HB 0325CS

CHAMBER ACTION



1The Criminal Justice Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to the Commission on Capital Cases;
7amending s. 27.7001, F.S.; providing legislative findings;
8amending s. 27.709, F.S.; authorizing the Commission on
9Capital Cases to sponsor continuing legal education
10programs devoted specifically to capital cases; amending
11s. 27.710, F.S.; specifying criteria that a private
12attorney must satisfy in order to be eligible to be
13appointed as counsel in a postconviction capital
14collateral proceeding; providing that a judge may appoint
15an attorney who does not meet the appointment criteria if
16exceptional circumstances exist; providing that an
17attorney may be removed from the capital collateral
18registry if the attorney does not meet the criteria;
19directing the executive director of the commission to
20remove an attorney from the registry if the attorney fails
21to timely file an executed contract; requiring a private
22attorney appointed by a court to represent a capital
23defendant to submit a report each quarter to the
24commission; requiring that the executive director remove
25an attorney from the registry if the attorney does not
26submit the report within a specified time; requiring that
27an attorney make reasonable efforts to assist the person
28under a sentence of death in finding an attorney under
29certain circumstances; amending s. 27.711, F.S.; requiring
30that costs incurred during pro bono representation of a
31capital defendant be paid to the attorney; providing that
32an attorney who is listed on the registry and representing
33at least one capital defendant is entitled to tuition and
34expenses for continuing legal education courses; providing
35that an attorney may represent no more than seven inmates
36in capital postconviction cases at any one time; requiring
37that, if a trial court judge intends to award attorney's
38fees in excess of those set by law, the judge must include
39written findings of fact specifically stating the
40extraordinary nature of the expenditures of the time,
41energy, and talents of the attorney in the case which are
42not ordinarily expended in other capital collateral cases;
43providing an effective date.
44
45Be It Enacted by the Legislature of the State of Florida:
46
47     Section 1.  Section 27.7001, Florida Statutes, is amended
48to read:
49     27.7001  Legislative intent and findings.--It is the intent
50of the Legislature to create part IV of this chapter, consisting
51of ss. 27.7001-27.711, inclusive, to provide for the collateral
52representation of any person convicted and sentenced to death in
53this state, so that collateral legal proceedings to challenge
54any Florida capital conviction and sentence may be commenced in
55a timely manner and so as to assure the people of this state
56that the judgments of its courts may be regarded with the
57finality to which they are entitled in the interests of justice.
58It is the further intent of the Legislature that collateral
59representation shall not include representation during retrials,
60resentencings, proceedings commenced under chapter 940, or civil
61litigation. The Legislature further finds that not all capital
62collateral cases are extraordinary or unusual.
63     Section 2.  Paragraph (d) is added to subsection (2) of
64section 27.709, Florida Statutes, to read:
65     27.709  Commission on Capital Cases.--
66     (2)
67     (d)  The commission may sponsor programs of continuing
68legal education which are devoted specifically to capital cases
69and shall undertake any project recommended or approved by the
70commission members.
71     Section 3.  Section 27.710, Florida Statutes, is amended to
72read:
73     27.710  Registry of attorneys applying to represent persons
74in postconviction capital collateral proceedings; certification
75of minimum requirements; appointment by trial court.--
76     (1)  The executive director of the Commission on Capital
77Cases shall compile and maintain a statewide registry of
78attorneys in private practice who have certified that they meet
79the minimum requirements of this section and s. 27.704(2), who
80are available for appointment by the court under this section to
81represent persons convicted and sentenced to death in this state
82in postconviction collateral proceedings, and who have attended
83within the last year a continuing legal education program of at
84least 10 hours' duration devoted specifically to the defense of
85capital cases, if available. Continuing legal education programs
86meeting the requirements of this rule offered by The Florida Bar
87or another recognized provider and approved for continuing legal
88education credit by The Florida Bar shall satisfy this
89requirement. The failure to comply with this requirement may be
90cause for removal from the list until the requirement is
91fulfilled. To ensure that sufficient attorneys are available for
92appointment by the court, when the number of attorneys on the
93registry falls below 50, the executive director shall notify the
94chief judge of each circuit by letter and request the chief
95judge to promptly submit the names of at least three private
96attorneys who regularly practice criminal law in that circuit
97and who appear to meet the minimum requirements to represent
98persons in postconviction capital collateral proceedings. The
99executive director shall send an application to each attorney
100identified by the chief judge so that the attorney may register
101for appointment as counsel in postconviction capital collateral
102proceedings. As necessary, the executive director may also
103advertise in legal publications and other appropriate media for
104qualified attorneys interested in registering for appointment as
105counsel in postconviction capital collateral proceedings. Not
106later than September 1 of each year, and as necessary
107thereafter, the executive director shall provide to the Chief
108Justice of the Supreme Court, the chief judge and state attorney
109in each judicial circuit, and the Attorney General a current
110copy of its registry of attorneys who are available for
111appointment as counsel in postconviction capital collateral
112proceedings. The registry must be indexed by judicial circuit
113and must contain the requisite information submitted by the
114applicants in accordance with this section.
