Senate Bill sb0360e1

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    CS for CS for SB 360                           First Engrossed



  1                      A bill to be entitled

  2         An act relating to the Commission on Capital

  3         Cases; amending s. 27.701, F.S.; specifying

  4         that the capital collateral regional counsels

  5         are a part of the legislative branch; providing

  6         for the appointment of the capital collateral

  7         regional counsels by the President of the

  8         Senate and the Speaker of the House of

  9         Representatives; amending s. 27.702, F.S.;

10         removing the requirement that the Justice

11         Administrative Commission provide

12         administrative support to the capital

13         collateral regional counsels; amending s.

14         27.709, F.S.; specifying that the Commission on

15         Capital Cases is a part of the legislative

16         branch; authorizing the Commission on Capital

17         Cases to sponsor continuing legal education

18         programs devoted specifically to capital cases;

19         amending s. 27.710, F.S.; specifying criteria

20         that a private attorney must satisfy in order

21         to be eligible to be appointed as counsel in a

22         postconviction capital collateral proceeding;

23         providing that a judge may appoint an attorney

24         who does not meet the appointment criteria if

25         exceptional circumstances exist; providing that

26         an attorney may be removed from the capital

27         collateral registry if the attorney does not

28         meet the criteria; directing the executive

29         director of the commission to remove an

30         attorney from the registry if the attorney

31         fails to timely file an executed contract;


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    CS for CS for SB 360                           First Engrossed



 1         requiring a private attorney appointed by a

 2         court to represent a capital defendant to

 3         submit a report each quarter to the commission;

 4         requiring that the executive director remove an

 5         attorney from the registry if the attorney does

 6         not submit the report within a specified time;

 7         requiring that an attorney make reasonable

 8         efforts to assist the person under a sentence

 9         of death in finding an attorney under certain

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

11         providing that an attorney may submit to the

12         Chief Financial Officer for approval a proposed

13         budget as an alternative to the statutory

14         attorney's fees for representing a capital

15         defendant; requiring the attorney to accept

16         representation and execute a fixed-fee contract

17         if the proposed budget is approved; providing

18         that an attorney who is listed on the registry

19         and representing at least one capital defendant

20         is entitled to tuition and expenses for

21         continuing legal education courses; providing

22         that an attorney may represent no more than 7

23         inmates in capital postconviction cases at any

24         one time; authorizing a trial judge to award

25         fees exceeding those set by law; requiring a

26         judge intending to award such fees to make

27         specific written findings of fact; amending s.

28         216.011, F.S.; providing that the capital

29         collateral regional counsels are not a state

30         agency; providing an effective date.

31  


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    CS for CS for SB 360                           First Engrossed



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

 2  

 3         Section 1.  Subsection (1) of section 27.701, Florida

 4  Statutes, is amended to read:

 5         27.701  Capital collateral regional counsels.--

 6         (1)  There are created three regional offices of

 7  capital collateral counsel, which shall be located in a

 8  northern, middle, and southern region of the state. The

 9  capital collateral counsels shall be a part of the legislative

10  branch of government. The northern region shall consist of the

11  First, Second, Third, Fourth, Eighth, and Fourteenth Judicial

12  Circuits; the middle region shall consist of the Fifth, Sixth,

13  Seventh, Ninth, Tenth, Twelfth, Thirteenth, and Eighteenth

14  Judicial Circuits; and the southern region shall consist of

15  the Eleventh, Fifteenth, Sixteenth, Seventeenth, Nineteenth,

16  and Twentieth Judicial Circuits. Each regional office shall be

17  administered by a regional counsel. A regional counsel must

18  be, and must have been for the preceding 5 years, a member in

19  good standing of The Florida Bar or a similar organization in

20  another state. Each capital collateral regional counsel shall

21  be appointed by the President of the Senate and the Speaker of

22  the House of Representatives Governor, and is subject to

23  confirmation by the Senate. The Supreme Court Judicial

24  Nominating Commission shall recommend to the President of the

25  Senate and the Speaker of the House of Representatives

26  Governor three qualified candidates for each appointment as

27  regional counsel. The President of the Senate and the Speaker

28  of the House of Representatives Governor shall appoint a

29  regional counsel for each region from among the

30  recommendations, or, if it is in the best interest of the fair

31  administration of justice in capital cases, they the Governor


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 1  may reject the nominations and request submission of three new

 2  nominees by the Supreme Court Judicial Nominating Commission.

