to execution of the death sentence by lethal

19         injection; amending s. 27.702, F.S.; providing

20         limitation on the filing of postconviction and

21         collateral actions; amending s. 119.19, F.S.;

22         revising provisions relating to capital

23         postconviction public records production;

24         amending s. 922.095, F.S.; revising provisions

25         with respect to grounds for a death warrant;

26         providing a limitation on actions; amending s.

27         924.055, F.S.; revising provisions with respect

28         to postconviction review in capital cases;

29         providing for legislative findings and intent;

30         creating s. 924.056, F.S.; providing for

31         capital postconviction proceedings for which a

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  1         sentence of death is imposed on or after the

  2         effective date of this act; creating s.

  3         924.057, F.S.; providing for a limitation on

  4         postconviction cases in which the death

  5         sentence was imposed before the effective date

  6         of this act; creating s. 924.058, F.S.;

  7         providing for capital postconviction claims;

  8         creating s. 924.059, F.S.; providing for time

  9         limitations on judicial review in capital

10         postconviction actions; providing for

11         production of evidence for DNA testing;

12         repealing Rule 3.850, Florida Rules of Criminal

13         Procedure, relating to the grant of a new trial

14         to the extent it is inconsistent with this act;

15         repealing Rule 3.851, Florida Rules of Criminal

16         Procedure, relating to collateral relief after

17         the death sentence has been imposed; repealing

18         Rule 3.852, Florida Rules of Criminal

19         Procedure, relating to capital postconviction

20         public records production; amending s. 27.710,

21         F.S.; providing for the appointment of

22         attorneys to represent persons in collateral

23         actions; amending s. 27.51, F.S.; prohibiting

24         specified public defenders from providing

25         appellate representation for certain persons

26         sentenced to death; amending s. 27.703, F.S.;

27         providing for designation of alternative

28         regional counsel when there is a conflict of

29         interest; revising provisions governing the

30         payment of such counsel; amending s. 27.709,

31         F.S.; requiring the Commission on Capital Cases

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  1         to compile and analyze case-tracking reports

  2         produced by the Supreme Court; amending s.

  3         27.711, F.S.; revising provisions governing the

  4         payment of assigned counsel; providing for

  5         review of the billings of assigned counsel;

  6         creating s. 924.395, F.S.; providing for

  7         sanctions against inmates and their counsel for

  8         certain actions taken in capital postconviction

  9         proceedings or appeals therefrom; creating s.

10         922.107, F.S.; exempting policies and

11         procedures for the execution of persons from

12         the Administrative Procedure Act; providing for

13         severability; providing an effective date.

14

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

16

17         Section 1.  This act may be cited as the "Death Penalty

18  Reform Act of 2000."

19         Section 2.  Section 922.10, Florida Statutes, is

20  amended to read:

21         922.10  Execution of death sentence;

22  executioner.--Unless otherwise provided by law, a death

23  sentence shall be executed by electrocution. The warden of the

24  state prison shall designate the executioner. Information

25  which, if released, would identify the executioner is

26  confidential and exempt from the provisions of s. 119.07(1)

27  and s. 24(a), Art. I of the State Constitution. The warrant

28  authorizing the execution shall be read to the convicted

29  person immediately before execution.

30         Section 3.  Section 922.101, Florida Statutes, is

31  created to read:

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  1         922.101  Execution of death sentence by lethal

  2  injection if death by electrocution is not elected;

  3  prohibition against reduction of death sentence as a result of

  4  determination that a method of execution is

  5  unconstitutional.--

  6         (1)  With respect to all sentences executed after

  7  January 10, 2000, a death sentence shall be executed by

  8  electrocution pursuant to s. 922.10 at the election, pursuant

  9  to this section, of the person sentenced to death.  The

10  election for death by electrocution waived unless it is made

11  in writing and delivered to the warden of the correctional

12  facility within 30 days after the issuance of mandate pursuant

13  to a decision by the Supreme Court of Florida affirming the

14  sentence of death. If the person waives the election of death

15  by electrocution, then the sentence shall be executed by

16  lethal injection pursuant to s. 922.104.

17         (2)  If an execution by lethal injection pursuant to

18  this section is barred by any court as a violation of any

19  provision of either the State Constitution or Federal

20  Constitution, then the death sentence shall be carried out

21  pursuant to s. 922.10, s. 922.105 (if applicable), or any

22  other provision of law which may be applicable at the time of

23  the execution.

24         (3)  In any case in which the time provided for making

25  an election under subsection (1) shall have expired prior to

26  30 days after the effective date of this act, the person

27  sentenced to death shall make an election within 30 days after

28  the effective date of this act and if not so made such

29  election is waived.

30         (4)  If a death warrant is issued before the expiration

31  of the time provided for making the election under subsection

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  1  (3), the election must be made within 48 hours after a date

  2  for execution of the death sentence has been set by the

  3  Governor and, if not so made, the election is waived.

  4         Section 4.  Section 922.103, Florida Statutes, is

  5  created to read:

  6         922.103  Legislative intent regarding interpretation of

  7  laws altering a method of execution of the death penalty.--

  8         (1)  The provisions of the opinion and all points of

  9  law decided by the United States Supreme Court in Malloy v.

10  South Carolina, 237 U.S. 180 (1915), finding that the Ex Post

11  Facto Clause of the United States Constitution is not violated

12  by a legislatively enacted change in the method of execution

13  for a sentence of death validly imposed for previously

14  committed capital crimes, are adopted by the Legislature as

15  the law of this state.

16         (2)  A change in the method of execution does not

17  increase the punishment or modify the penalty of death for a

18  capital crime.  Any legislative change to the method of

19  execution for a capital crime does not violate s. 10, Art. I,

20  nor s. 9, Art. X of the State Constitution.

21         (3)  Notwithstanding s. 775.082(2), s. 775.15(1)(a), or

22  s. 790.161(4), or any other provision of law to the contrary,

23  no sentence of death shall be reduced as a result of a

24  determination that a method of execution is declared

25  unconstitutional under the State Constitution or the Federal

26  Constitution.  In any case in which an execution method is

27  declared unconstitutional, the death sentence shall remain in

28  force until the sentence can be lawfully executed by any valid

29  method of execution.

30         Section 5.  Section 922.104, Florida Statutes, is

31  created to read:

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  1         922.104  Execution of death sentence by lethal

  2  injection.--

  3         (1)  This section shall govern all cases where a

  4  sentence of death is to be executed by lethal injection.

  5         (2)  Notwithstanding any law to the contrary, a person

  6  authorized by state law to prescribe medication and designated

  7  by the Department of Corrections may prescribe the drug or

  8  drugs necessary to compound a lethal injection.

  9  Notwithstanding any law to the contrary, a person authorized

10  by state law to prepare, compound, or dispense medication and

11  designated by the Department of Corrections may prepare,

12  compound, or dispense a lethal injection.  For purposes of

13  this section, prescription, preparation, compounding,

14  dispensing, and administration of a lethal injection does not

15  constitute the practice of medicine, nursing, or pharmacy.

