Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1802
Barcode 701336
CHAMBER ACTION
Senate House
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11 The Committee on Criminal Justice (Klein) recommended the
12 following amendment:
13
14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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17 and insert:
18 Section 1. Subsection (2) of section 27.709, Florida
19 Statutes, is amended to read:
20 27.709 Commission on Capital Cases.--
21 (2) The commission shall:
22 (a) The commission shall Review the administration of
23 justice in capital collateral cases, receive relevant public
24 input, review the operation of the capital collateral regional
25 counsel and private counsel appointed pursuant to ss. 27.710
26 and 27.711, and advise and make recommendations to the
27 Governor, Legislature, and Supreme Court.
28 (b) As part of its duties, the commission shall
29 Compile and analyze case-tracking reports produced by the
30 Supreme Court. In analyzing these reports, the commission
31 shall develop statistics to identify trends and changes in
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1 case management and case processing, identify and evaluate
2 unproductive points of delay, and generally evaluate the way
3 cases are progressing. The commission shall report these
4 findings to the Legislature by January 1 of each year.
5 (c) In addition, the commission shall Receive
6 complaints regarding the practice of any office of regional
7 counsel and private counsel appointed pursuant to ss. 27.710
8 and 27.711 and shall refer any complaint to The Florida Bar,
9 the State Supreme Court, or the Commission on Ethics, as
10 appropriate.
11 (d) Have the authority to sponsor continuing legal
12 education training devoted specifically to capital cases.
13 Section 2. Subsections (1), (2), (3), (4), and (5) of
14 section 27.710, Florida Statutes, are amended to read:
15 27.710 Registry of attorneys applying to represent
16 persons in postconviction capital collateral proceedings;
17 certification of minimum requirements; appointment by trial
18 court.--
19 (1) The executive director of the Commission on
20 Capital Cases shall compile and maintain a statewide registry
21 of attorneys in private practice who have certified that they
22 meet the minimum requirements of s. 27.704(2), who are
23 available for appointment by the court under this section to
24 represent persons convicted and sentenced to death in this
25 state in postconviction collateral proceedings, and who have
26 attended at least 12 hours of continuing legal education
27 within the last 2 years year a continuing legal education
28 program of at least 10 hours' duration devoted specifically to
29 the defense of capital cases, if available. Every 2 years,
30 attorneys who satisfy the minimum requirements of s. 27.704(2)
31 and who are handling a capital case shall be required to
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1802
Barcode 701336
1 attend at least 12 hours of continuing legal education.
2 Continuing legal education programs meeting the requirements
3 of this rule offered by The Florida Bar or another recognized
4 provider and approved for continuing legal education credit by
5 The Florida Bar shall satisfy this requirement. The failure to
6 comply with this requirement may be cause for removal from the
7 list until the requirement is fulfilled. To ensure that
8 sufficient attorneys are available for appointment by the
9 court, when the number of attorneys on the registry falls
10 below 50, the executive director shall notify the chief judge
11 of each circuit by letter and request the chief judge to
12 promptly submit the names of at least three private attorneys
13 who regularly practice criminal law in that circuit and who
14 appear to meet the minimum requirements to represent persons
15 in postconviction capital collateral proceedings. The
16 executive director shall send an application to each attorney
17 identified by the chief judge so that the attorney may
18 register for appointment as counsel in postconviction capital
19 collateral proceedings. As necessary, the executive director
20 may also advertise in legal publications and other appropriate
21 media for qualified attorneys interested in registering for
22 appointment as counsel in postconviction capital collateral
23 proceedings. Not later than September 1 of each year, and as
24 necessary thereafter, the executive director shall provide to
25 the Chief Justice of the Supreme Court, the chief judge and
26 state attorney in each judicial circuit, and the Attorney
27 General a current copy of its registry of attorneys who are
28 available for appointment as counsel in postconviction capital
29 collateral proceedings. The registry must be indexed by
30 judicial circuit and must contain the requisite information
31 submitted by the applicants in accordance with this section.
