HB 325

1
A bill to be entitled
2An act relating to the Commission on Capital Cases;
3amending s. 27.7001, F.S.; providing legislative findings;
4amending s. 27.709, F.S.; authorizing the Commission on
5Capital Cases to sponsor continuing legal education
6programs devoted specifically to capital cases; amending
7s. 27.710, F.S.; specifying criteria that a private
8attorney must satisfy in order to be eligible to be
9appointed as counsel in a postconviction capital
10collateral proceeding; providing that a judge may appoint
11an attorney who does not meet the appointment criteria if
12exceptional circumstances exist; providing that an
13attorney may be removed from the capital collateral
14registry if the attorney does not meet the criteria;
15directing the executive director of the commission to
16remove an attorney from the registry if the attorney fails
17to timely file an executed contract; requiring a private
18attorney appointed by a court to represent a capital
19defendant to submit a report each quarter to the
20commission; requiring that the executive director remove
21an attorney from the registry if the attorney does not
22submit the report within a specified time; requiring that
23an attorney make reasonable efforts to assist the person
24under a sentence of death in finding an attorney under
25certain circumstances; amending s. 27.711, F.S.; requiring
26that costs incurred during pro bono representation of a
27capital defendant be paid to the attorney; providing that
28an attorney who is listed on the registry and representing
29at least one capital defendant is entitled to tuition and
30expenses for continuing legal education courses; providing
31that an attorney may represent no more than 10 inmates in
32capital postconviction cases at any one time; requiring
33that, if a trial court judge intends to award attorney's
34fees in excess of those set by law, the judge must include
35written findings of fact specifically stating the
36extraordinary nature of the expenditures of the time,
37energy, and talents of the attorney in the case which are
38not ordinarily expended in other capital collateral cases;
39providing an effective date.
40
41Be It Enacted by the Legislature of the State of Florida:
42
43     Section 1.  Section 27.7001, Florida Statutes, is amended
44to read:
45     27.7001  Legislative intent and findings.--It is the intent
46of the Legislature to create part IV of this chapter, consisting
47of ss. 27.7001-27.711, inclusive, to provide for the collateral
48representation of any person convicted and sentenced to death in
49this state, so that collateral legal proceedings to challenge
50any Florida capital conviction and sentence may be commenced in
51a timely manner and so as to assure the people of this state
52that the judgments of its courts may be regarded with the
53finality to which they are entitled in the interests of justice.
54It is the further intent of the Legislature that collateral
55representation shall not include representation during retrials,
56resentencings, proceedings commenced under chapter 940, or civil
57litigation. The Legislature further finds that not all capital
58collateral cases are extraordinary and unusual.
59     Section 2.  Paragraph (d) is added to subsection (2) of
60section 27.709, Florida Statutes, to read:
61     27.709  Commission on Capital Cases.--
62     (2)
63     (d)  The commission may sponsor programs of continuing
64legal education which are devoted specifically to capital cases
65and shall undertake any project recommended or approved by the
66commission members.
