HB 0325CS

CHAMBER ACTION



1The Governmental Operations 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 the executive director to notify the
25trial court and remove an attorney from the registry if
26the attorney does not submit the report within a specified
27time; authorizing the commission to return a removed
28attorney to the registry; requiring that an attorney make
29reasonable efforts to assist the person under a sentence
30of death in finding an attorney under certain
31circumstances; amending s. 27.711, F.S.; requiring that
32certain costs incurred during pro bono representation of a
33capital defendant be paid to the attorney; providing that
34an attorney who is listed on the registry and representing
35at least one capital defendant is entitled to tuition and
36expenses for continuing legal education courses; providing
37that an attorney may represent no more than seven inmates
38in capital postconviction cases at any one time; requiring
39that, if a trial court judge intends to award attorney's
40fees in excess of those set by law, the judge must include
41written findings of fact specifically stating the
42extraordinary nature of the expenditures of the time,
43energy, and talents of the attorney in the case that are
44not ordinarily expended in other capital collateral cases;
45providing an effective date.
46
47Be It Enacted by the Legislature of the State of Florida:
48
49     Section 1.  Section 27.7001, Florida Statutes, is amended
50to read:
51     27.7001  Legislative intent and findings.--It is the intent
52of the Legislature to create part IV of this chapter, consisting
53of ss. 27.7001-27.711, inclusive, to provide for the collateral
54representation of any person convicted and sentenced to death in
55this state, so that collateral legal proceedings to challenge
56any Florida capital conviction and sentence may be commenced in
57a timely manner and so as to assure the people of this state
58that the judgments of its courts may be regarded with the
59finality to which they are entitled in the interests of justice.
60It is the further intent of the Legislature that collateral
61representation shall not include representation during retrials,
62resentencings, proceedings commenced under chapter 940, or civil
63litigation. The Legislature further finds that not all capital
64collateral cases are extraordinary or unusual.
65     Section 2.  Paragraph (d) is added to subsection (2) of
66section 27.709, Florida Statutes, to read:
67     27.709  Commission on Capital Cases.--
68     (2)
69     (d)  The commission may sponsor programs of continuing
70legal education which are devoted specifically to capital cases
71and shall undertake any project recommended or approved by the
72commission members.
73     Section 3.  Section 27.710, Florida Statutes, is amended to
74read:
75     27.710  Registry of attorneys applying to represent persons
76in postconviction capital collateral proceedings; certification
77of minimum requirements; appointment by trial court.--
78     (1)  The executive director of the Commission on Capital
79Cases shall compile and maintain a statewide registry of
80attorneys in private practice who have certified that they meet
81the minimum requirements of this section and s. 27.704(2), who
82are available for appointment by the court under this section to
83represent persons convicted and sentenced to death in this state
84in postconviction collateral proceedings, and who have attended
85within the last year a continuing legal education program of at
86least 10 hours' duration devoted specifically to the defense of
87capital cases, if available. Continuing legal education programs
88meeting the requirements of this rule offered by The Florida Bar
89or another recognized provider and approved for continuing legal
90education credit by The Florida Bar shall satisfy this
91requirement. The failure to comply with this requirement may be
92cause for removal from the list until the requirement is
93fulfilled. To ensure that sufficient attorneys are available for
94appointment by the court, when the number of attorneys on the
95registry falls below 50, the executive director shall notify the
96chief judge of each circuit by letter and request the chief
97judge to promptly submit the names of at least three private
98attorneys who regularly practice criminal law in that circuit
99and who appear to meet the minimum requirements to represent
100persons in postconviction capital collateral proceedings. The
101executive director shall send an application to each attorney
102identified by the chief judge so that the attorney may register
103for appointment as counsel in postconviction capital collateral
104proceedings. As necessary, the executive director may also
105advertise in legal publications and other appropriate media for
106qualified attorneys interested in registering for appointment as
107counsel in postconviction capital collateral proceedings. Not
108later than September 1 of each year, and as necessary
109thereafter, the executive director shall provide to the Chief
110Justice of the Supreme Court, the chief judge and state attorney
111in each judicial circuit, and the Attorney General a current
112copy of its registry of attorneys who are available for
113appointment as counsel in postconviction capital collateral
114proceedings. The registry must be indexed by judicial circuit
115and must contain the requisite information submitted by the
116applicants in accordance with this section.
