HB 1005

1	A bill to be entitled
2	An act relating to the death penalty; providing a popular
3	name; amending s. 27.51, F.S.; prohibiting certain public
4	defenders from representing certain persons sentenced to
5	death; providing for notification of the Florida Supreme
6	Court and appointment by the court of another public
7	defender; reenacting s. 27.702(1), F.S., relating to a
8	duty of the capital collateral regional counsel;
9	reenacting s. 27.703, F.S., relating to conflict of
10	interest and substitute counsel; reenacting s. 27.709(2),
11	F.S., relating to a duty of the Commission on Capital
12	Cases; reenacting s. 27.710, F.S., relating to a registry
13	of attorneys applying to represent persons in
14	postconviction capital collateral proceedings; reenacting
15	s. 27.711(3) and (13), F.S., relating to fees of attorneys
16	appointed as counsel in postconviction capital collateral
17	proceedings; amending s. 119.011, F.S.; revising the
18	definition of "active"; amending s. 119.19, F.S., relating
19	to capital postconviction public records production;
20	revising a threshold date to conform; reenacting s.
21	922.095, F.S., relating to grounds for a death warrant and
22	limitations of actions; reenacting s. 922.108, F.S.,
23	relating to sentencing orders in capital cases; reenacting
24	s. 924.055, F.S., relating to postconviction review in
25	capital cases; amending ss. 924.056 and 924.057, F.S.;
26	revising a threshold date to conform; revising criteria
27	for determining full pleading of a capital postconviction
28	action; amending ss. 924.058 and 924.059, F.S.; revising a
29	threshold date to conform; deleting a provision relating
30	to Florida Supreme Court rule revision of certain capital
31	postconviction relief procedures; reenacting s. 924.395,
32	F.S., relating to sanctions; directing the Florida Supreme
33	Court to submit to the Legislature implementation rules
34	proposed by the Judicial Conference; repealing certain
35	rules of criminal procedure; providing severability;
36	specifying a contingent criterion for the repeal of
37	certain rules of criminal procedure; providing a
38	contingent effective date.
39
40	WHEREAS, it is in the best interest of the administration
41	of justice that a sentence of death ordered by a court of this
42	state be carried out in a manner that is fair, just, and humane
43	and that conforms to constitutional requirements, and
44	WHEREAS, in order for capital punishment to be fair, just,
45	and humane for both the family of victims and for offenders,
46	there must be a prompt and efficient administration of justice
47	following any sentence of death ordered by the courts of this
48	state, and
49	WHEREAS, in order to ensure the fair, just, and humane
50	administration of capital punishment, it is necessary for the
51	Legislature to comprehensively address both the method by which
52	an execution is carried out and the processes by which an
53	offender sentenced to death may pursue postconviction and
54	collateral review of the judgment and the sentence of death, and
55	WHEREAS, the Death Penalty Reform Act of 2000, chapter
56	2000-3, Laws of Florida, was designed to accomplish these
57	objectives and was passed by the Legislature and approved by the
58	Governor of Florida in January of 2000, and
59	WHEREAS, the Death Penalty Reform Act of 2000, chapter
60	2000-3, Laws of Florida, was declared unconstitutional by the
61	Florida Supreme Court three months after becoming a law in Allen
62	v. Butterworth, 756 So.2d 52 Fla. 2000, as being an encroachment
63	on the court's "exclusive power to 'adopt rules for the practice
64	and procedure in all courts,'" and
65	WHEREAS, the Constitution of the State of Florida has been
66	amended to authorize the Legislature to adopt, reject, or amend
67	court rules of criminal procedure and rules of procedure
68	governing postconviction proceedings which are proposed by the
69	judicial conference, and
70	WHEREAS, many provisions of the Death Penalty Reform Act of
71	2000 which were held unconstitutional may now be reenacted,
72	while other provisions can be modified, and new provisions added
73	to accomplish the same purpose, procedure, and objective of the
74	Death Penalty Reform Act of 2000, NOW, THEREFORE,
75
76	Be It Enacted by the Legislature of the State of Florida:
77
78	Section 1.  This act may be cited as the "Death Penalty
79	Reform Act."
80	Section 2.  Subsections (5) and (6) of section 27.51,
81	Florida Statutes, are renumbered as subsections (6) and (7),
82	respectively, and a new subsection (5) is added to said section,
83	to read:
84	27.51  Duties of public defender.--
85	(5)  When the public defender for a judicial circuit
86	enumerated in subsection (4) has represented at trial a person
87	sentenced to death, the public defender shall not represent that
88	person in any direct appellate proceedings. That public defender
89	shall notify the Florida Supreme Court within 10 days after
90	filing a notice of appeal, and the court shall appoint another
91	public defender enumerated in subsection (4) to represent the
92	person in any direct appellate proceedings.
93	Section 3.  Subsection (1) of section 27.702, Florida
94	Statutes, is reenacted to read:
95	27.702  Duties of the capital collateral regional counsel;
96	reports.--
97	(1)  The capital collateral regional counsel shall
98	represent each person convicted and sentenced to death in this
99	state for the sole purpose of instituting and prosecuting
100	collateral actions challenging the legality of the judgment and
101	sentence imposed against such person in the state courts,
102	federal courts in this state, the United States Court of Appeals
103	for the Eleventh Circuit, and the United States Supreme Court.
104	The capital collateral regional counsel and the attorneys
105	appointed pursuant to s. 27.710 shall file only those
106	postconviction or collateral actions authorized by statute. The
107	three capital collateral regional counsels' offices shall
108	function independently and be separate budget entities, and the
109	regional counsels shall be the office heads for all purposes.
110	The Justice Administrative Commission shall provide
111	administrative support and service to the three offices to the
112	extent requested by the regional counsels. The three regional
113	offices shall not be subject to control, supervision, or
114	direction by the Justice Administrative Commission in any
115	manner, including, but not limited to, personnel, purchasing,
116	transactions involving real or personal property, and budgetary
117	matters.
