House Bill 0001Ae1
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CS/HB 1-A, First Engrossed
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. 27.702, F.S.; providing limitation
5 on the filing of postconviction and collateral
6 actions; amending s. 119.19, F.S.; revising
7 provisions relating to capital postconviction
8 public records production; amending s. 922.095,
9 F.S.; revising provisions with respect to
10 grounds for a death warrant; providing a
11 limitation on actions; amending s. 924.055,
12 F.S.; revising provisions with respect to
13 postconviction review in capital cases;
14 providing for legislative findings and intent;
15 creating s. 924.056, F.S.; providing for
16 capital postconviction proceedings for which a
17 sentence of death is imposed on or after the
18 effective date of this act; creating s.
19 924.057, F.S.; providing for a limitation on
20 postconviction cases in which the death
21 sentence was imposed before the effective date
22 of this act; creating s. 924.058, F.S.;
23 providing for capital postconviction claims;
24 creating s. 924.059, F.S.; providing for time
25 limitations on judicial review in capital
26 postconviction actions; repealing Rule 3.850,
27 Florida Rules of Criminal Procedure, relating
28 to the grant of a new trial to the extent it is
29 inconsistent with this act; repealing Rule
30 3.851, Florida Rules of Criminal Procedure,
31 relating to collateral relief after the death
1
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CS/HB 1-A, First Engrossed
1 sentence has been imposed; repealing Rule
2 3.852, Florida Rules of Criminal Procedure,
3 relating to capital postconviction public
4 records production; amending s. 27.710, F.S.;
5 providing for the appointment of attorneys to
6 represent persons in collateral actions;
7 amending s. 27.51, F.S.; prohibiting specified
8 public defenders from providing appellate
9 representation for certain persons sentenced to
10 death; amending s. 27.703, F.S.; providing for
11 designation of alternative regional counsel
12 when there is a conflict of interest; revising
13 provisions governing the payment of such
14 counsel; providing for the transfer of certain
15 funds to implement the provisions of s. 27.703,
16 F.S.; amending s. 27.709, F.S.; requiring the
17 Commission on Capital Cases to compile and
18 analyze case-tracking reports produced by the
19 Supreme Court; amending s. 27.711, F.S.;
20 revising provisions governing the payment of
21 assigned counsel; providing for review of the
22 billings of assigned counsel; creating s.
23 924.395, F.S.; providing for sanctions;
24 creating s. 922.108, F.S.; providing for
25 sentencing orders in capital cases; repealing
26 s. 924.051(6)(b), F.S., relating to the
27 imposition of limitations on the filing of
28 motions for collateral or other postconviction
29 relief and the calling of expert witnesses;
30 requesting the Supreme Court to study the
31 feasibility of requiring all capital
2
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CS/HB 1-A, First Engrossed
1 postconviction actions to be filed in the
2 Supreme Court and requesting the court to
3 submit its recommendations by a certain date;
4 providing an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. This act may be cited as the "Death Penalty
9 Reform Act of 2000."
10 Section 2. Subsection (1) of section 27.702, Florida
11 Statutes, is amended to read:
12 27.702 Duties of the capital collateral regional
13 counsel; reports.--
14 (1) The capital collateral regional counsel shall,
15 unless a motion to withdraw is granted or other order
16 terminating representation is entered by the state trial
17 court, represent each person convicted and sentenced to death
18 in this state for the sole purpose of instituting and
19 prosecuting collateral actions challenging the legality of the
20 judgment and sentence imposed against such person in the state
21 courts, federal courts in this state, the United States Court
22 of Appeals for the Eleventh Circuit, and the United States
23 Supreme Court. The appropriate office of capital collateral
24 regional counsel shall enter an appearance or file a motion to
25 withdraw pursuant to s. 924.056 not later than 45 days after
26 the entry of every death sentence imposed after the effective
27 date of this act, and not later than 45 days after the
28 effective date of this act in every capital case in which a
29 death sentence is pending and no postconviction counsel has
30 appeared. The capital collateral regional counsel and the
31 attorneys appointed pursuant to s. 27.710 shall file only
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CS/HB 1-A, First Engrossed
1 those postconviction or collateral actions authorized by
2 statute. The three capital collateral regional counsels'
3 offices shall function independently and be separate budget
4 entities, and the regional counsels shall be the office heads
5 for all purposes. The Justice Administrative Commission shall
6 provide administrative support and service to the three
7 offices to the extent requested by the regional counsels. The
8 three regional offices shall not be subject to control,
9 supervision, or direction by the Justice Administrative
10 Commission in any manner, including, but not limited to,
11 personnel, purchasing, transactions involving real or personal
12 property, and budgetary matters.
13 Section 3. Section 119.19, Florida Statutes, is
14 amended to read:
15 119.19 Capital postconviction public records
16 production.--
17 (1) As used in this section, the term "trial court"
18 means:
19 (a) The judge who entered the judgment and imposed the
20 sentence of death; or
21 (b) If a motion for postconviction relief in a capital
22 case under Rule 3.850 or Rule 3.851 has been filed and a
23 different judge has already been assigned to that motion, the
24 judge who is assigned to rule on that motion.
25 (2) The Secretary of State shall establish and
26 maintain a records repository for the purpose of archiving
27 capital postconviction public records as provided for in this
28 section.
29 (3)(a) Upon imposition of a death sentence, or upon
30 the effective date of this act, with respect to any case in
31 which a death sentence has been imposed but the mandate has
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CS/HB 1-A, First Engrossed
1 not yet been issued in an appeal affirming the sentence,
2 issuance of the Florida Supreme Court's mandate, the Attorney
3 General shall promptly provide written notification to the
4 state attorney who prosecuted the case that a death sentence
5 has been affirmed. Upon receipt of such notification, the
6 prosecuting state attorney shall promptly provide written
7 notification to each law enforcement agency involved in the
8 case and to the Department of Corrections. The written
9 notification should include, if available, the defendant's
10 date of birth, sex, race, and all police case numbers included
11 in the prosecuting attorney's case file.
12 (b) Within 60 90 days after receipt of notification,
13 each law enforcement agency involved in the case and the
14 prosecuting state attorney who prosecuted the case shall copy,
15 seal, and deliver to the repository or, if the records are
16 confidential or exempt, to the clerk of the court in the
17 county in which the capital case was tried all public records,
18 except for those filed in the trial court, which were produced
19 in the investigation or prosecution of the case. Each agency
20 shall bear the costs of its own compliance.