115     (2)(a)  To be eligible for court appointment as counsel in
116postconviction capital collateral proceedings, an attorney must
117certify on an application provided by the executive director
118that he or she is a member in good standing of The Florida Bar
119and:
120     1.  Is an active practitioner who has at least 5 years'
121experience in the practice of criminal law, is familiar with the
122production of evidence and the use of expert witnesses,
123including psychiatric and forensic evidence, and has
124demonstrated the proficiency necessary for representation in
125capital cases, including the investigation and presentation of
126mitigation evidence;
127     2.  Has attended a minimum of 12 hours of continuing legal
128education programs within the previous 2 years which were
129devoted to the defense of capital cases and offered by The
130Florida Bar or another recognized provider of continuing legal
131education courses; and
132     3.a.  Has tried at least nine state or federal jury trials
133to completion, two of which must have been capital cases and:
134     (I)  Three of which must have been murder trials;
135     (II)  One of which must have been a murder trial and five
136of which must have been other felony trials; or
137     (III)  One of which must have included a postconviction
138evidentiary hearing and five of which must have been other
139felony trials; or
140     b.  Has appealed one capital conviction and appealed:
141     (I)  At least three felony convictions, one of which must
142have been a murder;
143     (II)  At least three felony convictions and participated in
144one capital postconviction evidentiary hearing; or
145     (III)  At least six felony convictions, two of which must
146have been murders.
147     (b)  If the trial court finds that exceptional
148circumstances exist requiring appointment of an attorney who
149does not meet the criteria set forth in paragraph (a), the trial
150court shall enter a written order specifying the exceptional
151circumstances requiring appointment of the attorney and explicit
152findings that the attorney chosen will provide competent
153representation in accordance with the intent of this section.
154     (c)  A failure to comply with any criterion set forth in
155paragraph (a) may be cause to remove the attorney from the
156registry until the criterion is satisfied.
157     (d)  Satisfaction of the criterion may be proven by
158submitting a written certification to the commission. The
159certification is complete upon submission of the application by
160electronic mail without a signature satisfies the minimum
161requirements for private counsel set forth in s. 27.704(2).
162     (3)  An attorney who applies for registration and court
163appointment as counsel in postconviction capital collateral
164proceedings must certify that he or she is counsel of record in
165not more than four such proceedings and, if appointed to
166represent a person in postconviction capital collateral
167proceedings, shall continue the such representation under the
168terms and conditions set forth in s. 27.711 until the sentence
169is reversed, reduced, or carried out or unless permitted to
170withdraw from representation by the trial court. The court may
171not permit an attorney to withdraw from representation without a
172finding of sufficient good cause. The court may impose
173appropriate sanctions if it finds that an attorney has shown bad
174faith with respect to continuing to represent a defendant in a
175postconviction capital collateral proceeding. This section does
176not preclude the court from reassigning a case to a capital
177collateral regional counsel following discontinuation of
178representation if a conflict of interest no longer exists with
179respect to the case.