118	Section 4.  Section 27.703, Florida Statutes, is reenacted
119	to read:
120	27.703  Conflict of interest and substitute counsel.--
121	(1)  The capital collateral regional counsel shall not
122	accept an appointment or take any other action that will create
123	a conflict of interest. If, at any time during the
124	representation of a person, the capital collateral regional
125	counsel determines that the continued representation of that
126	person creates a conflict of interest, the sentencing court
127	shall, upon application by the regional counsel, designate
128	another regional counsel and, only if a conflict exists with the
129	other two counsels, appoint one or more members of The Florida
130	Bar to represent one or more of such persons.
131	(2)  Appointed counsel shall be paid from funds
132	appropriated to the Chief Financial Officer. The hourly rate may
133	not exceed $100. However, all appointments of private counsel
134	under this section shall be in accordance with ss. 27.710 and
135	27.711.
136	(3)  Prior to employment, counsel appointed pursuant to
137	this section must have participated in at least five felony jury
138	trials, five felony appeals, or five capital postconviction
139	evidentiary hearings, or any combination of at least five of
140	such proceedings.
141	Section 5.  Subsection (2) of section 27.709, Florida
142	Statutes, is reenacted to read:
143	27.709  Commission on Capital Cases.--
144	(2)(a)  The commission shall review the administration of
145	justice in capital collateral cases, receive relevant public
146	input, review the operation of the capital collateral regional
147	counsel and private counsel appointed pursuant to ss. 27.710 and
148	27.711, and advise and make recommendations to the Governor,
149	Legislature, and Supreme Court.
150	(b)  As part of its duties, the commission shall compile
151	and analyze case-tracking reports produced by the Supreme Court.
152	In analyzing these reports, the commission shall develop
153	statistics to identify trends and changes in case management and
154	case processing, identify and evaluate unproductive points of
155	delay, and generally evaluate the way cases are progressing. The
156	commission shall report these findings to the Legislature by
157	January 1 of each year.
158	(c)  In addition, the commission shall receive complaints
159	regarding the practice of any office of regional counsel and
160	private counsel appointed pursuant to ss. 27.710 and 27.711 and
161	shall refer any complaint to The Florida Bar, the State Supreme
162	Court, or the Commission on Ethics, as appropriate.
163	Section 6.  Section 27.710, Florida Statutes, is reenacted
164	to read:
165	27.710  Registry of attorneys applying to represent persons
166	in postconviction capital collateral proceedings; certification
167	of minimum requirements; appointment by trial court.--
168	(1)  The executive director of the Commission on Capital
169	Cases shall compile and maintain a statewide registry of
170	attorneys in private practice who have certified that they meet
171	the minimum requirements of s. 27.704(2), who are available for
172	appointment by the court under this section to represent persons
173	convicted and sentenced to death in this state in postconviction
174	collateral proceedings, and who have attended within the last
175	year a continuing legal education program of at least 10 hours'
176	duration devoted specifically to the defense of capital cases,
177	if available. Continuing legal education programs meeting the
178	requirements of this rule offered by The Florida Bar or another
179	recognized provider and approved for continuing legal education
180	credit by The Florida Bar shall satisfy this requirement. The
181	failure to comply with this requirement may be cause for removal
182	from the list until the requirement is fulfilled. To ensure that
183	sufficient attorneys are available for appointment by the court,
184	when the number of attorneys on the registry falls below 50, the
185	executive director shall notify the chief judge of each circuit
186	by letter and request the chief judge to promptly submit the
187	names of at least three private attorneys who regularly practice
188	criminal law in that circuit and who appear to meet the minimum
189	requirements to represent persons in postconviction capital
190	collateral proceedings. The executive director shall send an
191	application to each attorney identified by the chief judge so
192	that the attorney may register for appointment as counsel in
193	postconviction capital collateral proceedings. As necessary, the
194	executive director may also advertise in legal publications and
195	other appropriate media for qualified attorneys interested in
196	registering for appointment as counsel in postconviction capital
197	collateral proceedings. Not later than September 1 of each year,
198	and as necessary thereafter, the executive director shall
199	provide to the Chief Justice of the Supreme Court, the chief
200	judge and state attorney in each judicial circuit, and the
201	Attorney General a current copy of its registry of attorneys who
202	are available for appointment as counsel in postconviction
203	capital collateral proceedings. The registry must be indexed by
204	judicial circuit and must contain the requisite information
205	submitted by the applicants in accordance with this section.
206	(2)  To be eligible for court appointment as counsel in
207	postconviction capital collateral proceedings, an attorney must
208	certify on an application provided by the executive director
209	that he or she satisfies the minimum requirements for private
210	counsel set forth in s. 27.704(2).
211	(3)  An attorney who applies for registration and court
212	appointment as counsel in postconviction capital collateral
213	proceedings must certify that he or she is counsel of record in
214	not more than four such proceedings and, if appointed to
215	represent a person in postconviction capital collateral
216	proceedings, shall continue such representation under the terms
217	and conditions set forth in s. 27.711 until the sentence is
218	reversed, reduced, or carried out or unless permitted to
219	withdraw from representation by the trial court. The court may
220	not permit an attorney to withdraw from representation without a
221	finding of sufficient good cause. The court may impose
222	appropriate sanctions if it finds that an attorney has shown bad
223	faith with respect to continuing to represent a defendant in a
224	postconviction capital collateral proceeding. This section does
225	not preclude the court from reassigning a case to a capital
226	collateral regional counsel following discontinuation of
227	representation if a conflict of interest no longer exists with
228	respect to the case.
229	(4)  Each private attorney who is appointed by the court to
230	represent a capital defendant must enter into a contract with
231	the Chief Financial Officer. If the appointed attorney fails to
232	execute the contract within 30 days after the date the contract
233	is mailed to the attorney, the executive director of the
234	Commission on Capital Cases shall notify the trial court. The
235	Chief Financial Officer shall develop the form of the contract,
236	function as contract manager, and enforce performance of the
237	terms and conditions of the contract. By signing such contract,
238	the attorney certifies that he or she intends to continue the
239	representation under the terms and conditions set forth in the
240	contract until the sentence is reversed, reduced, or carried out
241	or until released by order of the trial court.