21 (4)(a) Upon issuance of the Florida Supreme Court's
22 mandate, the Attorney General shall promptly provide written
23 notification to the Department of Corrections that a death row
24 inmate's sentence has been affirmed.
25 (c)(b) Within 60 90 days after notification, the
26 Department of Corrections shall copy, seal, and deliver to the
27 repository or, if the records are confidential or exempt, to
28 the clerk of the court in the county in which the capital case
29 was tried all public records determined by the department to
30 be relevant to the subject matter of a capital postconviction
31 claim of the person sentenced to death proceeding under Rule
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1 3.850 or Rule 3.851 and where such production would not be
2 unduly burdensome for the department. The department shall
3 bear the costs.
4 (4)(5)(a) The chief law enforcement officer of each
5 law enforcement agency that was involved in the case, whether
6 through an investigation, arrest, prosecution, or
7 incarceration, shall notify the Attorney General upon
8 compliance with subsection (3) and shall certify that to the
9 best of his or her knowledge and belief all public records in
10 possession of the agency or in possession of any employee of
11 the agency have been copied, indexed, and delivered to the
12 records repository as required by subsection (3) or, if the
13 records are confidential or exempt, to the clerk of the court
14 in the county in which the capital case was tried.
15 (b) The prosecuting state attorney who prosecuted the
16 case shall provide written notification to the Attorney
17 General upon compliance with subsection (3) and shall certify
18 that to the best of his or her knowledge and belief all public
19 records in his or her possession have been copied, indexed,
20 and delivered to the records repository as required by
21 subsection (3) or, if the records are confidential or exempt,
22 to the clerk of the court in the county in which the capital
23 case was tried.
24 (c) The Secretary of Corrections shall provide written
25 notification to the Attorney General upon compliance with
26 paragraph (3)(c) subsection (4) and shall certify that to the
27 best of his or her knowledge and belief all public records in
28 the department's possession have been copied, indexed, and
29 delivered to the records repository as required by paragraph
30 (3)(c) or, if the records are confidential or exempt, to the
31
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1 clerk of the court in the county in which the capital case was
2 tried (4)(b).
3 (5)(6)(a) Within 60 90 days after the imposition of a
4 death sentence, or after the effective date of this act with
5 respect to any case in which a death sentence has been imposed
6 but the mandate has not yet been issued in an appeal affirming
7 the sentence issuance of the Florida Supreme Court's mandate
8 affirming a death sentence, both the public defender or
9 private counsel for the defendant and the prosecuting state
10 attorney involved in the case shall provide written
11 notification to the Attorney General of the name and address
12 of any person or agency in addition to those persons and
13 agencies listed in subsection subsections (3) and (4) which
14 may have information pertinent to the case unless previously
15 provided to the capital collateral regional counsel or
16 postconviction private counsel. The Attorney General shall
17 promptly provide written notification to each identified
18 person or agency after receiving the information from the
19 public defender, private counsel for the defendant, or
20 prosecuting state attorney and shall request that all public
21 records in the possession of the person or agency which
22 pertain to the case be copied, sealed, and delivered to the
23 records repository or, if the records are confidential or
24 exempt, to the clerk of the court in the county in which the
25 capital case was tried.
26 (b) Within 60 90 days after receiving a request for
27 public records under paragraph (a), the person or agency shall
28 provide written notification to the Attorney General of
29 compliance with this subsection and shall certify that to the
30 best of his or her knowledge and belief all public records
31 requested have been copied, indexed, and delivered to the
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1 records repository or, if the records are confidential or
2 exempt, to the clerk of the court in the county in which the
3 capital case was tried.
4 (6)(7)(a) Any public record delivered to the records
5 repository under this section which is confidential or exempt
6 from the requirements of s. 119.07(1) and s. 24(a), Art. I of
7 the State Constitution must be separately boxed, without being
8 redacted, and sealed. The box must be delivered to the clerk
9 of court in the county in which the capital case was tried.
10 The outside of the box must clearly identify the public
11 records as exempt, and the seal may not be broken without an
12 order of the trial court. The outside of the box must identify
13 the nature of the public records and the legal basis under
14 which the public records are exempt.
15 (b) Upon the entry of an appropriate court order,
16 sealed boxes subject to an inspection by the trial court shall
17 be shipped to the respective clerk of court. Such a box may be
18 opened only for an inspection by the trial court in camera and
19 only after notice giving with a representative of the agency
20 the option to have a representative present at the unsealing
21 by the court. The moving party shall bear all costs associated
22 with the transportation and inspection of such records by the
23 trial court.
24 (7)(8)(a) Within 180 90 days after a capital
25 collateral regional counsel or private counsel is appointed to
26 represent a defendant sentenced to death, or within 30 days
27 after issuance of the Florida Supreme Court's mandate
28 affirming a death sentence, whichever is later, the regional
29 counsel, private counsel, or other counsel who is a member of
30 The Florida Bar and is authorized by such counsel representing
31 a defendant may shall send a written demand for additional
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1 public records to each person or agency submitting public
2 records under subsection subsections (3) and (4) and to each
3 person or agency identified as having information pertinent to
4 the case under subsection (5) (6). Should the written demand
5 include requests for records associated with particular named
6 individuals, the written demand shall also include a brief
7 statement describing each named person's role in the case
8 and/or relationship to the defendant. Race, sex, and date of
9 birth shall also be included in the demand if the public
10 defender, private counsel, or capital collateral regional
11 counsel has such information. Each person or agency notified
12 under this subsection shall, within 60 90 days after receipt
13 of the written demand, deliver to the records repository or,
14 if the records are confidential or exempt, to the clerk of the
15 court in the county in which the capital case was tried any
16 additional public records in the possession of the person or
17 agency which pertain to the case and shall certify that to the
18 best of his or her knowledge and belief all additional public
19 records have been delivered to the Attorney General or, if no
20 additional public records are found, shall recertify that the
21 public records previously delivered are complete.
22 (b) Within 25 60 days after receiving the written
23 demand, the agency or person may file an objection in the
24 trial court alleging that the request is overly broad or
25 unduly burdensome. Within 30 days after the filing of an
26 objection, the trial court shall hold a hearing and order an
27 agency or person to produce additional public records if it
28 finds each of the following:
29 1. The regional counsel or private counsel has made a
30 timely and diligent search as provided in this section.
