| 1 | A bill to be entitled |
| 2 | An act relating to the Commission on Capital Cases; |
| 3 | amending s. 27.7001, F.S.; providing legislative findings; |
| 4 | amending s. 27.709, F.S.; authorizing the Commission on |
| 5 | Capital Cases to sponsor continuing legal education |
| 6 | programs devoted specifically to capital cases; amending |
| 7 | s. 27.710, F.S.; specifying criteria that a private |
| 8 | attorney must satisfy in order to be eligible to be |
| 9 | appointed as counsel in a postconviction capital |
| 10 | collateral proceeding; providing that a judge may appoint |
| 11 | an attorney who does not meet the appointment criteria if |
| 12 | exceptional circumstances exist; providing that an |
| 13 | attorney may be removed from the capital collateral |
| 14 | registry if the attorney does not meet the criteria; |
| 15 | directing the executive director of the commission to |
| 16 | remove an attorney from the registry if the attorney fails |
| 17 | to timely file an executed contract; requiring a private |
| 18 | attorney appointed by a court to represent a capital |
| 19 | defendant to submit a report each quarter to the |
| 20 | commission; requiring that the executive director remove |
| 21 | an attorney from the registry if the attorney does not |
| 22 | submit the report within a specified time; requiring that |
| 23 | an attorney make reasonable efforts to assist the person |
| 24 | under a sentence of death in finding an attorney under |
| 25 | certain circumstances; amending s. 27.711, F.S.; requiring |
| 26 | that costs incurred during pro bono representation of a |
| 27 | capital defendant be paid to the attorney; providing that |
| 28 | an attorney who is listed on the registry and representing |
| 29 | at least one capital defendant is entitled to tuition and |
| 30 | expenses for continuing legal education courses; providing |
| 31 | that an attorney may represent no more than 10 inmates in |
| 32 | capital postconviction cases at any one time; requiring |
| 33 | that, if a trial court judge intends to award attorney's |
| 34 | fees in excess of those set by law, the judge must include |
| 35 | written findings of fact specifically stating the |
| 36 | extraordinary nature of the expenditures of the time, |
| 37 | energy, and talents of the attorney in the case which are |
| 38 | not ordinarily expended in other capital collateral cases; |
| 39 | providing an effective date. |
| 40 |
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| 41 | Be It Enacted by the Legislature of the State of Florida: |
| 42 |
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| 43 | Section 1. Section 27.7001, Florida Statutes, is amended |
| 44 | to read: |
| 45 | 27.7001 Legislative intent and findings.--It is the intent |
| 46 | of the Legislature to create part IV of this chapter, consisting |
| 47 | of ss. 27.7001-27.711, inclusive, to provide for the collateral |
| 48 | representation of any person convicted and sentenced to death in |
| 49 | this state, so that collateral legal proceedings to challenge |
| 50 | any Florida capital conviction and sentence may be commenced in |
| 51 | a timely manner and so as to assure the people of this state |
| 52 | that the judgments of its courts may be regarded with the |
| 53 | finality to which they are entitled in the interests of justice. |
| 54 | It is the further intent of the Legislature that collateral |
| 55 | representation shall not include representation during retrials, |
| 56 | resentencings, proceedings commenced under chapter 940, or civil |
| 57 | litigation. The Legislature further finds that not all capital |
| 58 | collateral cases are extraordinary and unusual. |
| 59 | Section 2. Paragraph (d) is added to subsection (2) of |
| 60 | section 27.709, Florida Statutes, to read: |
| 61 | 27.709 Commission on Capital Cases.-- |
| 62 | (2) |
| 63 | (d) The commission may sponsor programs of continuing |
| 64 | legal education which are devoted specifically to capital cases |
| 65 | and shall undertake any project recommended or approved by the |
| 66 | commission members. |
| 67 | Section 3. Section 27.710, Florida Statutes, is amended to |
| 68 | read: |
| 69 | 27.710 Registry of attorneys applying to represent persons |
| 70 | in postconviction capital collateral proceedings; certification |
| 71 | of minimum requirements; appointment by trial court.-- |
| 72 | (1) The executive director of the Commission on Capital |
| 73 | Cases shall compile and maintain a statewide registry of |
