HB 1005

CS

CHAMBER ACTION

1	The Justice Council recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to the death penalty; providing a popular
7	name; amending s. 27.51, F.S.; prohibiting certain public
8	defenders from representing certain persons sentenced to
9	death; providing for notification of the Florida Supreme
10	Court and appointment by the court of another public
11	defender; reenacting s. 27.702(1), F.S., relating to a
12	duty of the capital collateral regional counsel;
13	reenacting s. 27.703, F.S., relating to conflict of
14	interest and substitute counsel; reenacting s. 27.709(2),
15	F.S., relating to a duty of the Commission on Capital
16	Cases; reenacting s. 27.710, F.S., relating to a registry
17	of attorneys applying to represent persons in
18	postconviction capital collateral proceedings; reenacting
19	s. 27.711(3) and (13), F.S., relating to fees of attorneys
20	appointed as counsel in postconviction capital collateral
21	proceedings; amending s. 119.011, F.S.; revising the
22	definition of "active"; amending s. 119.19, F.S., relating
23	to capital postconviction public records production;
24	revising a threshold date to conform; reenacting s.
25	922.095, F.S., relating to grounds for a death warrant and
26	limitations of actions; reenacting s. 922.108, F.S.,
27	relating to sentencing orders in capital cases; reenacting
28	s. 924.055, F.S., relating to postconviction review in
29	capital cases; amending ss. 924.056 and 924.057, F.S.;
30	revising a threshold date to conform; revising criteria
31	for determining full pleading of a capital postconviction
32	action; amending ss. 924.058 and 924.059, F.S.; revising a
33	threshold date to conform; deleting a provision relating
34	to Florida Supreme Court rule revision of certain capital
35	postconviction relief procedures; reenacting s. 924.395,
36	F.S., relating to sanctions; repealing certain rules of
37	criminal procedure; providing severability; specifying a
38	contingent criterion for the repeal of certain rules of
39	criminal procedure; providing a contingent effective date.
40
41	WHEREAS, it is in the best interest of the administration
42	of justice that a sentence of death ordered by a court of this
43	state be carried out in a manner that is fair, just, and humane
44	and that conforms to constitutional requirements, and
45	WHEREAS, in order for capital punishment to be fair, just,
46	and humane for both the family of victims and for offenders,
47	there must be a prompt and efficient administration of justice
48	following any sentence of death ordered by the courts of this
49	state, and
50	WHEREAS, in order to ensure the fair, just, and humane
51	administration of capital punishment, it is necessary for the
52	Legislature to comprehensively address both the method by which
53	an execution is carried out and the processes by which an
54	offender sentenced to death may pursue postconviction and
55	collateral review of the judgment and the sentence of death, and
56	WHEREAS, the Death Penalty Reform Act of 2000, chapter
57	2000-3, Laws of Florida, was designed to accomplish these
58	objectives and was passed by the Legislature and approved by the
59	Governor of Florida in January of 2000, and
60	WHEREAS, the Death Penalty Reform Act of 2000, chapter
61	2000-3, Laws of Florida, was declared unconstitutional by the
62	Florida Supreme Court three months after becoming a law in Allen
63	v. Butterworth, 756 So.2d 52 Fla. 2000, as being an encroachment
64	on the court's "exclusive power to 'adopt rules for the practice
65	and procedure in all courts,'" and
66	WHEREAS, the Constitution of the State of Florida has been
67	amended to authorize the Legislature to adopt, reject, or amend
68	court rules of criminal procedure and rules of procedure
69	governing postconviction proceedings which are proposed by the
70	judicial conference, and
71	WHEREAS, many provisions of the Death Penalty Reform Act of
72	2000 which were held unconstitutional may now be reenacted,
73	while other provisions can be modified, and new provisions added
74	to accomplish the same purpose, procedure, and objective of the
75	Death Penalty Reform Act of 2000, NOW, THEREFORE,
76
77	Be It Enacted by the Legislature of the State of Florida:
78
79	Section 1.  This act may be cited as the "Death Penalty
80	Reform Act."
81	Section 2.  Subsections (5) and (6) of section 27.51,
82	Florida Statutes, are renumbered as subsections (6) and (7),
83	respectively, and a new subsection (5) is added to said section,
84	to read:
85	27.51  Duties of public defender.--
86	(5)  When the public defender for a judicial circuit
87	enumerated in subsection (4) has represented at trial a person
88	sentenced to death, the public defender shall not represent that
89	person in any direct appellate proceedings. That public defender
90	shall notify the Florida Supreme Court within 10 days after
91	filing a notice of appeal, and the court shall appoint another
92	public defender enumerated in subsection (4) to represent the
93	person in any direct appellate proceedings.
94	Section 3.  Subsection (1) of section 27.702, Florida
95	Statutes, is reenacted to read:
96	27.702  Duties of the capital collateral regional counsel;
97	reports.--
98	(1)  The capital collateral regional counsel shall
99	represent each person convicted and sentenced to death in this
100	state for the sole purpose of instituting and prosecuting
101	collateral actions challenging the legality of the judgment and
102	sentence imposed against such person in the state courts,
103	federal courts in this state, the United States Court of Appeals
104	for the Eleventh Circuit, and the United States Supreme Court.
105	The capital collateral regional counsel and the attorneys
106	appointed pursuant to s. 27.710 shall file only those
107	postconviction or collateral actions authorized by statute. The
108	three capital collateral regional counsels' offices shall
109	function independently and be separate budget entities, and the
110	regional counsels shall be the office heads for all purposes.
111	The Justice Administrative Commission shall provide
112	administrative support and service to the three offices to the
113	extent requested by the regional counsels. The three regional
114	offices shall not be subject to control, supervision, or
115	direction by the Justice Administrative Commission in any
116	manner, including, but not limited to, personnel, purchasing,
117	transactions involving real or personal property, and budgetary
118	matters.