180     (4)(a)  Each private attorney who is appointed by the court
181to represent a capital defendant must enter into a contract with
182the Chief Financial Officer. If the appointed attorney fails to
183execute the contract within 30 days after the date the contract
184is mailed to the attorney, the executive director of the
185Commission on Capital Cases shall notify the trial court and
186shall remove the attorney from the registry list. The Chief
187Financial Officer shall develop the form of the contract,
188function as contract manager, and enforce performance of the
189terms and conditions of the contract. By signing such contract,
190the attorney certifies that he or she intends to continue the
191representation under the terms and conditions set forth in the
192contract until the sentence is reversed, reduced, or carried out
193or until released by order of the trial court.
194     (b)  Each private attorney appointed by a court to
195represent a capital defendant shall submit a report each quarter
196to the commission in the format designated by the commission. If
197the attorney does not submit the report within 30 days after the
198end of the quarter, the executive director shall remove the
199attorney from the registry and the court may impose a fine or
200remove the attorney from the case.
201     (5)(a)  Upon the motion of the capital collateral regional
202counsel to withdraw under pursuant to s. 924.056(1)(a); or
203     (b)  Upon notification by the state attorney or the
204Attorney General that:
205     1.  Thirty days have elapsed since appointment of the
206capital collateral regional counsel and no entry of appearance
207has been filed under pursuant to s. 924.056; or
208     2.  A person under sentence of death who was previously
209represented by private counsel is currently unrepresented in a
210postconviction capital collateral proceeding,
211
212the executive director shall immediately notify the trial court
213that imposed the sentence of death that the court must
214immediately appoint an attorney, selected from the current
215registry, to represent the such person in collateral actions
216challenging the legality of the judgment and sentence in the
217appropriate state and federal courts. If the attorney appointed
218to represent a person under a sentence of death does not wish to
219continue representing the person in federal proceedings, the
220attorney must make reasonable efforts to assist the person in
221finding an attorney who meets the federal criteria to represent
222the person in any federal proceedings. The court shall have the
223authority to strike a notice of appearance filed by a Capital
224Collateral Regional Counsel, if the court finds the notice was
225not filed in good faith and may so notify the executive director
226that the client is no longer represented by the Office of
227Capital Collateral Regional Counsel.  In making an assignment,
228the court shall give priority to attorneys whose experience and
229abilities in criminal law, especially in capital proceedings,
230are known by the court to be commensurate with the
231responsibility of representing a person sentenced to death. The
232trial court must issue an order of appointment which contains
233specific findings that the appointed counsel meets the statutory
234requirements and has the high ethical standards necessary to
235represent a person sentenced to death.
236     (6)  More than one attorney may not be appointed and
237compensated at any one time under s. 27.711 to represent a
238person in postconviction capital collateral proceedings.
239However, an attorney appointed under this section may designate
240another attorney to assist him or her if the designated attorney
241meets the qualifications of this section.
242     Section 4.  Subsections (3), (4), (7), and (9) of section
24327.711, Florida Statutes, are amended, and subsection (15) is
244added to that section, to read:
245     27.711  Terms and conditions of appointment of attorneys as
246counsel in postconviction capital collateral proceedings.--
247     (3)  An attorney appointed to represent a capital defendant
248is entitled to payment of the fees set forth in this section
249only upon full performance by the attorney of the duties
250specified in this section and approval of payment by the trial
251court, and the submission of a payment request by the attorney,
252subject to the availability of sufficient funding specifically
253appropriated for this purpose. An attorney may not be
254compensated under this section for work performed by the
255attorney before July 1, 2003, while employed by the northern
256regional office of the capital collateral counsel. The Chief
257Financial Officer shall notify the executive director and the
258court if it appears that sufficient funding has not been
259specifically appropriated for this purpose to pay any fees which
260may be incurred. The attorney shall maintain appropriate
261documentation, including a current and detailed hourly
262accounting of time spent representing the capital defendant. The
263fee and payment schedule in this section is the exclusive means
264of compensating a court-appointed attorney who represents a
265capital defendant. When appropriate, a court-appointed attorney
266must seek further compensation from the Federal Government, as
267provided in 18 U.S.C. s. 3006A or other federal law, in habeas
268corpus litigation in the federal courts. An attorney appointed
269under s. 27.710, or appointed by the court to replace a capital
270collateral regional counsel staff attorney or capital collateral
271regional counsel contract attorney, who incurs costs for
272representing capital defendants on a pro bono basis shall be
273paid from registry funds by the Chief Financial Officer. These
274payments must be approved by the trial court before payment.
