Senate Bill sb0360c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2006                            CS for SB 360

    By the Committee on Criminal Justice; and Senator Campbell





    591-1084-06

  1                      A bill to be entitled

  2         An act relating to the Commission on Capital

  3         Cases; amending s. 27.7001, F.S.; providing

  4         legislative findings; amending s. 27.709, F.S.;

  5         authorizing the Commission on Capital Cases to

  6         sponsor continuing legal education programs

  7         devoted specifically to capital cases; amending

  8         s. 27.710, F.S.; specifying criteria that a

  9         private attorney must satisfy in order to be

10         eligible to be appointed as counsel in a

11         postconviction capital collateral proceeding;

12         providing that a judge may appoint an attorney

13         who does not meet the appointment criteria if

14         exceptional circumstances exist; providing that

15         an attorney may be removed from the capital

16         collateral registry if the attorney does not

17         meet the criteria; directing the executive

18         director of the commission to remove an

19         attorney from the registry if the attorney

20         fails to timely file an executed contract;

21         requiring a private attorney appointed by a

22         court to represent a capital defendant to

23         submit a report each quarter to the commission;

24         requiring that the executive director remove an

25         attorney from the registry if the attorney does

26         not submit the report within a specified time;

27         requiring that an attorney make reasonable

28         efforts to assist the person under a sentence

29         of death in finding an attorney under certain

30         circumstances; amending s. 27.711, F.S.;

31         requiring that costs incurred during pro bono

                                  1

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1         representation of a capital defendant be paid

 2         to the attorney; providing that an attorney who

 3         is listed on the registry and representing at

 4         least one capital defendant is entitled to

 5         tuition and expenses for continuing legal

 6         education courses; providing that an attorney

 7         may represent no more than 7 inmates in capital

 8         postconviction cases at any one time; requiring

 9         that, if a trial court judge intends to award

10         attorney's fees in excess of those set by law,

11         the judge must include written findings of fact

12         specifically stating the extraordinary nature

13         of the expenditures of the time, energy, and

14         talents of the attorney in the case which are

15         not ordinarily expended in other capital

16         collateral cases; providing an effective date.

17  

18  Be It Enacted by the Legislature of the State of Florida:

19  

20         Section 1.  Section 27.7001, Florida Statutes, is

21  amended to read:

22         27.7001  Legislative intent and findings.--It is the

23  intent of the Legislature to create part IV of this chapter,

24  consisting of ss. 27.7001-27.711, inclusive, to provide for

25  the collateral representation of any person convicted and

26  sentenced to death in this state, so that collateral legal

27  proceedings to challenge any Florida capital conviction and

28  sentence may be commenced in a timely manner and so as to

29  assure the people of this state that the judgments of its

30  courts may be regarded with the finality to which they are

31  entitled in the interests of justice.  It is the further

                                  2

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  intent of the Legislature that collateral representation shall

 2  not include representation during retrials, resentencings,

 3  proceedings commenced under chapter 940, or civil litigation.

 4  The Legislature further finds that not all capital collateral

 5  cases are extraordinary or unusual.

 6         Section 2.  Paragraph (d) is added to subsection (2) of

 7  section 27.709, Florida Statutes, to read:

 8         27.709  Commission on Capital Cases.--

 9         (2)

10         (d)  The commission may sponsor programs of continuing

11  legal education which are devoted specifically to capital

12  cases and shall undertake any project recommended or approved

13  by the commission members.

14         Section 3.  Section 27.710, Florida Statutes, is

15  amended to read:

16         27.710  Registry of attorneys applying to represent

17  persons in postconviction capital collateral proceedings;

18  certification of minimum requirements; appointment by trial

19  court.--

20         (1)  The executive director of the Commission on

21  Capital Cases shall compile and maintain a statewide registry

22  of attorneys in private practice who have certified that they

23  meet the minimum requirements of this section and s.

24  27.704(2), who are available for appointment by the court

25  under this section to represent persons convicted and

26  sentenced to death in this state in postconviction collateral

27  proceedings, and who have attended within the last year a

28  continuing legal education program of at least 10 hours'

29  duration devoted specifically to the defense of capital cases,

30  if available. Continuing legal education programs meeting the

31  requirements of this rule offered by The Florida Bar or

                                  3

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  another recognized provider and approved for continuing legal