119	Section 4.  Section 27.703, Florida Statutes, is reenacted
120	to read:
121	27.703  Conflict of interest and substitute counsel.--
122	(1)  The capital collateral regional counsel shall not
123	accept an appointment or take any other action that will create
124	a conflict of interest. If, at any time during the
125	representation of a person, the capital collateral regional
126	counsel determines that the continued representation of that
127	person creates a conflict of interest, the sentencing court
128	shall, upon application by the regional counsel, designate
129	another regional counsel and, only if a conflict exists with the
130	other two counsels, appoint one or more members of The Florida
131	Bar to represent one or more of such persons.
132	(2)  Appointed counsel shall be paid from funds
133	appropriated to the Chief Financial Officer. The hourly rate may
134	not exceed $100. However, all appointments of private counsel
135	under this section shall be in accordance with ss. 27.710 and
136	27.711.
137	(3)  Prior to employment, counsel appointed pursuant to
138	this section must have participated in at least five felony jury
139	trials, five felony appeals, or five capital postconviction
140	evidentiary hearings, or any combination of at least five of
141	such proceedings.
142	Section 5.  Subsection (2) of section 27.709, Florida
143	Statutes, is reenacted to read:
144	27.709  Commission on Capital Cases.--
145	(2)(a)  The commission shall review the administration of
146	justice in capital collateral cases, receive relevant public
147	input, review the operation of the capital collateral regional
148	counsel and private counsel appointed pursuant to ss. 27.710 and
149	27.711, and advise and make recommendations to the Governor,
150	Legislature, and Supreme Court.
151	(b)  As part of its duties, the commission shall compile
152	and analyze case-tracking reports produced by the Supreme Court.
153	In analyzing these reports, the commission shall develop
154	statistics to identify trends and changes in case management and
155	case processing, identify and evaluate unproductive points of
156	delay, and generally evaluate the way cases are progressing. The
157	commission shall report these findings to the Legislature by
158	January 1 of each year.
159	(c)  In addition, the commission shall receive complaints
160	regarding the practice of any office of regional counsel and
161	private counsel appointed pursuant to ss. 27.710 and 27.711 and
162	shall refer any complaint to The Florida Bar, the State Supreme
163	Court, or the Commission on Ethics, as appropriate.
164	Section 6.  Section 27.710, Florida Statutes, is reenacted
165	to read:
166	27.710  Registry of attorneys applying to represent persons
167	in postconviction capital collateral proceedings; certification
168	of minimum requirements; appointment by trial court.--
169	(1)  The executive director of the Commission on Capital
170	Cases shall compile and maintain a statewide registry of
171	attorneys in private practice who have certified that they meet
172	the minimum requirements of s. 27.704(2), who are available for
173	appointment by the court under this section to represent persons
174	convicted and sentenced to death in this state in postconviction
175	collateral proceedings, and who have attended within the last
176	year a continuing legal education program of at least 10 hours'
177	duration devoted specifically to the defense of capital cases,
178	if available. Continuing legal education programs meeting the
179	requirements of this rule offered by The Florida Bar or another
180	recognized provider and approved for continuing legal education
181	credit by The Florida Bar shall satisfy this requirement. The
182	failure to comply with this requirement may be cause for removal
183	from the list until the requirement is fulfilled. To ensure that
184	sufficient attorneys are available for appointment by the court,
185	when the number of attorneys on the registry falls below 50, the
186	executive director shall notify the chief judge of each circuit
187	by letter and request the chief judge to promptly submit the
188	names of at least three private attorneys who regularly practice
189	criminal law in that circuit and who appear to meet the minimum
190	requirements to represent persons in postconviction capital
191	collateral proceedings. The executive director shall send an
192	application to each attorney identified by the chief judge so
193	that the attorney may register for appointment as counsel in
194	postconviction capital collateral proceedings. As necessary, the
195	executive director may also advertise in legal publications and
196	other appropriate media for qualified attorneys interested in
197	registering for appointment as counsel in postconviction capital
198	collateral proceedings. Not later than September 1 of each year,
199	and as necessary thereafter, the executive director shall
200	provide to the Chief Justice of the Supreme Court, the chief
201	judge and state attorney in each judicial circuit, and the
202	Attorney General a current copy of its registry of attorneys who
203	are available for appointment as counsel in postconviction
204	capital collateral proceedings. The registry must be indexed by
205	judicial circuit and must contain the requisite information
206	submitted by the applicants in accordance with this section.
207	(2)  To be eligible for court appointment as counsel in
208	postconviction capital collateral proceedings, an attorney must
209	certify on an application provided by the executive director
210	that he or she satisfies the minimum requirements for private
211	counsel set forth in s. 27.704(2).
212	(3)  An attorney who applies for registration and court
213	appointment as counsel in postconviction capital collateral
214	proceedings must certify that he or she is counsel of record in
215	not more than four such proceedings and, if appointed to
216	represent a person in postconviction capital collateral
217	proceedings, shall continue such representation under the terms
218	and conditions set forth in s. 27.711 until the sentence is
219	reversed, reduced, or carried out or unless permitted to
220	withdraw from representation by the trial court. The court may
221	not permit an attorney to withdraw from representation without a
222	finding of sufficient good cause. The court may impose
223	appropriate sanctions if it finds that an attorney has shown bad
224	faith with respect to continuing to represent a defendant in a
225	postconviction capital collateral proceeding. This section does
226	not preclude the court from reassigning a case to a capital
227	collateral regional counsel following discontinuation of
228	representation if a conflict of interest no longer exists with
229	respect to the case.
230	(4)  Each private attorney who is appointed by the court to
231	represent a capital defendant must enter into a contract with
232	the Chief Financial Officer. If the appointed attorney fails to
233	execute the contract within 30 days after the date the contract
234	is mailed to the attorney, the executive director of the
235	Commission on Capital Cases shall notify the trial court. The
236	Chief Financial Officer shall develop the form of the contract,
237	function as contract manager, and enforce performance of the
238	terms and conditions of the contract. By signing such contract,
239	the attorney certifies that he or she intends to continue the
240	representation under the terms and conditions set forth in the
241	contract until the sentence is reversed, reduced, or carried out
242	or until released by order of the trial court.