| 74 | attorneys in private practice who have certified that they meet |
| 75 | the minimum requirements of s. 27.704(2) and, who are available |
| 76 | for appointment by the court under this section to represent |
| 77 | persons convicted and sentenced to death in this state in |
| 78 | postconviction collateral proceedings, and who have attended |
| 79 | within the last year a continuing legal education program of at |
| 80 | least 10 hours' duration devoted specifically to the defense of |
| 81 | capital cases, if available. Continuing legal education programs |
| 82 | meeting the requirements of this rule offered by The Florida Bar |
| 83 | or another recognized provider and approved for continuing legal |
| 84 | education credit by The Florida Bar shall satisfy this |
| 85 | requirement. The failure to comply with this requirement may be |
| 86 | cause for removal from the list until the requirement is |
| 87 | fulfilled. To ensure that sufficient attorneys are available for |
| 88 | appointment by the court, when the number of attorneys on the |
| 89 | registry falls below 50, the executive director shall notify the |
| 90 | chief judge of each circuit by letter and request the chief |
| 91 | judge to promptly submit the names of at least three private |
| 92 | attorneys who regularly practice criminal law in that circuit |
| 93 | and who appear to meet the minimum requirements to represent |
| 94 | persons in postconviction capital collateral proceedings. The |
| 95 | executive director shall send an application to each attorney |
| 96 | identified by the chief judge so that the attorney may register |
| 97 | for appointment as counsel in postconviction capital collateral |
| 98 | proceedings. As necessary, the executive director may also |
| 99 | advertise in legal publications and other appropriate media for |
| 100 | qualified attorneys interested in registering for appointment as |
| 101 | counsel in postconviction capital collateral proceedings. Not |
| 102 | later than September 1 of each year, and as necessary |
| 103 | thereafter, the executive director shall provide to the Chief |
| 104 | Justice of the Supreme Court, the chief judge and state attorney |
| 105 | in each judicial circuit, and the Attorney General a current |
| 106 | copy of its registry of attorneys who are available for |
| 107 | appointment as counsel in postconviction capital collateral |
| 108 | proceedings. The registry must be indexed by judicial circuit |
| 109 | and must contain the requisite information submitted by the |
| 110 | applicants in accordance with this section. |
| 111 | (2)(a) To be eligible for court appointment as counsel in |
| 112 | postconviction capital collateral proceedings, an attorney must |
| 113 | certify on an application provided by the executive director |
| 114 | that he or she: |
| 115 | 1. Is an active practitioner who has at least 5 years' |
| 116 | experience in the practice of criminal law, is familiar with the |
| 117 | production of evidence and the use of expert witnesses, |
| 118 | including psychiatric and forensic evidence, and has |
| 119 | demonstrated the proficiency necessary for representation in |
| 120 | capital cases, including the investigation and presentation of |
| 121 | mitigation evidence; |
| 122 | 2. Has attended a minimum of 12 hours of continuing legal |
| 123 | education programs within the previous 2 years which were |
| 124 | devoted to the defense of capital cases and offered by The |
| 125 | Florida Bar or another recognized provider of continuing legal |
| 126 | education courses; and |
| 127 | 3.a. Has tried at least nine state or federal jury trials |
| 128 | to completion, two of which must have been capital cases and: |
| 129 | (I) Three of which must have been murder trials; |
| 130 | (II) One of which must have been a murder trial and five |
| 131 | of which must have been other felony trials; or |
| 132 | (III) One of which must have included a postconviction |
| 133 | evidentiary hearing and five of which must have been other |
| 134 | felony trials; or |
| 135 | b. Has appealed one capital conviction and appealed: |
| 136 | (I) At least three felony convictions, one of which must |
| 137 | have been a murder; or |
| 138 | (II) At least three felony convictions and participated in |
| 139 | one capital postconviction evidentiary hearing. |
| 140 | (b) If the trial court finds that exceptional |
| 141 | circumstances exist requiring appointment of an attorney who |
