Senate Bill sb1802

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    Florida Senate - 2005                                  SB 1802

    By Senator Campbell





    32-1592-05                                              See HB

  1                      A bill to be entitled

  2         An act relating to capital collateral

  3         representation; amending s. 27.709, F.S.;

  4         providing for the Commission on Capital Cases

  5         to undertake certain projects and authorizing

  6         it to sponsor certain continuing legal

  7         education classes; amending s. 27.710, F.S.;

  8         revising provisions relating to continuing

  9         legal education requirements for attorneys on

10         the registry of attorneys applying to represent

11         persons in postconviction capital collateral

12         proceedings; providing for the removal of

13         appointed attorneys who fail to sign contracts

14         or submit specified reports; requiring an

15         appointed attorney who does not wish to

16         continue representation at the federal level to

17         make reasonable efforts to assist the client in

18         finding replacement counsel; amending s.

19         27.711, F.S.; providing for payment of

20         attorneys after a final hearing, rather than

21         after a final order; providing for additional

22         payments to attorneys; increasing the maximum

23         number of inmates that may be represented by a

24         capital collateral attorney; providing an

25         effective date.

26  

27  Be It Enacted by the Legislature of the State of Florida:

28  

29         Section 1.  Subsection (2) of section 27.709, Florida

30  Statutes, is amended to read:

31         27.709  Commission on Capital Cases.--

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1         (2)  The commission shall:

 2         (a)  The commission shall Review the administration of

 3  justice in capital collateral cases, receive relevant public

 4  input, review the operation of the capital collateral regional

 5  counsel and private counsel appointed pursuant to ss. 27.710

 6  and 27.711, and advise and make recommendations to the

 7  Governor, Legislature, and Supreme Court.

 8         (b)  As part of its duties, the commission shall

 9  Compile and analyze case-tracking reports produced by the

10  Supreme Court. In analyzing these reports, the commission

11  shall develop statistics to identify trends and changes in

12  case management and case processing, identify and evaluate

13  unproductive points of delay, and generally evaluate the way

14  cases are progressing. The commission shall report these

15  findings to the Legislature by January 1 of each year.

16         (c)  In addition, the commission shall Receive

17  complaints regarding the practice of any office of regional

18  counsel and private counsel appointed pursuant to ss. 27.710

19  and 27.711 and shall refer any complaint to The Florida Bar,

20  the State Supreme Court, or the Commission on Ethics, as

21  appropriate.

22         (d)  Undertake any project recommended or approved by

23  the appointed commission members.

24         (e)  Have the authority to sponsor continuing legal

25  education training devoted specifically to capital cases.

26         Section 2.  Subsections (1), (2), (3), (4), and (5) of

27  section 27.710, Florida Statutes, are amended to read:

28         27.710  Registry of attorneys applying to represent

29  persons in postconviction capital collateral proceedings;

30  certification of minimum requirements; appointment by trial

31  court.--

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1         (1)  The executive director of the Commission on

 2  Capital Cases shall compile and maintain a statewide registry

 3  of attorneys in private practice who have certified that they

 4  meet the minimum requirements of s. 27.704(2), who are

 5  available for appointment by the court under this section to

 6  represent persons convicted and sentenced to death in this

 7  state in postconviction collateral proceedings, and who have

 8  attended at least 12 hours of continuing legal education

 9  within the last 2 years year a continuing legal education

10  program of at least 10 hours' duration devoted specifically to

11  the defense of capital cases, if available. Every 2 years,

12  attorneys who satisfy the minimum requirements of s. 27.704(2)

13  and who are handling a capital case shall be required to

14  attend at least 12 hours of continuing legal education.

