HB 1637CS

CHAMBER ACTION



1The Criminal Justice Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to capital collateral representation;
7amending s. 27.709, F.S.; authorizing the Commission on
8Capital Cases to sponsor certain continuing legal
9education classes; amending s. 27.710, F.S.; revising
10provisions relating to continuing legal education
11requirements for attorneys on the registry of attorneys
12applying to represent persons in postconviction capital
13collateral proceedings; providing for minimum
14qualification of attorneys on the registry; providing for
15notification of court when appointed attorneys fail to
16submit specified reports; requiring an appointed attorney
17who does not wish to continue representation at the
18federal level to make reasonable efforts to assist the
19client in finding replacement counsel; amending s. 27.711,
20F.S.; providing for payment of attorneys after a final
21hearing, rather than after a final order; providing for
22additional payments to attorneys; increasing the maximum
23number of inmates that may be represented by a capital
24collateral attorney; providing an effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Subsection (2) of section 27.709, Florida
29Statutes, is amended to read:
30     27.709  Commission on Capital Cases.--
31     (2)  The commission shall:
32     (a)  The commission shall Review the administration of
33justice in capital collateral cases, receive relevant public
34input, review the operation of the capital collateral regional
35counsel and private counsel appointed pursuant to ss. 27.710 and
3627.711, and advise and make recommendations to the Governor,
37Legislature, and Supreme Court.
38     (b)  As part of its duties, the commission shall Compile
39and analyze case-tracking reports produced by the Supreme Court.
40In analyzing these reports, the commission shall develop
41statistics to identify trends and changes in case management and
42case processing, identify and evaluate unproductive points of
43delay, and generally evaluate the way cases are progressing. The
44commission shall report these findings to the Legislature by
45January 1 of each year.
46     (c)  In addition, the commission shall Receive complaints
47regarding the practice of any office of regional counsel and
48private counsel appointed pursuant to ss. 27.710 and 27.711 and
49shall refer any complaint to The Florida Bar, the State Supreme
50Court, or the Commission on Ethics, as appropriate.
51     (d)  Have the authority to sponsor continuing legal
52education training devoted specifically to capital cases.
53     Section 2.  Section 27.710, Florida Statutes, is amended to
54read:
55     27.710  Registry of attorneys applying to represent persons
56in postconviction capital collateral proceedings; certification
57of minimum requirements; appointment by trial court.--
58     (1)  The executive director of the Commission on Capital
59Cases shall compile and maintain a statewide registry of
60attorneys in private practice who have certified that they meet
61the minimum requirements of s. 27.704(2), who are available for
62appointment by the court under this section to represent persons
63convicted and sentenced to death in this state in postconviction
64collateral proceedings, and who have attended at least 12 hours
65of continuing legal education within the last 2 years year a
66continuing legal education program of at least 10 hours'
67duration devoted specifically to the defense of capital cases,
68if available. Every 2 years, attorneys who satisfy the minimum
69requirements of s. 27.704(2) and who are handling a capital case
70shall be required to attend at least 12 hours of continuing
71legal education. Continuing legal education programs meeting the
72requirements of this rule offered by The Florida Bar or another
73recognized provider and approved for continuing legal education
74credit by The Florida Bar shall satisfy this requirement. The
75failure to comply with this requirement may be cause for removal
76from the list until the requirement is fulfilled. To ensure that
77sufficient attorneys are available for appointment by the court,
78when the number of attorneys on the registry falls below 50, the
79executive director shall notify the chief judge of each circuit
80by letter and request the chief judge to promptly submit the
81names of at least three private attorneys who regularly practice
82criminal law in that circuit and who appear to meet the minimum
83requirements to represent persons in postconviction capital
84collateral proceedings. The executive director shall send an
85application to each attorney identified by the chief judge so
86that the attorney may register for appointment as counsel in
87postconviction capital collateral proceedings. As necessary, the
88executive director may also advertise in legal publications and
89other appropriate media for qualified attorneys interested in
90registering for appointment as counsel in postconviction capital
91collateral proceedings. Not later than September 1 of each year,
92and as necessary thereafter, the executive director shall
93provide to the Chief Justice of the Supreme Court, the chief
94judge and state attorney in each judicial circuit, and the
95Attorney General a current copy of its registry of attorneys who
96are available for appointment as counsel in postconviction
97capital collateral proceedings. The registry must be indexed by
98judicial circuit and must contain the requisite information
99submitted by the applicants in accordance with this section.