242	(5)(a)  Upon the motion of the capital collateral regional
243	counsel to withdraw pursuant to s. 924.056(1)(a); or
244	(b)  Upon notification by the state attorney or the
245	Attorney General that:
246	1.  Thirty days have elapsed since appointment of the
247	capital collateral regional counsel and no entry of appearance
248	has been filed pursuant to s. 924.056; or
249	2.  A person under sentence of death who was previously
250	represented by private counsel is currently unrepresented in a
251	postconviction capital collateral proceeding,
252
253	the executive director shall immediately notify the trial court
254	that imposed the sentence of death that the court must
255	immediately appoint an attorney, selected from the current
256	registry, to represent such person in collateral actions
257	challenging the legality of the judgment and sentence in the
258	appropriate state and federal courts. The court shall have the
259	authority to strike a notice of appearance filed by a Capital
260	Collateral Regional Counsel, if the court finds the notice was
261	not filed in good faith and may so notify the executive director
262	that the client is no longer represented by the Office of
263	Capital Collateral Regional Counsel. In making an assignment,
264	the court shall give priority to attorneys whose experience and
265	abilities in criminal law, especially in capital proceedings,
266	are known by the court to be commensurate with the
267	responsibility of representing a person sentenced to death. The
268	trial court must issue an order of appointment which contains
269	specific findings that the appointed counsel meets the statutory
270	requirements and has the high ethical standards necessary to
271	represent a person sentenced to death.
272	(6)  More than one attorney may not be appointed and
273	compensated at any one time under s. 27.711 to represent a
274	person in postconviction capital collateral proceedings.
275	However, an attorney appointed under this section may designate
276	another attorney to assist him or her if the designated attorney
277	meets the qualifications of this section.
278	Section 7.  Subsections (3) and (13) of section 27.711,
279	Florida Statutes, are reenacted to read:
280	27.711  Terms and conditions of appointment of attorneys as
281	counsel in postconviction capital collateral proceedings.--
282	(3)  An attorney appointed to represent a capital defendant
283	is entitled to payment of the fees set forth in this section
284	only upon full performance by the attorney of the duties
285	specified in this section and approval of payment by the trial
286	court, and the submission of a payment request by the attorney,
287	subject to the availability of sufficient funding specifically
288	appropriated for this purpose. An attorney may not be
289	compensated under this section for work performed by the
290	attorney before July 1, 2003, while employed by the northern
291	regional office of the capital collateral counsel. The Chief
292	Financial Officer shall notify the executive director and the
293	court if it appears that sufficient funding has not been
294	specifically appropriated for this purpose to pay any fees which
295	may be incurred. The attorney shall maintain appropriate
296	documentation, including a current and detailed hourly
297	accounting of time spent representing the capital defendant. The
298	fee and payment schedule in this section is the exclusive means
299	of compensating a court-appointed attorney who represents a
300	capital defendant. When appropriate, a court-appointed attorney
301	must seek further compensation from the Federal Government, as
302	provided in 18 U.S.C. s. 3006A or other federal law, in habeas
303	corpus litigation in the federal courts.
304	(13)  Prior to the filing of a motion for order approving
305	payment of attorney's fees, costs, or related expenses, the
306	assigned counsel shall deliver a copy of his intended billing,
307	together with supporting affidavits and all other necessary
308	documentation, to the Chief Financial Officer's named contract
309	manager. The contract manager shall have 10 business days from
310	receipt to review the billings, affidavit, and documentation for
311	completeness and compliance with contractual and statutory
312	requirements. If the contract manager objects to any portion of
313	the proposed billing, the objection and reasons therefor shall
314	be communicated to the assigned counsel. The assigned counsel
315	may thereafter file his or her motion for order approving
316	payment of attorney's fees, costs, or related expenses together
317	with supporting affidavits and all other necessary
318	documentation. The motion must specify whether the Chief
319	Financial Officer's contract manager objects to any portion of
320	the billing or the sufficiency of documentation and, if so, the
321	reason therefor. A copy of the motion and attachments shall be
322	served on the Chief Financial Officer's contract manager, who
323	shall have standing to file pleadings and appear before the
324	court to contest any motion for order approving payment. The
325	fact that the Chief Financial Officer's contract manager has not
326	objected to any portion of the billing or to the sufficiency of
327	the documentation is not binding on the court, which retains
328	primary authority and responsibility for determining the
329	reasonableness of all billings for fees, costs, and related
330	expenses, subject to statutory limitations.
331	Section 8.  Paragraph (d) of subsection (3) of section
332	119.011, Florida Statutes, is amended to read:
333	119.011  Definitions.--As used in this chapter, the term:
334	(3)
335	(d)  The word "active" shall have the following meaning:
336	1.  Criminal intelligence information shall be considered
337	"active" as long as it is related to intelligence gathering
338	conducted with a reasonable, good faith belief that it will lead
339	to detection of ongoing or reasonably anticipated criminal
340	activities.
341	2.  Criminal investigative information shall be considered
342	"active" as long as it is related to an ongoing investigation
343	which is continuing with a reasonable, good faith anticipation
344	of securing an arrest or prosecution in the foreseeable future.
345
346	Except as provided in this paragraph In addition, criminal
347	intelligence and criminal investigative information shall be
348	considered "active" while such information is directly related
349	to pending prosecutions or appeals. With respect to capital
350	cases in which the defendant has been sentenced to death, upon
351	the imposition of the death sentence criminal intelligence and
352	criminal investigative information shall be considered to be not
353	"active." The word "active" shall not apply to information in
354	cases which are barred from prosecution under the provisions of
355	s. 775.15 or other statute of limitation.