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1802
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1 (2) To be eligible for court appointment as counsel in
2 postconviction capital collateral proceedings, an attorney
3 must certify on an application provided by the executive
4 director that he or she:
5 (a) Is familiar with the production of evidence and
6 use of expert witnesses, including psychiatric and forensic
7 evidence;
8 (b) Has demonstrated proficiency necessary for
9 representation in capital cases, including the investigation
10 and presentation of mitigation evidence; and
11 (c) Satisfies the minimum requirements for private
12 counsel set forth in subsection (1) and has 5 years'
13 experience in felony criminal law practice, which must have
14 included serving as lead or co-counsel in:
15 1. Nine state or federal criminal jury trials tried to
16 completion, of which two were capital and three must have been
17 murder trials or one murder trial and five felony trials or
18 one postconviction evidentiary hearing and five felony trials;
19 or
20 2. One capital appeal and no fewer than three felony
21 appeals, of which one was murder; or six felony appeals, of
22 which two were murder; or one capital postconviction
23 evidentiary hearing and three felony appeals.
24 (d) Satisfaction of the minimum requirements must be
25 proven by written notification to the commission. The
26 certification requirement shall be satisfied upon the
27 submission of the application by electronic mail without a
28 signature.
29 (e) If the trial court determines that exceptional
30 circumstances require appointment of counsel not meeting the
31 requirements of this section, the trial court may appoint that
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1802
Barcode 701336
1 person and shall enter an order specifying, in writing, the
2 exceptional circumstances requiring deviation from this
3 section and the court's explicit determination that counsel
4 chosen will provide competent representation in accordance
5 with the policy concerns of this section s. 27.704(2).
6 (3) An attorney who applies for registration and court
7 appointment as counsel in postconviction capital collateral
8 proceedings must certify that he or she is counsel of record
9 in not more than four such proceedings and, if appointed to
10 represent a person in postconviction capital collateral
11 proceedings, shall continue such representation under the
12 terms and conditions set forth in s. 27.711 until the sentence
13 is reversed, reduced, or carried out or unless permitted to
14 withdraw from representation by the trial court. The court may
15 not permit an attorney to withdraw from representation without
16 a finding of sufficient good cause. The court may impose
17 appropriate sanctions if it finds that an attorney has shown
18 bad faith with respect to continuing to represent a defendant
19 in a postconviction capital collateral proceeding. This
20 section does not preclude the court from reassigning a case to
21 a capital collateral regional counsel following
22 discontinuation of representation if a conflict of interest no
23 longer exists with respect to the case.
24 (4) Each private attorney who is appointed by the
25 court to represent a capital defendant must enter into a
26 contract with the Chief Financial Officer. If the appointed
27 attorney fails to execute the contract within 30 days after
28 the date the contract is mailed to the attorney, the executive
29 director of the Commission on Capital Cases shall notify the
30 trial court. The Chief Financial Officer shall develop the
31 form of the contract, function as contract manager, and
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Florida Senate - 2005 COMMITTEE AMENDMENT
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1 enforce performance of the terms and conditions of the
2 contract. By signing such contract, the attorney certifies
3 that he or she intends to continue the representation under
4 the terms and conditions set forth in the contract until the
5 sentence is reversed, reduced, or carried out or until
6 released by order of the trial court. Additionally, the
7 attorney shall agree to submit quarterly reports to the
8 Commission on Capital Cases in a consistent format designated
9 by the commission. If the appointed attorney fails to submit a
10 quarterly report within 30 days following the end of the
11 quarter, the executive director shall notify the trial court
12 and the attorney.
13 (5)(a) Upon the motion of the capital collateral
14 regional counsel to withdraw pursuant to s. 924.056(1)(a); or
15 (b) Upon notification by the state attorney or the
16 Attorney General that:
17 1. Thirty days have elapsed since appointment of the
18 capital collateral regional counsel and no entry of appearance
19 has been filed pursuant to s. 924.056; or
20 2. A person under sentence of death who was previously
21 represented by private counsel is currently unrepresented in a
22 postconviction capital collateral proceeding,
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24 the executive director shall immediately notify the trial
25 court that imposed the sentence of death that the court must
26 immediately appoint an attorney, selected from the current
27 registry, to represent such person in collateral actions
28 challenging the legality of the judgment and sentence in the
29 appropriate state and federal courts. If the appointed
30 attorney does not wish to continue representation at the
31 federal level, the appointed attorney shall make reasonable
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Florida Senate - 2005 COMMITTEE AMENDMENT
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1 efforts to assist the client in finding replacement counsel
2 who meets the federal requirements to represent a capital
3 defendant in federal proceedings. The court shall have the
4 authority to strike a notice of appearance filed by a Capital
5 Collateral Regional Counsel, if the court finds the notice was
6 not filed in good faith and may so notify the executive
7 director that the client is no longer represented by the
8 Office of Capital Collateral Regional Counsel. In making an
9 assignment, the court shall give priority to attorneys whose
10 experience and abilities in criminal law, especially in
11 capital proceedings, are known by the court to be commensurate
12 with the responsibility of representing a person sentenced to
13 death. The trial court must issue an order of appointment
14 which contains specific findings that the appointed counsel
15 meets the statutory requirements and has the high ethical
16 standards necessary to represent a person sentenced to death.
