Senate Bill sb1228c1

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    Florida Senate - 2003                           CS for SB 1228

    By the Committee on Criminal Justice; and Senator Crist





    307-2423-03

  1                      A bill to be entitled

  2         An act relating to postconviction capital

  3         collateral representation; amending ss. 27.701,

  4         27.702, 27.703, F.S.; providing for the middle

  5         and southern regional offices of capital

  6         collateral counsel to continue to be

  7         administered by a regional counsel; providing

  8         for private counsel to be appointed to

  9         represent persons in the northern region in

10         capital collateral post conviction proceedings;

11         amending s. 27.709, F.S.; requiring the

12         Commission on Capital Cases to review the

13         operation of private counsel; amending ss.

14         27.710 and 27.711, F.S.; revising the criteria

15         under which the chief judge of the circuit is

16         requested to submit names of attorneys who meet

17         the requirements to represent persons in

18         postconviction capital collateral proceedings;

19         providing for appointment of counsel within the

20         northern regional office; providing for

21         compensation of such counsel; requiring the

22         Commission on Capital Cases to conduct a cost

23         and program analysis of the capital collateral

24         regional counsels and registry attorneys and

25         report to the Governor and Legislature;

26         providing an effective date.

27  

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

29  

30         Section 1.  Section 27.701, Florida Statutes, is

31  amended to read:

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    Florida Senate - 2003                           CS for SB 1228
    307-2423-03




 1         27.701  Capital collateral regional counsels.--There

 2  are created three regional offices of capital collateral

 3  counsel, which shall be located in a northern, middle, and

 4  southern region of the state. The northern region shall

 5  consist of the First, Second, Third, Fourth, Eighth, and

 6  Fourteenth Judicial Circuits; the middle region shall consist

 7  of the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth,

 8  Thirteenth, and Eighteenth Judicial Circuits; and the southern

 9  region shall consist of the Eleventh, Fifteenth, Sixteenth,

10  Seventeenth, Nineteenth, and Twentieth Judicial Circuits. The

11  middle and southern regional offices Each regional office

12  shall be administered by a regional counsel. A regional

13  counsel must be, and must have been for the preceding 5 years,

14  a member in good standing of The Florida Bar or a similar

15  organization in another state. Each capital collateral

16  regional counsel shall be appointed by the Governor, and is

17  subject to confirmation by the Senate. The Supreme Court

18  Judicial Nominating Commission shall recommend to the Governor

19  three qualified candidates for each appointment as regional

20  counsel. The Governor shall appoint a regional counsel for the

21  middle and southern regional offices each region from among

22  the recommendations, or, if it is in the best interest of the

23  fair administration of justice in capital cases, the Governor

24  may reject the nominations and request submission of three new

25  nominees by the Supreme Court Judicial Nominating Commission.

26  Effective October 1, 2003, the capital collateral regional

27  counsel for the middle regional office shall be appointed to a

28  term of 2 years, and to a term of 3 years thereafter. The Each

29  capital collateral regional counsel for the southern regional

30  office shall be appointed to a term of 3 years. Vacancies in

31  the office of capital collateral regional counsel shall be

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    Florida Senate - 2003                           CS for SB 1228
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 1  filled in the same manner as appointments. A person appointed

 2  as a regional counsel may not run for or accept appointment to

 3  any state office for 2 years following vacation of office.

 4         Section 2.  Subsections (1) and (2) of section 27.702,

 5  Florida Statutes, are amended to read:

 6         27.702  Duties of the capital collateral regional

 7  counsel; reports.--

 8         (1)  The capital collateral regional counsel shall

 9  represent each person convicted and sentenced to death in this

10  state for the sole purpose of instituting and prosecuting

11  collateral actions challenging the legality of the judgment

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

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

14  Appeals for the Eleventh Circuit, and the United States

15  Supreme Court. The capital collateral regional counsel and the

16  attorneys appointed pursuant to s. 27.710 shall file only

17  those postconviction or collateral actions authorized by

18  statute. The two three capital collateral regional counsels'

19  offices shall function independently and be separate budget

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

21  for all purposes. The Justice Administrative Commission shall

22  provide administrative support and service to the two three

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

24  two three regional offices shall not be subject to control,

25  supervision, or direction by the Justice Administrative

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

27  personnel, purchasing, transactions involving real or personal

28  property, and budgetary matters.