356	Section 9.  Section 119.19, Florida Statutes, is amended to
357	read:
358	119.19  Capital postconviction public records production.--
359	(1)  As used in this section, the term "trial court" means:
360	(a)  The judge who entered the judgment and imposed the
361	sentence of death; or
362	(b)  If a motion for postconviction relief in a capital
363	case has been filed and a different judge has already been
364	assigned to that motion, the judge who is assigned to rule on
365	that motion.
366	(2)  The Secretary of State shall establish and maintain a
367	records repository for the purpose of archiving capital
368	postconviction public records as provided for in this section.
369	(3)(a)  Upon imposition of a death sentence or upon the
370	effective date of this act with respect to any case in which a
371	death sentence has been imposed but the mandate has not yet been
372	issued in an appeal affirming the sentence, the prosecuting
373	attorney shall promptly provide written notification to each law
374	enforcement agency involved in the case and to the Department of
375	Corrections. If available, the written notification must include
376	the defendant's date of birth, sex, race, and police-case
377	numbers included in the prosecuting attorney's case file.
378	(b)  Within 60 days after receipt of notification, each law
379	enforcement agency involved in the case and the prosecuting
380	attorney who prosecuted the case shall copy, seal, and deliver
381	to the repository all public records, except for those filed in
382	the trial court, which were produced in the investigation or
383	prosecution of the case or, if the records are confidential or
384	exempt, to the clerk of the court in the county in which the
385	capital case was tried. Each agency shall bear the costs of its
386	own compliance.
387	(c)  Within 60 days after notification, the Department of
388	Corrections shall copy, seal, and deliver to the repository or,
389	if the records are confidential or exempt, to the clerk of the
390	court in the county in which the capital case was tried all
391	public records determined by the department to be relevant to
392	the subject matter of a capital postconviction claim of the
393	person sentenced to death and where such production would not be
394	unduly burdensome for the department. The department shall bear
395	the costs.
396	(4)(a)  The chief law enforcement officer of each law
397	enforcement agency that was involved in the case, whether
398	through an investigation, arrest, prosecution, or incarceration,
399	shall notify the Attorney General upon compliance with
400	subsection (3) and shall certify that to the best of his or her
401	knowledge and belief all public records in possession of the
402	agency or in possession of any employee of the agency have been
403	copied, indexed, and delivered to the records repository or, if
404	the records are confidential or exempt, to the clerk of the
405	court in the county in which the capital case was tried as
406	required by this section.
407	(b)  The prosecuting attorney who prosecuted the case shall
408	provide written notification to the Attorney General upon
409	compliance with subsection (3) and shall certify that to the
410	best of his or her knowledge and belief all public records in
411	his or her possession have been copied, indexed, and delivered
412	to the records repository or, if the records are confidential or
413	exempt, to the clerk of the court in the county in which the
414	capital case was tried as required by this section.
415	(c)  The Secretary of Corrections shall provide written
416	notification to the Attorney General upon compliance with
417	paragraph (3)(c) and shall certify that to the best of his or
418	her knowledge and belief all public records in the department's
419	possession have been copied, indexed, and delivered to the
420	records repository or, if the records are confidential or
421	exempt, to the clerk of the court in the county in which the
422	capital case was tried as required by this section.
423	(5)(a)  Within 60 days after the imposition of a death
424	sentence or upon the effective date of this act with respect to
425	any case in which a death sentence has been imposed but the
426	mandate has not yet been issued in an appeal affirming the
427	sentence, both the public defender or private counsel for the
428	defendant and the prosecuting attorney involved in the case
429	shall provide written notification to the Attorney General of
430	the name and address of any person or agency in addition to
431	those persons and agencies listed in subsection (3) which may
432	have information pertinent to the case unless previously
433	provided to the capital collateral regional counsel or
434	postconviction private counsel. The Attorney General shall
435	promptly provide written notification to each identified person
436	or agency after receiving the information from the public
437	defender, private counsel for the defendant, or prosecuting
438	attorney and shall request that all public records in the
439	possession of the person or agency which pertain to the case be
440	copied, sealed, and delivered to the records repository.
441	(b)  Within 60 days after receiving a request for public
442	records under paragraph (a), the person or agency shall provide
443	written notification to the Attorney General of compliance with
444	this subsection and shall certify that to the best of his or her
445	knowledge and belief all public records requested have been
446	copied, indexed, and delivered to the records repository or, if
447	the records are confidential or exempt, to the clerk of the
448	court in the county in which the capital case was tried.
449	(6)(a)  Any public record under this section which is
450	confidential or exempt from the requirements of s. 119.07(1) and
451	s. 24(a), Art. I of the State Constitution must be separately
452	boxed, without being redacted, and sealed. The box must be
453	delivered to the clerk of court in the county in which the
454	capital case was tried. The outside of the box must clearly
455	identify the public records as exempt, and the seal may not be
456	broken without an order of the trial court. The outside of the
457	box must identify the nature of the public records and the legal
458	basis under which the public records are exempt.
459	(b)  Such a box may be opened only for an inspection by the
460	trial court in camera and only after notice giving the agency
461	the option to have a representative present at the unsealing by
462	the court.
463	(7)(a)  Within 180 days after a capital collateral regional
464	counsel or private counsel is appointed to represent a defendant
465	sentenced to death, or within 30 days after issuance of the
466	Florida Supreme Court's mandate affirming a death sentence,
467	whichever is later, the regional counsel, private counsel, or
468	other counsel who is a member of The Florida Bar and is
469	authorized by such counsel representing a defendant may send a
470	written demand for additional public records to each person or
471	agency submitting public records under subsection (3) and to
472	each person or agency identified as having information pertinent
473	to the case under subsection (5). Should the written demand
474	include requests for records associated with particular named
475	individuals, the written demand shall also include a brief
476	statement describing each named person's role in the case and
477	relationship to the defendant. Race, sex, and date of birth
478	shall also be included in the demand if the public defender,
479	private counsel, or capital collateral regional counsel has such
480	information. Each person or agency notified under this
481	subsection shall, within 60 days after receipt of the written
482	demand, deliver to the records repository or, if the records are
483	confidential or exempt, to the clerk of the court in the county
484	in which the capital case was tried any additional public
485	records in the possession of the person or agency which pertain
486	to the case and shall certify that to the best of his or her
487	knowledge and belief all additional public records have been
488	delivered or, if no additional public records are found, shall
489	recertify that the public records previously delivered are
490	complete.