15  Continuing legal education programs meeting the requirements

16  of this rule offered by The Florida Bar or another recognized

17  provider and approved for continuing legal education credit by

18  The Florida Bar shall satisfy this requirement. The failure to

19  comply with this requirement may be cause for removal from the

20  list until the requirement is fulfilled. To ensure that

21  sufficient attorneys are available for appointment by the

22  court, when the number of attorneys on the registry falls

23  below 50, the executive director shall notify the chief judge

24  of each circuit by letter and request the chief judge to

25  promptly submit the names of at least three private attorneys

26  who regularly practice criminal law in that circuit and who

27  appear to meet the minimum requirements to represent persons

28  in postconviction capital collateral proceedings. The

29  executive director shall send an application to each attorney

30  identified by the chief judge so that the attorney may

31  register for appointment as counsel in postconviction capital

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1  collateral proceedings. As necessary, the executive director

 2  may also advertise in legal publications and other appropriate

 3  media for qualified attorneys interested in registering for

 4  appointment as counsel in postconviction capital collateral

 5  proceedings. Not later than September 1 of each year, and as

 6  necessary thereafter, the executive director shall provide to

 7  the Chief Justice of the Supreme Court, the chief judge and

 8  state attorney in each judicial circuit, and the Attorney

 9  General a current copy of its registry of attorneys who are

10  available for appointment as counsel in postconviction capital

11  collateral proceedings. The registry must be indexed by

12  judicial circuit and must contain the requisite information

13  submitted by the applicants in accordance with this section.

14         (2)  To be eligible for court appointment as counsel in

15  postconviction capital collateral proceedings, an attorney

16  must certify on an application provided by the executive

17  director that he or she satisfies the minimum requirements for

18  private counsel set forth in subsection (1) and s. 27.704(2).

19  Satisfaction of the minimum requirements must be proven by

20  written notification to the commission. The certification

21  requirement shall be satisfied upon the submission of the

22  application by electronic mail without a signature.

23         (3)  An attorney who applies for registration and court

24  appointment as counsel in postconviction capital collateral

25  proceedings must certify that he or she is counsel of record

26  in not more than four such proceedings and, if appointed to

27  represent a person in postconviction capital collateral

28  proceedings, shall continue such representation under the

29  terms and conditions set forth in s. 27.711 until the sentence

30  is reversed, reduced, or carried out or unless permitted to

31  withdraw from representation by the trial court. The court may

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1  not permit an attorney to withdraw from representation without

 2  a finding of sufficient good cause. The court may impose

 3  appropriate sanctions if it finds that an attorney has shown

 4  bad faith with respect to continuing to represent a defendant

 5  in a postconviction capital collateral proceeding. This

 6  section does not preclude the court from reassigning a case to

 7  a capital collateral regional counsel following

 8  discontinuation of representation if a conflict of interest no

 9  longer exists with respect to the case.

10         (4)  Each private attorney who is appointed by the

11  court to represent a capital defendant must enter into a

12  contract with the Chief Financial Officer. If the appointed

13  attorney fails to execute the contract within 30 days after

14  the date the contract is mailed to the attorney, the executive

15  director of the Commission on Capital Cases shall notify the

16  trial court. If the attorney fails to execute the contract

17  within 30 days after the executive director's notification,

18  the trial court shall remove the attorney from the case, and

19  the executive director shall remove the attorney from the

20  registry without awarding any attorney's fees. The Chief

21  Financial Officer shall develop the form of the contract,

22  function as contract manager, and enforce performance of the

23  terms and conditions of the contract. By signing such

24  contract, the attorney certifies that he or she intends to

25  continue the representation under the terms and conditions set

26  forth in the contract until the sentence is reversed, reduced,

27  or carried out or until released by order of the trial court.

28  Additionally, the attorney shall agree to submit quarterly

29  reports to the Commission on Capital Cases in a consistent

30  format designated by the commission. If the appointed attorney

31  fails to submit a quarterly report within 30 days following

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1  the end of the quarter, the executive director shall notify

 2  the trial court and the attorney. If the attorney does not

 3  submit the requested quarterly report within 30 days after the

 4  executive director's notice, the attorney shall be removed

 5  from the case by the trial court and from the registry by the

 6  executive director.