117     (2)(a)  To be eligible for court appointment as counsel in
118postconviction capital collateral proceedings, an attorney must
119certify on an application provided by the executive director
120that he or she is a member in good standing of The Florida Bar
121and:
122     1.  Is an active practitioner who has at least 5 years'
123experience in the practice of criminal law, is familiar with the
124production of evidence and the use of expert witnesses,
125including psychiatric and forensic evidence, and has
126demonstrated the proficiency necessary for representation in
127capital cases, including the investigation and presentation of
128mitigation evidence;
129     2.  Has attended a minimum of 12 hours of continuing legal
130education programs within the previous 2 years which were
131devoted to the defense of capital cases and offered by The
132Florida Bar or another recognized provider of continuing legal
133education courses; and
134     3.a.  Has tried at least nine state or federal jury trials
135to completion, two of which must have been capital cases and:
136     (I)  Three of which must have been murder trials;
137     (II)  One of which must have been a murder trial and five
138of which must have been other felony trials; or
139     (III)  One of which must have included a postconviction
140evidentiary hearing and five of which must have been other
141felony trials; or
142     b.  Has appealed one capital conviction and appealed:
143     (I)  At least three felony convictions, one of which must
144have been a murder;
145     (II)  At least three felony convictions and participated in
146one capital postconviction evidentiary hearing; or
147     (III)  At least six felony convictions, two of which must
148have been murders.
149     (b)  If the trial court finds that exceptional
150circumstances exist requiring appointment of an attorney who
151does not meet the criteria set forth in paragraph (a), the trial
152court shall enter a written order specifying the exceptional
153circumstances requiring appointment of the attorney and explicit
154findings that the attorney chosen will provide competent
155representation in accordance with the intent of this section.
156     (c)  A failure to comply with any criterion set forth in
157paragraph (a) may be cause to remove the attorney from the
158registry until the criterion is satisfied.
159     (d)  Satisfaction of the criterion may be proven by
160submitting a written certification to the commission. The
161certification is complete upon submission of the application by
162electronic mail without a signature satisfies the minimum
163requirements for private counsel set forth in s. 27.704(2).
164     (3)  An attorney who applies for registration and court
165appointment as counsel in postconviction capital collateral
166proceedings must certify that he or she is counsel of record in
167not more than four such proceedings and, if appointed to
168represent a person in postconviction capital collateral
169proceedings, shall continue the such representation under the
170terms and conditions set forth in s. 27.711 until the sentence
171is reversed, reduced, or carried out or unless permitted to
172withdraw from representation by the trial court. The court may
173not permit an attorney to withdraw from representation without a
174finding of sufficient good cause. The court may impose
175appropriate sanctions if it finds that an attorney has shown bad
176faith with respect to continuing to represent a defendant in a
177postconviction capital collateral proceeding. This section does
178not preclude the court from reassigning a case to a capital
179collateral regional counsel following discontinuation of
180representation if a conflict of interest no longer exists with
181respect to the case.
182     (4)(a)  Each private attorney who is appointed by the court
183to represent a capital defendant must enter into a contract with
184the Chief Financial Officer. If the appointed attorney fails to
185execute the contract within 30 days after the date the contract
186is mailed to the attorney, the executive director of the
187Commission on Capital Cases shall notify the trial court, which
188may impose a fine or remove the attorney from the case. If the
189appointed attorney fails to execute the contract within 45 days
190after the date the contract is mailed to the attorney, the
191executive director shall remove the attorney from the registry
192list. The Chief Financial Officer shall develop the form of the
193contract, function as contract manager, and enforce performance
194of the terms and conditions of the contract. By signing such
195contract, the attorney certifies that he or she intends to
196continue the representation under the terms and conditions set
197forth in the contract until the sentence is reversed, reduced,
198or carried out or until released by order of the trial court. In
199no event shall an attorney receive any funds from the State
200Treasury without executing the contract required by this
201paragraph.
202     (b)  Each private attorney appointed by a court to
203represent a capital defendant shall submit a report each quarter
204to the commission in the format designated by the commission. If
205the attorney does not submit the report within 30 days after the
206end of the quarter, the executive director shall notify the
207court, which may impose a fine or remove the attorney from the
208case. If the attorney fails to submit the report within 45 days
209after the end of the quarter, the executive director shall
210remove the attorney from the registry list.