491	(b)  Within 25 days after receiving the written demand, the
492	agency or person may file an objection in the trial court
493	alleging that the request is overly broad or unduly burdensome.
494	Within 30 days after the filing of an objection, the trial court
495	shall hold a hearing and order an agency or person to produce
496	additional public records if it finds each of the following:
497	1.  The regional counsel or private counsel has made a
498	timely and diligent search as provided in this section.
499	2.  The regional or private counsel's written demand
500	identifies, with specificity, those additional public records
501	that are not at the repository.
502	3.  The additional public records sought are relevant to
503	the subject matter of a capital postconviction relief or appear
504	reasonably calculated to lead to the discovery of admissible
505	evidence in prosecuting such claim.
506	4.  The additional public records request is not overbroad
507	or unduly burdensome.
508	(c)  This statute shall not be a basis for renewing
509	requests that have been initiated previously or for relitigating
510	issues pertaining to production of public records upon which a
511	court has ruled.
512	(d)  If, on June 1, 2006 October 1, 1998, the defendant had
513	a Rule 3.850 motion denied and no Rule 3.850 motion was pending,
514	no additional requests shall be made by capital collateral
515	regional counsel or contracted private counsel until a death
516	warrant is signed by the Governor and an execution is scheduled.
517	Within 10 days of the signing of the death warrant, capital
518	collateral regional counsel or contracted private counsel may
519	request of a person or agency that the defendant has previously
520	requested to produce records any records previously requested to
521	which no objection was raised or sustained, but which the agency
522	has received or produced since the previous request or which for
523	any reason the agency has in its possession and did not produce
524	within 10 days of the receipt of the previous notice or such
525	shorter time period ordered by the court to comply with the time
526	for the scheduled execution. The person or agency shall produce
527	the record or shall file in the trial court an affidavit stating
528	that it does not have the requested record or that the record
529	has been produced previously.
530	(8)(a)  After production of additional public records or
531	recertification as provided in subsection (7), the regional
532	counsel or the private counsel is prohibited from making any
533	further public records requests under this chapter. An agency is
534	not required to produce additional public records except by
535	court order as provided in this subsection.
536	(b)  In order to obtain additional public records beyond
537	those provided under subsection (7), the regional counsel,
538	private counsel, or other counsel who is a member of The Florida
539	Bar and is authorized by the regional counsel or private counsel
540	shall file an affidavit in the trial court which attests that he
541	or she has made a timely and diligent search of the records
542	repository and specifically identifies those additional public
543	records that are not at the repository and are relevant to the
544	subject matter of a capital postconviction claim or are
545	reasonably calculated to lead to the discovery of admissible
546	evidence in the prosecution of such claim. The affiant shall
547	provide a copy of the affidavit to all affected agencies upon
548	the filing of such affidavit in the trial court.
549	(c)  Within 15 days after the filing of an affidavit, the
550	trial court shall order an agency to produce additional public
551	records only if it finds each of the following:
552	1.  The regional counsel or private counsel has made a
553	timely and diligent search as provided in this section.
554	2.  The regional or private counsel's affidavit identifies,
555	with specificity, those additional public records that are not
556	at the repository.
557	3.  The additional public records sought are relevant to
558	the subject matter of a claim for capital postconviction relief
559	or appear reasonably calculated to lead to the discovery of
560	admissible evidence in prosecuting such claim.
561	4.  The additional public records request is not overbroad
562	or unduly burdensome.
563	(9)  The Secretary of State shall provide the personnel,
564	supplies, and any necessary equipment used by the capital
565	collateral regional counsel or private counsel to copy records
566	held at the records repository.
567	(10)  The trial court shall resolve any dispute that arises
568	under this section, unless the appellate court has exclusive
569	jurisdiction.
570	(11)  The capital collateral regional counsel or private
571	counsel shall not solicit another person to make a request for
572	public records on behalf of the regional counsel or private
573	counsel. The trial court shall impose appropriate sanctions
574	against any regional counsel or private counsel found in
575	violation of this subsection.
576	(12)  Sixty days after a capital sentence is carried out,
577	60 days after a defendant is released from incarceration
578	following the granting of a pardon or reversal of the sentence,
579	or 60 days after the defendant has been resentenced to a term of
580	years, the Attorney General shall provide written notification
581	to the Secretary of State, who may then destroy the records held
582	by the records repository which pertain to that case.
583	(13)  This section pertains only to the production of
584	records for capital postconviction defendants and does not
585	change or alter any time limitations provided by law governing
586	capital postconviction claims and actions. Furthermore, this
587	section does not affect, expand, or limit the production of
588	public records for any purposes other than use in a capital
589	postconviction proceeding. Nothing in this section constitutes
590	grounds to expand the time limitations or allow any pleading in
591	violation of chapter 924 or to stay an execution or death
592	warrant.
593	Section 10.  Section 922.095, Florida Statutes, is
594	reenacted to read:
595	922.095  Grounds for death warrant; limitations of
596	actions.--A person who is convicted and sentenced to death must
597	pursue all possible collateral remedies within the time limits
598	provided by statute. Failure to seek relief within the statutory
599	time limits constitutes grounds for issuance of a death warrant
600	under s. 922.052 or s. 922.14. Any claim not pursued within the
601	statutory time limits is barred. No claim filed after the time
602	required by law shall be grounds for a judicial stay of any
603	warrant.
604	Section 11.  Section 922.108, Florida Statutes, is
605	reenacted to read:
606	922.108  Sentencing orders in capital cases.--The sentence
607	of death must not specify any particular method of execution.
608	The wording or form of the sentencing order shall not be grounds
609	for reversal of any sentence.