243	(5)(a)  Upon the motion of the capital collateral regional
244	counsel to withdraw pursuant to s. 924.056(1)(a); or
245	(b)  Upon notification by the state attorney or the
246	Attorney General that:
247	1.  Thirty days have elapsed since appointment of the
248	capital collateral regional counsel and no entry of appearance
249	has been filed pursuant to s. 924.056; or
250	2.  A person under sentence of death who was previously
251	represented by private counsel is currently unrepresented in a
252	postconviction capital collateral proceeding,
253
254	the executive director shall immediately notify the trial court
255	that imposed the sentence of death that the court must
256	immediately appoint an attorney, selected from the current
257	registry, to represent such person in collateral actions
258	challenging the legality of the judgment and sentence in the
259	appropriate state and federal courts. The court shall have the
260	authority to strike a notice of appearance filed by a Capital
261	Collateral Regional Counsel, if the court finds the notice was
262	not filed in good faith and may so notify the executive director
263	that the client is no longer represented by the Office of
264	Capital Collateral Regional Counsel. In making an assignment,
265	the court shall give priority to attorneys whose experience and
266	abilities in criminal law, especially in capital proceedings,
267	are known by the court to be commensurate with the
268	responsibility of representing a person sentenced to death. The
269	trial court must issue an order of appointment which contains
270	specific findings that the appointed counsel meets the statutory
271	requirements and has the high ethical standards necessary to
272	represent a person sentenced to death.
273	(6)  More than one attorney may not be appointed and
274	compensated at any one time under s. 27.711 to represent a
275	person in postconviction capital collateral proceedings.
276	However, an attorney appointed under this section may designate
277	another attorney to assist him or her if the designated attorney
278	meets the qualifications of this section.
279	Section 7.  Subsections (3) and (13) of section 27.711,
280	Florida Statutes, are reenacted to read:
281	27.711  Terms and conditions of appointment of attorneys as
282	counsel in postconviction capital collateral proceedings.--
283	(3)  An attorney appointed to represent a capital defendant
284	is entitled to payment of the fees set forth in this section
285	only upon full performance by the attorney of the duties
286	specified in this section and approval of payment by the trial
287	court, and the submission of a payment request by the attorney,
288	subject to the availability of sufficient funding specifically
289	appropriated for this purpose. An attorney may not be
290	compensated under this section for work performed by the
291	attorney before July 1, 2003, while employed by the northern
292	regional office of the capital collateral counsel. The Chief
293	Financial Officer shall notify the executive director and the
294	court if it appears that sufficient funding has not been
295	specifically appropriated for this purpose to pay any fees which
296	may be incurred. The attorney shall maintain appropriate
297	documentation, including a current and detailed hourly
298	accounting of time spent representing the capital defendant. The
299	fee and payment schedule in this section is the exclusive means
300	of compensating a court-appointed attorney who represents a
301	capital defendant. When appropriate, a court-appointed attorney
302	must seek further compensation from the Federal Government, as
303	provided in 18 U.S.C. s. 3006A or other federal law, in habeas
304	corpus litigation in the federal courts.
305	(13)  Prior to the filing of a motion for order approving
306	payment of attorney's fees, costs, or related expenses, the
307	assigned counsel shall deliver a copy of his intended billing,
308	together with supporting affidavits and all other necessary
309	documentation, to the Chief Financial Officer's named contract
310	manager. The contract manager shall have 10 business days from
311	receipt to review the billings, affidavit, and documentation for
312	completeness and compliance with contractual and statutory
313	requirements. If the contract manager objects to any portion of
314	the proposed billing, the objection and reasons therefor shall
315	be communicated to the assigned counsel. The assigned counsel
316	may thereafter file his or her motion for order approving
317	payment of attorney's fees, costs, or related expenses together
318	with supporting affidavits and all other necessary
319	documentation. The motion must specify whether the Chief
320	Financial Officer's contract manager objects to any portion of
321	the billing or the sufficiency of documentation and, if so, the
322	reason therefor. A copy of the motion and attachments shall be
323	served on the Chief Financial Officer's contract manager, who
324	shall have standing to file pleadings and appear before the
325	court to contest any motion for order approving payment. The
326	fact that the Chief Financial Officer's contract manager has not
327	objected to any portion of the billing or to the sufficiency of
328	the documentation is not binding on the court, which retains
329	primary authority and responsibility for determining the
330	reasonableness of all billings for fees, costs, and related
331	expenses, subject to statutory limitations.
332	Section 8.  Paragraph (d) of subsection (3) of section
333	119.011, Florida Statutes, is amended to read:
334	119.011  Definitions.--As used in this chapter, the term:
335	(3)
336	(d)  The word "active" shall have the following meaning:
337	1.  Criminal intelligence information shall be considered
338	"active" as long as it is related to intelligence gathering
339	conducted with a reasonable, good faith belief that it will lead
340	to detection of ongoing or reasonably anticipated criminal
341	activities.
342	2.  Criminal investigative information shall be considered
343	"active" as long as it is related to an ongoing investigation
344	which is continuing with a reasonable, good faith anticipation
345	of securing an arrest or prosecution in the foreseeable future.
346
347	Except as provided in this paragraph In addition, criminal
348	intelligence and criminal investigative information shall be
349	considered "active" while such information is directly related
350	to pending prosecutions or appeals. With respect to capital
351	cases in which the defendant has been sentenced to death, upon
352	the imposition of the death sentence criminal intelligence and
353	criminal investigative information shall be considered to be not
354	"active." The word "active" shall not apply to information in
355	cases which are barred from prosecution under the provisions of
356	s. 775.15 or other statute of limitation.