31
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1 2. The regional or private counsel's written demand
2 identifies, with specificity, those additional public records
3 that are not at the repository.
4 3. The additional public records sought are relevant
5 to the subject matter of a capital postconviction claim
6 proceeding under Rule 3.850 or Rule 3.851 or appear reasonably
7 calculated to lead to the discovery of admissible evidence in
8 prosecuting such claim.
9 4. The additional public records request is not
10 overbroad or unduly burdensome.
11 (c) The Attorney General and state attorney shall
12 provide notification as provided in subsections (3) and (4) on
13 cases where the mandate has issued on the date that this
14 statute becomes effective, but where initial requests for
15 public records have not been made.
16 (c)(d) If, on the date that this statute becomes
17 effective, a defendant is represented by appointed capital
18 collateral regional counsel or private counsel, and he or she
19 has initiated the public records request process, counsel
20 shall file within 90 days of the effective date of this
21 statute, a written demand for any additional records that have
22 not previously been the subject of a notice to produce. An
23 agency may file an objection to such additional demand, and
24 the trial court shall hold a hearing as provided by paragraph
25 (b). This statute shall not be a basis for renewing requests
26 that have been initiated previously or for relitigating issues
27 pertaining to production of public records upon which a court
28 has ruled prior to the effective date of the statute, or for
29 stopping an execution which has been scheduled based upon a
30 warrant executed by the Governor prior to the effective date
31 of the statute.
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CS/HB 1-A, First Engrossed
1 (d)(e) If, on October 1, 1998 the date that this
2 statute becomes effective, the defendant has had a Rule 3.850
3 motion denied and no Rule 3.850 motion was is pending, no
4 additional requests shall be made by capital collateral
5 regional counsel or contracted private counsel until a death
6 warrant is signed by the Governor and an execution is
7 scheduled. Within 10 days of the signing of the death warrant,
8 capital collateral regional counsel or contracted private
9 counsel may request of a person or agency that the defendant
10 has previously requested to produce records any records
11 previously requested to which no objection was raised or
12 sustained, but which the agency has received or produced since
13 the previous request or which for any reason the agency has in
14 its possession and did not produce within 10 days of the
15 receipt of the previous notice or such shorter time period
16 ordered by the court to comply with the time for the scheduled
17 execution. The person or agency shall produce the record or
18 shall file in the trial court an affidavit stating that it
19 does not have the requested record or that the record has been
20 produced previously.
21 (8)(9)(a) After production of additional public
22 records or recertification as provided in subsection (7) (8),
23 the regional counsel or the private counsel is prohibited from
24 making any further public records requests under this chapter.
25 An agency is not required to produce additional public records
26 except by court order as provided in this subsection.
27 (b) In order to obtain additional public records
28 beyond those provided under subsection (7) (8), the regional
29 counsel, private counsel, or other counsel who is a member of
30 The Florida Bar and is authorized by the regional counsel or
31 private counsel shall file an affidavit in the trial court
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1 which attests that he or she has made a timely and diligent
2 search of the records repository and specifically identifies
3 those additional public records that are not at the repository
4 and are relevant to the subject matter of a capital
5 postconviction claim proceeding under Rule 3.850 or Rule 3.851
6 or are reasonably calculated to lead to the discovery of
7 admissible evidence in the prosecution of such claim. The
8 affiant shall provide a copy of the affidavit to all affected
9 agencies upon the filing of such affidavit in the trial court.
10 (c) Within 15 30 days after the filing of an
11 affidavit, the trial court shall order an agency to produce
12 additional public records only if it finds each of the
13 following:
14 1. The regional counsel or private counsel has made a
15 timely and diligent search as provided in this section.
16 2. The regional or private counsel's affidavit
17 identifies, with specificity, those additional public records
18 that are not at the repository.
19 3. The additional public records sought are relevant
20 to the subject matter of a claim for capital postconviction
21 relief proceeding under Rule 3.850 or Rule 3.851 or appear
22 reasonably calculated to lead to the discovery of admissible
23 evidence in prosecuting such claim.
24 4. The additional public records request is not
25 overbroad or unduly burdensome.
26 (9)(10) The Secretary of State capital collateral
27 regional counsel or private counsel shall provide the
28 personnel, supplies, and any necessary equipment used by the
29 capital collateral regional counsel or private counsel to copy
30 records held at the records repository.
31
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1 (10)(11) The trial court shall resolve any dispute
2 that arises under this section, unless the appellate court has
3 exclusive jurisdiction.
4 (11)(12) The capital collateral regional counsel or
5 private counsel shall not solicit another person to make a
6 request for public records on behalf of the regional counsel
7 or private counsel. The trial court shall impose appropriate
8 sanctions against any regional counsel or private counsel
9 found in violation of this subsection.
10 (12)(13) Sixty days after a capital sentence is
11 carried out, 60 days after a defendant is released from
12 incarceration following the granting of a pardon or reversal
13 of the sentence, or 60 days after the defendant has been
14 resentenced to a term of years, the Attorney General shall
15 provide written notification to the Secretary of State, who
16 may then destroy the records held by the records repository
17 which pertain to that case.
18 (13)(14) This section pertains only to the production
19 of records for capital postconviction defendants and does not
20 change or alter any time limitations provided by law governing
21 capital postconviction claims and actions periods specified in
22 Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure.
23 Furthermore, this section does not affect, expand, or limit
24 the production of public records for any purposes other than
25 use in a capital postconviction proceeding held pursuant to
26 Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure.
27 Nothing in this section constitutes grounds to expand the time
28 limitations or allow any pleading in violation of chapter 924
29 or to stay an execution or death warrant Unless there is a
30 showing of good cause as determined by the court.
31
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CS/HB 1-A, First Engrossed
1 Section 4. Section 922.095, Florida Statutes, is
2 amended to read:
3 922.095 Grounds for death warrant; limitations of
4 actions.--A person who is convicted and sentenced to death
5 must pursue all possible collateral remedies within the time
6 limits provided by statute in state and federal court in a
7 timely manner. If any court refuses to grant relief in a
8 collateral postconviction proceeding, the convicted person has
9 90 days in which to seek further collateral review. Failure to
10 seek relief within the statutory time limits further
11 collateral review within the 90-day period constitutes grounds
12 for issuance of a death warrant under s. 922.052 or s. 922.14.