610	Section 12.  Section 924.055, Florida Statutes, is
611	reenacted to read:
612	924.055  Postconviction review in capital cases;
613	legislative findings and intent.--
614	(1)  It is the intent of the Legislature to reduce delays
615	in capital cases and to ensure that all appeals and
616	postconviction actions in capital cases are resolved within 5
617	years after the date a sentence of death is imposed in the
618	circuit court. All capital postconviction actions must be filed
619	as early as possible after the imposition of a sentence of death
620	which may be during a direct appeal of the conviction and
621	sentence. A person sentenced to death or that person's capital
622	postconviction counsel must file any postconviction legal action
623	in compliance with the statutes of limitation established in s.
624	924.056 and elsewhere in this chapter. Except as expressly
625	allowed by s. 924.056(5), a person sentenced to death or that
626	person's capital postconviction counsel may not file more than
627	one postconviction action in a sentencing court and one appeal
628	therefrom to the Florida Supreme Court, unless authorized by
629	law.
630	(2)  It is the further intent of the Legislature that no
631	state resources be expended in violation of this act. In the
632	event that any state employee or party contracting with the
633	state violates the provisions of this act, the Attorney General
634	shall deliver to the Speaker of the House of Representatives and
635	the President of the Senate a copy of any court pleading or
636	order that describes or adjudicates a violation.
637	Section 13.  Section 924.056, Florida Statutes, is amended
638	to read:
639	924.056  Commencement of capital postconviction actions for
640	which sentence of death is imposed on or after July 1, 2007
641	January 14, 2000; limitations on actions.--
642	(1)  In every capital case in which the trial court imposes
643	a sentence of death on or after the effective date of this act,
644	this section shall govern all postconviction proceedings in
645	state court.
646	(a)  Within 15 days after imposing a sentence of death, the
647	sentencing court shall appoint the appropriate office of the
648	capital collateral regional counsel or private postconviction
649	counsel, unless the defendant declines to accept postconviction
650	legal representation in which case the state shall not provide
651	postconviction legal representation. Within 30 days after the
652	appointment, the capital collateral regional counsel shall file
653	a notice of appearance in the trial court or a motion to
654	withdraw based on a conflict of interest or for good cause. The
655	court shall appoint private counsel pursuant to part IV of
656	chapter 27 in any case in which the capital collateral regional
657	counsel files a motion to withdraw, or otherwise informs the
658	court that the capital collateral regional counsel cannot comply
659	with the provisions of chapter 924 or in which the court
660	determines that the agency cannot comply with chapter 924 or
661	other applicable laws.
662	(b)  The defendant who accepts the appointment of
663	postconviction counsel must cooperate with and assist
664	postconviction counsel. If the sentencing court finds the
665	defendant is obstructing the postconviction process, the
666	defendant shall not be entitled to any further postconviction
667	legal representation provided by the state. Each attorney
668	participating in a capital case on behalf of a defendant must
669	provide all information pertaining to the capital case which the
670	attorney obtained during the representation of that defendant to
671	that defendant's capital postconviction counsel. Postconviction
672	counsel must maintain the confidentiality of any confidential
673	information received from any attorney for that defendant and is
674	subject to the same penalties as the providing attorney for
675	violating confidentiality. If the defendant requests without
676	good cause that any attorney appointed under this subsection be
677	removed or replaced, the court shall notify the defendant that
678	no further state resources may be expended for postconviction
679	representation for that defendant, unless the defendant
680	withdraws the request to remove or replace postconviction
681	counsel. If the defendant does not immediately withdraw his or
682	her request, then any appointed attorney must be removed from
683	the case and no further state resources may be expended for the
684	defendant's postconviction representation. The prosecuting
685	attorney and the defendant's trial counsel shall provide the
686	defendant or, if represented, the defendant's capital
687	postconviction counsel with copies of all pretrial and trial
688	discovery and all contents of the prosecuting attorney's file,
689	except for information that the prosecuting attorney has a legal
690	right under state or federal law to withhold from disclosure.
691	(2)  The clerk of the court shall provide a copy of the
692	record on appeal to the capital postconviction attorney and the
693	state attorney and Attorney General within 60 days after the
694	sentencing court appoints postconviction counsel. However, the
695	court may grant an extension of up to 30 days when extraordinary
696	circumstances exist.
697	(3)(a)  With respect to all capital postconviction actions
698	commenced after the effective date of this act, a capital
699	postconviction action is not commenced until the defendant or
700	the defendant's postconviction counsel files a fully pled
701	postconviction action in the sentencing court or, as provided in
702	subsection (4), the Florida Supreme Court. For the purposes of
703	this subsection, a fully pled capital postconviction action is
704	one which complies with s. 924.058(2) or any superseding rule
705	adopted by the Florida Supreme Court. Except as provided by
706	subsection (4) or subsection (5), all capital postconviction
707	actions shall be barred unless they are commenced within 180
708	days after the filing of the appellant's initial brief in the
709	Florida Supreme Court on direct appeal of the defendant's
710	capital conviction and sentence. The fully pled postconviction
711	action must raise all cognizable claims that the defendant's
712	judgment or sentence was entered in violation of the
713	Constitution or laws of the United States or the Constitution or
714	the laws of the state, including any claim of ineffective
715	assistance of trial counsel, allegations of innocence, or that
716	the state withheld evidence favorable to the defendant. No claim
717	may be considered in such action which could have or should have
718	been raised before trial, at trial, or if preserved on direct
719	appeal. For the purposes of this subsection, a capital
720	postconviction action is not fully pled unless it satisfies the
721	requirements of s. 924.058(2) or any superseding rule of court.
722	(b)  No claim of ineffective assistance of collateral
723	postconviction counsel may be raised in a state court.
724	(c)  The pendency of public records requests or litigation,
725	or the pendency of other litigation, or the failure of the
726	defendant or the defendant's postconviction counsel to timely
727	prosecute a case shall not constitute cause for the court to
728	grant any request for an extension of time or other delay. No
729	appeal may be taken from a court's ruling denying such a request
730	for an extension of time or other delay.