16         (3)  Nothing contained in this chapter is intended to

17  require any physician, nurse, pharmacist, or employee of the

18  Department of Corrections or any other person to assist in any

19  aspect of an execution which is contrary to the person's moral

20  or ethical beliefs.

21         Section 6.  Section 922.105, Florida Statutes, is

22  amended to read:

23         922.105  Execution of death sentence by lethal

24  injection if death by electrocution is declared

25  unconstitutional; prohibition against reduction of death

26  sentence as a result of determination that a method of

27  execution is unconstitutional.--

28         (1)  If a death sentence is to shall be executed by

29  electrocution pursuant to s. 922.10, and. If electrocution is

30  held to be unconstitutional by the Florida Supreme Court under

31  the State Constitution, or held to be unconstitutional by the

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  1  United States Supreme Court under the United States

  2  Constitution, or if the United States Supreme Court declines

  3  to review any judgment holding electrocution to be

  4  unconstitutional under the United States Constitution made by

  5  the Florida Supreme Court or the United States Court of

  6  Appeals that has jurisdiction over Florida, a person all

  7  persons sentenced to death for a capital crime shall be

  8  executed by lethal injection.

  9         (2)  The provisions of the opinion and all points of

10  law decided by the United States Supreme Court in Malloy v.

11  South Carolina, 237 U.S. 180 (1915), finding that the Ex Post

12  Facto Clause of the United States Constitution is not violated

13  by a legislatively enacted change in the method of execution

14  for a sentence of death validly imposed for previously

15  committed capital murders, are adopted by the Legislature as

16  the law of this state.

17         (3)  A change in the method of execution does not

18  increase the punishment or modify the penalty of death for

19  capital murder. Any legislative change to the method of

20  execution for the crime of capital murder does not violate s.

21  10, Art. I or s. 9, Art. X of the State Constitution.

22         (4)  Notwithstanding any law to the contrary, a person

23  authorized by state law to prescribe medication and designated

24  by the Department of Corrections may prescribe the drug or

25  drugs necessary to compound a lethal injection.

26  Notwithstanding any law to the contrary, a person authorized

27  by state law to prepare, compound, or dispense medication and

28  designated by the Department of Corrections may prepare,

29  compound, or dispense a lethal injection.  For purposes of

30  this section, prescription, preparation, compounding,

31

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  1  dispensing, and administration of a lethal injection does not

  2  constitute the practice of medicine, nursing, or pharmacy.

  3         (5)  The policies and procedures of the Department of

  4  Corrections for execution of persons sentenced to death shall

  5  be exempt from chapter 120.

  6         (6)  Notwithstanding s. 775.082(2), s. 775.15(1)(a), or

  7  s. 790.161(4), or any other provision to the contrary, no

  8  sentence of death shall be reduced as a result of a

  9  determination that a method of execution is declared

10  unconstitutional under the State Constitution or the

11  Constitution of the United States.  In any case in which an

12  execution method is declared unconstitutional, the death

13  sentence shall remain in force until the sentence can be

14  lawfully executed by any valid method of execution.

15         (7)  Nothing contained in this chapter is intended to

16  require any physician, nurse, pharmacist, or employee of the

17  Department of Corrections or any other person to assist in any

18  aspect of an execution which is contrary to the person's moral

19  or ethical beliefs.

20         Section 7.  Subsection (1) of section 27.702, Florida

21  Statutes, is amended to read:

22         27.702  Duties of the capital collateral regional

23  counsel; reports.--

24         (1)  The capital collateral regional counsel shall

25  represent each person convicted and sentenced to death in this

26  state for the sole purpose of instituting and prosecuting

27  collateral actions challenging the legality of the judgment

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

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

30  Appeals for the Eleventh Circuit, and the United States

31  Supreme Court. The capital collateral regional counsel and the

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  1  attorneys appointed pursuant to s. 27.710 shall file only

  2  those postconviction or collateral actions authorized by

  3  statute. The capital collateral regional counsel and any

  4  state-compensated attorney appointed in place thereof shall

  5  not institute or prosecute on behalf of any person more than

  6  one postconviction action in the appropriate federal district

  7  court if authorized and necessary under federal law, one

  8  postconviction action in the appropriate federal appeals court

  9  if authorized and necessary under federal law, and one

10  postconviction action in the United States Supreme Court if

11  authorized and necessary under federal law. The three capital

12  collateral regional counsels' offices shall function

13  independently and be separate budget entities, and the

14  regional counsels shall be the office heads for all purposes.

15  The Justice Administrative Commission shall provide

16  administrative support and service to the three offices to the

17  extent requested by the regional counsels. The three regional

18  offices shall not be subject to control, supervision, or

19  direction by the Justice Administrative Commission in any

20  manner, including, but not limited to, personnel, purchasing,

21  transactions involving real or personal property, and

22  budgetary matters.

23         Section 8.  Section 119.19, Florida Statutes, is

24  amended to read:

25         119.19  Capital postconviction public records

26  production.--

27         (1)  As used in this section, the term "trial court"

28  means:

29         (a)  The judge who entered the judgment and imposed the

30  sentence of death; or

31

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  1         (b)  If a motion for postconviction relief in a capital

  2  case under Rule 3.850 or Rule 3.851 has been filed and a

  3  different judge has already been assigned to that motion, the

  4  judge who is assigned to rule on that motion.

  5         (2)  The Secretary of State shall establish and

  6  maintain a records repository for the purpose of archiving

  7  capital postconviction public records as provided for in this

  8  section.

  9         (3)(a)  Upon imposition of a death sentence, or upon

10  the effective date of this act, with respect to any case in

11  which a death sentence has been imposed but the mandate has

12  not yet been issued in an appeal affirming the sentence,

13  issuance of the Florida Supreme Court's mandate, the Attorney

14  General shall promptly provide written notification to the

15  state attorney who prosecuted the case that a death sentence

16  has been affirmed. Upon receipt of such notification, the

17  prosecuting state attorney shall promptly provide written

18  notification to each law enforcement agency involved in the

19  case and to the Department of Corrections.

20         (b)  Within 45 90 days after receipt of notification,

21  each law enforcement agency involved in the case and the

22  prosecuting state attorney who prosecuted the case shall copy,

23  seal, and deliver to the repository all public records, except

24  for those filed in the trial court, which were produced in the

25  investigation or prosecution of the case. Each agency shall

26  bear the costs of its own compliance.

27         (4)(a)  Upon issuance of the Florida Supreme Court's

28  mandate, the Attorney General shall promptly provide written

29  notification to the Department of Corrections that a death row

30  inmate's sentence has been affirmed.

31

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  1         (c)(b)  Within 45 90 days after notification, the

  2  Department of Corrections shall copy, seal, and deliver to the

  3  repository all public records determined by the department to

  4  be relevant to the subject matter of a cognizable capital

  5  postconviction claim of the person sentenced to death

  6  proceeding under Rule 3.850 or Rule 3.851 and where such

  7  production would not be unduly burdensome for the department.