211     (c)  Any appointed attorney removed from the registry may,
212at the discretion of the court, continue to represent any
213clients that the attorney has been appointed to represent as of
214the date of removal. If the court allows an attorney who has
215been removed from the registry to continue to represent
216previously appointed capital defendants, the court shall take
217all necessary actions to ensure compliance with the requirements
218of this subsection. An attorney who has been removed from the
219registry is prohibited from accepting appointment to represent
220any new capital defendants unless the attorney is placed back on
221the registry as provided in paragraph (d).
222     (d)  After certifying to the executive director that he or
223she will act in accordance with the provisions of this
224subsection, an attorney removed from the registry may, after 60
225days, reapply for the registry as provided in subsection (2). An
226attorney may reapply for the registry no more than two times
227under the provisions of this paragraph for failure to adhere to
228the requirements of this subsection.
229     (5)(a)  Upon the motion of the capital collateral regional
230counsel to withdraw under pursuant to s. 924.056(1)(a); or
231     (b)  Upon notification by the state attorney or the
232Attorney General that:
233     1.  Thirty days have elapsed since appointment of the
234capital collateral regional counsel and no entry of appearance
235has been filed under pursuant to s. 924.056; or
236     2.  A person under sentence of death who was previously
237represented by private counsel is currently unrepresented in a
238postconviction capital collateral proceeding,
239
240the executive director shall immediately notify the trial court
241that imposed the sentence of death that the court must
242immediately appoint an attorney, selected from the current
243registry, to represent the such person in collateral actions
244challenging the legality of the judgment and sentence in the
245appropriate state and federal courts. If the attorney appointed
246to represent a person under a sentence of death does not wish to
247continue representing the person in federal proceedings, the
248attorney must make reasonable efforts to assist the person in
249finding an attorney who meets the federal criteria to represent
250the person in any federal proceedings. The court shall have the
251authority to strike a notice of appearance filed by a Capital
252Collateral Regional Counsel, if the court finds the notice was
253not filed in good faith and may so notify the executive director
254that the client is no longer represented by the Office of
255Capital Collateral Regional Counsel.  In making an assignment,
256the court shall give priority to attorneys whose experience and
257abilities in criminal law, especially in capital proceedings,
258are known by the court to be commensurate with the
259responsibility of representing a person sentenced to death. The
260trial court must issue an order of appointment which contains
261specific findings that the appointed counsel meets the statutory
262requirements and has the high ethical standards necessary to
263represent a person sentenced to death.
264     (6)  More than one attorney may not be appointed and
265compensated at any one time under s. 27.711 to represent a
266person in postconviction capital collateral proceedings.
267However, an attorney appointed under this section may designate
268another attorney to assist him or her if the designated attorney
269meets the qualifications of this section.
270     Section 4.  Subsections (3), (4), (7), and (9) of section
27127.711, Florida Statutes, are amended, and subsection (15) is
272added to that section, to read:
273     27.711  Terms and conditions of appointment of attorneys as
274counsel in postconviction capital collateral proceedings.--
275     (3)  An attorney appointed to represent a capital defendant
276is entitled to payment of the fees set forth in this section
277only upon full performance by the attorney of the duties
278specified in this section and approval of payment by the trial
279court, and the submission of a payment request by the attorney,
280subject to the availability of sufficient funding specifically
281appropriated for this purpose. An attorney may not be
282compensated under this section for work performed by the
283attorney before July 1, 2003, while employed by the northern
284regional office of the capital collateral counsel. The Chief
285Financial Officer shall notify the executive director and the
286court if it appears that sufficient funding has not been
287specifically appropriated for this purpose to pay any fees which
288may be incurred. The attorney shall maintain appropriate
289documentation, including a current and detailed hourly
290accounting of time spent representing the capital defendant. The
291fee and payment schedule in this section is the exclusive means
292of compensating a court-appointed attorney who represents a
293capital defendant. When appropriate, a court-appointed attorney
294must seek further compensation from the Federal Government, as
295provided in 18 U.S.C. s. 3006A or other federal law, in habeas
296corpus litigation in the federal courts. An attorney who is
297appointed by a court to represent a capital defendant on a pro
298bono basis shall not be entitled to attorney's fees as provided
299in subsection (4), but shall be entitled to payment by the Chief
300Financial Officer from the registry appropriation for
301investigative services as specified in subsection (5) and for
302miscellaneous expenses actually incurred on behalf of the
303defendant as specified in subsection (6). If a registry attorney
304has been appointed to represent a defendant, no payment shall be
305made to any other attorney who volunteers to represent the same
306defendant on a pro bono basis.