13 Any claim not pursued within the statutory time limits is
14 barred. No claim filed after the time allowed by law shall be
15 grounds for a judicial stay of any warrant unless there is a
16 showing of good cause as determined by the court.
17 Section 5. Section 924.055, Florida Statutes, is
18 amended to read:
19 (Substantial rewording of section. See
20 s. 924.055, F.S., for present text.)
21 924.055 Postconviction review in capital cases;
22 legislative findings and intent.--
23 (1) It is the intent of the Legislature to reduce
24 delays in capital cases and to ensure that all appeals and
25 postconviction actions in capital cases are resolved within 5
26 years after the date a sentence of death is imposed in the
27 circuit court. All capital postconviction actions should be
28 filed as early as possible after the imposition of a sentence
29 of death, which may be during a direct appeal of the
30 conviction and sentence. A person sentenced to death must file
31 any postconviction legal action in compliance with the
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1 statutes of limitation established in s. 924.056 et seq. or
2 elsewhere in this chapter. Except as expressly allowed by s.
3 924.056(5), no person sentenced to death should be permitted
4 to file more than one postconviction action in a sentencing
5 court and one appeal therefrom to the Florida Supreme Court,
6 unless authorized by law.
7 (2) It is the further intent of the Legislature that
8 no state resources be expended in violation of this act. In
9 the event of any violation of the provisions of this act, the
10 Attorney General shall deliver to the Speaker of the House of
11 Representatives and the President of the Senate a copy of any
12 court pleading or order describing or adjudicating a
13 violation.
14 Section 6. Section 924.056, Florida Statutes, is
15 created to read:
16 924.056 Commencement of capital postconviction actions
17 for which sentence of death is imposed on or after the
18 effective date of this act; limitations on actions.--
19 (1) In every capital case in which the trial court
20 imposes a sentence of death on or after the effective date of
21 this act, this section shall govern all postconviction
22 proceedings in state court.
23 (a) Within 15 days after imposing a sentence of death,
24 the sentencing court shall appoint the appropriate office of
25 the capital collateral regional counsel or private
26 postconviction counsel, unless the defendant waives
27 postconviction legal representation in which case the state
28 shall not provide postconviction legal representation. Within
29 30 days after the appointment, the capital collateral regional
30 counsel shall file a notice of appearance in the trial court
31 or a motion to withdraw based on a conflict of interest or for
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1 good cause. The court shall appoint private counsel pursuant
2 to part IV of chapter 27 in any case in which the capital
3 collateral regional counsel files a motion to withdraw, or
4 otherwise informs the court that the capital collateral
5 regional counsel cannot comply with the provisions of chapter
6 924, or in which the court determines that the agency cannot
7 comply with chapter 924 or other applicable laws.
8 (b) The defendant who accepts the appointment of
9 postconviction counsel must cooperate with and assist
10 postconviction counsel. If the sentencing court finds the
11 defendant is obstructing postconviction counsel, the defendant
12 shall not be entitled to any further postconviction legal
13 representation provided by the state. Each attorney
14 participating in a capital case on behalf of a defendant must
15 provide all information pertaining to the capital case which
16 the attorney obtained during the representation of that
17 defendant to that defendant's capital postconviction counsel.
18 Postconviction counsel must maintain the confidentiality of
19 any confidential information received from any attorney for
20 that defendant and is subject to the same penalties as the
21 providing attorney for violating confidentiality. If the
22 defendant requests without good cause that any attorney
23 appointed under this subsection be removed or replaced, the
24 court shall notify the defendant that no further state
25 resources may be expended for postconviction representation
26 for that defendant, unless the defendant withdraws the request
27 to remove or replace postconviction counsel. If the defendant
28 does not immediately withdraw his or her request, then any
29 appointed attorney must be removed from the case and no
30 further state resources may be expended for the defendant's
31 postconviction representation. The prosecuting attorney and
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1 the defendant's trial counsel shall provide capital
2 postconviction counsel with copies of all pretrial and trial
3 discovery and all contents of the prosecuting attorney's file,
4 except for information that the prosecuting attorney has a
5 legal right under state and federal law to withhold from
6 disclosure.
7 (2) The clerk of the court shall provide a copy of the
8 record on appeal to the capital postconviction attorney and
9 the state attorney and Attorney General within 60 days after
10 the sentencing court appoints postconviction counsel.
11 However, the court may grant an extension of up to 30 days
12 when extraordinary circumstances exists. This subsection
13 shall create no personal right or cause of action in the
14 interest of a person sentenced to death but may be a basis for
15 the issuance of appropriate orders to the reporter or clerk.
16 (3)(a) With respect to all capital postconviction
17 actions commenced after the effective date of this act, a
18 capital postconviction action is not commenced until the
19 person sentenced to death or his or her capital postconviction
20 legal counsel files a fully pled postconviction action in the
21 sentencing court or other court specified by Florida rules of
22 court. Except as provided in subsection (4) or subsection (5),
23 all capital postconviction actions shall be barred unless they
24 are commenced within 180 days after the filing of the
25 appellant's initial brief in the Florida Supreme Court direct
26 appeal of the defendant's capital conviction and sentence. The
27 fully pled postconviction action must raise all cognizable
28 claims that the defendant's judgment or sentence was entered
29 in violation of the Constitution or laws of the United States
30 or the Constitution or the laws of the state, including any
31 claim of ineffective assistance of trial counsel, allegations
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1 of innocence, or that the state withheld evidence favorable to
2 the defendant. No claim may be considered in such action which
3 could have or should have been raised before trial, at trial,
4 or, if preserved, on direct appeal. For the purposes of this
5 subsection, a capital postconviction action is not fully pled
6 unless it satisfies the requirements of s. 924.058(2) or any
7 superseding rule of court.
8 (b) No claim of ineffective assistance of
9 postconviction counsel may be raised in a state court.
10 (c) The pendency of public records requests or
11 litigation, or the pendency of other litigation, or the
12 failure of postconviction counsel to timely prosecute a case,
13 shall not constitute cause for the court to grant any request
14 for an extension of time or other delay. No appeal may be
15 taken from a court's ruling denying such a request for an
16 extension of time or other delay.
17 (d) The time for commencement of the postconviction
18 action may not be tolled for any reason or cause. All claims
19 raised by amendment of a defendant's capital postconviction
20 action are barred if the claim is raised outside the time
21 limitations provided by statute for the filing of capital
22 postconviction actions.