67     Section 3.  Section 27.710, Florida Statutes, is amended to
68read:
69     27.710  Registry of attorneys applying to represent persons
70in postconviction capital collateral proceedings; certification
71of minimum requirements; appointment by trial court.--
72     (1)  The executive director of the Commission on Capital
73Cases shall compile and maintain a statewide registry of
74attorneys in private practice who have certified that they meet
75the minimum requirements of s. 27.704(2) and, who are available
76for appointment by the court under this section to represent
77persons convicted and sentenced to death in this state in
78postconviction collateral proceedings, and who have attended
79within the last year a continuing legal education program of at
80least 10 hours' duration devoted specifically to the defense of
81capital cases, if available. Continuing legal education programs
82meeting the requirements of this rule offered by The Florida Bar
83or another recognized provider and approved for continuing legal
84education credit by The Florida Bar shall satisfy this
85requirement. The failure to comply with this requirement may be
86cause for removal from the list until the requirement is
87fulfilled. To ensure that sufficient attorneys are available for
88appointment by the court, when the number of attorneys on the
89registry falls below 50, the executive director shall notify the
90chief judge of each circuit by letter and request the chief
91judge to promptly submit the names of at least three private
92attorneys who regularly practice criminal law in that circuit
93and who appear to meet the minimum requirements to represent
94persons in postconviction capital collateral proceedings. The
95executive director shall send an application to each attorney
96identified by the chief judge so that the attorney may register
97for appointment as counsel in postconviction capital collateral
98proceedings. As necessary, the executive director may also
99advertise in legal publications and other appropriate media for
100qualified attorneys interested in registering for appointment as
101counsel in postconviction capital collateral proceedings. Not
102later than September 1 of each year, and as necessary
103thereafter, the executive director shall provide to the Chief
104Justice of the Supreme Court, the chief judge and state attorney
105in each judicial circuit, and the Attorney General a current
106copy of its registry of attorneys who are available for
107appointment as counsel in postconviction capital collateral
108proceedings. The registry must be indexed by judicial circuit
109and must contain the requisite information submitted by the
110applicants in accordance with this section.
111     (2)(a)  To be eligible for court appointment as counsel in
112postconviction capital collateral proceedings, an attorney must
113certify on an application provided by the executive director
114that he or she:
115     1.  Is an active practitioner who has at least 5 years'
116experience in the practice of criminal law, is familiar with the
117production of evidence and the use of expert witnesses,
118including psychiatric and forensic evidence, and has
119demonstrated the proficiency necessary for representation in
120capital cases, including the investigation and presentation of
121mitigation evidence;
122     2.  Has attended a minimum of 12 hours of continuing legal
123education programs within the previous 2 years which were
124devoted to the defense of capital cases and offered by The
125Florida Bar or another recognized provider of continuing legal
126education courses; and
127     3.a.  Has tried at least nine state or federal jury trials
128to 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
131of which must have been other felony trials; or
132     (III)  One of which must have included a postconviction
133evidentiary hearing and five of which must have been other
134felony trials; or
135     b.  Has appealed one capital conviction and appealed:
136     (I)  At least three felony convictions, one of which must
137have been a murder; or
138     (II)  At least three felony convictions and participated in
139one capital postconviction evidentiary hearing.
140     (b)  If the trial court finds that exceptional
141circumstances exist requiring appointment of an attorney who
142does not meet the criteria set forth in paragraph (a), the trial
143court shall enter a written order specifying the exceptional
144circumstances requiring appointment of the attorney and explicit
145findings that the attorney chosen will provide competent
146representation in accordance with the intent of this section.
147     (c)  A failure to comply with any criterion set forth in
148paragraph (a) may be cause to remove the attorney from the
149registry until the criterion is satisfied.
150     (d)  Satisfaction of the criterion may be proven by
151submitting a written certification to the commission. The
152certification is complete upon submission of the application by
153electronic mail without a signature satisfies the minimum
154requirements for private counsel set forth in s. 27.704(2).
155     (3)  An attorney who applies for registration and court
156appointment as counsel in postconviction capital collateral
157proceedings must certify that he or she is counsel of record in
158not more than four such proceedings and, if appointed to
159represent a person in postconviction capital collateral
160proceedings, shall continue the such representation under the
161terms and conditions set forth in s. 27.711 until the sentence
162is reversed, reduced, or carried out or unless permitted to
163withdraw from representation by the trial court. The court may
164not permit an attorney to withdraw from representation without a
165finding of sufficient good cause. The court may impose
166appropriate sanctions if it finds that an attorney has shown bad
167faith with respect to continuing to represent a defendant in a
168postconviction capital collateral proceeding. This section does
169not preclude the court from reassigning a case to a capital
170collateral regional counsel following discontinuation of
171representation if a conflict of interest no longer exists with
172respect to the case.