  8  The department shall bear the costs.

  9         (4)(5)(a)  The chief law enforcement officer of each

10  law enforcement agency that was involved in the case, whether

11  through an investigation, arrest, prosecution, or

12  incarceration, shall notify the Attorney General upon

13  compliance with subsection (3) and shall certify that to the

14  best of his or her knowledge and belief all public records in

15  possession of the agency or in possession of any employee of

16  the agency have been copied, indexed, and delivered to the

17  records repository as required by subsection (3).

18         (b)  The prosecuting state attorney who prosecuted the

19  case shall provide written notification to the Attorney

20  General upon compliance with subsection (3) and shall certify

21  that to the best of his or her knowledge and belief all public

22  records in his or her possession have been copied, indexed,

23  and delivered to the records repository as required by

24  subsection (3).

25         (c)  The Secretary of Corrections shall provide written

26  notification to the Attorney General upon compliance with

27  paragraph (3)(c) subsection (4) and shall certify that to the

28  best of his or her knowledge and belief all public records in

29  the department's possession have been copied, indexed, and

30  delivered to the records repository as required by paragraph

31  (3)(c) (4)(b).

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  1         (5)(6)(a)  Within 45 90 days after issuance of the

  2  Florida Supreme Court's mandate affirming a death sentence,

  3  both the public defender or private counsel for the defendant

  4  and the prosecuting state attorney involved in the case shall

  5  provide written notification to the Attorney General of the

  6  name and address of any person or agency in addition to those

  7  persons and agencies listed in subsection subsections (3) and

  8  (4) which may have information pertinent to the case unless

  9  previously provided to the capital collateral regional counsel

10  or postconviction private counsel. The Attorney General shall

11  promptly provide written notification to each identified

12  person or agency after receiving the information from the

13  public defender, private counsel for the defendant, or

14  prosecuting state attorney and shall request that all public

15  records in the possession of the person or agency which

16  pertain to the case be copied, sealed, and delivered to the

17  records repository.

18         (b)  Within 30 90 days after receiving a request for

19  public records under paragraph (a), the person or agency shall

20  provide written notification to the Attorney General of

21  compliance with this subsection and shall certify that to the

22  best of his or her knowledge and belief all public records

23  requested have been copied, indexed, and delivered to the

24  records repository.

25         (6)(7)(a)  Any public record delivered to the records

26  repository under this section which is confidential or exempt

27  from the requirements of s. 119.07(1) and s. 24(a), Art. I of

28  the State Constitution must be separately boxed, without being

29  redacted, and sealed. The box must be delivered to the clerk

30  of court in the county in which the capital case was tried.

31  The outside of the box must clearly identify the public

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  1  records as exempt, and the seal may not be broken without an

  2  order of the trial court. The outside of the box must identify

  3  the nature of the public records and the legal basis under

  4  which the public records are exempt.

  5         (b)  Upon the entry of an appropriate court order,

  6  sealed boxes subject to an inspection by the trial court shall

  7  be shipped to the respective clerk of court. Such a box may be

  8  opened only for an inspection by the trial court in camera and

  9  only after notice giving with a representative of the agency

10  the option to have a representative present at the unsealing

11  by the court. The moving party shall bear all costs associated

12  with the transportation and inspection of such records by the

13  trial court.

14         (7)(8)(a)  Within 180 90 days after a capital

15  collateral regional counsel or private counsel is appointed to

16  represent a defendant sentenced to death, or within 30 days

17  after issuance of the Florida Supreme Court's mandate

18  affirming a death sentence, whichever is later, the regional

19  counsel, private counsel, or other counsel who is a member of

20  The Florida Bar and is authorized by such counsel representing

21  a defendant may shall send a written demand for additional

22  public records to each person or agency submitting public

23  records under subsection subsections (3) and (4) and to each

24  person or agency identified as having information pertinent to

25  the case under subsection (5) (6). Each person or agency

26  notified under this subsection shall, within 30 90 days after

27  receipt of the written demand, deliver to the records

28  repository any additional public records in the possession of

29  the person or agency which pertain to the case and shall

30  certify that to the best of his or her knowledge and belief

31  all additional public records have been delivered to the

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  1  Attorney General or, if no additional public records are

  2  found, shall recertify that the public records previously

  3  delivered are complete.

  4         (b)  Within 25 60 days after receiving the written

  5  demand, the agency or person may file an objection in the

  6  trial court alleging that the request is overly broad or

  7  unduly burdensome. Within 30 days after the filing of an

  8  objection, the trial court shall hold a hearing and order an

  9  agency or person to produce additional public records if it

10  finds each of the following:

11         1.  The regional counsel or private counsel has made a

12  timely and diligent search as provided in this section.

13         2.  The regional or private counsel's written demand

14  identifies, with specificity, those additional public records

15  that are not at the repository.

16         3.  The additional public records sought are relevant

17  to the subject matter of a cognizable capital postconviction

18  claim proceeding under Rule 3.850 or Rule 3.851 or appear

19  reasonably calculated to lead to the discovery of admissible

20  evidence in prosecuting such claim.

21         4.  The additional public records request is not

22  overbroad or unduly burdensome.

23         (c)  The Attorney General and state attorney shall

24  provide notification as provided in subsections (3) and (4) on

25  cases where the mandate has issued on the date that this

26  statute becomes effective, but where initial requests for

27  public records have not been made.

28         (c)(d)  If, on the date that this statute becomes

29  effective, a defendant is represented by appointed capital

30  collateral regional counsel or private counsel, and he or she

31  has initiated the public records request process, counsel

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  1  shall file within 90 days of the effective date of this

  2  statute, a written demand for any additional records that have

  3  not previously been the subject of a notice to produce. An

  4  agency may file an objection to such additional demand, and

  5  the trial court shall hold a hearing as provided by paragraph

  6  (b). This statute shall not be a basis for renewing requests

  7  that have been initiated previously or for relitigating issues

  8  pertaining to production of public records upon which a court

  9  has ruled prior to the effective date of the statute, or for

10  stopping an execution which has been scheduled based upon a

11  warrant executed by the Governor prior to the effective date

12  of the statute.

13         (d)(e)  If, on October 1, 1998 the date that this

14  statute becomes effective, the defendant has had a Rule 3.850

15  motion denied and no Rule 3.850 motion was is pending, no

16  additional requests shall be made by capital collateral

17  regional counsel or contracted private counsel until a death

18  warrant is signed by the Governor and an execution is

19  scheduled. Within 10 days of the signing of the death warrant,

20  capital collateral regional counsel or contracted private

21  counsel may request of a person or agency that the defendant

22  has previously requested to produce records any records

23  previously requested to which no objection was raised or

24  sustained, but which the agency has received or produced since

25  the previous request or which for any reason the agency has in

26  its possession and did not produce within 10 days of the

27  receipt of the previous notice or such shorter time period

28  ordered by the court to comply with the time for the scheduled

29  execution. The person or agency shall produce the record or

30  shall file in the trial court an affidavit stating that it

31

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  1  does not have the requested record or that the record has been

  2  produced previously.

  3         (8)(9)(a)  After production of additional public

  4  records or recertification as provided in subsection (7) (8),

  5  the regional counsel or the private counsel is prohibited from

  6  making any further public records requests under this chapter.

