| 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. |