1 | A bill to be entitled |
2 | An act relating to capital collateral representation; |
3 | amending s. 27.709, F.S.; providing for the Commission on |
4 | Capital Cases to undertake certain projects and |
5 | authorizing it to sponsor certain continuing legal |
6 | education classes; amending s. 27.710, F.S.; revising |
7 | provisions relating to continuing legal education |
8 | requirements for attorneys on the registry of attorneys |
9 | applying to represent persons in postconviction capital |
10 | collateral proceedings; providing for the removal of |
11 | appointed attorneys who fail to sign contracts or submit |
12 | specified reports; requiring an appointed attorney who |
13 | does not wish to continue representation at the federal |
14 | level to make reasonable efforts to assist the client in |
15 | finding replacement counsel; amending s. 27.711, F.S.; |
16 | providing for payment of attorneys after a final hearing, |
17 | rather than after a final order; providing for additional |
18 | payments to attorneys; increasing the maximum number of |
19 | inmates that may be represented by a capital collateral |
20 | attorney; providing an effective date. |
21 |
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22 | Be It Enacted by the Legislature of the State of Florida: |
23 |
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24 | Section 1. Subsection (2) of section 27.709, Florida |
25 | Statutes, is amended to read: |
26 | 27.709 Commission on Capital Cases.-- |
27 | (2) The commission shall: |
28 | (a) The commission shall Review the administration of |
29 | justice in capital collateral cases, receive relevant public |
30 | input, review the operation of the capital collateral regional |
31 | counsel and private counsel appointed pursuant to ss. 27.710 and |
32 | 27.711, and advise and make recommendations to the Governor, |
33 | Legislature, and Supreme Court. |
34 | (b) As part of its duties, the commission shall Compile |
35 | and analyze case-tracking reports produced by the Supreme Court. |
36 | In analyzing these reports, the commission shall develop |
37 | statistics to identify trends and changes in case management and |
38 | case processing, identify and evaluate unproductive points of |
39 | delay, and generally evaluate the way cases are progressing. The |
40 | commission shall report these findings to the Legislature by |
41 | January 1 of each year. |
42 | (c) In addition, the commission shall Receive complaints |
43 | regarding the practice of any office of regional counsel and |
44 | private counsel appointed pursuant to ss. 27.710 and 27.711 and |
45 | shall refer any complaint to The Florida Bar, the State Supreme |
46 | Court, or the Commission on Ethics, as appropriate. |
47 | (d) Undertake any project recommended or approved by the |
48 | appointed commission members. |
49 | (e) Have the authority to sponsor continuing legal |
50 | education training devoted specifically to capital cases. |
51 | Section 2. Subsections (1), (2), (3), (4), and (5) of |
52 | section 27.710, Florida Statutes, are amended to read: |
53 | 27.710 Registry of attorneys applying to represent persons |
54 | in postconviction capital collateral proceedings; certification |
55 | of minimum requirements; appointment by trial court.-- |
56 | (1) The executive director of the Commission on Capital |
57 | Cases shall compile and maintain a statewide registry of |
58 | attorneys in private practice who have certified that they meet |
59 | the minimum requirements of s. 27.704(2), who are available for |
60 | appointment by the court under this section to represent persons |
61 | convicted and sentenced to death in this state in postconviction |
62 | collateral proceedings, and who have attended at least 12 hours |
63 | of continuing legal education within the last 2 years year a |
64 | continuing legal education program of at least 10 hours' |
65 | duration devoted specifically to the defense of capital cases, |
66 | if available. Every 2 years, attorneys who satisfy the minimum |
67 | requirements of s. 27.704(2) and who are handling a capital case |
68 | shall be required to attend at least 12 hours of continuing |
69 | legal education. Continuing legal education programs meeting the |
70 | requirements of this rule offered by The Florida Bar or another |
71 | recognized provider and approved for continuing legal education |
72 | credit by The Florida Bar shall satisfy this requirement. The |
73 | failure to comply with this requirement may be cause for removal |
74 | from the list until the requirement is fulfilled. To ensure that |
75 | sufficient attorneys are available for appointment by the court, |
76 | when the number of attorneys on the registry falls below 50, the |
77 | executive director shall notify the chief judge of each circuit |
78 | by letter and request the chief judge to promptly submit the |