  7  An agency is not required to produce additional public records

  8  except by court order as provided in this subsection.

  9         (b)  In order to obtain additional public records

10  beyond those provided under subsection (7) (8), the regional

11  counsel, private counsel, or other counsel who is a member of

12  The Florida Bar and is authorized by the regional counsel or

13  private counsel shall file an affidavit in the trial court

14  which attests that he or she has made a timely and diligent

15  search of the records repository and specifically identifies

16  those additional public records that are not at the repository

17  and are relevant to the subject matter of a cognizable capital

18  postconviction claim proceeding under Rule 3.850 or Rule 3.851

19  or are reasonably calculated to lead to the discovery of

20  admissible evidence in the prosecution of such claim. The

21  affiant shall provide a copy of the affidavit to all affected

22  agencies upon the filing of such affidavit in the trial court.

23         (c)  Within 15 30 days after the filing of an

24  affidavit, the trial court shall order an agency to produce

25  additional public records only if it finds each of the

26  following:

27         1.  The regional counsel or private counsel has made a

28  timely and diligent search as provided in this section.

29         2.  The regional or private counsel's affidavit

30  identifies, with specificity, those additional public records

31  that are not at the repository.

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  1         3.  The additional public records sought are relevant

  2  to the subject matter of a cognizable claim for capital

  3  postconviction relief proceeding under Rule 3.850 or Rule

  4  3.851 or appear reasonably calculated to lead to the discovery

  5  of admissible evidence in prosecuting such claim.

  6         4.  The additional public records request is not

  7  overbroad or unduly burdensome.

  8         (9)(10)  The Secretary of State capital collateral

  9  regional counsel or private counsel shall provide the

10  personnel, supplies, and any necessary equipment used by the

11  capital collateral regional counsel or private counsel to copy

12  records held at the records repository.

13         (10)(11)  The trial court shall resolve any dispute

14  that arises under this section, unless the appellate court has

15  exclusive jurisdiction.

16         (11)(12)  The capital collateral regional counsel or

17  private counsel shall not solicit another person to make a

18  request for public records on behalf of the regional counsel

19  or private counsel. The trial court shall impose appropriate

20  sanctions against any regional counsel or private counsel

21  found in violation of this subsection.

22         (12)(13)  Sixty days after a capital sentence is

23  carried out, 60 days after a defendant is released from

24  incarceration following the granting of a pardon or reversal

25  of the sentence, or 60 days after the defendant has been

26  resentenced to a term of years, the Attorney General shall

27  provide written notification to the Secretary of State, who

28  may then destroy the records held by the records repository

29  which pertain to that case.

30         (13)(14)  This section pertains only to the production

31  of records for capital postconviction defendants and does not

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  1  change or alter any time limitations provided by law governing

  2  capital postconviction claims and actions periods specified in

  3  Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure.

  4  Furthermore, this section does not affect, expand, or limit

  5  the production of public records for any purposes other than

  6  use in a capital postconviction proceeding held pursuant to

  7  Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure.

  8  Nothing in this section constitutes grounds to expand the time

  9  limitations or allow any pleading in violation of chapter 924

10  or to stay an execution or death warrant.

11         Section 9.  Section 922.095, Florida Statutes, is

12  amended to read:

13         922.095  Grounds for death warrant; limitations of

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

15  must pursue all possible collateral remedies within the time

16  limits provided by statute in state and federal court in a

17  timely manner. If any court refuses to grant relief in a

18  collateral postconviction proceeding, the convicted person has

19  90 days in which to seek further collateral review. Failure to

20  seek relief within the statutory time limits further

21  collateral review within the 90-day period constitutes grounds

22  for issuance of a death warrant under s. 922.052 or s. 922.14.

23  Any claim not pursued within the statutory time limits is

24  barred. No claim filed after the time required by law shall be

25  grounds for a judicial stay of any warrant.

26         Section 10.  Section 924.055, Florida Statutes, is

27  amended to read:

28         (Substantial rewording of section. See

29         s. 924.055, F.S., for present text.)

30         924.055  Postconviction review in capital cases;

31  legislative findings and intent.--

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

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

  3  postconviction actions in capital cases are resolved within 5

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

  5  circuit court. All capital postconviction actions must be

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

  7  of death, which may be during a direct appeal of the

  8  conviction and sentence. A person sentenced to death must file

  9  any postconviction legal action in compliance with all time

10  limitations in this chapter. No person sentenced to death may

11  file more than one postconviction action in a sentencing

12  court, one appeal therefrom to the Florida Supreme Court, and

13  one original postconviction action in the Florida Supreme

14  Court.

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

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

17  the event that any state employee or party contracting with

18  the state willfully and substantially violates the provisions

19  of this act, the Attorney General shall notify the Speaker of

20  the House of Representatives and the President of the Senate.

21  In addition, the Legislature authorizes the Attorney General

22  to file a petition for a writ of prohibition in the Florida

23  Supreme Court when there is a violation of the time

24  limitations or the prohibition against successive capital

25  postconviction proceedings provided in this chapter.

26         Section 11.  Section 924.056, Florida Statutes, is

27  created to read:

28         924.056  Capital postconviction proceedings for which

29  sentence of death is imposed on or after the effective date of

30  this act.--

31

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

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

  3  this act, this section shall govern all postconviction

  4  proceedings in state court.

  5         (a)  Within 15 days after imposing a sentence of death,

  6  the sentencing court shall appoint the appropriate office of

  7  the capital collateral regional counsel or private

  8  postconviction counsel, unless the defendant fails or declines

  9  to accept postconviction legal representation in which case

10  the state shall not provide postconviction legal

11  representation. Within 30 days after the appointment, the

12  capital collateral regional counsel shall file a notice of

13  appearance in the trial court or a motion to withdraw based on

14  a conflict of interest or other legal ground. The court shall

15  appoint private counsel pursuant to part IV of chapter 27 in

16  any case in which the capital collateral regional counsel

17  files a motion to withdraw, or otherwise informs the court

18  that the capital collateral regional counsel cannot comply

19  with the provisions of chapter 924, or in which the court

20  determines that the agency cannot comply with chapter 924 or

21  other applicable laws.

22         (b)  The defendant who accepts the appointment of

23  postconviction counsel must cooperate with and assist

24  postconviction counsel. If the defendant obstructs the efforts

25  of postconviction counsel, or if the sentencing court finds

26  the defendant is not cooperating with postconviction counsel,

27  the defendant shall not be entitled to any further

28  postconviction legal representation provided by the state.

29  Each attorney participating in a capital case on behalf of a

30  defendant must provide all information pertaining to the

31  capital case which the attorney obtained during the

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  1  representation of that defendant to that defendant's capital

  2  postconviction counsel. Postconviction counsel must maintain

  3  the confidentiality of any confidential information received

  4  from any attorney for that defendant and is subject to the

  5  same penalties as the providing attorney for violating

  6  confidentiality. If the defendant requests that any attorney

  7  appointed under this subsection be removed or replaced, the

  8  court shall notify the defendant that no further state

  9  resources may be expended for postconviction representation

10  for that defendant, unless the defendant withdraws the request

11  to remove or replace postconviction counsel. If the defendant

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

13  appointed attorney must be removed from the case and no

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

15  postconviction representation. The prosecuting attorney and

16  the defendant's trial counsel shall provide capital

17  postconviction counsel with copies of all pretrial and trial

18  discovery and all contents of the prosecuting attorney's file,

19  except for information that the prosecuting attorney has a

20  legal right under state and federal law to withhold from

21  disclosure.