731	(d)  The time for commencement of the postconviction action
732	may not be tolled for any reason or cause. All claims raised by
733	amendment of a defendant's capital postconviction action are
734	barred if the claims are raised outside the time limitations
735	provided by statute for the filing of capital postconviction
736	actions.
737	(4)  All capital postconviction actions raising any claim
738	of ineffective assistance of direct appeal counsel are barred
739	unless they are commenced in conformity with this subsection.
740	The defendant or the defendant's capital postconviction counsel
741	shall file an action in the Florida Supreme Court raising any
742	claim of ineffective assistance of direct appeal counsel within
743	45 days after mandate issues affirming the death sentence in the
744	direct appeal.
745	(5)  Regardless of when a sentence is imposed, all
746	successive capital postconviction actions are barred unless
747	commenced by filing a fully pled postconviction action within 90
748	days after the facts giving rise to the cause of action were
749	discovered or should have been discovered with the exercise of
750	due diligence. Such claim shall be barred pursuant to subsection
751	(3) or s. 924.057 unless the facts underlying the claim, if
752	proven and viewed in light of the evidence as a whole, would be
753	sufficient to establish by clear and convincing evidence that,
754	but for constitutional error, no reasonable fact finder would
755	have found the defendant guilty of the underlying offense.
756	Additionally, the facts underlying this claim must have been
757	unknown to the defendant or his or her attorney and must be such
758	that they could not have been ascertained by the exercise of due
759	diligence prior to filing the earlier postconviction motion. The
760	time period allowed for filing a successive collateral
761	postconviction action shall not be grounds for a stay.
762	Section 14.  Section 924.057, Florida Statutes, is amended
763	to read:
764	924.057  Limitation on postconviction cases in which the
765	death sentence was imposed before July 1, 2007 January 14,
766	2000.--This section shall govern all capital postconviction
767	actions in cases in which the trial court imposed the sentence
768	of death before the effective date of this act.
769	(1)  Nothing in this act shall expand any right or time
770	period allowed for the prosecution of capital postconviction
771	claims in any case in which a postconviction action was
772	commenced or should have been commenced prior to the effective
773	date of this act.
774	(2)  Except as provided in s. 924.056(5), in every case in
775	which mandate has issued in the Florida Supreme Court concluding
776	at least one capital postconviction action in the state court
777	system, a successive capital postconviction action shall be
778	barred on the effective date of this act, unless the rules or
779	law in effect immediately prior to the effective date of this
780	act permitted the successive postconviction action, in which
781	case the action shall be barred on the date provided in
782	subsection (4).
783	(3)  All capital postconviction actions pending on the
784	effective date of this act shall be barred, and shall be
785	dismissed with prejudice, unless fully pled in substantial
786	compliance with s. 924.058, or with any pending superseding
787	order or rule, on or before:
788	(a)  The time in which the action would be barred by this
789	section if the action had not begun prior to the effective date
790	of this act, or
791	(b)  Any earlier date provided by the rules or law, or
792	court order, in effect immediately prior to the effective date
793	of this act.
794	(4)  In every capital case in which the trial court imposed
795	the sentence of death before the effective date of this act, a
796	capital postconviction action shall be barred unless it is
797	commenced on or before July 1, 2008 January 8, 2001, or any
798	earlier date provided by the rule or law in effect immediately
799	prior to July 1, 2007 the effective date of this act.
800	Section 15.  Section 924.058, Florida Statutes, is amended
801	to read:
802	924.058  Capital postconviction claims.--This section shall
803	regulate the procedures in actions for capital postconviction
804	relief commencing after July 1, 2007 the effective date of this
805	act unless and until such procedures are revised by rule or
806	rules adopted by the Florida Supreme Court which specifically
807	reference this section.
808	(1)  The defendant or the defendant's capital
809	postconviction counsel shall not file more than one capital
810	postconviction action in the sentencing court, one appeal
811	therefrom in the Florida Supreme Court, and one original capital
812	postconviction action alleging the ineffectiveness of direct
813	appeal counsel in the Florida Supreme Court, except as expressly
814	allowed by s. 924.056(5).
815	(2)  The defendant's postconviction action shall be filed
816	under oath and shall be fully pled to include:
817	(a)  The judgment or sentence under attack and the court
818	which rendered the same;
819	(b)  A statement of each issue raised on appeal and the
820	disposition thereof;
821	(c)  Whether a previous postconviction action has been
822	filed and, if so, the disposition of all previous claims raised
823	in postconviction litigation; if a previous action or actions
824	have been filed, the reason or reasons the claim or claims in
825	the present motion were not raised in the former action or
826	actions;
827	(d)  The nature of the relief sought;
828	(e)  A fully detailed allegation of the factual basis for
829	any claim of legal or constitutional error asserted, including
830	the attachment of any document supporting the claim, the name
831	and address of any witness, the attachment of affidavits of the
832	witnesses or a proffer of the testimony; and
833	(f)  A concise memorandum of applicable case law as to each
834	claim asserted.
835	(3)  Any capital postconviction action that does not comply
836	with any requirement in this section or other applicable
837	provision in law shall not be considered in any state court. No
838	amendment of a defendant's capital postconviction action shall
839	be allowed by the court after the expiration of the time
840	limitation provided by statute for the commencement of capital
841	postconviction actions.
842	(4)  The prosecuting attorney or Attorney General shall be
843	allowed to file one response to any capital postconviction
844	action within 60 days after receipt of the defendant's fully
845	pled capital postconviction action.
846	Section 16.  Section 924.059, Florida Statutes, is amended
847	to read:
848	924.059  Time limitations and judicial review in capital
849	postconviction actions.--This section shall regulate the
850	procedures in actions for capital postconviction relief
851	commencing after July 1, 2007 the effective date of this act
852	unless and until such procedures are revised by rule or rules
853	adopted by the Florida Supreme Court which specifically
854	reference this section.