357	Section 9.  Section 119.19, Florida Statutes, is amended to
358	read:
359	119.19  Capital postconviction public records production.--
360	(1)  As used in this section, the term "trial court" means:
361	(a)  The judge who entered the judgment and imposed the
362	sentence of death; or
363	(b)  If a motion for postconviction relief in a capital
364	case has been filed and a different judge has already been
365	assigned to that motion, the judge who is assigned to rule on
366	that motion.
367	(2)  The Secretary of State shall establish and maintain a
368	records repository for the purpose of archiving capital
369	postconviction public records as provided for in this section.
370	(3)(a)  Upon imposition of a death sentence or upon the
371	effective date of this act with respect to any case in which a
372	death sentence has been imposed but the mandate has not yet been
373	issued in an appeal affirming the sentence, the prosecuting
374	attorney shall promptly provide written notification to each law
375	enforcement agency involved in the case and to the Department of
376	Corrections. If available, the written notification must include
377	the defendant's date of birth, sex, race, and police-case
378	numbers included in the prosecuting attorney's case file.
379	(b)  Within 60 days after receipt of notification, each law
380	enforcement agency involved in the case and the prosecuting
381	attorney who prosecuted the case shall copy, seal, and deliver
382	to the repository all public records, except for those filed in
383	the trial court, which were produced in the investigation or
384	prosecution of the case or, if the records are confidential or
385	exempt, to the clerk of the court in the county in which the
386	capital case was tried. Each agency shall bear the costs of its
387	own compliance.
388	(c)  Within 60 days after notification, the Department of
389	Corrections shall copy, seal, and deliver to the repository or,
390	if the records are confidential or exempt, to the clerk of the
391	court in the county in which the capital case was tried all
392	public records determined by the department to be relevant to
393	the subject matter of a capital postconviction claim of the
394	person sentenced to death and where such production would not be
395	unduly burdensome for the department. The department shall bear
396	the costs.
397	(4)(a)  The chief law enforcement officer of each law
398	enforcement agency that was involved in the case, whether
399	through an investigation, arrest, prosecution, or incarceration,
400	shall notify the Attorney General upon compliance with
401	subsection (3) and shall certify that to the best of his or her
402	knowledge and belief all public records in possession of the
403	agency or in possession of any employee of the agency have been
404	copied, indexed, and delivered to the records repository or, if
405	the records are confidential or exempt, to the clerk of the
406	court in the county in which the capital case was tried as
407	required by this section.
408	(b)  The prosecuting attorney who prosecuted the case shall
409	provide written notification to the Attorney General upon
410	compliance with subsection (3) and shall certify that to the
411	best of his or her knowledge and belief all public records in
412	his or her possession have been copied, indexed, and delivered
413	to the records repository or, if the records are confidential or
414	exempt, to the clerk of the court in the county in which the
415	capital case was tried as required by this section.
416	(c)  The Secretary of Corrections shall provide written
417	notification to the Attorney General upon compliance with
418	paragraph (3)(c) and shall certify that to the best of his or
419	her knowledge and belief all public records in the department's
420	possession have been copied, indexed, and delivered to the
421	records repository or, if the records are confidential or
422	exempt, to the clerk of the court in the county in which the
423	capital case was tried as required by this section.
424	(5)(a)  Within 60 days after the imposition of a death
425	sentence or upon the effective date of this act with respect to
426	any case in which a death sentence has been imposed but the
427	mandate has not yet been issued in an appeal affirming the
428	sentence, both the public defender or private counsel for the
429	defendant and the prosecuting attorney involved in the case
430	shall provide written notification to the Attorney General of
431	the name and address of any person or agency in addition to
432	those persons and agencies listed in subsection (3) which may
433	have information pertinent to the case unless previously
434	provided to the capital collateral regional counsel or
435	postconviction private counsel. The Attorney General shall
436	promptly provide written notification to each identified person
437	or agency after receiving the information from the public
438	defender, private counsel for the defendant, or prosecuting
439	attorney and shall request that all public records in the
440	possession of the person or agency which pertain to the case be
441	copied, sealed, and delivered to the records repository.
442	(b)  Within 60 days after receiving a request for public
443	records under paragraph (a), the person or agency shall provide
444	written notification to the Attorney General of compliance with
445	this subsection and shall certify that to the best of his or her
446	knowledge and belief all public records requested have been
447	copied, indexed, and delivered to the records repository or, if
448	the records are confidential or exempt, to the clerk of the
449	court in the county in which the capital case was tried.
450	(6)(a)  Any public record under this section which is
451	confidential or exempt from the requirements of s. 119.07(1) and
452	s. 24(a), Art. I of the State Constitution must be separately
453	boxed, without being redacted, and sealed. The box must be
454	delivered to the clerk of court in the county in which the
455	capital case was tried. The outside of the box must clearly
456	identify the public records as exempt, and the seal may not be
457	broken without an order of the trial court. The outside of the
458	box must identify the nature of the public records and the legal
459	basis under which the public records are exempt.
460	(b)  Such a box may be opened only for an inspection by the
461	trial court in camera and only after notice giving the agency
462	the option to have a representative present at the unsealing by
463	the court.
464	(7)(a)  Within 180 days after a capital collateral regional
465	counsel or private counsel is appointed to represent a defendant
466	sentenced to death, or within 30 days after issuance of the
467	Florida Supreme Court's mandate affirming a death sentence,
468	whichever is later, the regional counsel, private counsel, or
469	other counsel who is a member of The Florida Bar and is
470	authorized by such counsel representing a defendant may send a
471	written demand for additional public records to each person or
472	agency submitting public records under subsection (3) and to
473	each person or agency identified as having information pertinent
474	to the case under subsection (5). Should the written demand
475	include requests for records associated with particular named
476	individuals, the written demand shall also include a brief
477	statement describing each named person's role in the case and
478	relationship to the defendant. Race, sex, and date of birth
479	shall also be included in the demand if the public defender,
480	private counsel, or capital collateral regional counsel has such
481	information. Each person or agency notified under this
482	subsection shall, within 60 days after receipt of the written
483	demand, deliver to the records repository or, if the records are
484	confidential or exempt, to the clerk of the court in the county
485	in which the capital case was tried any additional public
486	records in the possession of the person or agency which pertain
487	to the case and shall certify that to the best of his or her
488	knowledge and belief all additional public records have been
489	delivered or, if no additional public records are found, shall
490	recertify that the public records previously delivered are
491	complete.