22         (2)  The court reporter shall provide a copy of the

23  trial transcript to the capital postconviction attorney and

24  the state attorney and Attorney General within 30 days after

25  the sentencing court appoints postconviction counsel.

26         (3)(a)  Capital postconviction legal counsel shall file

27  a fully pled postconviction action in the sentencing court

28  within 180 days after the filing of the appellant's initial

29  brief in the Florida Supreme Court direct appeal of the

30  defendant's capital conviction and sentence. The fully pled

31  postconviction action must raise all meritorious claims that

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  1  the defendant's judgment or sentence was entered in violation

  2  of the Constitution or laws of the United States or the

  3  Constitution or the laws of the state, including any claim of

  4  ineffective assistance of trial counsel, allegations of

  5  innocence, or that the state withheld evidence favorable to

  6  the defendant. No claim may be considered in such action which

  7  could have or should have been raised before trial, at trial,

  8  or if preserved on direct appeal. A capital postconviction

  9  action is not fully pled unless it satisfies the requirements

10  of s. 924.058.

11         (b)  No claim of ineffective assistance of

12  postconviction counsel may be raised in a state court.

13         (c)  The pendency of public records requests or

14  litigation, or the pendency of other litigation, or the

15  failure of postconviction counsel to timely prosecute a case,

16  shall not constitute cause for the court to grant any request

17  for an extension of time or other delay. No appeal may be

18  taken from a court's ruling denying such a request for an

19  extension of time or other delay.

20         (d)  No further time shall be allowed for the filing of

21  the fully pled postconviction action, and any action not filed

22  in compliance with this section shall not be considered in any

23  state court. No amendment of a defendant's capital

24  postconviction action shall be allowed by the court after the

25  expiration of the time periods provided by statute for the

26  filing of capital postconviction claims.

27         (4)  Capital postconviction counsel shall file a fully

28  pled postconviction action in the Florida Supreme Court

29  raising any claim of ineffective assistance of direct appeal

30  counsel within 45 days after mandate issues affirming the

31  death sentence in direct appeal.

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  1         Section 12.  Section 924.057, Florida Statutes, is

  2  created to read:

  3         924.057  Limitation on postconviction cases in which

  4  the death sentence was imposed before the effective date of

  5  this act.--In every capital case in which the trial court

  6  imposed a sentence of death before the effective date of this

  7  act, capital postconviction counsel may file a fully pled

  8  postconviction action in the sentencing court no later than

  9  January 8, 2001, unless a postconviction action is pending on

10  the effective date of this act. The fully pled postconviction

11  action must raise all allowable claims that the defendant's

12  judgment or sentence was entered in violation of the

13  constitution or laws of the United States or the State of

14  Florida, including any claim of ineffective assistance of

15  trial counsel, allegations of innocence, or that the state

16  withheld evidence favorable to the defendant. The fully pled

17  postconviction action shall not raise any claim that could

18  have or should have been raised before trial, at trial, or if

19  preserved on direct appeal. No claim of ineffective assistance

20  of postconviction counsel may be raised in a state court. This

21  section does not expand any right or time period allowed in

22  any postconviction action pending on the effective date of

23  this act.

24         Section 13.  Section 924.058, Florida Statutes, is

25  created to read:

26         924.058  Capital postconviction claims.--

27         (1)  On behalf of a person sentenced to death there

28  shall not be filed more than one capital postconviction action

29  in the sentencing court, one appeal therefrom in the Florida

30  Supreme Court, and one original capital postconviction action

31  alleging the ineffectiveness of direct appeal counsel in the

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  1  Florida Supreme Court. No person receiving state compensation

  2  to represent or assist a person sentenced to death in a

  3  capital postconviction proceeding may violate this section.

  4  Violation by a person receiving state compensation constitutes

  5  a breach of the employment agreement, whether expressed or

  6  implied.

  7         (2)  The defendant's postconviction action shall be

  8  filed under oath and shall be fully pled to include:

  9         (a)  The judgment or sentence under attack and the

10  court which rendered the same;

11         (b)  A statement of each issue raised on appeal and the

12  disposition thereof;

13         (c)  Whether a previous postconviction action has been

14  filed and, if so, the dispostion of all previous claims raised

15  in postconviction litigation; if a previous action or actions

16  have been filed, the reason or reasons the claim or claims in

17  the present motion were not raised in the former action or

18  actions;

19         (d)  The nature of the relief sought;

20         (e)  A fully detailed allegation of the factual basis

21  for any claim of legal or constitutional error asserted,

22  including the attachment of any document supporting the claim,

23  the name and address of any witness, the attachment of

24  affidavits of the witnesses or a proffer of the testimony; and

25         (f)  A concise memorandum of applicable case law as to

26  each claim asserted.

27         (3)  Any capital postconviction action that does not

28  comply with any requirement in this section or other

29  applicable provision in law shall not be considered in any

30  state court. No amendment of a defendant's capital

31  postconviction action shall be allowed by the court after the

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  1  expiration of the time periods provided by statute for the

  2  filing of the capital postconviction claims.

  3         (4)  The prosecuting attorney or Attorney General shall

  4  be allowed to file one response to any capital postconviction

  5  action within 60 days after receipt of the defendant's fully

  6  pled capital postconviction action. The sentencing court may

  7  grant the prosecuting attorney or Attorney General an

  8  extension of time upon a showing of good cause.

  9         Section 14.  Section 924.059, Florida Statutes, is

10  created to read:

11         924.059  Time limitations and judicial review in

12  capital postconviction actions; motion for production of

13  evidence for polymerase chain reaction DNA sample testing.--

14         (1)  No amendment of a defendant's capital

15  postconviction action shall be allowed by the court after the

16  expiration of the time periods provided by statute for the

17  filing of capital postconviction claims.

18         (2)  Within 30 days after the state files its answer,

19  the sentencing court shall conduct a hearing to determine if

20  an evidentiary hearing is required, if a hearing has been

21  requested by the defendant. Within 30 days thereafter, the

22  court shall rule whether an evidentiary hearing is required

23  and, if so, shall schedule an evidentiary hearing to be held

24  within 90 days. If the court determines that the defendant's

25  capital postconviction action is legally insufficient or the

26  action, files, and records in the case show that the defendant

27  is not entitled to relief, the court shall, within 45 days

28  thereafter, deny the action, setting forth a detailed

29  rationale therefore, and attaching or referencing such

30  portions of the record as are necessary to allow for

31  meaningful appellate review.