173     (4)(a)  Each private attorney who is appointed by the court
174to represent a capital defendant must enter into a contract with
175the Chief Financial Officer. If the appointed attorney fails to
176execute the contract within 30 days after the date the contract
177is mailed to the attorney, the executive director of the
178Commission on Capital Cases shall notify the trial court and
179shall remove the attorney from the registry list. The Chief
180Financial Officer shall develop the form of the contract,
181function as contract manager, and enforce performance of the
182terms and conditions of the contract. By signing such contract,
183the attorney certifies that he or she intends to continue the
184representation under the terms and conditions set forth in the
185contract until the sentence is reversed, reduced, or carried out
186or until released by order of the trial court.
187     (b)  Each private attorney appointed by a court to
188represent a capital defendant shall submit a report each quarter
189to the commission in the format designated by the commission. If
190the attorney does not submit the report within 30 days after the
191end of the quarter, the executive director shall remove the
192attorney from the registry.
193     (5)(a)  Upon the motion of the capital collateral regional
194counsel to withdraw under pursuant to s. 924.056(1)(a); or
195     (b)  Upon notification by the state attorney or the
196Attorney General that:
197     1.  Thirty days have elapsed since appointment of the
198capital collateral regional counsel and no entry of appearance
199has been filed under pursuant to s. 924.056; or
200     2.  A person under sentence of death who was previously
201represented by private counsel is currently unrepresented in a
202postconviction capital collateral proceeding,
203
204the executive director shall immediately notify the trial court
205that imposed the sentence of death that the court must
206immediately appoint an attorney, selected from the current
207registry, to represent the such person in collateral actions
208challenging the legality of the judgment and sentence in the
209appropriate state and federal courts. If the attorney appointed
210to represent a person under a sentence of death does not wish to
211continue representing the person in federal proceedings, the
212attorney must make reasonable efforts to assist the person in
213finding an attorney who meets the federal criteria to represent
214the person in any federal proceedings. The court shall have the
215authority to strike a notice of appearance filed by a Capital
216Collateral Regional Counsel, if the court finds the notice was
217not filed in good faith and may so notify the executive director
218that the client is no longer represented by the Office of
219Capital Collateral Regional Counsel.  In making an assignment,
220the court shall give priority to attorneys whose experience and
221abilities in criminal law, especially in capital proceedings,
222are known by the court to be commensurate with the
223responsibility of representing a person sentenced to death. The
224trial court must issue an order of appointment which contains
225specific findings that the appointed counsel meets the statutory
226requirements and has the high ethical standards necessary to
227represent a person sentenced to death.
228     (6)  More than one attorney may not be appointed and
229compensated at any one time under s. 27.711 to represent a
230person in postconviction capital collateral proceedings.
231However, an attorney appointed under this section may designate
232another attorney to assist him or her if the designated attorney
233meets the qualifications of this section.
234     Section 4.  Subsections (3), (4), (7), and (9) of section
23527.711, Florida Statutes, are amended, and subsection (15) is
236added to that section, to read:
237     27.711  Terms and conditions of appointment of attorneys as
238counsel in postconviction capital collateral proceedings.--
239     (3)  An attorney appointed to represent a capital defendant
240is entitled to payment of the fees set forth in this section
241only upon full performance by the attorney of the duties
242specified in this section and approval of payment by the trial
243court, and the submission of a payment request by the attorney,
244subject to the availability of sufficient funding specifically
245appropriated for this purpose. An attorney may not be
246compensated under this section for work performed by the
247attorney before July 1, 2003, while employed by the northern
248regional office of the capital collateral counsel. The Chief
249Financial Officer shall notify the executive director and the
250court if it appears that sufficient funding has not been
251specifically appropriated for this purpose to pay any fees which
252may be incurred. The attorney shall maintain appropriate
253documentation, including a current and detailed hourly
254accounting of time spent representing the capital defendant. The
255fee and payment schedule in this section is the exclusive means
256of compensating a court-appointed attorney who represents a
257capital defendant. When appropriate, a court-appointed attorney
258must seek further compensation from the Federal Government, as
259provided in 18 U.S.C. s. 3006A or other federal law, in habeas
260corpus litigation in the federal courts. An attorney who incurs
261costs for representing capital defendants on a pro bono basis
262shall be paid from registry funds by the Chief Financial
263Officer. These payments must be approved by the trial court
264before payment.