 2  education credit by The Florida Bar shall satisfy this

 3  requirement. The failure to comply with this requirement may

 4  be cause for removal from the list until the requirement is

 5  fulfilled. To ensure that sufficient attorneys are available

 6  for appointment by the court, when the number of attorneys on

 7  the registry falls below 50, the executive director shall

 8  notify the chief judge of each circuit by letter and request

 9  the chief judge to promptly submit the names of at least three

10  private attorneys who regularly practice criminal law in that

11  circuit and who appear to meet the minimum requirements to

12  represent persons in postconviction capital collateral

13  proceedings. The executive director shall send an application

14  to each attorney identified by the chief judge so that the

15  attorney may register for appointment as counsel in

16  postconviction capital collateral proceedings. As necessary,

17  the executive director may also advertise in legal

18  publications and other appropriate media for qualified

19  attorneys interested in registering for appointment as counsel

20  in postconviction capital collateral proceedings. Not later

21  than September 1 of each year, and as necessary thereafter,

22  the executive director shall provide to the Chief Justice of

23  the Supreme Court, the chief judge and state attorney in each

24  judicial circuit, and the Attorney General a current copy of

25  its registry of attorneys who are available for appointment as

26  counsel in postconviction capital collateral proceedings. The

27  registry must be indexed by judicial circuit and must contain

28  the requisite information submitted by the applicants in

29  accordance with this section.

30         (2)(a)  To be eligible for court appointment as counsel

31  in postconviction capital collateral proceedings, an attorney

                                  4

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  must certify on an application provided by the executive

 2  director that he or she is a member in good standing of The

 3  Florida Bar and:

 4         1.  Is an active practitioner who has at least 5 years'

 5  experience in the practice of criminal law, is familiar with

 6  the production of evidence and the use of expert witnesses,

 7  including psychiatric and forensic evidence, and has

 8  demonstrated the proficiency necessary for representation in

 9  capital cases, including the investigation and presentation of

10  mitigation evidence;

11         2.  Has attended a minimum of 12 hours of continuing

12  legal education programs within the previous 2 years which

13  were devoted to the defense of capital cases and offered by

14  The Florida Bar or another recognized provider of continuing

15  legal education courses; and

16         3.a.  Has tried at least nine state or federal jury

17  trials to completion, two of which must have been capital

18  cases and:

19         (I)  Three of which must have been murder trials;

20         (II)  One of which must have been a murder trial and

21  five of which must have been other felony trials; or

22         (III)  One of which must have included a postconviction

23  evidentiary hearing and five of which must have been other

24  felony trials; or

25         b.  Has appealed one capital conviction and appealed:

26         (I)  At least three felony convictions, one of which

27  must have been a murder;

28         (II)  At least three felony convictions and

29  participated in one capital postconviction evidentiary

30  hearing; or

31  

                                  5

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1         (III)  At least six felony convictions, two of which

 2  must have been murders.

 3         (b)  If the trial court finds that exceptional

 4  circumstances exist requiring appointment of an attorney who

 5  does not meet the criteria set forth in paragraph (a), the

 6  trial court shall enter a written order specifying the

 7  exceptional circumstances requiring appointment of the

 8  attorney and explicit findings that the attorney chosen will

 9  provide competent representation in accordance with the intent

10  of this section.

11         (c)  A failure to comply with any criterion set forth

12  in paragraph (a) may be cause to remove the attorney from the

13  registry until the criterion is satisfied.

14         (d)  Satisfaction of the criterion may be proven by

15  submitting a written certification to the commission. The

16  certification is complete upon submission of the application

17  by electronic mail without a signature satisfies the minimum

18  requirements for private counsel set forth in s. 27.704(2).

19         (3)  An attorney who applies for registration and court

20  appointment as counsel in postconviction capital collateral

21  proceedings must certify that he or she is counsel of record

22  in not more than four such proceedings and, if appointed to

23  represent a person in postconviction capital collateral

24  proceedings, shall continue the such representation under the

25  terms and conditions set forth in s. 27.711 until the sentence

26  is reversed, reduced, or carried out or unless permitted to

27  withdraw from representation by the trial court. The court may

28  not permit an attorney to withdraw from representation without

29  a finding of sufficient good cause. The court may impose

30  appropriate sanctions if it finds that an attorney has shown

31  bad faith with respect to continuing to represent a defendant

                                  6

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  in a postconviction capital collateral proceeding. This

 2  section does not preclude the court from reassigning a case to

 3  a capital collateral regional counsel following

 4  discontinuation of representation if a conflict of interest no

 5  longer exists with respect to the case.

 6         (4)(a)  Each private attorney who is appointed by the

 7  court to represent a capital defendant must enter into a

 8  contract with the Chief Financial Officer. If the appointed

 9  attorney fails to execute the contract within 30 days after

10  the date the contract is mailed to the attorney, the executive

11  director of the Commission on Capital Cases shall notify the

12  trial court and shall remove the attorney from the registry

13  list. The Chief Financial Officer shall develop the form of

14  the contract, function as contract manager, and enforce

15  performance of the terms and conditions of the contract. By

16  signing such contract, the attorney certifies that he or she

17  intends to continue the representation under the terms and

18  conditions set forth in the contract until the sentence is

19  reversed, reduced, or carried out or until released by order

20  of the trial court.