17 Section 3. Paragraphs (c) and (g) of subsection (4)
18 and subsections (7) and (9) of section 27.711, Florida
19 Statutes, are amended, and paragraph (i) is added to
20 subsection (4) of that section, to read:
21 27.711 Terms and conditions of appointment of
22 attorneys as counsel in postconviction capital collateral
23 proceedings.--
24 (4) Upon approval by the trial court, an attorney
25 appointed to represent a capital defendant under s. 27.710 is
26 entitled to payment of the following fees by the Chief
27 Financial Officer:
28 (c) The attorney is entitled to $100 per hour, up to a
29 maximum of $20,000, after the final hearing on trial court
30 issues a final order granting or denying the capital
31 defendant's motion for postconviction relief.
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Florida Senate - 2005 COMMITTEE AMENDMENT
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Barcode 701336
1 (g) At the conclusion of the capital defendant's
2 postconviction capital collateral proceedings in state court,
3 the attorney is entitled to $100 per hour, up to a maximum of
4 $2,500, after filing a petition for writ of habeas corpus
5 pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court
6 of the United States.
7 (i) The attorney is entitled to $100 per hour, up to a
8 maximum of $10,000, as a supplement to attorney's fees in
9 paragraphs (a)-(h), for good cause shown and if approved by
10 the court, if those paragraphs do not provide adequate
11 compensation due to extraordinary circumstances.
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13 The hours billed by a contracting attorney under this
14 subsection may include time devoted to representation of the
15 defendant by another attorney who is qualified under s. 27.710
16 and who has been designated by the contracting attorney to
17 assist him or her.
18 (7) Each registry An attorney handling at least one
19 capital case, regardless of the total number of capital
20 defendants he or she is representing, who is actively
21 representing a capital defendant is entitled to a maximum of
22 $1,000 within 2 fiscal years $500 per fiscal year for tuition
23 and expenses for continuing legal education that pertains to
24 the representation of capital defendants in this state. Upon
25 approval by the trial court, the attorney is entitled to
26 payment by the Chief Financial Officer for expenses for such
27 tuition and continuing legal education.
28 (9) An attorney may not represent more than 10 inmates
29 five defendants in capital postconviction litigation at any
30 one time.
31 Section 4. This act shall take effect July 1, 2005.
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Florida Senate - 2005 COMMITTEE AMENDMENT
Bill No. SB 1802
Barcode 701336
1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 Delete everything before the enacting clause
4
5 and insert:
6 A bill to be entitled
7 An act relating to capital collateral
8 representation; amending s. 27.709, F.S.;
9 authorizing the Commission on Capital Cases to
10 sponsor certain continuing legal education
11 classes; amending s. 27.710, F.S.; revising
12 provisions relating to continuing legal
13 education requirements for attorneys on the
14 registry of attorneys applying to represent
15 persons in postconviction capital collateral
16 proceedings; providing for minimum
17 qualification of attorneys on the registry;
18 providing for notification to the court when
19 appointed attorneys fail to submit specified
20 reports; requiring an appointed attorney who
21 does not wish to continue representation at the
22 federal level to make reasonable efforts to
23 assist the client in finding replacement
24 counsel; amending s. 27.711, F.S.; providing
25 for payment of attorneys after a final hearing,
26 rather than after a final order; providing for
27 additional payments to attorneys; increasing
28 the maximum number of inmates which may be
29 represented by a capital collateral attorney;
30 providing an effective date.
31
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