Senate Bill sb1802c1
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Florida Senate - 2005 CS for SB 1802
By the Committee on Criminal Justice; and Senator Campbell
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1 A bill to be entitled
2 An act relating to capital collateral
3 representation; amending s. 27.709, F.S.;
4 authorizing the Commission on Capital Cases to
5 sponsor certain continuing legal education
6 classes; amending s. 27.710, F.S.; revising
7 provisions relating to continuing legal
8 education requirements for attorneys on the
9 registry of attorneys applying to represent
10 persons in postconviction capital collateral
11 proceedings; providing for minimum
12 qualification of attorneys on the registry;
13 providing for notification to the court when
14 appointed attorneys fail to submit specified
15 reports; requiring an appointed attorney who
16 does not wish to continue representation at the
17 federal level to make reasonable efforts to
18 assist the client in finding replacement
19 counsel; amending s. 27.711, F.S.; providing
20 for payment of attorneys after a final hearing,
21 rather than after a final order; providing for
22 additional payments to attorneys; increasing
23 the maximum number of inmates which may be
24 represented by a capital collateral attorney;
25 providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
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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 CS for SB 1802
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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) Have the authority to sponsor continuing legal
23 education training devoted specifically to capital cases.
24 Section 2. Subsections (1), (2), (3), (4), and (5) of
25 section 27.710, Florida Statutes, are amended to read:
26 27.710 Registry of attorneys applying to represent
27 persons in postconviction capital collateral proceedings;
28 certification of minimum requirements; appointment by trial
29 court.--
30 (1) The executive director of the Commission on
31 Capital Cases shall compile and maintain a statewide registry
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Florida Senate - 2005 CS for SB 1802
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1 of attorneys in private practice who have certified that they
2 meet the minimum requirements of s. 27.704(2), who are
3 available for appointment by the court under this section to
4 represent persons convicted and sentenced to death in this
5 state in postconviction collateral proceedings, and who have
6 attended at least 12 hours of continuing legal education
7 within the last 2 years year a continuing legal education
8 program of at least 10 hours' duration devoted specifically to
9 the defense of capital cases, if available. Every 2 years,
10 attorneys who satisfy the minimum requirements of s. 27.704(2)
11 and who are handling a capital case shall be required to
12 attend at least 12 hours of continuing legal education.
13 Continuing legal education programs meeting the requirements
14 of this rule offered by The Florida Bar or another recognized
15 provider and approved for continuing legal education credit by
16 The Florida Bar shall satisfy this requirement. The failure to
17 comply with this requirement may be cause for removal from the
18 list until the requirement is fulfilled. To ensure that
19 sufficient attorneys are available for appointment by the
20 court, when the number of attorneys on the registry falls
21 below 50, the executive director shall notify the chief judge
22 of each circuit by letter and request the chief judge to
23 promptly submit the names of at least three private attorneys
24 who regularly practice criminal law in that circuit and who
25 appear to meet the minimum requirements to represent persons
26 in postconviction capital collateral proceedings. The
27 executive director shall send an application to each attorney
28 identified by the chief judge so that the attorney may
29 register for appointment as counsel in postconviction capital
30 collateral proceedings. As necessary, the executive director
31 may also advertise in legal publications and other appropriate
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Florida Senate - 2005 CS for SB 1802
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1 media for qualified attorneys interested in registering for
2 appointment as counsel in postconviction capital collateral
3 proceedings. Not later than September 1 of each year, and as
4 necessary thereafter, the executive director shall provide to
5 the Chief Justice of the Supreme Court, the chief judge and
6 state attorney in each judicial circuit, and the Attorney
7 General a current copy of its registry of attorneys who are
8 available for appointment as counsel in postconviction capital
9 collateral proceedings. The registry must be indexed by
10 judicial circuit and must contain the requisite information
11 submitted by the applicants in accordance with this section.
12 (2) To be eligible for court appointment as counsel in
13 postconviction capital collateral proceedings, an attorney
14 must certify on an application provided by the executive
15 director that he or she:
16 (a) Is familiar with the production of evidence and
17 use of expert witnesses, including psychiatric and forensic
18 evidence;
19 (b) Has demonstrated proficiency necessary for
20 representation in capital cases, including the investigation
21 and presentation of mitigation evidence; and
22 (c) Satisfies the minimum requirements for private
23 counsel set forth in subsection (1) and has 5 years'
24 experience in felony criminal law practice, which must have
25 included serving as lead or co-counsel in:
26 1. Nine state or federal criminal jury trials tried to
27 completion, of which two were capital and three must have been
28 murder trials or one murder trial and five felony trials or
29 one postconviction evidentiary hearing and five felony trials;
30 or
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1 2. One capital appeal and no fewer than three felony
2 appeals, of which one was murder; or six felony appeals, of
3 which two were murder; or one capital postconviction
4 evidentiary hearing and three felony appeals.
5 (d) Satisfaction of the minimum requirements must be
6 proven by written notification to the commission. The
7 certification requirement shall be satisfied upon the
8 submission of the application by electronic mail without a
9 signature.
10 (e) If the trial court determines that exceptional
11 circumstances require appointment of counsel not meeting the
12 requirements of this section, the trial court may appoint that
13 person and shall enter an order specifying, in writing, the
14 exceptional circumstances requiring deviation from this
15 section and the court's explicit determination that counsel
16 chosen will provide competent representation in accordance
17 with the policy concerns of this section s. 27.704(2).