492	(b)  Within 25 days after receiving the written demand, the
493	agency or person may file an objection in the trial court
494	alleging that the request is overly broad or unduly burdensome.
495	Within 30 days after the filing of an objection, the trial court
496	shall hold a hearing and order an agency or person to produce
497	additional public records if it finds each of the following:
498	1.  The regional counsel or private counsel has made a
499	timely and diligent search as provided in this section.
500	2.  The regional or private counsel's written demand
501	identifies, with specificity, those additional public records
502	that are not at the repository.
503	3.  The additional public records sought are relevant to
504	the subject matter of a capital postconviction relief or appear
505	reasonably calculated to lead to the discovery of admissible
506	evidence in prosecuting such claim.
507	4.  The additional public records request is not overbroad
508	or unduly burdensome.
509	(c)  This statute shall not be a basis for renewing
510	requests that have been initiated previously or for relitigating
511	issues pertaining to production of public records upon which a
512	court has ruled.
513	(d)  If, on June 1, 2006 October 1, 1998, the defendant had
514	a Rule 3.850 motion denied and no Rule 3.850 motion was pending,
515	no additional requests shall be made by capital collateral
516	regional counsel or contracted private counsel until a death
517	warrant is signed by the Governor and an execution is scheduled.
518	Within 10 days of the signing of the death warrant, capital
519	collateral regional counsel or contracted private counsel may
520	request of a person or agency that the defendant has previously
521	requested to produce records any records previously requested to
522	which no objection was raised or sustained, but which the agency
523	has received or produced since the previous request or which for
524	any reason the agency has in its possession and did not produce
525	within 10 days of the receipt of the previous notice or such
526	shorter time period ordered by the court to comply with the time
527	for the scheduled execution. The person or agency shall produce
528	the record or shall file in the trial court an affidavit stating
529	that it does not have the requested record or that the record
530	has been produced previously.
531	(8)(a)  After production of additional public records or
532	recertification as provided in subsection (7), the regional
533	counsel or the private counsel is prohibited from making any
534	further public records requests under this chapter. An agency is
535	not required to produce additional public records except by
536	court order as provided in this subsection.
537	(b)  In order to obtain additional public records beyond
538	those provided under subsection (7), the regional counsel,
539	private counsel, or other counsel who is a member of The Florida
540	Bar and is authorized by the regional counsel or private counsel
541	shall file an affidavit in the trial court which attests that he
542	or she has made a timely and diligent search of the records
543	repository and specifically identifies those additional public
544	records that are not at the repository and are relevant to the
545	subject matter of a capital postconviction claim or are
546	reasonably calculated to lead to the discovery of admissible
547	evidence in the prosecution of such claim. The affiant shall
548	provide a copy of the affidavit to all affected agencies upon
549	the filing of such affidavit in the trial court.
550	(c)  Within 15 days after the filing of an affidavit, the
551	trial court shall order an agency to produce additional public
552	records only if it finds each of the following:
553	1.  The regional counsel or private counsel has made a
554	timely and diligent search as provided in this section.
555	2.  The regional or private counsel's affidavit identifies,
556	with specificity, those additional public records that are not
557	at the repository.
558	3.  The additional public records sought are relevant to
559	the subject matter of a claim for capital postconviction relief
560	or appear reasonably calculated to lead to the discovery of
561	admissible evidence in prosecuting such claim.
562	4.  The additional public records request is not overbroad
563	or unduly burdensome.
564	(9)  The Secretary of State shall provide the personnel,
565	supplies, and any necessary equipment used by the capital
566	collateral regional counsel or private counsel to copy records
567	held at the records repository.
568	(10)  The trial court shall resolve any dispute that arises
569	under this section, unless the appellate court has exclusive
570	jurisdiction.
571	(11)  The capital collateral regional counsel or private
572	counsel shall not solicit another person to make a request for
573	public records on behalf of the regional counsel or private
574	counsel. The trial court shall impose appropriate sanctions
575	against any regional counsel or private counsel found in
576	violation of this subsection.
577	(12)  Sixty days after a capital sentence is carried out,
578	60 days after a defendant is released from incarceration
579	following the granting of a pardon or reversal of the sentence,
580	or 60 days after the defendant has been resentenced to a term of
581	years, the Attorney General shall provide written notification
582	to the Secretary of State, who may then destroy the records held
583	by the records repository which pertain to that case.
584	(13)  This section pertains only to the production of
585	records for capital postconviction defendants and does not
586	change or alter any time limitations provided by law governing
587	capital postconviction claims and actions. Furthermore, this
588	section does not affect, expand, or limit the production of
589	public records for any purposes other than use in a capital
590	postconviction proceeding. Nothing in this section constitutes
591	grounds to expand the time limitations or allow any pleading in
592	violation of chapter 924 or to stay an execution or death
593	warrant.
594	Section 10.  Section 922.095, Florida Statutes, is
595	reenacted to read:
596	922.095  Grounds for death warrant; limitations of
597	actions.--A person who is convicted and sentenced to death must
598	pursue all possible collateral remedies within the time limits
599	provided by statute. Failure to seek relief within the statutory
600	time limits constitutes grounds for issuance of a death warrant
601	under s. 922.052 or s. 922.14. Any claim not pursued within the
602	statutory time limits is barred. No claim filed after the time
603	required by law shall be grounds for a judicial stay of any
604	warrant.
605	Section 11.  Section 922.108, Florida Statutes, is
606	reenacted to read:
607	922.108  Sentencing orders in capital cases.--The sentence
608	of death must not specify any particular method of execution.