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  1         (3)  Within 10 days after the order scheduling an

  2  evidentiary hearing, the defendant shall disclose the names

  3  and addresses of any potential witnesses not previously

  4  disclosed, with their affidavits or a proffer of their

  5  testimony. Upon receipt of the defendant's disclosure, the

  6  state shall have 10 days within which to provide reciprocal

  7  disclosure. If the defendant intends to offer expert testimony

  8  of his or her mental status, the state shall be entitled to

  9  have the defendant examined by an expert of its choosing. All

10  of the defendant's mental status claims shall be deemed denied

11  as a matter of law if the defendant fails to cooperate with

12  the state's expert. Reports provided by expert witnesses shall

13  be disclosed by opposing counsel upon receipt.

14         (4)  Following the evidentiary hearing, the court shall

15  order the transcription of the proceeding which shall be filed

16  within 30 days. Within 30 days after receipt of the

17  transcript, the sentencing court shall issue a final order

18  granting or denying postconviction relief, making detailed

19  findings of fact and conclusions of law with respect to any

20  allegation asserted.

21         (5)  An appeal may be taken to the Supreme Court of

22  Florida within 15 days from the entry of a final order on a

23  capital postconviction action. No interlocutory appeal shall

24  be permitted. No motion for rehearing shall be permitted. The

25  clerk of the court shall promptly serve upon all parties a

26  copy of the final order.

27         (6)  If the sentencing court has denied the capital

28  postconviction action without an evidentiary hearing, the

29  appeal to the Florida Supreme Court will be expeditiously

30  resolved in a summary fashion. On appeal the case shall be

31  initially reviewed for a determination whether the sentencing

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  1  court correctly resolved the defendant's claims without an

  2  evidentiary hearing. If the Florida Supreme Court determines

  3  an evidentiary hearing should have been held, the decision to

  4  remand for an evidentiary hearing may be made by an order

  5  without an opinion. Jurisdiction shall be relinquished to the

  6  trial court for a specified period not to exceed 30 days for

  7  the purpose of conducting an evidentiary hearing on any issue

  8  identified by the Florida Supreme Court's order. Thereafter,

  9  the record shall be supplemented with the hearing transcript.

10         (7)  Within 180 days after the Florida Supreme Court

11  receives the record on appeal, the Florida Supreme Court shall

12  render a final decision granting or denying postconviction

13  relief. If an appeal from a denial of an action for

14  postconviction relief is denied, the Governor may proceed to

15  issue a warrant for execution.

16         (8)  A capital postconviction action filed in violation

17  of the time limitations provided by statute is barred, and all

18  claims raised therein are waived. A state court shall not

19  consider any capital postconviction action filed in violation

20  of s. 924.056 or s. 924.057. The Attorney General shall notify

21  the Governor, the President of the Senate, and the Speaker of

22  the House of Representatives of any violation of this

23  provision.

24         (9)  The Attorney General shall provide a copy of all

25  court orders granting or denying relief in the case to the

26  deceased victim's family, the Governor, the President of the

27  Senate and the Speaker of the House of Representatives, and

28  the Commission on Capital Cases.

29         (10)(a)  A defendant may make a motion in the trial

30  court that entered the judgment and sentence for the

31  performance of forensic DNA testing using the Polymerase Chain

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  1  Reaction (PCR) method in a case no later than June 1, 2001, on

  2  evidence that was secured in relation to the trial that

  3  resulted in the defendant's conviction, but which was not

  4  subject to PCR testing because PCR technology was not

  5  available at the time of trial. The defendant must serve

  6  notice of the motion on the state and the victim of the crime

  7  or the victim's family or legal representative. No hearing

  8  shall proceed unless the state and the victim or victim's

  9  representatives are present.

10         (b)  In order for the trial court to grant the motion,

11  the defendant must:

12         1.  Present a prima facie case that:

13         a.  Identity was the issue at trial that resulted in

14  the defendant's conviction, as demonstrated in the trial

15  transcript produced by the defendant; and

16         b.  The evidence to be tested has been subject to a

17  chain of custody sufficient to establish that it has not been

18  substituted, tampered with, altered, replaced, or changed in

19  any fashion;

20         2.  Agree to submit himself or herself to DNA testing

21  using the PCR method.  The results of such testing may be used

22  against the defendant at any further proceeding, including a

23  retrial, resentencing, or unrelated criminal proceeding; and

24         3.  Demonstrate by clear and convincing evidence that

25  the testing is highly likely to demonstrate that the results

26  would have been admissible at trial and that, had the test

27  results been introduced at trial, no reasonable jury or court

28  could have found the defendant guilty beyond a reasonable

29  doubt.

30         (c)  The trial court has the discretion to deny the

31  motion if it finds that the requested testing would produce

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  1  only cumulative or irrelevant information. The trial court

  2  shall deny the motion if the required testing would not

  3  conclusively demonstrate that the evidence would probably

  4  produce an acquittal at a new trial.

  5         (d)  The defendant shall bear the costs for the

  6  production of any evidence, unless the court finds that the

  7  defendant has made a prima facie showing as required in

  8  subparagraph (b)1. and that the defendant is indigent.

  9         (e)  In the event the trial court grants the motion and

10  makes a finding that the defendant is entitled to a new trial,

11  it shall enter a written order making findings of fact that

12  shall be subject to interlocutory appellate review. If the

13  reviewing court finds that the defendant is entitled to a new

14  trial, it shall order the case to be expedited if the state

15  agrees to an expedited schedule. If the state contends that it

16  cannot relocate essential witnesses or does not agree to an

17  expedited new trial date, the reviewing court shall remand the

18  proceeding to the trial court to schedule a new trial. The

19  case shall not be subject to discharge based on an alleged

20  violation of the right to a speedy trial.

21         Section 15.  Rule 3.850, Florida Rules of Criminal

22  Procedure, relating to the grant of a new trial, is repealed

23  to the extent that it is inconsistent with this act. Rule

24  3.851, Florida Rules of Criminal Procedure as amended January

25  15, 1998, relating to collateral relief after death sentence

26  has been imposed, is repealed. Rule 3.852, Florida Rules of

27  Criminal Procedure, relating to capital postconviction public

28  records production, is repealed.

29         Section 16.  Subsections (4) and (5) of section 27.710,

30  Florida Statutes, are amended, present subsection (6) of that

31

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  1  section is redesignated as subsection (7), and a new

  2  subsection (6) is added to that section, to read:

  3         27.710  Registry of attorneys applying to represent

  4  persons in postconviction capital collateral proceedings;

  5  certification of minimum requirements; appointment by trial

  6  court.--

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

  8  court to represent a capital defendant must enter into a

  9  contract with the Comptroller. If the appointed attorney fails

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

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

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

13  The Comptroller executive director of the Commission on

14  Capital Cases shall develop the form of the contract, and the

15  Comptroller shall function as contract manager, and shall

16  enforce performance of the terms and conditions of the

17  contract. By signing such contract, the attorney certifies

18  that he or she intends to continue the representation under

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

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

21  released by order of the trial court.