21         (b)  Each private attorney appointed by a court to

22  represent a capital defendant shall submit a report each

23  quarter to the commission in the format designated by the

24  commission. If the attorney does not submit the report within

25  30 days after the end of the quarter, the executive director

26  shall remove the attorney from the registry and the court may

27  impose a fine or remove the attorney from the case.

28         (5)(a)  Upon the motion of the capital collateral

29  regional counsel to withdraw pursuant to s. 924.056(1)(a); or

30         (b)  Upon notification by the state attorney or the

31  Attorney General that:

                                  7

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1         1.  Thirty days have elapsed since appointment of the

 2  capital collateral regional counsel and no entry of appearance

 3  has been filed under pursuant to s. 924.056; or

 4         2.  A person under sentence of death who was previously

 5  represented by private counsel is currently unrepresented in a

 6  postconviction capital collateral proceeding,

 7  

 8  the executive director shall immediately notify the trial

 9  court that imposed the sentence of death that the court must

10  immediately appoint an attorney, selected from the current

11  registry, to represent the such person in collateral actions

12  challenging the legality of the judgment and sentence in the

13  appropriate state and federal courts. If the attorney

14  appointed to represent a person under a sentence of death does

15  not wish to continue representing the person in federal

16  proceedings, the attorney must make reasonable efforts to

17  assist the person in finding an attorney who meets the federal

18  criteria to represent the person in any federal proceedings.

19  The court shall have the authority to strike a notice of

20  appearance filed by a Capital Collateral Regional Counsel, if

21  the court finds the notice was not filed in good faith and may

22  so notify the executive director that the client is no longer

23  represented by the Office of Capital Collateral Regional

24  Counsel.  In making an assignment, the court shall give

25  priority to attorneys whose experience and abilities in

26  criminal law, especially in capital proceedings, are known by

27  the court to be commensurate with the responsibility of

28  representing a person sentenced to death. The trial court must

29  issue an order of appointment which contains specific findings

30  that the appointed counsel meets the statutory requirements

31  

                                  8

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  and has the high ethical standards necessary to represent a

 2  person sentenced to death.

 3         (6)  More than one attorney may not be appointed and

 4  compensated at any one time under s. 27.711 to represent a

 5  person in postconviction capital collateral proceedings.

 6  However, an attorney appointed under this section may

 7  designate another attorney to assist him or her if the

 8  designated attorney meets the qualifications of this section.

 9         Section 4.  Subsections (3), (4), (7), and (9) of

10  section 27.711, Florida Statutes, are amended, and subsection

11  (15) is added to that section, to read:

12         27.711  Terms and conditions of appointment of

13  attorneys as counsel in postconviction capital collateral

14  proceedings.--

15         (3)  An attorney appointed to represent a capital

16  defendant is entitled to payment of the fees set forth in this

17  section only upon full performance by the attorney of the

18  duties specified in this section and approval of payment by

19  the trial court, and the submission of a payment request by

20  the attorney, subject to the availability of sufficient

21  funding specifically appropriated for this purpose. An

22  attorney may not be compensated under this section for work

23  performed by the attorney before July 1, 2003, while employed

24  by the northern regional office of the capital collateral

25  counsel. The Chief Financial Officer shall notify the

26  executive director and the court if it appears that sufficient

27  funding has not been specifically appropriated for this

28  purpose to pay any fees which may be incurred. The attorney

29  shall maintain appropriate documentation, including a current

30  and detailed hourly accounting of time spent representing the

31  capital defendant. The fee and payment schedule in this

                                  9

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  section is the exclusive means of compensating a

 2  court-appointed attorney who represents a capital defendant.

 3  When appropriate, a court-appointed attorney must seek further

 4  compensation from the Federal Government, as provided in 18

 5  U.S.C. s. 3006A or other federal law, in habeas corpus

 6  litigation in the federal courts. An attorney appointed under

 7  s. 27.710, or appointed by the court to replace a capital

 8  collateral regional counsel staff attorney or capital

 9  collateral regional counsel contract attorney, who incurs

10  costs for representing capital defendants on a pro bono basis

11  shall be paid from registry funds by the Chief Financial

12  Officer. These payments must be approved by the trial court

13  before payment.

14         (4)  Upon approval by the trial court, an attorney

15  appointed to represent a capital defendant under s. 27.710 is

16  entitled to payment of the following fees by the Chief

17  Financial Officer:

18         (a)  Regardless of the stage of postconviction capital

19  collateral proceedings, the attorney is entitled to $100 per

20  hour, up to a maximum of $2,500, after accepting appointment

21  and filing a notice of appearance.