23 (4) All capital postconviction actions raising any
24 claim of ineffective assistance of direct appeal counsel are
25 barred unless they are commenced by filing a fully pled
26 postconviction action in the Florida Supreme Court raising any
27 claim of ineffective assistance of direct appeal counsel
28 within 45 days after mandate issues affirming the death
29 sentence in the direct appeal.
30 (5) Regardless of when a sentence is imposed, all
31 successive capital postconviction actions are barred unless
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1 commenced by filing a fully pled postconviction action within
2 90 days after the facts giving rise to the cause of action
3 were discovered or should have been discovered with the
4 exercise of due diligence. Such claim shall be barred pursuant
5 to subsection (3) or s. 924.057 unless the facts underlying
6 the claim, if proven and viewed in light of the evidence as a
7 whole, would be sufficient to establish by clear and
8 convincing evidence that, but for constitutional error, no
9 reasonable fact finder would have found the defendant guilty
10 of the underlying offense. Additionally, the facts underlying
11 this claim must have been unknown to the defendant or his or
12 her attorney and must be such that they could not have been
13 ascertained by the exercise of due diligence prior to filing
14 the earlier postconviction motion. The time period allowed for
15 filing a successive capital postconviction action shall not be
16 grounds for a stay.
17 Section 7. Section 924.057, Florida Statutes, is
18 created to read:
19 924.057 Limitations on postconviction actions in cases
20 in which the death sentence was imposed before the effective
21 date of this act.--This section shall govern all capital
22 postconviction actions in cases in which the trial court
23 imposed the sentence of death before the effective date of
24 this act.
25 (1) Nothing in this act shall expand any right or time
26 period allowed for the prosecution of capital postconviction
27 claims in any case in which a postconviction action was
28 commenced or should have been commenced prior to the effective
29 date of this act.
30 (2) In every case in which a mandate has been issued
31 in the Florida Supreme Court concluding at least one capital
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1 postconviction action in the state court system except as
2 expressly allowed by s. 924.056(5), successive capital
3 postconviction actions shall be barred on the effective date
4 of this act, unless the rules or law in effect immediately
5 prior to the effective date of this act permitted the
6 successive postconviction action, in which case the action
7 shall be barred on the date provided in subsection (4).
8 (3) All capital postconviction actions pending on the
9 effective date of this act shall be barred, and shall be
10 dismissed with prejudice, unless fully pled in substantial
11 compliance with s. 924.058(2), or with any superseding order
12 or rule, on or before:
13 (a) The time in which the action would be barred by
14 this section if the action had not begun prior to the
15 effective date of this act; or
16 (b) Any earlier date provided by the rules or law, or
17 court order, in effect immediately prior to the effective date
18 of this act.
19 (4) In every capital case in which the trial court
20 imposed the sentence of death before the effective date of
21 this act, a capital postconviction action shall be barred
22 unless it is commenced on or before January 8, 2001, or any
23 earlier date provided by rules or law in effect immediately
24 prior to the effective date of this act.
25 Section 8. Section 924.058, Florida Statutes, is
26 created to read:
27 924.058 Capital postconviction claims.--This section
28 shall regulate the procedures in actions for capital
29 postconviction relief commencing after the effective date of
30 this act unless and until such procedures are revised by rule
31
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1 or rules adopted by the Florida Supreme Court, which
2 specifically reference this section.
3 (1) On behalf of a person sentenced to death there
4 shall not be filed more than one capital postconviction action
5 in the sentencing court, one appeal therefrom in the Florida
6 Supreme Court, and one original capital postconviction action
7 alleging the ineffectiveness of direct appeal counsel in the
8 Florida Supreme Court, except as expressly allowed by s.
9 924.056(5).
10 (2) The defendant's postconviction action shall be
11 filed under oath and shall be fully pled to include:
12 (a) The judgment or sentence under attack and the
13 court which rendered the same;
14 (b) A statement of each issue raised on appeal and the
15 disposition thereof;
16 (c) Whether a previous postconviction action has been
17 filed and, if so, the dispostion of all previous claims raised
18 in postconviction litigation; if a previous action or actions
19 have been filed, the reason or reasons the claim or claims in
20 the present motion were not raised in the former action or
21 actions;
22 (d) The nature of the relief sought;
23 (e) A fully detailed allegation of the factual basis
24 for any claim of legal or constitutional error asserted,
25 including the attachment of any document supporting the claim,
26 the name and address of any witness, the attachment of
27 affidavits of the witnesses or a proffer of the testimony; and
28 (f) A concise memorandum of applicable case law as to
29 each claim asserted.
30 (3) Any capital postconviction action that does not
31 comply with any requirement in this section or other
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1 applicable provision in law shall not be considered in any
2 state court. No amendment of a defendant's capital
3 postconviction action shall be allowed by the court after the
4 expiration of the time limitation provided by statute for the
5 commencement of capital postconviction actions.
6 (4) The prosecuting attorney or Attorney General shall
7 be allowed to file one response to any capital postconviction
8 action within 60 days after receipt of the defendant's fully
9 pled capital postconviction action. A supplemental response
10 shall be allowed if any amendment to the original action is
11 made prior to the expiration of the time limitation provided
12 by statute. The sentencing court may grant the prosecuting
13 attorney or Attorney General an extension of time upon a
14 showing of good cause.
15 Section 9. Section 924.059, Florida Statutes, is
16 created to read:
17 924.059 Time limitations and judicial review in
18 capital postconviction actions.--This section shall regulate
19 the procedures in actions for capital postconviction relief
20 commencing after the effective date of this act unless and
21 until such procedures are revised by rule or rules adopted by
22 the Florida Supreme Court which specifically reference this
23 section.
24 (1) No amendment of a defendant's capital
25 postconviction action shall be allowed by the court after the
26 expiration of the time periods provided by statute for the
27 filing of capital postconviction claims.
28 (2) Within 30 days after the state files its answer,
29 the sentencing court shall conduct a hearing to determine if
30 an evidentiary hearing is required. Within 30 days thereafter,
31 the court shall rule whether an evidentiary hearing is
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1 required and, if so, shall schedule an evidentiary hearing to
2 be held within 90 days. If the court determines that the
3 defendant's capital postconviction action is legally
4 insufficient or the defendant's pleadings, files, and records
5 in the case show that the defendant is not entitled to relief,
6 the court shall, within 45 days thereafter, deny the action,
7 setting forth a detailed rationale therefore, and attaching or
8 referencing such portions of the record as are necessary to
9 allow for meaningful appellate review.