265     (4)  Upon approval by the trial court, an attorney
266appointed to represent a capital defendant under s. 27.710 is
267entitled to payment of the following fees by the Chief Financial
268Officer:
269     (a)  Regardless of the stage of postconviction capital
270collateral proceedings, the attorney is entitled to $100 per
271hour, up to a maximum of $2,500, after accepting appointment and
272filing a notice of appearance.
273     (b)  The attorney is entitled to $100 per hour, up to a
274maximum of $20,000, after timely filing in the trial court the
275capital defendant's complete original motion for postconviction
276relief under the Florida Rules of Criminal Procedure. The motion
277must raise all issues to be addressed by the trial court.
278However, an attorney is entitled to fees under this paragraph if
279the court schedules a hearing on a matter that makes the filing
280of the original motion for postconviction relief unnecessary or
281if the court otherwise disposes of the case.
282     (c)  The attorney is entitled to $100 per hour, up to a
283maximum of $20,000, after the final hearing on trial court
284issues a final order granting or denying the capital defendant's
285motion for postconviction relief.
286     (d)  The attorney is entitled to $100 per hour, up to a
287maximum of $20,000, after timely filing in the Supreme Court the
288capital defendant's brief or briefs that address the trial
289court's final order granting or denying the capital defendant's
290motion for postconviction relief and the state petition for writ
291of habeas corpus.
292     (e)  The attorney is entitled to $100 per hour, up to a
293maximum of $10,000, after the trial court issues an order,
294following pursuant to a remand from the Supreme Court, which
295directs the trial court to hold further proceedings on the
296capital defendant's motion for postconviction relief.
297     (f)  The attorney is entitled to $100 per hour, up to a
298maximum of $4,000, after the appeal of the trial court's denial
299of the capital defendant's motion for postconviction relief and
300the capital defendant's state petition for writ of habeas corpus
301become final in the Supreme Court.
302     (g)  At the conclusion of the capital defendant's
303postconviction capital collateral proceedings in state court,
304the attorney is entitled to $100 per hour, up to a maximum of
305$2,500, for the preparation of the initial federal pleading
306after filing a petition for writ of certiorari in the Supreme
307Court of the United States.
308     (h)  If, at any time, a death warrant is issued, the
309attorney is entitled to $100 per hour, up to a maximum of
310$5,000. This payment shall be full compensation for attorney's
311fees and costs for representing the capital defendant throughout
312the proceedings before the state courts of Florida.
313
314The hours billed by a contracting attorney under this subsection
315may include time devoted to representation of the defendant by
316another attorney who is qualified under s. 27.710 and who has
317been designated by the contracting attorney to assist him or
318her.
319     (7)  Each registry An attorney who is representing at least
320one capital defendant actively representing a capital defendant
321is entitled to a maximum of $500 per fiscal year for tuition and
322expenses for continuing legal education that pertains to the
323representation of capital defendants, regardless of the total
324number of capital defendants the attorney is representing. Upon
325approval by the trial court, the attorney is entitled to payment
326by the Chief Financial Officer for expenses for such tuition and
327continuing legal education.
328     (9)  An attorney may not represent more than 10 inmates
329five defendants in capital postconviction litigation at any one
330time. The 10-inmate-representation limit includes capital
331postconviction cases proceeding under contract with the capital
332collateral regional counsel, inmates represented pro bono, and
333inmates privately retaining the attorney. An attorney may not be
334appointed to additional capital postconviction cases until the
335attorney's representation total falls below the 10-case limit.
336     (15)  If a trial court judge intends to award attorney fees
337in excess of those outlined in this section, the judge must
338include written findings of fact that specifically state the
339extraordinary nature of the expenditures of the time, energy,
340and talents of the attorney in the case which are not ordinarily
341expended in other capital collateral cases.
342     Section 5.  This act shall take effect July 1, 2006.


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