| 142 | does not meet the criteria set forth in paragraph (a), the trial |
| 143 | court shall enter a written order specifying the exceptional |
| 144 | circumstances requiring appointment of the attorney and explicit |
| 145 | findings that the attorney chosen will provide competent |
| 146 | representation in accordance with the intent of this section. |
| 147 | (c) A failure to comply with any criterion set forth in |
| 148 | paragraph (a) may be cause to remove the attorney from the |
| 149 | registry until the criterion is satisfied. |
| 150 | (d) Satisfaction of the criterion may be proven by |
| 151 | submitting a written certification to the commission. The |
| 152 | certification is complete upon submission of the application by |
| 153 | electronic mail without a signature satisfies the minimum |
| 154 | requirements for private counsel set forth in s. 27.704(2). |
| 155 | (3) An attorney who applies for registration and court |
| 156 | appointment as counsel in postconviction capital collateral |
| 157 | proceedings must certify that he or she is counsel of record in |
| 158 | not more than four such proceedings and, if appointed to |
| 159 | represent a person in postconviction capital collateral |
| 160 | proceedings, shall continue the such representation under the |
| 161 | terms and conditions set forth in s. 27.711 until the sentence |
| 162 | is reversed, reduced, or carried out or unless permitted to |
| 163 | withdraw from representation by the trial court. The court may |
| 164 | not permit an attorney to withdraw from representation without a |
| 165 | finding of sufficient good cause. The court may impose |
| 166 | appropriate sanctions if it finds that an attorney has shown bad |
| 167 | faith with respect to continuing to represent a defendant in a |
| 168 | postconviction capital collateral proceeding. This section does |
| 169 | not preclude the court from reassigning a case to a capital |
| 170 | collateral regional counsel following discontinuation of |
| 171 | representation if a conflict of interest no longer exists with |
| 172 | respect to the case. |
| 173 | (4)(a) Each private attorney who is appointed by the court |
| 174 | to represent a capital defendant must enter into a contract with |
| 175 | the Chief Financial Officer. If the appointed attorney fails to |
| 176 | execute the contract within 30 days after the date the contract |
| 177 | is mailed to the attorney, the executive director of the |
| 178 | Commission on Capital Cases shall notify the trial court and |
| 179 | shall remove the attorney from the registry list. The Chief |
| 180 | Financial Officer shall develop the form of the contract, |
| 181 | function as contract manager, and enforce performance of the |
| 182 | terms and conditions of the contract. By signing such contract, |
| 183 | the attorney certifies that he or she intends to continue the |
| 184 | representation under the terms and conditions set forth in the |
| 185 | contract until the sentence is reversed, reduced, or carried out |
| 186 | or until released by order of the trial court. |
| 187 | (b) Each private attorney appointed by a court to |
| 188 | represent a capital defendant shall submit a report each quarter |
| 189 | to the commission in the format designated by the commission. If |
| 190 | the attorney does not submit the report within 30 days after the |
| 191 | end of the quarter, the executive director shall remove the |
| 192 | attorney from the registry. |
| 193 | (5)(a) Upon the motion of the capital collateral regional |
| 194 | counsel to withdraw under pursuant to s. 924.056(1)(a); or |
| 195 | (b) Upon notification by the state attorney or the |
| 196 | Attorney General that: |
| 197 | 1. Thirty days have elapsed since appointment of the |
| 198 | capital collateral regional counsel and no entry of appearance |
| 199 | has been filed under pursuant to s. 924.056; or |
| 200 | 2. A person under sentence of death who was previously |
| 201 | represented by private counsel is currently unrepresented in a |
| 202 | postconviction capital collateral proceeding, |
| 203 |
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| 204 | the executive director shall immediately notify the trial court |
| 205 | that imposed the sentence of death that the court must |
| 206 | immediately appoint an attorney, selected from the current |
| 207 | registry, to represent the such person in collateral actions |