 3  Each capital collateral regional counsel shall be appointed to

 4  a term of 3 years. Vacancies in the office of capital

 5  collateral regional counsel shall be filled in the same manner

 6  as appointments. A person appointed as a regional counsel may

 7  not run for or accept appointment to any state office for 2

 8  years following vacation of office.

 9         Section 2.  Subsection (1) of section 27.702, Florida

10  Statutes, is amended to read:

11         27.702  Duties of the capital collateral regional

12  counsel; reports.--

13         (1)  The capital collateral regional counsel shall

14  represent each person convicted and sentenced to death in this

15  state for the sole purpose of instituting and prosecuting

16  collateral actions challenging the legality of the judgment

17  and sentence imposed against such person in the state courts,

18  federal courts in this state, the United States Court of

19  Appeals for the Eleventh Circuit, and the United States

20  Supreme Court. The capital collateral regional counsel and the

21  attorneys appointed pursuant to s. 27.710 shall file only

22  those postconviction or collateral actions authorized by

23  statute. The three capital collateral regional counsels'

24  offices shall function independently and be separate budget

25  entities, and the regional counsels shall be the office heads

26  for all purposes. The Justice Administrative Commission shall

27  provide administrative support and service to the three

28  offices to the extent requested by the regional counsels. The

29  three regional offices shall not be subject to control,

30  supervision, or direction by the Justice Administrative

31  Commission in any manner, including, but not limited to,


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 1  personnel, purchasing, transactions involving real or personal

 2  property, and budgetary matters.

 3         Section 3.  Paragraph (a) of subsection (1) of section

 4  27.709, Florida Statutes, is amended, and paragraph (d) is

 5  added to subsection (2) of that section, to read:

 6         27.709  Commission on Capital Cases.--

 7         (1)(a)  There is created within the legislative branch

 8  of government the Commission on Capital Cases, which shall

 9  consist of the six following members:

10         1.  Two members appointed by the Governor.

11         2.  Two members appointed by the President of the

12  Senate from the membership of the Senate. One member shall be

13  a member of the majority party, and one member shall be a

14  member of the minority party.

15         3.  Two members appointed by the Speaker of the House

16  of Representatives from the membership of the House of

17  Representatives. One member shall be a member of the majority

18  party, and one member shall be a member of the minority party.

19         (2)

20         (d)  The commission may sponsor programs of continuing

21  legal education which are devoted specifically to capital

22  cases and shall undertake any project recommended or approved

23  by the commission members.

24         Section 4.  Section 27.710, Florida Statutes, is

25  amended to read:

26         27.710  Registry of attorneys applying to represent

27  persons in postconviction capital collateral proceedings;

28  certification of minimum requirements; appointment by trial

29  court.--

30         (1)  The executive director of the Commission on

31  Capital Cases shall compile and maintain a statewide registry


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 1  of attorneys in private practice who have certified that they

 2  meet the minimum requirements of this section and s.

 3  27.704(2), who are available for appointment by the court

 4  under this section to represent persons convicted and

 5  sentenced to death in this state in postconviction collateral

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

 7  continuing legal education program of at least 10 hours'

 8  duration devoted specifically to the defense of capital cases,

 9  if available. Continuing legal education programs meeting the

10  requirements of this rule offered by The Florida Bar or

11  another recognized provider and approved for continuing legal

12  education credit by The Florida Bar shall satisfy this

13  requirement. The failure to comply with this requirement may

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

15  fulfilled. To ensure that sufficient attorneys are available

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

17  the registry falls below 50, the executive director shall

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

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

20  private attorneys who regularly practice criminal law in that

21  circuit and who appear to meet the minimum requirements to

22  represent persons in postconviction capital collateral

23  proceedings. The executive director shall send an application

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

25  attorney may register for appointment as counsel in

26  postconviction capital collateral proceedings. As necessary,

27  the executive director may also advertise in legal

28  publications and other appropriate media for qualified

29  attorneys interested in registering for appointment as counsel

30  in postconviction capital collateral proceedings. Not later

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


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 1  the executive director shall provide to the Chief Justice of