22         (5)(a)  Upon the motion of the capital collateral

23  regional counsel to withdraw pursuant to s. 924.056(1)(a); or

24         (b)  Upon notification by the state attorney or the

25  Attorney General that:

26         1.  Thirty days have elapsed since appointment of the

27  capital collateral regional counsel and no entry of appearance

28  has been filed pursuant to s. 924.056; or

29         (a)  Ninety-one days have elapsed since the Supreme

30  Court issued a mandate on a direct appeal, or the Supreme

31

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  1  Court of the United States has denied a petition for

  2  certiorari, whichever is later;

  3         2.(b)  A person under sentence of death who was

  4  previously represented by private counsel is currently

  5  unrepresented in a postconviction capital collateral

  6  proceeding,; or

  7         (c)  The trial court has issued an order finding that a

  8  year and a day have elapsed since the commencement of the

  9  period for filing a motion for postconviction relief under s.

10  924.055(2), and the defendant's complete original motion for

11  postconviction relief has not been filed in the trial court,

12

13  the executive director shall immediately notify the trial

14  court that imposed the sentence of death that the court must

15  immediately appoint an attorney, selected from the current

16  registry, to represent such person in collateral actions

17  challenging the legality of the judgment and sentence in the

18  appropriate state and federal courts. The court shall have the

19  authority to strike a notice of appearance filed by a Capital

20  Collateral Regional Counsel, if the court finds the notice was

21  not filed in good faith and may so notify the executive

22  director that the client is no longer represented by the

23  Office of Capital Collateral Regional Counsel.  In making an

24  assignment, the court shall give priority to attorneys whose

25  experience and abilities in criminal law, especially in

26  capital proceedings, are known by the court to be commensurate

27  with the responsibility of representing a person sentenced to

28  death. The trial court must issue an order of appointment

29  which contains specific findings that the appointed counsel

30  meets the statutory requirements and has the high ethical

31  standards necessary to represent a person sentenced to death.

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  1         (6)  Upon notification by a capital collateral regional

  2  counsel that a case should be referred to the registry, the

  3  executive director shall immediately notify the trial court

  4  that imposed the sentence of death that the court must

  5  immediately appoint an attorney as provided in subsection (5).

  6         Section 17.  Section 27.51, Florida Statutes, is

  7  amended to read:

  8         27.51  Duties of public defender.--

  9         (1)  The public defender shall represent, without

10  additional compensation, any person who is determined by the

11  court to be indigent as provided in s. 27.52 and who is:

12         (a)  Under arrest for, or is charged with, a felony;

13         (b)  Under arrest for, or is charged with, a

14  misdemeanor, a violation of chapter 316 which is punishable by

15  imprisonment, criminal contempt, or a violation of a municipal

16  or county ordinance in the county court, unless the court,

17  prior to trial, files in the cause an order of no imprisonment

18  which states that the defendant will not be imprisoned if he

19  or she is convicted;

20         (c)  Alleged to be a delinquent child pursuant to a

21  petition filed before a circuit court; or

22         (d)  Sought by petition filed in such court to be

23  involuntarily placed as a mentally ill person or sexually

24  violent predator or involuntarily admitted to residential

25  services as a person with developmental disabilities. However,

26  a public defender does not have the authority to represent any

27  person who is a plaintiff in a civil action brought under the

28  Florida Rules of Civil Procedure, the Federal Rules of Civil

29  Procedure, or the federal statutes, or who is a petitioner in

30  an administrative proceeding challenging a rule under chapter

31  120, unless specifically authorized by statute.

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  1         (2)  The court may not appoint the public defender to

  2  represent, even on a temporary basis, any person who is not

  3  indigent.  The court, however, may appoint private counsel in

  4  capital cases as provided in s. 925.035.

  5         (3)  Each public defender shall serve on a full-time

  6  basis and is prohibited from engaging in the private practice

  7  of law while holding office. Assistant public defenders shall

  8  give priority and preference to their duties as assistant

  9  public defenders and shall not otherwise engage in the

10  practice of criminal law.

11         (4)  The public defender for a judicial circuit

12  enumerated in this subsection shall, after the record on

13  appeal is transmitted to the appellate court by the office of

14  the public defender which handled the trial and if requested

15  by any public defender within the indicated appellate

16  district, handle all felony appeals to the state and federal

17  courts required of the official making such request:

18         (a)  Public defender of the second judicial circuit, on

19  behalf of any public defender within the district comprising

20  the First District Court of Appeal.

21         (b)  Public defender of the tenth judicial circuit, on

22  behalf of any public defender within the district comprising

23  the Second District Court of Appeal.

24         (c)  Public defender of the eleventh judicial circuit,

25  on behalf of any public defender within the district

26  comprising the Third District Court of Appeal.

27         (d)  Public defender of the fifteenth judicial circuit,

28  on behalf of any public defender within the district

29  comprising the Fourth District Court of Appeal.

30

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  1         (e)  Public defender of the seventh judicial circuit,

  2  on behalf of any public defender within the district

  3  comprising the Fifth District Court of Appeal.

  4         (5)  When the public defender for a judicial circuit

  5  enumerated in subsection (4) has represented at trial a person

  6  sentenced to death, the public defender shall not represent

  7  that person in any direct appellate proceedings. That public

  8  defender shall notify the Florida Supreme Court within 10 days

  9  after filing a notice of appeal, and the Court shall appoint

10  another public defender enumerated in subsection (4) to

11  represent the person in any direct appellate proceedings.

12         (6)(5)(a)  When direct appellate proceedings prosecuted

13  by a public defender on behalf of an accused and challenging a

14  judgment of conviction and sentence of death terminate in an

15  affirmance of such conviction and sentence, whether by the

16  Florida Supreme Court or by the United States Supreme Court or

17  by expiration of any deadline for filing such appeal in a

18  state or federal court, the public defender shall notify the

19  accused of his or her rights pursuant to Rule 3.850, Florida

20  Rules of Criminal Procedure, including any time limits

21  pertinent thereto, and shall advise such person that

22  representation in any collateral proceedings is the

23  responsibility of the capital collateral representative.  The

24  public defender shall then forward all original files on the

25  matter to the capital collateral representative, retaining

26  such copies for his or her files as may be desired. However,

27  the trial court shall retain the power to appoint the public

28  defender or other attorney not employed by the capital

29  collateral representative to represent such person in

30  proceedings for relief by executive clemency pursuant to s.

31  925.035.

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  1         (b)  It is the intent of the Legislature that any

  2  public defender representing an inmate in any collateral

  3  proceedings in any court on June 24, 1985, shall continue

  4  representation of that inmate in all postconviction

  5  proceedings unless relieved of responsibility from further

  6  representation by the court.

  7         (7)(6)  A sum shall be appropriated to the public

  8  defender of each judicial circuit enumerated in subsection (4)

  9  for the employment of assistant public defenders and clerical

10  employees and the payment of expenses incurred in cases on

11  appeal.

12         Section 18.  Subsections (1) and (2) of section 27.703,

13  Florida Statutes, are amended to read:

14         27.703  Conflict of interest and substitute counsel.--

15         (1)  The capital collateral regional counsel shall not

16  accept an appointment or take any other action that will

17  create a conflict of interest. If, at any time during the

18  representation of a person two or more persons, the capital

19  collateral regional counsel determines that the continued

20  representation of that person creates a interests of those

21  persons are so adverse or hostile that they cannot all be

22  counseled by the regional counsel or his or her staff without

23  conflict of interest, the sentencing court shall, upon

24  application by the regional counsel, designate another

25  regional counsel and, only if a conflict exists with the other

26  two counsels, appoint one or more members of The Florida Bar

27  to represent one or more of such persons.