100     (2)  To be eligible for court appointment as counsel in
101postconviction capital collateral proceedings, an attorney must
102certify on an application provided by the executive director
103that he or she:
104     (a)  Is familiar with the production of evidence and use of
105expert witnesses, including psychiatric and forensic evidence.
106     (b)  Has demonstrated proficiency necessary for
107representation in capital cases, including the investigation and
108presentation of mitigation evidence.
109     (c)  Satisfies the minimum requirements for private counsel
110set forth in subsection (1) and has 5 years' experience in
111felony criminal law practice, which must have included serving
112as lead or co-counsel in either: s. 27.704(2).
113     1.  Nine state or federal criminal jury trials tried to
114completion, of which two were capital trials and three were
115murder trials or one murder trial and five felony trials or one
116postconviction evidentiary hearing and five felony trials; or
117     2.  One capital appeal and no fewer than three felony
118appeals, of which one was a murder appeal; or six felony
119appeals, of which two were murder appeals; or one capital
120postconviction evidentiary hearing and three felony appeals.
121     (3)  Satisfaction of the minimum requirements must be
122proven by written notification to the commission. The
123certification requirement shall be satisfied upon the submission
124of the application by electronic mail without a signature.
125     (4)  In the event the trial court determines that
126exceptional circumstances require appointment of counsel not
127meeting the requirements of this section, the trial court may
128appoint that person and shall enter an order specifying, in
129writing, the exceptional circumstances requiring deviation from
130this section and the court's explicit determination that counsel
131chosen will provide competent representation in accord with the
132policy concerns of this section.
133     (5)(3)  An attorney who applies for registration and court
134appointment as counsel in postconviction capital collateral
135proceedings must certify that he or she is counsel of record in
136not more than four such proceedings and, if appointed to
137represent a person in postconviction capital collateral
138proceedings, shall continue such representation under the terms
139and conditions set forth in s. 27.711 until the sentence is
140reversed, reduced, or carried out or unless permitted to
141withdraw from representation by the trial court. The court may
142not permit an attorney to withdraw from representation without a
143finding of sufficient good cause. The court may impose
144appropriate sanctions if it finds that an attorney has shown bad
145faith with respect to continuing to represent a defendant in a
146postconviction capital collateral proceeding. This section does
147not preclude the court from reassigning a case to a capital
148collateral regional counsel following discontinuation of
149representation if a conflict of interest no longer exists with
150respect to the case.
151     (6)(4)  Each private attorney who is appointed by the court
152to represent a capital defendant must enter into a contract with
153the Chief Financial Officer. If the appointed attorney fails to
154execute the contract within 30 days after the date the contract
155is mailed to the attorney, the executive director of the
156Commission on Capital Cases shall notify the trial court. The
157Chief Financial Officer shall develop the form of the contract,
158function as contract manager, and enforce performance of the
159terms and conditions of the contract. By signing such contract,
160the attorney certifies that he or she intends to continue the
161representation under the terms and conditions set forth in the
162contract until the sentence is reversed, reduced, or carried out
163or until released by order of the trial court. Additionally, the
164attorney shall agree to submit quarterly reports to the
165Commission on Capital Cases in a consistent format designated by
166the commission. If the appointed attorney fails to submit a
167quarterly report within 30 days following the end of the
168quarter, the executive director shall notify the trial court and
169the attorney.
170     (7)(5)(a)  Upon the motion of the capital collateral
171regional counsel to withdraw pursuant to s. 924.056(1)(a); or
172     (b)  Upon notification by the state attorney or the
173Attorney General that:
174     1.  Thirty days have elapsed since appointment of the
175capital collateral regional counsel and no entry of appearance
176has been filed pursuant to s. 924.056; or
177     2.  A person under sentence of death who was previously
178represented by private counsel is currently unrepresented in a
179postconviction capital collateral proceeding,
180
181the executive director shall immediately notify the trial court
182that imposed the sentence of death that the court must
183immediately appoint an attorney, selected from the current
184registry, to represent such person in collateral actions
185challenging the legality of the judgment and sentence in the
186appropriate state and federal courts. If the appointed attorney
187does not wish to continue representation at the federal level,
188the appointed attorney shall make reasonable efforts to assist
189the client in finding replacement counsel who meets the federal
190requirements to represent a capital defendant in federal
191proceedings. The court shall have the authority to strike a
192notice of appearance filed by a Capital Collateral Regional
193Counsel, if the court finds the notice was not filed in good
194faith and may so notify the executive director that the client
195is no longer represented by the Office of Capital Collateral
196Regional Counsel. In making an assignment, the court shall give
197priority to attorneys whose experience and abilities in criminal
198law, especially in capital proceedings, are known by the court
199to be commensurate with the responsibility of representing a
200person sentenced to death. The trial court must issue an order
201of appointment which contains specific findings that the
202appointed counsel meets the statutory requirements and has the
203high ethical standards necessary to represent a person sentenced
204to death.