| 208 | challenging the legality of the judgment and sentence in the |
| 209 | appropriate state and federal courts. If the attorney appointed |
| 210 | to represent a person under a sentence of death does not wish to |
| 211 | continue representing the person in federal proceedings, the |
| 212 | attorney must make reasonable efforts to assist the person in |
| 213 | finding an attorney who meets the federal criteria to represent |
| 214 | the person in any federal proceedings. The court shall have the |
| 215 | authority to strike a notice of appearance filed by a Capital |
| 216 | Collateral Regional Counsel, if the court finds the notice was |
| 217 | not filed in good faith and may so notify the executive director |
| 218 | that the client is no longer represented by the Office of |
| 219 | Capital Collateral Regional Counsel. In making an assignment, |
| 220 | the court shall give priority to attorneys whose experience and |
| 221 | abilities in criminal law, especially in capital proceedings, |
| 222 | are known by the court to be commensurate with the |
| 223 | responsibility of representing a person sentenced to death. The |
| 224 | trial court must issue an order of appointment which contains |
| 225 | specific findings that the appointed counsel meets the statutory |
| 226 | requirements and has the high ethical standards necessary to |
| 227 | represent a person sentenced to death. |
| 228 | (6) More than one attorney may not be appointed and |
| 229 | compensated at any one time under s. 27.711 to represent a |
| 230 | person in postconviction capital collateral proceedings. |
| 231 | However, an attorney appointed under this section may designate |
| 232 | another attorney to assist him or her if the designated attorney |
| 233 | meets the qualifications of this section. |
| 234 | Section 4. Subsections (3), (4), (7), and (9) of section |
| 235 | 27.711, Florida Statutes, are amended, and subsection (15) is |
| 236 | added to that section, to read: |
| 237 | 27.711 Terms and conditions of appointment of attorneys as |
| 238 | counsel in postconviction capital collateral proceedings.-- |
| 239 | (3) An attorney appointed to represent a capital defendant |
| 240 | is entitled to payment of the fees set forth in this section |
| 241 | only upon full performance by the attorney of the duties |
| 242 | specified in this section and approval of payment by the trial |
| 243 | court, and the submission of a payment request by the attorney, |
| 244 | subject to the availability of sufficient funding specifically |
| 245 | appropriated for this purpose. An attorney may not be |
| 246 | compensated under this section for work performed by the |
| 247 | attorney before July 1, 2003, while employed by the northern |
| 248 | regional office of the capital collateral counsel. The Chief |
| 249 | Financial Officer shall notify the executive director and the |
| 250 | court if it appears that sufficient funding has not been |
| 251 | specifically appropriated for this purpose to pay any fees which |
| 252 | may be incurred. The attorney shall maintain appropriate |
| 253 | documentation, including a current and detailed hourly |
| 254 | accounting of time spent representing the capital defendant. The |
| 255 | fee and payment schedule in this section is the exclusive means |
| 256 | of compensating a court-appointed attorney who represents a |
| 257 | capital defendant. When appropriate, a court-appointed attorney |
| 258 | must seek further compensation from the Federal Government, as |
| 259 | provided in 18 U.S.C. s. 3006A or other federal law, in habeas |
| 260 | corpus litigation in the federal courts. An attorney who incurs |
| 261 | costs for representing capital defendants on a pro bono basis |
| 262 | shall be paid from registry funds by the Chief Financial |
| 263 | Officer. These payments must be approved by the trial court |
| 264 | before payment. |
| 265 | (4) Upon approval by the trial court, an attorney |
| 266 | appointed to represent a capital defendant under s. 27.710 is |
| 267 | entitled to payment of the following fees by the Chief Financial |
| 268 | Officer: |
| 269 | (a) Regardless of the stage of postconviction capital |
| 270 | collateral proceedings, the attorney is entitled to $100 per |
| 271 | hour, up to a maximum of $2,500, after accepting appointment and |
| 272 | filing a notice of appearance. |
| 273 | (b) The attorney is entitled to $100 per hour, up to a |
| 274 | maximum of $20,000, after timely filing in the trial court the |