275     (4)  Upon approval by the trial court, an attorney
276appointed to represent a capital defendant under s. 27.710 is
277entitled to payment of the following fees by the Chief Financial
278Officer:
279     (a)  Regardless of the stage of postconviction capital
280collateral proceedings, the attorney is entitled to $100 per
281hour, up to a maximum of $2,500, after accepting appointment and
282filing a notice of appearance.
283     (b)  The attorney is entitled to $100 per hour, up to a
284maximum of $20,000, after timely filing in the trial court the
285capital defendant's complete original motion for postconviction
286relief under the Florida Rules of Criminal Procedure. The motion
287must raise all issues to be addressed by the trial court.
288However, an attorney is entitled to fees under this paragraph if
289the court schedules a hearing on a matter that makes the filing
290of the original motion for postconviction relief unnecessary or
291if the court otherwise disposes of the case.
292     (c)  The attorney is entitled to $100 per hour, up to a
293maximum of $20,000, after the final hearing on trial court
294issues a final order granting or denying the capital defendant's
295motion for postconviction relief.
296     (d)  The attorney is entitled to $100 per hour, up to a
297maximum of $20,000, after timely filing in the Supreme Court the
298capital defendant's brief or briefs that address the trial
299court's final order granting or denying the capital defendant's
300motion for postconviction relief and the state petition for writ
301of habeas corpus.
302     (e)  The attorney is entitled to $100 per hour, up to a
303maximum of $10,000, after the trial court issues an order,
304following pursuant to a remand from the Supreme Court, which
305directs the trial court to hold further proceedings on the
306capital defendant's motion for postconviction relief.
307     (f)  The attorney is entitled to $100 per hour, up to a
308maximum of $4,000, after the appeal of the trial court's denial
309of the capital defendant's motion for postconviction relief and
310the capital defendant's state petition for writ of habeas corpus
311become final in the Supreme Court.
312     (g)  At the conclusion of the capital defendant's
313postconviction capital collateral proceedings in state court,
314the attorney is entitled to $100 per hour, up to a maximum of
315$2,500, for the preparation of the initial federal pleading
316after filing a petition for writ of certiorari in the Supreme
317Court of the United States.
318     (h)  If, at any time, a death warrant is issued, the
319attorney is entitled to $100 per hour, up to a maximum of
320$5,000. This payment shall be full compensation for attorney's
321fees and costs for representing the capital defendant throughout
322the proceedings before the state courts of Florida.
323
324The hours billed by a contracting attorney under this subsection
325may include time devoted to representation of the defendant by
326another attorney who is qualified under s. 27.710 and who has
327been designated by the contracting attorney to assist him or
328her.
329     (7)  Each registry An attorney who is representing at least
330one capital defendant actively representing a capital defendant
331is entitled to a maximum of $500 per fiscal year for tuition and
332expenses for continuing legal education that pertains to the
333representation of capital defendants, regardless of the total
334number of capital defendants the attorney is representing. Upon
335approval by the trial court, the attorney is entitled to payment
336by the Chief Financial Officer for expenses for such tuition and
337continuing legal education.
338     (9)  An attorney may not represent more than seven inmates
339five defendants in capital postconviction litigation at any one
340time. The seven-inmate-representation limit includes capital
341postconviction cases proceeding under contract with the capital
342collateral regional counsel, inmates represented pro bono, and
343inmates privately retaining the attorney. An attorney may not be
344appointed to additional capital postconviction cases until the
345attorney's representation total falls below the seven-case
346limit.
347     (15)  If a trial court judge intends to award attorney fees
348in excess of those outlined in this section, the judge must
349include written findings of fact that specifically state the
350extraordinary nature of the expenditures of the time, energy,
351and talents of the attorney in the case which are not ordinarily
352expended in other capital collateral cases.
353     Section 5.  This act shall take effect July 1, 2006.


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