609	The wording or form of the sentencing order shall not be grounds
610	for reversal of any sentence.
611	Section 12.  Section 924.055, Florida Statutes, is
612	reenacted to read:
613	924.055  Postconviction review in capital cases;
614	legislative findings and intent.--
615	(1)  It is the intent of the Legislature to reduce delays
616	in capital cases and to ensure that all appeals and
617	postconviction actions in capital cases are resolved within 5
618	years after the date a sentence of death is imposed in the
619	circuit court. All capital postconviction actions must be filed
620	as early as possible after the imposition of a sentence of death
621	which may be during a direct appeal of the conviction and
622	sentence. A person sentenced to death or that person's capital
623	postconviction counsel must file any postconviction legal action
624	in compliance with the statutes of limitation established in s.
625	924.056 and elsewhere in this chapter. Except as expressly
626	allowed by s. 924.056(5), a person sentenced to death or that
627	person's capital postconviction counsel may not file more than
628	one postconviction action in a sentencing court and one appeal
629	therefrom to the Florida Supreme Court, unless authorized by
630	law.
631	(2)  It is the further intent of the Legislature that no
632	state resources be expended in violation of this act. In the
633	event that any state employee or party contracting with the
634	state violates the provisions of this act, the Attorney General
635	shall deliver to the Speaker of the House of Representatives and
636	the President of the Senate a copy of any court pleading or
637	order that describes or adjudicates a violation.
638	Section 13.  Section 924.056, Florida Statutes, is amended
639	to read:
640	924.056  Commencement of capital postconviction actions for
641	which sentence of death is imposed on or after July 1, 2007
642	January 14, 2000; limitations on actions.--
643	(1)  In every capital case in which the trial court imposes
644	a sentence of death on or after the effective date of this act,
645	this section shall govern all postconviction proceedings in
646	state court.
647	(a)  Within 15 days after imposing a sentence of death, the
648	sentencing court shall appoint the appropriate office of the
649	capital collateral regional counsel or private postconviction
650	counsel, unless the defendant declines to accept postconviction
651	legal representation in which case the state shall not provide
652	postconviction legal representation. Within 30 days after the
653	appointment, the capital collateral regional counsel shall file
654	a notice of appearance in the trial court or a motion to
655	withdraw based on a conflict of interest or for good cause. The
656	court shall appoint private counsel pursuant to part IV of
657	chapter 27 in any case in which the capital collateral regional
658	counsel files a motion to withdraw, or otherwise informs the
659	court that the capital collateral regional counsel cannot comply
660	with the provisions of chapter 924 or in which the court
661	determines that the agency cannot comply with chapter 924 or
662	other applicable laws.
663	(b)  The defendant who accepts the appointment of
664	postconviction counsel must cooperate with and assist
665	postconviction counsel. If the sentencing court finds the
666	defendant is obstructing the postconviction process, the
667	defendant shall not be entitled to any further postconviction
668	legal representation provided by the state. Each attorney
669	participating in a capital case on behalf of a defendant must
670	provide all information pertaining to the capital case which the
671	attorney obtained during the representation of that defendant to
672	that defendant's capital postconviction counsel. Postconviction
673	counsel must maintain the confidentiality of any confidential
674	information received from any attorney for that defendant and is
675	subject to the same penalties as the providing attorney for
676	violating confidentiality. If the defendant requests without
677	good cause that any attorney appointed under this subsection be
678	removed or replaced, the court shall notify the defendant that
679	no further state resources may be expended for postconviction
680	representation for that defendant, unless the defendant
681	withdraws the request to remove or replace postconviction
682	counsel. If the defendant does not immediately withdraw his or
683	her request, then any appointed attorney must be removed from
684	the case and no further state resources may be expended for the
685	defendant's postconviction representation. The prosecuting
686	attorney and the defendant's trial counsel shall provide the
687	defendant or, if represented, the defendant's capital
688	postconviction counsel with copies of all pretrial and trial
689	discovery and all contents of the prosecuting attorney's file,
690	except for information that the prosecuting attorney has a legal
691	right under state or federal law to withhold from disclosure.
692	(2)  The clerk of the court shall provide a copy of the
693	record on appeal to the capital postconviction attorney and the
694	state attorney and Attorney General within 60 days after the
695	sentencing court appoints postconviction counsel. However, the
696	court may grant an extension of up to 30 days when extraordinary
697	circumstances exist.
698	(3)(a)  With respect to all capital postconviction actions
699	commenced after the effective date of this act, a capital
700	postconviction action is not commenced until the defendant or
701	the defendant's postconviction counsel files a fully pled
702	postconviction action in the sentencing court or, as provided in
703	subsection (4), the Florida Supreme Court. For the purposes of
704	this subsection, a fully pled capital postconviction action is
705	one which complies with s. 924.058(2) or any superseding rule
706	adopted by the Florida Supreme Court. Except as provided by
707	subsection (4) or subsection (5), all capital postconviction
708	actions shall be barred unless they are commenced within 180
709	days after the filing of the appellant's initial brief in the
710	Florida Supreme Court on direct appeal of the defendant's
711	capital conviction and sentence. The fully pled postconviction
712	action must raise all cognizable claims that the defendant's
713	judgment or sentence was entered in violation of the
714	Constitution or laws of the United States or the Constitution or
715	the laws of the state, including any claim of ineffective
716	assistance of trial counsel, allegations of innocence, or that
717	the state withheld evidence favorable to the defendant. No claim
718	may be considered in such action which could have or should have
719	been raised before trial, at trial, or if preserved on direct
720	appeal. For the purposes of this subsection, a capital
721	postconviction action is not fully pled unless it satisfies the
722	requirements of s. 924.058(2) or any superseding rule of court.
723	(b)  No claim of ineffective assistance of collateral
724	postconviction counsel may be raised in a state court.