10 (3) Within 10 days after the order scheduling an
11 evidentiary hearing, the defendant shall disclose the names
12 and addresses of any potential witnesses not previously
13 disclosed, with their affidavits or a proffer of their
14 testimony. Upon receipt of the defendant's disclosure, the
15 state shall have 10 days within which to provide reciprocal
16 disclosure. If the defendant intends to offer expert testimony
17 of his or her mental status, the state shall be entitled to
18 have the defendant examined by an expert of its choosing. All
19 of the defendant's mental status claims shall be deemed denied
20 as a matter of law if the defendant fails to cooperate with
21 the state's expert. Reports provided by expert witnesses shall
22 be disclosed by opposing counsel upon receipt.
23 (4) Following the evidentiary hearing, the court shall
24 order the transcription of the proceeding which shall be filed
25 within 30 days. Within 30 days after receipt of the
26 transcript, the court shall issue a final order granting or
27 denying postconviction relief, making detailed findings of
28 fact and conclusions of law with respect to any allegation
29 asserted.
30 (5) An appeal may be taken to the Florida Supreme
31 Court within 15 days from the entry of a final order on a
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1 capital postconviction action. No interlocutory appeal shall
2 be permitted. No motion for rehearing shall be permitted. The
3 clerk of the court shall promptly serve upon all parties a
4 copy of the final order.
5 (6) If the trial court has denied the capital
6 postconviction action without an evidentiary hearing, the
7 appeal to the Florida Supreme Court will be expeditiously
8 resolved in a summary fashion. On appeal the case shall be
9 initially reviewed for a determination whether the trial court
10 correctly resolved the defendant's claims without an
11 evidentiary hearing. If the Florida Supreme Court determines
12 an evidentiary hearing should have been held, the decision to
13 remand for an evidentiary hearing may be made by an order
14 without an opinion. Jurisdiction shall be relinquished to the
15 trial court for a specified period, which must be scheduled
16 within 30 days and must be concluded within 90 days, for the
17 purpose of conducting an evidentiary hearing on any issue
18 identified by the Florida Supreme Court's order. Thereafter,
19 the record shall be supplemented with the hearing transcript.
20 (7) The Florida Supreme Court shall render its
21 decision within 180 days after receipt of the record on
22 appeal. If a denial of an action for postconviction relief is
23 affirmed, the Governor may proceed to issue a warrant for
24 execution.
25 (8) A capital postconviction action filed in violation
26 of the time limitations provided by statute is barred, and all
27 claims raised therein are waived. A state court shall not
28 consider any capital postconviction action filed in violation
29 of this act. The Attorney General shall deliver to the
30 Governor, the President of the Senate, and the Speaker of the
31 House of Representatives a copy of any court pleading
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1 describing or any order adjudicating any violation of this
2 provision.
3 Section 10. Rule 3.850, Florida Rules of Criminal
4 Procedure, relating to the grant of a new trial, is repealed
5 to the extent that it is inconsistent with this act. Rule
6 3.851, Florida Rules of Criminal Procedure relating to
7 collateral relief after death sentence has been imposed, is
8 repealed. Rule 3.852, Florida Rules of Criminal Procedure,
9 relating to capital postconviction public records production,
10 is repealed.
11 Section 11. Subsections (4) and (5) of section 27.710,
12 Florida Statutes, are amended, present subsection (6) of that
13 section is redesignated as subsection (7), and a new
14 subsection (6) is added to that section, to read:
15 27.710 Registry of attorneys applying to represent
16 persons in postconviction capital collateral proceedings;
17 certification of minimum requirements; appointment by trial
18 court.--
19 (4) Each private attorney who is appointed by the
20 court to represent a capital defendant must enter into a
21 contract with the Comptroller. If the appointed attorney fails
22 to execute the contract within 30 days after the date the
23 contract is mailed to the attorney, the executive director of
24 the Commission on Capital Cases shall notify the trial court.
25 The Comptroller executive director of the Commission on
26 Capital Cases shall develop the form of the contract, and the
27 Comptroller shall function as contract manager, and shall
28 enforce performance of the terms and conditions of the
29 contract. By signing such contract, the attorney certifies
30 that he or she intends to continue the representation under
31 the terms and conditions set forth in the contract until the
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1 sentence is reversed, reduced, or carried out or until
2 released by order of the trial court.
3 (5)(a) Upon the motion of the capital collateral
4 regional counsel to withdraw pursuant to s. 924.056(1)(a); or
5 (b) Upon notification by the state attorney or the
6 Attorney General that:
7 1. Thirty days have elapsed since appointment of the
8 capital collateral regional counsel and no entry of appearance
9 has been filed pursuant to s. 924.056; or
10 (a) Ninety-one days have elapsed since the Supreme
11 Court issued a mandate on a direct appeal, or the Supreme
12 Court of the United States has denied a petition for
13 certiorari, whichever is later;
14 2.(b) A person under sentence of death who was
15 previously represented by private counsel is currently
16 unrepresented in a postconviction capital collateral
17 proceeding,; or
18 (c) The trial court has issued an order finding that a
19 year and a day have elapsed since the commencement of the
20 period for filing a motion for postconviction relief under s.
21 924.055(2), and the defendant's complete original motion for
22 postconviction relief has not been filed in the trial court,
23
24 the executive director shall immediately notify the trial
25 court that imposed the sentence of death that the court must
26 immediately appoint an attorney, selected from the current
27 registry, to represent such person in collateral actions
28 challenging the legality of the judgment and sentence in the
29 appropriate state and federal courts. The court shall have the
30 authority to strike a notice of appearance filed by a Capital
31 Collateral Regional Counsel, if the court finds the notice was
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1 not filed in good faith and may so notify the executive
2 director that the client is no longer represented by the
3 Office of Capital Collateral Regional Counsel. In making an
4 assignment, the court shall give priority to attorneys whose
5 experience and abilities in criminal law, especially in
6 capital proceedings, are known by the court to be commensurate
7 with the responsibility of representing a person sentenced to
8 death. The trial court must issue an order of appointment
9 which contains specific findings that the appointed counsel
10 meets the statutory requirements and has the high ethical
11 standards necessary to represent a person sentenced to death.