29         (2)  The capital collateral regional counsel shall

30  represent persons convicted and sentenced to death within the

31  middle and southern regions region in collateral

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    Florida Senate - 2003                           CS for SB 1228
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 1  postconviction proceedings, unless a court appoints or permits

 2  other counsel to appear as counsel of record. Effective July

 3  1, 2003, only private counsel appointed pursuant to ss. 27.710

 4  and 27.711 shall represent persons convicted and sentenced to

 5  death within the northern region in collateral postconviction

 6  proceedings.

 7         Section 3.  Subsection (1) of section 27.703, Florida

 8  Statutes, is amended to read:

 9         27.703  Conflict of interest and substitute counsel.--

10         (1)  The capital collateral regional counsel shall not

11  accept an appointment or take any other action that will

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

13  representation of a person, the capital collateral regional

14  counsel determines that the continued representation of that

15  person creates a conflict of interest, the sentencing court

16  shall, upon application by the regional counsel, designate the

17  other another regional counsel and, only if a conflict exists

18  with the other counsel two counsels, appoint one or more

19  members of The Florida Bar to represent one or more of such

20  persons.

21         Section 4.  Paragraphs (a) and (c) of subsection (2) of

22  section 27.709, Florida Statutes, are amended to read:

23         27.709  Commission on Capital Cases.--

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

25  of justice in capital collateral cases, receive relevant

26  public input, review the operation of the capital collateral

27  regional counsel and private counsel appointed pursuant to ss.

28  27.710 and 27.711, and advise and make recommendations to the

29  Governor, Legislature, and Supreme Court.

30         (c)  In addition, the commission shall receive

31  complaints regarding the practice of any office of regional

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    Florida Senate - 2003                           CS for SB 1228
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 1  counsel and private counsel appointed pursuant to ss. 27.710

 2  and 27.711 and shall refer any complaint to The Florida Bar,

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

 4  appropriate.

 5         Section 5.  Subsections (1) and (5) of section 27.710,

 6  Florida Statutes, are amended to read:

 7         27.710  Registry of attorneys applying to represent

 8  persons in postconviction capital collateral proceedings;

 9  certification of minimum requirements; appointment by trial

10  court.--

11         (1)  The executive director of the Commission on

12  Capital Cases shall compile and maintain a statewide registry

13  of attorneys in private practice who have certified that they

14  meet the minimum requirements of s. 27.704(2), who are

15  available for appointment by the court under this section to

16  represent persons convicted and sentenced to death in this

17  state in postconviction collateral proceedings, and who have

18  attended within the last year a continuing legal education

19  program of at least 10 hours' duration devoted specifically to

20  the defense of capital cases, if available. Continuing legal

21  education programs meeting the requirements of this rule

22  offered by The Florida Bar or another recognized provider and

23  approved for continuing legal education credit by The Florida

24  Bar shall satisfy this requirement. The failure to comply with

25  this requirement may be cause for removal from the list until

26  the requirement is fulfilled. To ensure that sufficient

27  attorneys are available for appointment by the court, when the

28  number of attorneys on the registry falls below 75 50, the

29  executive director shall notify the chief judge of each

30  circuit by letter and request the chief judge to promptly

31  submit the names of at least three private attorneys who

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    Florida Senate - 2003                           CS for SB 1228
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 1  regularly practice criminal law in that circuit and who appear

 2  to meet the minimum requirements to represent persons in

 3  postconviction capital collateral proceedings. The executive

 4  director shall send an application to each attorney identified

 5  by the chief judge so that the attorney may register for

 6  appointment as counsel in postconviction capital collateral

 7  proceedings. As necessary, the executive director may also

 8  advertise in legal publications and other appropriate media

 9  for qualified attorneys interested in registering for

10  appointment as counsel in postconviction capital collateral

11  proceedings. Not later than September 1 of each year, and as

12  necessary thereafter, the executive director shall provide to

13  the Chief Justice of the Supreme Court, the chief judge and

14  state attorney in each judicial circuit, and the Attorney

15  General a current copy of its registry of attorneys who are

16  available for appointment as counsel in postconviction capital

17  collateral proceedings. The registry must be indexed by

18  judicial circuit and must contain the requisite information

19  submitted by the applicants in accordance with this section.