725	(c)  The pendency of public records requests or litigation,
726	or the pendency of other litigation, or the failure of the
727	defendant or the defendant's postconviction counsel to timely
728	prosecute a case shall not constitute cause for the court to
729	grant any request for an extension of time or other delay. No
730	appeal may be taken from a court's ruling denying such a request
731	for an extension of time or other delay.
732	(d)  The time for commencement of the postconviction action
733	may not be tolled for any reason or cause. All claims raised by
734	amendment of a defendant's capital postconviction action are
735	barred if the claims are raised outside the time limitations
736	provided by statute for the filing of capital postconviction
737	actions.
738	(4)  All capital postconviction actions raising any claim
739	of ineffective assistance of direct appeal counsel are barred
740	unless they are commenced in conformity with this subsection.
741	The defendant or the defendant's capital postconviction counsel
742	shall file an action in the Florida Supreme Court raising any
743	claim of ineffective assistance of direct appeal counsel within
744	45 days after mandate issues affirming the death sentence in the
745	direct appeal.
746	(5)  Regardless of when a sentence is imposed, all
747	successive capital postconviction actions are barred unless
748	commenced by filing a fully pled postconviction action within 90
749	days after the facts giving rise to the cause of action were
750	discovered or should have been discovered with the exercise of
751	due diligence. Such claim shall be barred pursuant to subsection
752	(3) or s. 924.057 unless the facts underlying the claim, if
753	proven and viewed in light of the evidence as a whole, would be
754	sufficient to establish by clear and convincing evidence that,
755	but for constitutional error, no reasonable fact finder would
756	have found the defendant guilty of the underlying offense.
757	Additionally, the facts underlying this claim must have been
758	unknown to the defendant or his or her attorney and must be such
759	that they could not have been ascertained by the exercise of due
760	diligence prior to filing the earlier postconviction motion. The
761	time period allowed for filing a successive collateral
762	postconviction action shall not be grounds for a stay.
763	Section 14.  Section 924.057, Florida Statutes, is amended
764	to read:
765	924.057  Limitation on postconviction cases in which the
766	death sentence was imposed before July 1, 2007 January 14,
767	2000.--This section shall govern all capital postconviction
768	actions in cases in which the trial court imposed the sentence
769	of death before the effective date of this act.
770	(1)  Nothing in this act shall expand any right or time
771	period allowed for the prosecution of capital postconviction
772	claims in any case in which a postconviction action was
773	commenced or should have been commenced prior to the effective
774	date of this act.
775	(2)  Except as provided in s. 924.056(5), in every case in
776	which mandate has issued in the Florida Supreme Court concluding
777	at least one capital postconviction action in the state court
778	system, a successive capital postconviction action shall be
779	barred on the effective date of this act, unless the rules or
780	law in effect immediately prior to the effective date of this
781	act permitted the successive postconviction action, in which
782	case the action shall be barred on the date provided in
783	subsection (4).
784	(3)  All capital postconviction actions pending on the
785	effective date of this act shall be barred, and shall be
786	dismissed with prejudice, unless fully pled in substantial
787	compliance with s. 924.058, or with any pending superseding
788	order or rule, on or before:
789	(a)  The time in which the action would be barred by this
790	section if the action had not begun prior to the effective date
791	of this act, or
792	(b)  Any earlier date provided by the rules or law, or
793	court order, in effect immediately prior to the effective date
794	of this act.
795	(4)  In every capital case in which the trial court imposed
796	the sentence of death before the effective date of this act, a
797	capital postconviction action shall be barred unless it is
798	commenced on or before July 1, 2008 January 8, 2001, or any
799	earlier date provided by the rule or law in effect immediately
800	prior to July 1, 2007 the effective date of this act.
801	Section 15.  Section 924.058, Florida Statutes, is amended
802	to read:
803	924.058  Capital postconviction claims.--This section shall
804	regulate the procedures in actions for capital postconviction
805	relief commencing after July 1, 2007 the effective date of this
806	act unless and until such procedures are revised by rule or
807	rules adopted by the Florida Supreme Court which specifically
808	reference this section.
809	(1)  The defendant or the defendant's capital
810	postconviction counsel shall not file more than one capital
811	postconviction action in the sentencing court, one appeal
812	therefrom in the Florida Supreme Court, and one original capital
813	postconviction action alleging the ineffectiveness of direct
814	appeal counsel in the Florida Supreme Court, except as expressly
815	allowed by s. 924.056(5).
816	(2)  The defendant's postconviction action shall be filed
817	under oath and shall be fully pled to include:
818	(a)  The judgment or sentence under attack and the court
819	which rendered the same;
820	(b)  A statement of each issue raised on appeal and the
821	disposition thereof;
822	(c)  Whether a previous postconviction action has been
823	filed and, if so, the disposition of all previous claims raised
824	in postconviction litigation; if a previous action or actions
825	have been filed, the reason or reasons the claim or claims in
826	the present motion were not raised in the former action or
827	actions;
828	(d)  The nature of the relief sought;
829	(e)  A fully detailed allegation of the factual basis for
830	any claim of legal or constitutional error asserted, including
831	the attachment of any document supporting the claim, the name
832	and address of any witness, the attachment of affidavits of the
833	witnesses or a proffer of the testimony; and
834	(f)  A concise memorandum of applicable case law as to each
835	claim asserted.
836	(3)  Any capital postconviction action that does not comply
837	with any requirement in this section or other applicable
838	provision in law shall not be considered in any state court. No
839	amendment of a defendant's capital postconviction action shall
840	be allowed by the court after the expiration of the time
841	limitation provided by statute for the commencement of capital
842	postconviction actions.
843	(4)  The prosecuting attorney or Attorney General shall be
844	allowed to file one response to any capital postconviction
845	action within 60 days after receipt of the defendant's fully
846	pled capital postconviction action.