12 (6) Upon notification by a capital collateral regional
13 counsel that a case should be referred to the registry, the
14 executive director shall immediately notify the trial court
15 that imposed the sentence of death that the court must
16 immediately appoint an attorney as provided in subsection (5).
17 Section 12. Section 27.51, Florida Statutes, is
18 amended to read:
19 27.51 Duties of public defender.--
20 (1) The public defender shall represent, without
21 additional compensation, any person who is determined by the
22 court to be indigent as provided in s. 27.52 and who is:
23 (a) Under arrest for, or is charged with, a felony;
24 (b) Under arrest for, or is charged with, a
25 misdemeanor, a violation of chapter 316 which is punishable by
26 imprisonment, criminal contempt, or a violation of a municipal
27 or county ordinance in the county court, unless the court,
28 prior to trial, files in the cause an order of no imprisonment
29 which states that the defendant will not be imprisoned if he
30 or she is convicted;
31
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1 (c) Alleged to be a delinquent child pursuant to a
2 petition filed before a circuit court; or
3 (d) Sought by petition filed in such court to be
4 involuntarily placed as a mentally ill person or sexually
5 violent predator or involuntarily admitted to residential
6 services as a person with developmental disabilities. However,
7 a public defender does not have the authority to represent any
8 person who is a plaintiff in a civil action brought under the
9 Florida Rules of Civil Procedure, the Federal Rules of Civil
10 Procedure, or the federal statutes, or who is a petitioner in
11 an administrative proceeding challenging a rule under chapter
12 120, unless specifically authorized by statute.
13 (2) The court may not appoint the public defender to
14 represent, even on a temporary basis, any person who is not
15 indigent. The court, however, may appoint private counsel in
16 capital cases as provided in s. 925.035.
17 (3) Each public defender shall serve on a full-time
18 basis and is prohibited from engaging in the private practice
19 of law while holding office. Assistant public defenders shall
20 give priority and preference to their duties as assistant
21 public defenders and shall not otherwise engage in the
22 practice of criminal law.
23 (4) The public defender for a judicial circuit
24 enumerated in this subsection shall, after the record on
25 appeal is transmitted to the appellate court by the office of
26 the public defender which handled the trial and if requested
27 by any public defender within the indicated appellate
28 district, handle all felony appeals to the state and federal
29 courts required of the official making such request:
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1 (a) Public defender of the second judicial circuit, on
2 behalf of any public defender within the district comprising
3 the First District Court of Appeal.
4 (b) Public defender of the tenth judicial circuit, on
5 behalf of any public defender within the district comprising
6 the Second District Court of Appeal.
7 (c) Public defender of the eleventh judicial circuit,
8 on behalf of any public defender within the district
9 comprising the Third District Court of Appeal.
10 (d) Public defender of the fifteenth judicial circuit,
11 on behalf of any public defender within the district
12 comprising the Fourth District Court of Appeal.
13 (e) Public defender of the seventh judicial circuit,
14 on behalf of any public defender within the district
15 comprising the Fifth District Court of Appeal.
16 (5) When the public defender for a judicial circuit
17 enumerated in subsection (4) has represented at trial a person
18 sentenced to death, the public defender shall not represent
19 that person in any direct appellate proceedings. That public
20 defender shall notify the Florida Supreme Court within 10 days
21 after filing a notice of appeal, and the Court shall appoint
22 another public defender enumerated in subsection (4) to
23 represent the person in any direct appellate proceedings.
24 (6)(5)(a) When direct appellate proceedings prosecuted
25 by a public defender on behalf of an accused and challenging a
26 judgment of conviction and sentence of death terminate in an
27 affirmance of such conviction and sentence, whether by the
28 Florida Supreme Court or by the United States Supreme Court or
29 by expiration of any deadline for filing such appeal in a
30 state or federal court, the public defender shall notify the
31 accused of his or her rights pursuant to Rule 3.850, Florida
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1 Rules of Criminal Procedure, including any time limits
2 pertinent thereto, and shall advise such person that
3 representation in any collateral proceedings is the
4 responsibility of the capital collateral representative. The
5 public defender shall then forward all original files on the
6 matter to the capital collateral representative, retaining
7 such copies for his or her files as may be desired. However,
8 the trial court shall retain the power to appoint the public
9 defender or other attorney not employed by the capital
10 collateral representative to represent such person in
11 proceedings for relief by executive clemency pursuant to s.
12 925.035.
13 (b) It is the intent of the Legislature that any
14 public defender representing an inmate in any collateral
15 proceedings in any court on June 24, 1985, shall continue
16 representation of that inmate in all postconviction
17 proceedings unless relieved of responsibility from further
18 representation by the court.
19 (7)(6) A sum shall be appropriated to the public
20 defender of each judicial circuit enumerated in subsection (4)
21 for the employment of assistant public defenders and clerical
22 employees and the payment of expenses incurred in cases on
23 appeal.
24 Section 13. Subsections (1) and (2) of section 27.703,
25 Florida Statutes, are amended to read:
26 27.703 Conflict of interest and substitute counsel.--
27 (1) The capital collateral regional counsel shall not
28 accept an appointment or take any other action that will
29 create a conflict of interest. If, at any time during the
30 representation of a person two or more persons, the capital
31 collateral regional counsel determines that the continued
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1 representation of that person creates a interests of those
2 persons are so adverse or hostile that they cannot all be
3 counseled by the regional counsel or his or her staff without
4 conflict of interest, the sentencing court shall, upon
5 application by the regional counsel, designate another
6 regional counsel and, only if a conflict exists with the other
7 two counsels, appoint one or more members of The Florida Bar
8 to represent one or more of such persons.
9 (2) Appointed counsel shall be paid from funds
10 appropriated to the Comptroller Justice Administrative
11 Commission. The hourly rate may not exceed $100. However,
12 effective July 1, 1999, all appointments of private counsel
13 under this section shall be in accordance with ss. 27.710 and
14 27.711.
15 Section 14. In order to implement the provisions of s.
16 27.703, Florida Statutes, as amended by this act, the Justice
17 Administrative Commission shall transfer all unexpended funds
18 from Specific Appropriation 615 of the 1999-2000 General
19 Appropriations Act to the Administrative Trust fund within the
20 Department of Banking and Finance for disbursement purposes.
21 The Department of Banking and Finance is hereby authorized to
22 expend such funds transferred by the Justice Administrative
23 Commission for contracts with private attorneys. In addition,
24 the Department of Banking and finance is hereby authorized to
25 expend up to $60,000 of such funds for associated
26 administrative support and two additional positions are
27 authorized for fiscal year 1999-2000.