307     (4)  Upon approval by the trial court, an attorney
308appointed to represent a capital defendant under s. 27.710 is
309entitled to payment of the following fees by the Chief Financial
310Officer:
311     (a)  Regardless of the stage of postconviction capital
312collateral proceedings, the attorney is entitled to $100 per
313hour, up to a maximum of $2,500, after accepting appointment and
314filing a notice of appearance.
315     (b)  The attorney is entitled to $100 per hour, up to a
316maximum of $20,000, after timely filing in the trial court the
317capital defendant's complete original motion for postconviction
318relief under the Florida Rules of Criminal Procedure. The motion
319must raise all issues to be addressed by the trial court.
320However, an attorney is entitled to fees under this paragraph if
321the court schedules a hearing on a matter that makes the filing
322of the original motion for postconviction relief unnecessary or
323if the court otherwise disposes of the case.
324     (c)  The attorney is entitled to $100 per hour, up to a
325maximum of $20,000, after the final hearing on trial court
326issues a final order granting or denying the capital defendant's
327motion for postconviction relief.
328     (d)  The attorney is entitled to $100 per hour, up to a
329maximum of $20,000, after timely filing in the Supreme Court the
330capital defendant's brief or briefs that address the trial
331court's final order granting or denying the capital defendant's
332motion for postconviction relief and the state petition for writ
333of habeas corpus.
334     (e)  The attorney is entitled to $100 per hour, up to a
335maximum of $10,000, after the trial court issues an order,
336following pursuant to a remand from the Supreme Court, which
337directs the trial court to hold further proceedings on the
338capital defendant's motion for postconviction relief.
339     (f)  The attorney is entitled to $100 per hour, up to a
340maximum of $4,000, after the appeal of the trial court's denial
341of the capital defendant's motion for postconviction relief and
342the capital defendant's state petition for writ of habeas corpus
343become final in the Supreme Court.
344     (g)  At the conclusion of the capital defendant's
345postconviction capital collateral proceedings in state court,
346the attorney is entitled to $100 per hour, up to a maximum of
347$2,500, for the preparation of the initial federal pleading
348after filing a petition for writ of certiorari in the Supreme
349Court of the United States.
350     (h)  If, at any time, a death warrant is issued, the
351attorney is entitled to $100 per hour, up to a maximum of
352$5,000. This payment shall be full compensation for attorney's
353fees and costs for representing the capital defendant throughout
354the proceedings before the state courts of Florida.
355
356The hours billed by a contracting attorney under this subsection
357may include time devoted to representation of the defendant by
358another attorney who is qualified under s. 27.710 and who has
359been designated by the contracting attorney to assist him or
360her.
361     (7)  Each registry An attorney who is representing at least
362one capital defendant actively representing a capital defendant
363is entitled to a maximum of $500 per fiscal year for tuition and
364expenses for continuing legal education that pertains to the
365representation of capital defendants, regardless of the total
366number of capital defendants the attorney is representing. Upon
367approval by the trial court, the attorney is entitled to payment
368by the Chief Financial Officer for expenses for such tuition and
369continuing legal education.
370     (9)  An attorney may not represent more than seven inmates
371five defendants in capital postconviction litigation at any one
372time. The seven-inmate-representation limit includes capital
373postconviction cases proceeding under contract with the capital
374collateral regional counsel, inmates represented pro bono, and
375inmates privately retaining the attorney. An attorney may not be
376appointed to additional capital postconviction cases until the
377attorney's representation total falls below the seven-case
378limit.
379     (15)  If a trial court judge intends to award attorney fees
380in excess of those outlined in this section, the judge must
381include written findings of fact that specifically state the
382extraordinary nature of the expenditures of the time, energy,
383and talents of the attorney in the case that are not ordinarily
384expended in other capital collateral cases.
385     Section 5.  This act shall take effect July 1, 2006.


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