79 | names of at least three private attorneys who regularly practice |
80 | criminal law in that circuit and who appear to meet the minimum |
81 | requirements to represent persons in postconviction capital |
82 | collateral proceedings. The executive director shall send an |
83 | application to each attorney identified by the chief judge so |
84 | that the attorney may register for appointment as counsel in |
85 | postconviction capital collateral proceedings. As necessary, the |
86 | executive director may also advertise in legal publications and |
87 | other appropriate media for qualified attorneys interested in |
88 | registering for appointment as counsel in postconviction capital |
89 | collateral proceedings. Not later than September 1 of each year, |
90 | and as necessary thereafter, the executive director shall |
91 | provide to the Chief Justice of the Supreme Court, the chief |
92 | judge and state attorney in each judicial circuit, and the |
93 | Attorney General a current copy of its registry of attorneys who |
94 | are available for appointment as counsel in postconviction |
95 | capital collateral proceedings. The registry must be indexed by |
96 | judicial circuit and must contain the requisite information |
97 | submitted by the applicants in accordance with this section. |
98 | (2) To be eligible for court appointment as counsel in |
99 | postconviction capital collateral proceedings, an attorney must |
100 | certify on an application provided by the executive director |
101 | that he or she satisfies the minimum requirements for private |
102 | counsel set forth in subsection (1) and s. 27.704(2). |
103 | Satisfaction of the minimum requirements must be proven by |
104 | written notification to the commission. The certification |
105 | requirement shall be satisfied upon the submission of the |
106 | application by electronic mail without a signature. |
107 | (3) An attorney who applies for registration and court |
108 | appointment as counsel in postconviction capital collateral |
109 | proceedings must certify that he or she is counsel of record in |
110 | not more than four such proceedings and, if appointed to |
111 | represent a person in postconviction capital collateral |
112 | proceedings, shall continue such representation under the terms |
113 | and conditions set forth in s. 27.711 until the sentence is |
114 | reversed, reduced, or carried out or unless permitted to |
115 | withdraw from representation by the trial court. The court may |
116 | not permit an attorney to withdraw from representation without a |
117 | finding of sufficient good cause. The court may impose |
118 | appropriate sanctions if it finds that an attorney has shown bad |
119 | faith with respect to continuing to represent a defendant in a |
120 | postconviction capital collateral proceeding. This section does |
121 | not preclude the court from reassigning a case to a capital |
122 | collateral regional counsel following discontinuation of |
123 | representation if a conflict of interest no longer exists with |
124 | respect to the case. |
125 | (4) Each private attorney who is appointed by the court to |
126 | represent a capital defendant must enter into a contract with |
127 | the Chief Financial Officer. If the appointed attorney fails to |
128 | execute the contract within 30 days after the date the contract |
129 | is mailed to the attorney, the executive director of the |
130 | Commission on Capital Cases shall notify the trial court. If the |
131 | attorney fails to execute the contract within 30 days after the |
132 | executive director's notification, the trial court shall remove |
133 | the attorney from the case, and the executive director shall |
134 | remove the attorney from the registry without awarding any |
135 | attorney's fees. The Chief Financial Officer shall develop the |
136 | form of the contract, function as contract manager, and enforce |
137 | performance of the terms and conditions of the contract. By |
138 | signing such contract, the attorney certifies that he or she |
139 | intends to continue the representation under the terms and |
140 | conditions set forth in the contract until the sentence is |
141 | reversed, reduced, or carried out or until released by order of |
142 | the trial court. Additionally, the attorney shall agree to |
143 | submit quarterly reports to the Commission on Capital Cases in a |
144 | consistent format designated by the commission. If the appointed |
145 | attorney fails to submit a quarterly report within 30 days |
146 | following the end of the quarter, the executive director shall |
147 | notify the trial court and the attorney. If the attorney does |
148 | not submit the requested quarterly report within 30 days after |
149 | the executive director's notice, the attorney shall be removed |