28         (2)  Appointed counsel shall be paid from funds

29  appropriated to the Comptroller Justice Administrative

30  Commission. The hourly rate may not exceed $100. However,

31  effective July 1, 1999, all appointments of private counsel

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  1  under this section shall be in accordance with ss. 27.710 and

  2  27.711.

  3         Section 19.  Subsection (2) of section 27.709, Florida

  4  Statutes, is amended to read:

  5         27.709  Commission on Capital Cases.--

  6         (2)(a)  The commission shall review the administration

  7  of justice in capital collateral cases, receive relevant

  8  public input, review the operation of the capital collateral

  9  regional counsel, and advise and make recommendations to the

10  Governor, Legislature, and Supreme Court.

11         (b)  As part of its duties, the commission shall

12  compile and analyze case-tracking reports produced by the

13  Supreme Court. In analyzing these reports, the commission

14  shall develop statistics to identify trends and changes in

15  case management and case processing, identify and evaluate

16  unproductive points of delay, and generally evaluate the way

17  cases are progressing. The commission shall report these

18  findings to the Legislature by January 1 of each year.

19         (c)  In addition, the commission shall receive

20  complaints regarding the practice of any office of regional

21  counsel and shall refer any complaint to The Florida Bar, the

22  State Supreme Court, or the Commission on Ethics, as

23  appropriate.

24         Section 20.  Subsection (3) of section 27.711, Florida

25  Statutes, is amended, and subsection (13) is added to that

26  section, to read:

27         27.711  Terms and conditions of appointment of

28  attorneys as counsel in postconviction capital collateral

29  proceedings.--

30         (3)  An attorney appointed to represent a capital

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

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  1  section only upon full performance by the attorney of the

  2  duties specified in this section and approval of payment by

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

  4  the attorney, subject to the availability of sufficient

  5  funding specifically appropriated for this purpose.  The

  6  Comptroller Justice Administrative Commission shall notify the

  7  executive director and the court if it appears that sufficient

  8  funding has not been specifically appropriated for this

  9  purpose to pay any fees which may be incurred. The attorney

10  shall maintain appropriate documentation, including a current

11  and detailed hourly accounting of time spent representing the

12  capital defendant. The fee and payment schedule in this

13  section is the exclusive means of compensating a

14  court-appointed attorney who represents a capital defendant.

15  When appropriate, a court-appointed attorney must seek further

16  compensation from the Federal Government, as provided in 18

17  U.S.C. s. 3006A or other federal law, in habeas corpus

18  litigation in the federal courts.

19         (13)  Prior to the filing of a motion for order

20  approving payment of attorney's fees, costs, or related

21  expenses, the assigned counsel shall deliver a copy of his or

22  her intended billing, together with supporting affidavits and

23  all other necessary documentation, to the Comptroller's named

24  contract manager. The contract manager shall have 10 business

25  days from receipt to review the billings, affidavit, and

26  documentation for completeness and compliance with contractual

27  and statutory requirements. If the contract manager objects to

28  any portion of the proposed billing, the objection and reasons

29  therefor shall be communicated to the assigned counsel. The

30  assigned counsel may thereafter file his or her motion for

31  order approving payment of attorney's fees, costs, or related

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  1  expenses together with supporting affidavits and all other

  2  necessary documentation. The motion must specify whether the

  3  Comptroller's contract manager objects to any portion of the

  4  billing or the sufficiency of documentation and, if so, the

  5  reason therefor. A copy of the motion and attachments shall be

  6  served on the Comptroller's contract manager, who shall have

  7  standing to file pleadings and appear before the court to

  8  contest any motion for order approving payment. The fact that

  9  the Comptroller's contract manager has not objected to any

10  portion of the billing or to the sufficiency of the

11  documentation is not binding on the court, which retains

12  primary authority and responsibility for determining the

13  reasonableness of all billings for fees, costs, and related

14  expenses, subject to statutory limitations.

15         Section 21.  Section 924.395, Florida Statutes, is

16  created to read:

17         924.395  Sanctions against inmates and inmates'

18  counsel.--

19         (1)  The Legislature strongly encourages the courts,

20  through their inherent powers and pursuant to this section, to

21  impose sanctions against an inmate or the inmate's counsel, or

22  both, who are found by a court, in a capital postconviction

23  proceeding or appeal therefrom, to have:

24         (a)  Abused a petition for extraordinary relief,

25  postconviction motion, or appeal therefrom;

26         (b)  Raised a claim that a court has found to be

27  frivolous or procedurally barred or that should have been

28  raised on the direct appeal; or

29         (c)  Adversely affected the orderly administration of

30  justice.

31

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  1         (2)  Sanctions the court may and should consider, when

  2  applicable and appropriate in a case, include, but are not

  3  limited to:

  4         (a)  Dismissal of a petition, postconviction motion, or

  5  appeal;

  6         (b)  Disciplinary sanctions against the inmate's

  7  counsel;

  8         (c)  A fine imposed on the inmate or the inmate's

  9  counsel, or both; and

10         (d)  Any other sanction that is available to the court

11  under its inherent powers.

12         Section 22.  Section 922.107, Florida Statutes, is

13  created to read:

14         922.107  Policies and procedures for the execution of

15  persons; exemption from the Administrative Procedure Act.--The

16  policies and procedures of the Department of Corrections for

17  the execution of persons sentenced to death are exempt from

18  chapter 120.

19         Section 23.  If any provision of this act or the

20  application thereof to any person or circumstance is held

21  invalid, the invalidity does not affect other provisions or

22  applications of the act which can be given effect without the

23  invalid provision or application, and to this end the

24  provisions of this act are declared severable.

25         Section 24.  This act shall take effect upon becoming a

26  law, but section 15 shall take effect only if this act is

27  passed by the affirmative vote of two-thirds of the membership

28  of each house of the Legislature.

29

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

  2                          HOUSE SUMMARY

  3    Creates the "Death Penalty Reform Act of 2000." Revises
      provisions of law relating to criminal postconviction
  4    proceedings to restrict postconviction proceedings in
      capital cases where the death sentence is provided.
  5    Provides procedures for execution by lethal injection.
      Revises provisions governing capital postconviction
  6    public records production. Repeals Florida Rules of
      Criminal Procedure which are inconsistent with this act.
  7    Prohibits certain public defenders from handling
      specified appeals. Provides for the designation of
  8    alternative regional counsel in cases involving a
      conflict of interest. Requires the Commission on Capital
  9    Cases to compile and analyze case-tracking reports
      produced by the Supreme Court. Provides for review of the
10    billings of assigned counsel. Provides for sanctions
      against inmates and their counsel for certain actions
11    taken in capital postconviction proceedings. Exempts
      policies and procedures of the Department of Corrections
12    for the execution of persons from the Administrative
      Procedure Act. See bill for details.
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