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

21  regional counsel to withdraw pursuant to s. 924.056(1)(a) and

22  for all cases assigned to the northern regional office of the

23  capital collateral counsel as of July 1, 2003, except those

24  cases in which the crime occurred geographically outside the

25  northern region, which shall be divided between the middle and

26  southern regions, based on the location of the crime and

27  taking into account any potential ethical conflict; or

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

29  Attorney General that:

30  

31  

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    Florida Senate - 2003                           CS for SB 1228
    307-2423-03




 1         1.  Thirty days have elapsed since appointment of the

 2  capital collateral regional counsel and no entry of appearance

 3  has been filed pursuant to s. 924.056; or

 4         2.  A person under sentence of death who was previously

 5  represented by private counsel is currently unrepresented in a

 6  postconviction capital collateral proceeding,

 7  

 8  the executive director shall immediately notify the trial

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

10  immediately appoint an attorney, selected from the current

11  registry, to represent such person in collateral actions

12  challenging the legality of the judgment and sentence in the

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

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

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

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

17  director that the client is no longer represented by the

18  Office of Capital Collateral Regional Counsel.  In making an

19  assignment, the court shall give priority to attorneys whose

20  experience and abilities in criminal law, especially in

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

22  with the responsibility of representing a person sentenced to

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

24  which contains specific findings that the appointed counsel

25  meets the statutory requirements and has the high ethical

26  standards necessary to represent a person sentenced to death.

27         Section 6.  Subsections (3) and (9) of section 27.711,

28  Florida Statutes, are amended to read:

29         27.711  Terms and conditions of appointment of

30  attorneys as counsel in postconviction capital collateral

31  proceedings.--

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    Florida Senate - 2003                           CS for SB 1228
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 1         (3)  An attorney appointed to represent a capital

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

 3  section only upon full performance by the attorney of the

 4  duties specified in this section and approval of payment by

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

 6  the attorney, subject to the availability of sufficient

 7  funding specifically appropriated for this purpose. An

 8  attorney may not be compensated under this section for work

 9  performed by the attorney prior to July 1, 2003, while

10  employed by the northern regional office of the capital

11  collateral counsel. The Comptroller shall notify the executive

12  director and the court if it appears that sufficient funding

13  has not been specifically appropriated for this purpose to pay

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

15  appropriate documentation, including a current and detailed

16  hourly accounting of time spent representing the capital

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

18  exclusive means of compensating a court-appointed attorney who

19  represents a capital defendant. When appropriate, a

20  court-appointed attorney must seek further compensation from

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

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

23  courts.

24         (9)  An attorney may not represent more than five

25  capital defendants in capital postconviction litigation at any

26  one time.

27         Section 7.  The Commission on Capital Cases shall

28  conduct a 3-year cost and program analysis of the capital

29  collateral regional counsels and registry attorneys, including

30  an analysis and comparison of the capital collateral regional

31  counsels since 1997. The commission shall submit a report to

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    Florida Senate - 2003                           CS for SB 1228
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 1  the Governor, the President of the Senate, and the Speaker of

 2  the House of Representatives by December 31, 2006.

 3         Section 8.  This act shall take effect July 1, 2003.

 4  

 5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 6                         Senate Bill 1228

 7                                 

 8  This bill amends a shell bill to do the following:

 9  -    Eliminates the northern region of the Capital Collateral
         Regional Counsels (CCRC's); the middle and southern
10       regions remain intact.

11  -    As of July 1, 2003, the cases currently assigned to the
         northern region where the underlying crime occurred
12       outside the northern region, may be reassigned to the
         middle and southern regions, if no conflict exists; in
13       all other existing cases, and any new cases, private
         registry counsel will represent the defendant.
14  
    -    The terms to which the middle and southern regional
15       counsel shall be appointed are staggered.

16  -    The bill contains a provision that would prevent a CCRC
         attorney who worked on a case in the northern regional
17       office and subsequently took that case over, as a
         registry attorney, from being compensated as a registry
18       attorney for work performed while on the state payroll.

19  -    The Commission on Capital Cases shall review the
         operation of the registry attorneys, as it currently does
20       the regional counsels.

21  -    The number of attorneys that must be maintained on the
         registry of private counsel available and qualified for
22       appointment to capital postconviction litigation is
         elevated from 50 to 75.
23  
    -    The Commission on Capital Cases is directed to conduct a
24       3-year cost and program analysis of the CCRC's and
         registry attorneys, to include a historical perspective.
25  

26  

27  

28  

29  

30  

31  

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