205     (8)(6)  More than one attorney may not be appointed and
206compensated at any one time under s. 27.711 to represent a
207person in postconviction capital collateral proceedings.
208However, an attorney appointed under this section may designate
209another attorney to assist him or her if the designated attorney
210meets the qualifications of this section.
211     Section 3.  Subsections (4), (7), and (9) of section
21227.711, Florida Statutes, are amended to read:
213     27.711  Terms and conditions of appointment of attorneys as
214counsel in postconviction capital collateral proceedings.--
215     (4)  Upon approval by the trial court, an attorney
216appointed to represent a capital defendant under s. 27.710 is
217entitled to payment of the following fees by the Chief Financial
218Officer:
219     (a)  Regardless of the stage of postconviction capital
220collateral proceedings, the attorney is entitled to $100 per
221hour, up to a maximum of $2,500, after accepting appointment and
222filing a notice of appearance.
223     (b)  The attorney is entitled to $100 per hour, up to a
224maximum of $20,000, after timely filing in the trial court the
225capital defendant's complete original motion for postconviction
226relief under the Florida Rules of Criminal Procedure. The motion
227must raise all issues to be addressed by the trial court.
228However, an attorney is entitled to fees under this paragraph if
229the court schedules a hearing on a matter that makes the filing
230of the original motion for postconviction relief unnecessary or
231if the court otherwise disposes of the case.
232     (c)  The attorney is entitled to $100 per hour, up to a
233maximum of $20,000, after the final hearing on trial court
234issues a final order granting or denying the capital defendant's
235motion for postconviction relief.
236     (d)  The attorney is entitled to $100 per hour, up to a
237maximum of $20,000, after timely filing in the Supreme Court the
238capital defendant's brief or briefs that address the trial
239court's final order granting or denying the capital defendant's
240motion for postconviction relief and the state petition for writ
241of habeas corpus.
242     (e)  The attorney is entitled to $100 per hour, up to a
243maximum of $10,000, after the trial court issues an order,
244pursuant to a remand from the Supreme Court, which directs the
245trial court to hold further proceedings on the capital
246defendant's motion for postconviction relief.
247     (f)  The attorney is entitled to $100 per hour, up to a
248maximum of $4,000, after the appeal of the trial court's denial
249of the capital defendant's motion for postconviction relief and
250the capital defendant's state petition for writ of habeas corpus
251become final in the Supreme Court.
252     (g)  At the conclusion of the capital defendant's
253postconviction capital collateral proceedings in state court,
254the attorney is entitled to $100 per hour, up to a maximum of
255$2,500, after filing a petition for writ of habeas corpus
256pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court of
257the United States.
258     (h)  If, at any time, a death warrant is issued, the
259attorney is entitled to $100 per hour, up to a maximum of
260$5,000. This payment shall be full compensation for attorney's
261fees and costs for representing the capital defendant throughout
262the proceedings before the state courts of Florida.
263     (i)  The attorney is entitled to $100 per hour, up to a
264maximum of $10,000, as a supplement to attorney's fees in
265paragraphs (a)-(h), for good cause shown and if approved by the
266court, if those paragraphs do not provide adequate compensation
267due to extraordinary circumstances.
268
269The hours billed by a contracting attorney under this subsection
270may include time devoted to representation of the defendant by
271another attorney who is qualified under s. 27.710 and who has
272been designated by the contracting attorney to assist him or
273her.
274     (7)  Each registry An attorney handling at least one
275capital case, regardless of the total number of capital
276defendants he or she is representing, who is actively
277representing a capital defendant is entitled to a maximum of
278$1,000 within 2 fiscal years $500 per fiscal year for tuition
279and expenses for continuing legal education that pertains to the
280representation of capital defendants in Florida. Upon approval
281by the trial court, the attorney is entitled to payment by the
282Chief Financial Officer for expenses for such tuition and
283continuing legal education.
284     (9)  An attorney may not represent more than 10 inmates
285five defendants in capital postconviction litigation at any one
286time.
287     Section 4.  This act shall take effect July 1, 2005.


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