847	Section 16.  Section 924.059, Florida Statutes, is amended
848	to read:
849	924.059  Time limitations and judicial review in capital
850	postconviction actions.--This section shall regulate the
851	procedures in actions for capital postconviction relief
852	commencing after July 1, 2007 the effective date of this act
853	unless and until such procedures are revised by rule or rules
854	adopted by the Florida Supreme Court which specifically
855	reference this section.
856	(1)  No amendment of a defendant's capital postconviction
857	action shall be allowed by the court after the expiration of the
858	time periods provided by statute for the filing of capital
859	postconviction claims.
860	(2)  Within 30 days after the state files its answer, the
861	sentencing court shall conduct a hearing to determine if an
862	evidentiary hearing is required, if a hearing has been requested
863	by the defendant or the defendant's capital postconviction
864	counsel. Within 30 days thereafter, the court shall rule whether
865	an evidentiary hearing is required and, if so, shall schedule an
866	evidentiary hearing to be held within 90 days. If the court
867	determines that the defendant's capital postconviction action is
868	legally insufficient or the action, files, and records in the
869	case show that the defendant is not entitled to relief, the
870	court shall, within 45 days thereafter, deny the action, setting
871	forth a detailed rationale therefore, and attaching or
872	referencing such portions of the record as are necessary to
873	allow for meaningful appellate review.
874	(3)  Within 10 days after the order scheduling an
875	evidentiary hearing, the defendant or the defendant's capital
876	postconviction counsel shall disclose the names and addresses of
877	any potential witnesses not previously disclosed, with their
878	affidavits or a proffer of their testimony. Upon receipt of the
879	defendant's disclosure, the state shall have 10 days within
880	which to provide reciprocal disclosure. If the defendant intends
881	to offer expert testimony of his or her mental status, the state
882	shall be entitled to have the defendant examined by an expert of
883	its choosing. All of the defendant's mental status claims shall
884	be deemed denied as a matter of law if the defendant fails to
885	cooperate with the state's expert. Reports provided by expert
886	witnesses shall be disclosed by opposing counsel upon receipt.
887	(4)  Following the evidentiary hearing, the court shall
888	order the transcription of the proceeding which shall be filed
889	within 30 days. Within 30 days after receipt of the transcript,
890	the sentencing court shall issue a final order granting or
891	denying postconviction relief, making detailed findings of fact
892	and conclusions of law with respect to any allegation asserted.
893	(5)  An appeal may be taken to the Supreme Court of Florida
894	within 15 days from the entry of a final order on a capital
895	postconviction action. No interlocutory appeal shall be
896	permitted. No motion for rehearing shall be permitted. The clerk
897	of the court shall promptly serve upon all parties a copy of the
898	final order.
899	(6)  If the sentencing court has denied the capital
900	postconviction action without an evidentiary hearing, the appeal
901	to the Florida Supreme Court will be expeditiously resolved in a
902	summary fashion. On appeal, the case shall be initially reviewed
903	for a determination whether the sentencing court correctly
904	resolved the defendant's claims without an evidentiary hearing.
905	If the Florida Supreme Court determines an evidentiary hearing
906	should have been held, the decision to remand for an evidentiary
907	hearing may be made by an order without an opinion. Jurisdiction
908	shall be relinquished to the trial court for a specified period,
909	which must be scheduled within 30 days and must be concluded
910	within 90 days, for the purpose of conducting an evidentiary
911	hearing on any issue identified by the Florida Supreme Court's
912	order. Thereafter, the record shall be supplemented with the
913	hearing transcript.
914	(7)  The Florida Supreme Court shall render its decision
915	within 180 days after receipt of the record on appeal. If a
916	denial of an action for postconviction relief is affirmed, the
917	Governor may proceed to issue a warrant for execution.
918	(8)  A capital postconviction action filed in violation of
919	the time limitations provided by statute is barred, and all
920	claims raised therein are waived. A state court shall not
921	consider any capital postconviction action filed in violation of
922	s. 924.056 or s. 924.057. The Attorney General shall deliver to
923	the Governor, the President of the Senate, and the Speaker of
924	the House of Representatives a copy of any pleading or order
925	that alleges or adjudicates any violation of this provision.
926	Section 17.  Section 924.395, Florida Statutes, is
927	reenacted to read:
928	924.395  Sanctions.--
929	(1)  The Legislature strongly encourages the courts,
930	through their inherent powers and pursuant to this section, to
931	impose sanctions against any person within the court's
932	jurisdiction who is found by a court, in a capital
933	postconviction proceeding or appeal therefrom, to have:
934	(a)  Abused a petition for extraordinary relief,
935	postconviction motion, or appeal therefrom;
936	(b)  Raised a claim that a court has found to be frivolous
937	or procedurally barred or that should have been raised on the
938	direct appeal;
939	(c)  Improperly withheld evidence or testimony; or
940	(d)  Adversely affected the orderly administration of
941	justice.
942	(2)  Sanctions the court may and should consider, when
943	applicable and appropriate in a case, include, but are not
944	limited to:
945	(a)  Dismissal of a pleading;
946	(b)  Disciplinary sanctions;
947	(c)  A fine; and
948	(d)  Any other sanction that is available to the court
949	under its inherent powers.
950	Section 18.  Rule 3.850, Florida Rules of Criminal
951	Procedure, is repealed to the extent inconsistent with this act.
952	Rule 3.851, Florida Rules of Criminal Procedure is repealed to
953	the extent inconsistent with this act. Rule 3.852, Florida Rules
954	of Criminal Procedure, is repealed.
955	Section 19.  If any provision of this act or the
956	application thereof to any person or circumstance is held
957	invalid, the invalidity does not affect other provisions or
958	applications of the act which can be given effect without the
959	invalid provision or application, and to this end the provisions
960	of this act are declared severable.
961	Section 20.  This act shall take effect July 1, 2007,
962	contingent upon voter approval of HJR 1007 in the General
963	Election of 2006, but section 18 shall take effect only if this
964	act is passed by the affirmative vote of two-thirds of the
965	membership of each house of the Legislature.

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