| 275 | capital defendant's complete original motion for postconviction |
| 276 | relief under the Florida Rules of Criminal Procedure. The motion |
| 277 | must raise all issues to be addressed by the trial court. |
| 278 | However, an attorney is entitled to fees under this paragraph if |
| 279 | the court schedules a hearing on a matter that makes the filing |
| 280 | of the original motion for postconviction relief unnecessary or |
| 281 | if the court otherwise disposes of the case. |
| 282 | (c) The attorney is entitled to $100 per hour, up to a |
| 283 | maximum of $20,000, after the final hearing on trial court |
| 284 | issues a final order granting or denying the capital defendant's |
| 285 | motion for postconviction relief. |
| 286 | (d) The attorney is entitled to $100 per hour, up to a |
| 287 | maximum of $20,000, after timely filing in the Supreme Court the |
| 288 | capital defendant's brief or briefs that address the trial |
| 289 | court's final order granting or denying the capital defendant's |
| 290 | motion for postconviction relief and the state petition for writ |
| 291 | of habeas corpus. |
| 292 | (e) The attorney is entitled to $100 per hour, up to a |
| 293 | maximum of $10,000, after the trial court issues an order, |
| 294 | following pursuant to a remand from the Supreme Court, which |
| 295 | directs the trial court to hold further proceedings on the |
| 296 | capital defendant's motion for postconviction relief. |
| 297 | (f) The attorney is entitled to $100 per hour, up to a |
| 298 | maximum of $4,000, after the appeal of the trial court's denial |
| 299 | of the capital defendant's motion for postconviction relief and |
| 300 | the capital defendant's state petition for writ of habeas corpus |
| 301 | become final in the Supreme Court. |
| 302 | (g) At the conclusion of the capital defendant's |
| 303 | postconviction capital collateral proceedings in state court, |
| 304 | the attorney is entitled to $100 per hour, up to a maximum of |
| 305 | $2,500, for the preparation of the initial federal pleading |
| 306 | after filing a petition for writ of certiorari in the Supreme |
| 307 | Court of the United States. |
| 308 | (h) If, at any time, a death warrant is issued, the |
| 309 | attorney is entitled to $100 per hour, up to a maximum of |
| 310 | $5,000. This payment shall be full compensation for attorney's |
| 311 | fees and costs for representing the capital defendant throughout |
| 312 | the proceedings before the state courts of Florida. |
| 313 |
|
| 314 | The hours billed by a contracting attorney under this subsection |
| 315 | may include time devoted to representation of the defendant by |
| 316 | another attorney who is qualified under s. 27.710 and who has |
| 317 | been designated by the contracting attorney to assist him or |
| 318 | her. |
| 319 | (7) Each registry An attorney who is representing at least |
| 320 | one capital defendant actively representing a capital defendant |
| 321 | is entitled to a maximum of $500 per fiscal year for tuition and |
| 322 | expenses for continuing legal education that pertains to the |
| 323 | representation of capital defendants, regardless of the total |
| 324 | number of capital defendants the attorney is representing. Upon |
| 325 | approval by the trial court, the attorney is entitled to payment |
| 326 | by the Chief Financial Officer for expenses for such tuition and |
| 327 | continuing legal education. |
| 328 | (9) An attorney may not represent more than 10 inmates |
| 329 | five defendants in capital postconviction litigation at any one |
| 330 | time. The 10-inmate-representation limit includes capital |
| 331 | postconviction cases proceeding under contract with the capital |
| 332 | collateral regional counsel, inmates represented pro bono, and |
| 333 | inmates privately retaining the attorney. An attorney may not be |
| 334 | appointed to additional capital postconviction cases until the |
| 335 | attorney's representation total falls below the 10-case limit. |
| 336 | (15) If a trial court judge intends to award attorney fees |
| 337 | in excess of those outlined in this section, the judge must |
| 338 | include written findings of fact that specifically state the |
| 339 | extraordinary nature of the expenditures of the time, energy, |
| 340 | and talents of the attorney in the case which are not ordinarily |
| 341 | expended in other capital collateral cases. |
| 342 | Section 5. This act shall take effect July 1, 2006. |