 7         (5)(a)  Upon the motion of the capital collateral

 8  regional counsel to withdraw pursuant to s. 924.056(1)(a); or

 9         (b)  Upon notification by the state attorney or the

10  Attorney General that:

11         1.  Thirty days have elapsed since appointment of the

12  capital collateral regional counsel and no entry of appearance

13  has been filed pursuant to s. 924.056; or

14         2.  A person under sentence of death who was previously

15  represented by private counsel is currently unrepresented in a

16  postconviction capital collateral proceeding,

17  

18  the executive director shall immediately notify the trial

19  court that imposed the sentence of death that the court must

20  immediately appoint an attorney, selected from the current

21  registry, to represent such person in collateral actions

22  challenging the legality of the judgment and sentence in the

23  appropriate state and federal courts. If the appointed

24  attorney does not wish to continue representation at the

25  federal level, the appointed attorney shall make reasonable

26  efforts to assist the client in finding replacement counsel

27  who meets the federal requirements to represent a capital

28  defendant in federal proceedings. The court shall have the

29  authority to strike a notice of appearance filed by a Capital

30  Collateral Regional Counsel, if the court finds the notice was

31  not filed in good faith and may so notify the executive

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1  director that the client is no longer represented by the

 2  Office of Capital Collateral Regional Counsel. In making an

 3  assignment, the court shall give priority to attorneys whose

 4  experience and abilities in criminal law, especially in

 5  capital proceedings, are known by the court to be commensurate

 6  with the responsibility of representing a person sentenced to

 7  death. The trial court must issue an order of appointment

 8  which contains specific findings that the appointed counsel

 9  meets the statutory requirements and has the high ethical

10  standards necessary to represent a person sentenced to death.

11         Section 3.  Paragraphs (c) and (g) of subsection (4)

12  and subsections (7) and (9) of section 27.711, Florida

13  Statutes, are amended, and paragraph (i) is added to

14  subsection (4) of that section, to read:

15         27.711  Terms and conditions of appointment of

16  attorneys as counsel in postconviction capital collateral

17  proceedings.--

18         (4)  Upon approval by the trial court, an attorney

19  appointed to represent a capital defendant under s. 27.710 is

20  entitled to payment of the following fees by the Chief

21  Financial Officer:

22         (c)  The attorney is entitled to $100 per hour, up to a

23  maximum of $20,000, after the final hearing on trial court

24  issues a final order granting or denying the capital

25  defendant's motion for postconviction relief.

26         (g)  At the conclusion of the capital defendant's

27  postconviction capital collateral proceedings in state court,

28  the attorney is entitled to $100 per hour, up to a maximum of

29  $2,500, after filing a petition for writ of habeas corpus

30  pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court

31  of the United States.

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    Florida Senate - 2005                                  SB 1802
    32-1592-05                                              See HB




 1         (i)  The attorney is entitled to $100 per hour, up to a

 2  maximum of $16,000, as a supplement to attorney's fees in

 3  paragraphs (a)-(h) if those paragraphs do not provide adequate

 4  compensation.

 5  

 6  The hours billed by a contracting attorney under this

 7  subsection may include time devoted to representation of the

 8  defendant by another attorney who is qualified under s. 27.710

 9  and who has been designated by the contracting attorney to

10  assist him or her.

11         (7)  Each registry An attorney handling at least one

12  capital case, regardless of the total number of capital

13  defendants he or she is representing, who is actively

14  representing a capital defendant is entitled to a maximum of

15  $500 per fiscal year for tuition and expenses for continuing

16  legal education that pertains to the representation of capital

17  defendants. Upon approval by the trial court, the attorney is

18  entitled to payment by the Chief Financial Officer for

19  expenses for such tuition and continuing legal education.

20         (9)  An attorney may not represent more than 10 inmates

21  five defendants in capital postconviction litigation at any

22  one time.

23         Section 4.  This act shall take effect July 1, 2005.

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