22         (b)  The attorney is entitled to $100 per hour, up to a

23  maximum of $20,000, after timely filing in the trial court the

24  capital defendant's complete original motion for

25  postconviction relief under the Florida Rules of Criminal

26  Procedure. The motion must raise all issues to be addressed by

27  the trial court. However, an attorney is entitled to fees

28  under this paragraph if the court schedules a hearing on a

29  matter that makes the filing of the original motion for

30  postconviction relief unnecessary or if the court otherwise

31  disposes of the case.

                                  10

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1         (c)  The attorney is entitled to $100 per hour, up to a

 2  maximum of $20,000, after the final hearing on trial court

 3  issues a final order granting or denying the capital

 4  defendant's motion for postconviction relief.

 5         (d)  The attorney is entitled to $100 per hour, up to a

 6  maximum of $20,000, after timely filing in the Supreme Court

 7  the capital defendant's brief or briefs that address the trial

 8  court's final order granting or denying the capital

 9  defendant's motion for postconviction relief and the state

10  petition for writ of habeas corpus.

11         (e)  The attorney is entitled to $100 per hour, up to a

12  maximum of $10,000, after the trial court issues an order,

13  following pursuant to a remand from the Supreme Court, which

14  directs the trial court to hold further proceedings on the

15  capital defendant's motion for postconviction relief.

16         (f)  The attorney is entitled to $100 per hour, up to a

17  maximum of $4,000, after the appeal of the trial court's

18  denial of the capital defendant's motion for postconviction

19  relief and the capital defendant's state petition for writ of

20  habeas corpus become final in the Supreme Court.

21         (g)  At the conclusion of the capital defendant's

22  postconviction capital collateral proceedings in state court,

23  the attorney is entitled to $100 per hour, up to a maximum of

24  $2,500, for the preparation of the initial federal pleading

25  after filing a petition for writ of certiorari in the Supreme

26  Court of the United States.

27         (h)  If, at any time, a death warrant is issued, the

28  attorney is entitled to $100 per hour, up to a maximum of

29  $5,000. This payment shall be full compensation for attorney's

30  fees and costs for representing the capital defendant

31  throughout the proceedings before the state courts of Florida.

                                  11

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1  

 2  The hours billed by a contracting attorney under this

 3  subsection may include time devoted to representation of the

 4  defendant by another attorney who is qualified under s. 27.710

 5  and who has been designated by the contracting attorney to

 6  assist him or her.

 7         (7)  Each registry An attorney who is representing at

 8  least one capital defendant actively representing a capital

 9  defendant is entitled to a maximum of $500 per fiscal year for

10  tuition and expenses for continuing legal education that

11  pertains to the representation of capital defendants,

12  regardless of the total number of capital defendants the

13  attorney is representing. Upon approval by the trial court,

14  the attorney is entitled to payment by the Chief Financial

15  Officer for expenses for such tuition and continuing legal

16  education.

17         (9)  An attorney may not represent more than 7 inmates

18  five defendants in capital postconviction litigation at any

19  one time. The 7-inmate-representation limit includes capital

20  postconviction cases proceeding under contract with the

21  capital collateral regional counsel, inmates represented pro

22  bono, and inmates privately retaining the attorney. An

23  attorney may not be appointed to additional capital

24  postconviction cases until the attorney's representation total

25  falls below the 7-case limit.

26         (15)  If a trial court judge intends to award attorney

27  fees in excess of those outlined in this section, the judge

28  must include written findings of fact that specifically state

29  the extraordinary nature of the expenditures of the time,

30  energy, and talents of the attorney in the case which are not

31  ordinarily expended in other capital collateral cases.

                                  12

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






    Florida Senate - 2006                            CS for SB 360
    591-1084-06




 1         Section 5.  This act shall take effect July 1, 2006.

 2  

 3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 4                         Senate Bill 360

 5                                 

 6  -    Clarifies the Legislative finding to conform to the case
         law standard for awarding attorney's fees in excess of
 7       the statutory fee schedule - "extraordinary or unusual"
         circumstances.
 8  
    -    Provides that the Commission on Capital Cases is
 9       authorized to sponsor more than one continuing legal
         education program devoted to capital cases.
10  
    -    Deletes a cross-reference that does not apply to registry
11       attorneys and clarifies that registry attorneys must be
         members of the Florida Bar in good standing.
12  
    -    Amends the requirements a registry attorney must meet to
13       include appeals of at least six felony convictions, two
         of which were murders.
14  
    -    Provides sanctions that may be imposed against registry
15       counsel who fails to submit the statutorily required
         quarterly reports, including a court-imposed fine or
16       removal of the attorney from the case.

17  -    Clarifies that pro bono counsel appointed by the CCRC's,
         or appointed by the court, or those who are in a
18       contractual relationship with the CCRC, may recover costs
         from registry funds.
19  
    -    Adjusts the number of inmates an attorney may represent
20       in capital postconviction cases at any one time from 10
         to 7.
21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  13

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