18 (3) An attorney who applies for registration and court
19 appointment as counsel in postconviction capital collateral
20 proceedings must certify that he or she is counsel of record
21 in not more than four such proceedings and, if appointed to
22 represent a person in postconviction capital collateral
23 proceedings, shall continue such representation under the
24 terms and conditions set forth in s. 27.711 until the sentence
25 is reversed, reduced, or carried out or unless permitted to
26 withdraw from representation by the trial court. The court may
27 not permit an attorney to withdraw from representation without
28 a finding of sufficient good cause. The court may impose
29 appropriate sanctions if it finds that an attorney has shown
30 bad faith with respect to continuing to represent a defendant
31 in a postconviction capital collateral proceeding. This
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1 section does not preclude the court from reassigning a case to
2 a capital collateral regional counsel following
3 discontinuation of representation if a conflict of interest no
4 longer exists with respect to the case.
5 (4) Each private attorney who is appointed by the
6 court to represent a capital defendant must enter into a
7 contract with the Chief Financial Officer. If the appointed
8 attorney fails to execute the contract within 30 days after
9 the date the contract is mailed to the attorney, the executive
10 director of the Commission on Capital Cases shall notify the
11 trial court. The Chief Financial Officer shall develop the
12 form of the contract, function as contract manager, and
13 enforce performance of the terms and conditions of the
14 contract. By signing such contract, the attorney certifies
15 that he or she intends to continue the representation under
16 the terms and conditions set forth in the contract until the
17 sentence is reversed, reduced, or carried out or until
18 released by order of the trial court. Additionally, the
19 attorney shall agree to submit quarterly reports to the
20 Commission on Capital Cases in a consistent format designated
21 by the commission. If the appointed attorney fails to submit a
22 quarterly report within 30 days following the end of the
23 quarter, the executive director shall notify the trial court
24 and the attorney.
25 (5)(a) Upon the motion of the capital collateral
26 regional counsel to withdraw pursuant to s. 924.056(1)(a); or
27 (b) Upon notification by the state attorney or the
28 Attorney General that:
29 1. Thirty days have elapsed since appointment of the
30 capital collateral regional counsel and no entry of appearance
31 has been filed pursuant to s. 924.056; or
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1 2. A person under sentence of death who was previously
2 represented by private counsel is currently unrepresented in a
3 postconviction capital collateral proceeding,
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5 the executive director shall immediately notify the trial
6 court that imposed the sentence of death that the court must
7 immediately appoint an attorney, selected from the current
8 registry, to represent such person in collateral actions
9 challenging the legality of the judgment and sentence in the
10 appropriate state and federal courts. If the appointed
11 attorney does not wish to continue representation at the
12 federal level, the appointed attorney shall make reasonable
13 efforts to assist the client in finding replacement counsel
14 who meets the federal requirements to represent a capital
15 defendant in federal proceedings. The court shall have the
16 authority to strike a notice of appearance filed by a Capital
17 Collateral Regional Counsel, if the court finds the notice was
18 not filed in good faith and may so notify the executive
19 director that the client is no longer represented by the
20 Office of Capital Collateral Regional Counsel. In making an
21 assignment, the court shall give priority to attorneys whose
22 experience and abilities in criminal law, especially in
23 capital proceedings, are known by the court to be commensurate
24 with the responsibility of representing a person sentenced to
25 death. The trial court must issue an order of appointment
26 which contains specific findings that the appointed counsel
27 meets the statutory requirements and has the high ethical
28 standards necessary to represent a person sentenced to death.
29 Section 3. Paragraphs (c) and (g) of subsection (4)
30 and subsections (7) and (9) of section 27.711, Florida
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Florida Senate - 2005 CS for SB 1802
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1 Statutes, are amended, and paragraph (i) is added to
2 subsection (4) of that section, to read:
3 27.711 Terms and conditions of appointment of
4 attorneys as counsel in postconviction capital collateral
5 proceedings.--
6 (4) Upon approval by the trial court, an attorney
7 appointed to represent a capital defendant under s. 27.710 is
8 entitled to payment of the following fees by the Chief
9 Financial Officer:
10 (c) The attorney is entitled to $100 per hour, up to a
11 maximum of $20,000, after the final hearing on trial court
12 issues a final order granting or denying the capital
13 defendant's motion for postconviction relief.
14 (g) At the conclusion of the capital defendant's
15 postconviction capital collateral proceedings in state court,
16 the attorney is entitled to $100 per hour, up to a maximum of
17 $2,500, after filing a petition for writ of habeas corpus
18 pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court
19 of the United States.
20 (i) The attorney is entitled to $100 per hour, up to a
21 maximum of $10,000, as a supplement to attorney's fees in
22 paragraphs (a)-(h), for good cause shown and if approved by
23 the court, if those paragraphs do not provide adequate
24 compensation due to extraordinary circumstances.
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26 The hours billed by a contracting attorney under this
27 subsection may include time devoted to representation of the
28 defendant by another attorney who is qualified under s. 27.710
29 and who has been designated by the contracting attorney to
30 assist him or her.
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Florida Senate - 2005 CS for SB 1802
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1 (7) Each registry An attorney handling at least one
2 capital case, regardless of the total number of capital
3 defendants he or she is representing, who is actively
4 representing a capital defendant is entitled to a maximum of
5 $1,000 within 2 fiscal years $500 per fiscal year for tuition
6 and expenses for continuing legal education that pertains to
7 the representation of capital defendants in this state. Upon
8 approval by the trial court, the attorney is entitled to
9 payment by the Chief Financial Officer for expenses for such
10 tuition and continuing legal education.
11 (9) An attorney may not represent more than 10 inmates
12 five defendants in capital postconviction litigation at any
13 one time.
14 Section 4. This act shall take effect July 1, 2005.
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16 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
17 Senate Bill 1802
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19 - The CS raises the requirements for court appointed
attorneys in capital postconviction litigation.
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- It provides for additional payment to registry counsel of
21 up to $10,000, for good cause, in extraordinary
circumstances.
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