28 Section 15. Subsection (2) of section 27.709, Florida
29 Statutes, is amended to read:
30 27.709 Commission on Capital Cases.--
31
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1 (2)(a) The commission shall review the administration
2 of justice in capital collateral cases, receive relevant
3 public input, review the operation of the capital collateral
4 regional counsel, and advise and make recommendations to the
5 Governor, Legislature, and Supreme Court.
6 (b) As part of its duties, the commission shall
7 compile and analyze case-tracking reports produced by the
8 Supreme Court. In analyzing these reports, the commission
9 shall develop statistics to identify trends and changes in
10 case management and case processing, identify and evaluate
11 unproductive points of delay, and generally evaluate the way
12 cases are progressing. The commission shall report these
13 findings to the Legislature by January 1 of each year.
14 (c) In addition, the commission shall receive
15 complaints regarding the practice of any office of regional
16 counsel and shall refer any complaint to The Florida Bar, the
17 State Supreme Court, or the Commission on Ethics, as
18 appropriate.
19 Section 16. Subsection (3) of section 27.711, Florida
20 Statutes, is amended, and subsection (13) is added to that
21 section, to read:
22 27.711 Terms and conditions of appointment of
23 attorneys as counsel in postconviction capital collateral
24 proceedings.--
25 (3) An attorney appointed to represent a capital
26 defendant is entitled to payment of the fees set forth in this
27 section only upon full performance by the attorney of the
28 duties specified in this section and approval of payment by
29 the trial court, and the submission of a payment request by
30 the attorney, subject to the availability of sufficient
31 funding specifically appropriated for this purpose. The
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1 Comptroller Justice Administrative Commission shall notify the
2 executive director and the court if it appears that sufficient
3 funding has not been specifically appropriated for this
4 purpose to pay any fees which may be incurred. The attorney
5 shall maintain appropriate documentation, including a current
6 and detailed hourly accounting of time spent representing the
7 capital defendant. The fee and payment schedule in this
8 section is the exclusive means of compensating a
9 court-appointed attorney who represents a capital defendant.
10 When appropriate, a court-appointed attorney must seek further
11 compensation from the Federal Government, as provided in 18
12 U.S.C. s. 3006A or other federal law, in habeas corpus
13 litigation in the federal courts.
14 (13) Prior to the filing of a motion for order
15 approving payment of attorney's fees, costs, or related
16 expenses, the assigned counsel shall deliver a copy of his or
17 her intended billing, together with supporting affidavits and
18 all other necessary documentation, to the Comptroller's named
19 contract manager. The contract manager shall have 20 business
20 days from receipt to review the billings, affidavit, and
21 documentation for completeness and compliance with contractual
22 and statutory requirements. If the contract manager objects to
23 any portion of the proposed billing, the objection and reasons
24 therefor shall be communicated to the assigned counsel. The
25 assigned counsel may thereafter file his or her motion for
26 order approving payment of attorney's fees, costs, or related
27 expenses together with supporting affidavits and all other
28 necessary documentation. The motion must specify whether the
29 Comptroller's contract manager objects to any portion of the
30 billing or the sufficiency of documentation and, if so, the
31 reason therefor. A copy of the motion and attachments shall be
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1 served on the Comptroller's contract manager, who shall have
2 standing to file pleadings and appear before the court to
3 contest any motion for order approving payment. The fact that
4 the Comptroller's contract manager has not objected to any
5 portion of the billing or to the sufficiency of the
6 documentation is not binding on the court, which retains
7 primary authority and responsibility for determining the
8 reasonableness of all billings for fees, costs, and related
9 expenses, subject to statutory limitations.
10 Section 17. Section 924.395, Florida Statutes, is
11 created to read:
12 924.395 Sanctions.--
13 (1) The Legislature strongly encourages the courts,
14 through their inherent powers and pursuant to this section, to
15 impose sanctions against any person within the court's
16 jurisdiction who is found by a court, in a capital
17 postconviction proceeding or appeal therefrom, to have:
18 (a) Abused a petition for extraordinary relief,
19 postconviction motion, or appeal therefrom;
20 (b) Raised a claim that a court has found to be
21 frivolous or procedurally barred or that should have been
22 raised on the direct appeal;
23 (c) Improperly withheld evidence or testimony; or
24 (d) Adversely affected the orderly administration of
25 justice.
26 (2) Sanctions the court may and should consider, when
27 applicable and appropriate in a case, include, but are not
28 limited to:
29 (a) Dismissal of a pleading;
30 (b) Disciplinary sanctions;
31 (c) A fine; and
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1 (d) Any other sanction that is available to the court
2 under its inherent powers.
3 Section 18. Section 922.108, Florida Statutes, is
4 created to read:
5 922.108 Sentencing orders in capital cases.--The
6 sentence of death must not specify any particular method of
7 execution. The wording or form of the sentencing order shall
8 not be grounds for reversal of any sentence.
9 Section 19. Paragraph (b) of subsection (6) of section
10 924.051, Florida Statutes, is repealed.
11 Section 20. The Legislature finds that centralized
12 case management of capital postconviction actions has the
13 potential to reduce delays and should be considered. The
14 Legislature requests that the Florida Supreme Court study the
15 feasibility of a requirement that all capital postconviction
16 actions be filed in the Florida Supreme Court as proposed by a
17 member of the Supreme Court Committee on Postconviction Relief
18 in Capital Cases (Morris Committee). The Legislature
19 recognizes that such a reform may substantially enhance
20 judicial efficiency and may initially necessitate additional
21 workload funding. If the Supreme Court finds that centralized
22 case management is a more efficient model, the Court shall
23 estimate the implementation costs. The Legislature requests
24 that the Court submit any recommendation to the Governor, the
25 Senate, and the House of Representatives before January 1,
26 2001.
27 Section 21. If any provision of this act or the
28 application thereof to any person or circumstance is held
29 invalid, the invalidity does not affect other provisions or
30 applications of the act which can be given effect without the
31
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1 invalid provision or application, and to this end the
2 provisions of this act are declared severable.
3 Section 22. This act shall take effect upon becoming a
4 law, but section 10 shall take effect only if this act is
5 passed by the affirmative vote of two-thirds of the membership
6 of each house of the Legislature.
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