150 | from the case by the trial court and from the registry by the |
151 | executive director. |
152 | (5)(a) Upon the motion of the capital collateral regional |
153 | counsel to withdraw pursuant to s. 924.056(1)(a); or |
154 | (b) Upon notification by the state attorney or the |
155 | Attorney General that: |
156 | 1. Thirty days have elapsed since appointment of the |
157 | capital collateral regional counsel and no entry of appearance |
158 | has been filed pursuant to s. 924.056; or |
159 | 2. A person under sentence of death who was previously |
160 | represented by private counsel is currently unrepresented in a |
161 | postconviction capital collateral proceeding, |
162 |
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163 | the executive director shall immediately notify the trial court |
164 | that imposed the sentence of death that the court must |
165 | immediately appoint an attorney, selected from the current |
166 | registry, to represent such person in collateral actions |
167 | challenging the legality of the judgment and sentence in the |
168 | appropriate state and federal courts. If the appointed attorney |
169 | does not wish to continue representation at the federal level, |
170 | the appointed attorney shall make reasonable efforts to assist |
171 | the client in finding replacement counsel who meets the federal |
172 | requirements to represent a capital defendant in federal |
173 | proceedings. The court shall have the authority to strike a |
174 | notice of appearance filed by a Capital Collateral Regional |
175 | Counsel, if the court finds the notice was not filed in good |
176 | faith and may so notify the executive director that the client |
177 | is no longer represented by the Office of Capital Collateral |
178 | Regional Counsel. In making an assignment, the court shall give |
179 | priority to attorneys whose experience and abilities in criminal |
180 | law, especially in capital proceedings, are known by the court |
181 | to be commensurate with the responsibility of representing a |
182 | person sentenced to death. The trial court must issue an order |
183 | of appointment which contains specific findings that the |
184 | appointed counsel meets the statutory requirements and has the |
185 | high ethical standards necessary to represent a person sentenced |
186 | to death. |
187 | Section 3. Paragraphs (c) and (g) of subsection (4) and |
188 | subsections (7) and (9) of section 27.711, Florida Statutes, are |
189 | amended, and paragraph (i) is added to subsection (4) of said |
190 | section, to read: |
191 | 27.711 Terms and conditions of appointment of attorneys as |
192 | counsel in postconviction capital collateral proceedings.-- |
193 | (4) Upon approval by the trial court, an attorney |
194 | appointed to represent a capital defendant under s. 27.710 is |
195 | entitled to payment of the following fees by the Chief Financial |
196 | Officer: |
197 | (c) The attorney is entitled to $100 per hour, up to a |
198 | maximum of $20,000, after the final hearing on trial court |
199 | issues a final order granting or denying the capital defendant's |
200 | motion for postconviction relief. |
201 | (g) At the conclusion of the capital defendant's |
202 | postconviction capital collateral proceedings in state court, |
203 | the attorney is entitled to $100 per hour, up to a maximum of |
204 | $2,500, after filing a petition for writ of habeas corpus |
205 | pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court of |
206 | the United States. |
207 | (i) The attorney is entitled to $100 per hour, up to a |
208 | maximum of $16,000, as a supplement to attorney's fees in |
209 | paragraphs (a)-(h) if those paragraphs do not provide adequate |
210 | compensation. |
211 |
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212 | The hours billed by a contracting attorney under this subsection |
213 | may include time devoted to representation of the defendant by |
214 | another attorney who is qualified under s. 27.710 and who has |
215 | been designated by the contracting attorney to assist him or |
216 | her. |
217 | (7) Each registry An attorney handling at least one |
218 | capital case, regardless of the total number of capital |
219 | defendants he or she is representing, who is actively |
220 | representing a capital defendant is entitled to a maximum of |
221 | $500 per fiscal year for tuition and expenses for continuing |
222 | legal education that pertains to the representation of capital |
223 | defendants. Upon approval by the trial court, the attorney is |
224 | entitled to payment by the Chief Financial Officer for expenses |
225 | for such tuition and continuing legal education. |
226 | (9) An attorney may not represent more than 10 inmates |
227 | five defendants in capital postconviction litigation at any one |
228 | time. |
229 | Section 4. This act shall take effect July 1, 2005. |