855	(1)  No amendment of a defendant's capital postconviction
856	action shall be allowed by the court after the expiration of the
857	time periods provided by statute for the filing of capital
858	postconviction claims.
859	(2)  Within 30 days after the state files its answer, the
860	sentencing court shall conduct a hearing to determine if an
861	evidentiary hearing is required, if a hearing has been requested
862	by the defendant or the defendant's capital postconviction
863	counsel. Within 30 days thereafter, the court shall rule whether
864	an evidentiary hearing is required and, if so, shall schedule an
865	evidentiary hearing to be held within 90 days. If the court
866	determines that the defendant's capital postconviction action is
867	legally insufficient or the action, files, and records in the
868	case show that the defendant is not entitled to relief, the
869	court shall, within 45 days thereafter, deny the action, setting
870	forth a detailed rationale therefore, and attaching or
871	referencing such portions of the record as are necessary to
872	allow for meaningful appellate review.
873	(3)  Within 10 days after the order scheduling an
874	evidentiary hearing, the defendant or the defendant's capital
875	postconviction counsel shall disclose the names and addresses of
876	any potential witnesses not previously disclosed, with their
877	affidavits or a proffer of their testimony. Upon receipt of the
878	defendant's disclosure, the state shall have 10 days within
879	which to provide reciprocal disclosure. If the defendant intends
880	to offer expert testimony of his or her mental status, the state
881	shall be entitled to have the defendant examined by an expert of
882	its choosing. All of the defendant's mental status claims shall
883	be deemed denied as a matter of law if the defendant fails to
884	cooperate with the state's expert. Reports provided by expert
885	witnesses shall be disclosed by opposing counsel upon receipt.
886	(4)  Following the evidentiary hearing, the court shall
887	order the transcription of the proceeding which shall be filed
888	within 30 days. Within 30 days after receipt of the transcript,
889	the sentencing court shall issue a final order granting or
890	denying postconviction relief, making detailed findings of fact
891	and conclusions of law with respect to any allegation asserted.
892	(5)  An appeal may be taken to the Supreme Court of Florida
893	within 15 days from the entry of a final order on a capital
894	postconviction action. No interlocutory appeal shall be
895	permitted. No motion for rehearing shall be permitted. The clerk
896	of the court shall promptly serve upon all parties a copy of the
897	final order.
898	(6)  If the sentencing court has denied the capital
899	postconviction action without an evidentiary hearing, the appeal
900	to the Florida Supreme Court will be expeditiously resolved in a
901	summary fashion. On appeal, the case shall be initially reviewed
902	for a determination whether the sentencing court correctly
903	resolved the defendant's claims without an evidentiary hearing.
904	If the Florida Supreme Court determines an evidentiary hearing
905	should have been held, the decision to remand for an evidentiary
906	hearing may be made by an order without an opinion. Jurisdiction
907	shall be relinquished to the trial court for a specified period,
908	which must be scheduled within 30 days and must be concluded
909	within 90 days, for the purpose of conducting an evidentiary
910	hearing on any issue identified by the Florida Supreme Court's
911	order. Thereafter, the record shall be supplemented with the
912	hearing transcript.
913	(7)  The Florida Supreme Court shall render its decision
914	within 180 days after receipt of the record on appeal. If a
915	denial of an action for postconviction relief is affirmed, the
916	Governor may proceed to issue a warrant for execution.
917	(8)  A capital postconviction action filed in violation of
918	the time limitations provided by statute is barred, and all
919	claims raised therein are waived. A state court shall not
920	consider any capital postconviction action filed in violation of
921	s. 924.056 or s. 924.057. The Attorney General shall deliver to
922	the Governor, the President of the Senate, and the Speaker of
923	the House of Representatives a copy of any pleading or order
924	that alleges or adjudicates any violation of this provision.
925	Section 17.  Section 924.395, Florida Statutes, is
926	reenacted to read:
927	924.395  Sanctions.--
928	(1)  The Legislature strongly encourages the courts,
929	through their inherent powers and pursuant to this section, to
930	impose sanctions against any person within the court's
931	jurisdiction who is found by a court, in a capital
932	postconviction proceeding or appeal therefrom, to have:
933	(a)  Abused a petition for extraordinary relief,
934	postconviction motion, or appeal therefrom;
935	(b)  Raised a claim that a court has found to be frivolous
936	or procedurally barred or that should have been raised on the
937	direct appeal;
938	(c)  Improperly withheld evidence or testimony; or
939	(d)  Adversely affected the orderly administration of
940	justice.
941	(2)  Sanctions the court may and should consider, when
942	applicable and appropriate in a case, include, but are not
943	limited to:
944	(a)  Dismissal of a pleading;
945	(b)  Disciplinary sanctions;
946	(c)  A fine; and
947	(d)  Any other sanction that is available to the court
948	under its inherent powers.
949	Section 18.  The Supreme Court is directed to submit to the
950	President of the Senate and the Speaker of the House of
951	Representatives by March 1, 2007, rules proposed by the Judicial
952	Conference for the implementation of this act.
953	Section 19.  Rule 3.850, Florida Rules of Criminal
954	Procedure, is repealed to the extent inconsistent with this act.
955	Rule 3.851, Florida Rules of Criminal Procedure is repealed to
956	the extent inconsistent with this act. Rule 3.852, Florida Rules
957	of Criminal Procedure, is repealed.
958	Section 20.  If any provision of this act or the
959	application thereof to any person or circumstance is held
960	invalid, the invalidity does not affect other provisions or
961	applications of the act which can be given effect without the
962	invalid provision or application, and to this end the provisions
963	of this act are declared severable.
964	Section 21.  This act shall take effect July 1, 2007,
965	contingent upon voter approval of HJR ________ in the General
966	Election of 2006, but section 19 shall take effect only if this
967	act is passed by the affirmative vote of two-thirds of the
968	membership of each house of the Legislature.

CODING: Words stricken are deletions; words underlined are additions.