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

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

 4  its registry of attorneys who are available for appointment as

 5  counsel in postconviction capital collateral proceedings. The

 6  registry must be indexed by judicial circuit and must contain

 7  the requisite information submitted by the applicants in

 8  accordance with this section.

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

10  in postconviction capital collateral proceedings, an attorney

11  must certify on an application provided by the executive

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

13  Florida Bar and:

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

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

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

17  including psychiatric and forensic evidence, and has

18  demonstrated the proficiency necessary for representation in

19  capital cases, including the investigation and presentation of

20  mitigation evidence;

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

22  legal education programs within the previous 2 years which

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

24  The Florida Bar or another recognized provider of continuing

25  legal education courses; and

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

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

28  cases and:

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

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

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


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

 2  evidentiary hearing and five of which must have been other

 3  felony trials; or

 4         b.  Has appealed one capital conviction and appealed:

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

 6  must have been a murder;

 7         (II)  At least three felony convictions and

 8  participated in one capital postconviction evidentiary

 9  hearing; or

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

11  must have been murders.

12         (b)  If the trial court finds that exceptional

13  circumstances exist requiring appointment of an attorney who

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

15  trial court shall enter a written order specifying the

16  exceptional circumstances requiring appointment of the

17  attorney and explicit findings that the attorney chosen will

18  provide competent representation in accordance with the intent

19  of this section.

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

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

22  registry until the criterion is satisfied.

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

24  submitting a written certification to the commission. The

25  certification is complete upon submission of the application

26  by electronic mail without a signature satisfies the minimum

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

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

29  appointment as counsel in postconviction capital collateral

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

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


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 1  represent a person in postconviction capital collateral

 2  proceedings, shall continue the such representation under the

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

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

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

 6  not permit an attorney to withdraw from representation without

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

 8  appropriate sanctions if it finds that an attorney has shown

 9  bad faith with respect to continuing to represent a defendant

10  in a postconviction capital collateral proceeding. This

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

12  a capital collateral regional counsel following

13  discontinuation of representation if a conflict of interest no

14  longer exists with respect to the case.

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

16  court to represent a capital defendant must enter into a

17  contract with the Chief Financial Officer. If the appointed

18  attorney fails to execute the contract within 30 days after

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

20  director of the Commission on Capital Cases shall notify the

21  trial court and shall remove the attorney from the registry

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

23  the contract, function as contract manager, and enforce

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

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

26  intends to continue the representation under the terms and

27  conditions set forth in the contract until the sentence is

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

29  of the trial court.

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

31  represent a capital defendant shall submit a report each


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 1  quarter to the commission in the format designated by the

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

 3  30 days after the end of the quarter, the executive director

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

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

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

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

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

 9  Attorney General that:

10         1.  Thirty days have elapsed since appointment of the

11  capital collateral regional counsel and no entry of appearance

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

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

14  represented by private counsel is currently unrepresented in a

15  postconviction capital collateral proceeding,

16  

17  the executive director shall immediately notify the trial

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

19  immediately appoint an attorney, selected from the current

20  registry, to represent the such person in collateral actions

21  challenging the legality of the judgment and sentence in the

22  appropriate state and federal courts. If the attorney

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

24  not wish to continue representing the person in federal

25  proceedings, the attorney must make reasonable efforts to

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

27  criteria to represent the person in any federal proceedings.

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

29  appearance filed by a Capital Collateral Regional Counsel, if

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

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


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 1  represented by the Office of Capital Collateral Regional

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

 3  priority to attorneys whose experience and abilities in

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

 5  the court to be commensurate with the responsibility of

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

 7  issue an order of appointment which contains specific findings

 8  that the appointed counsel meets the statutory requirements

 9  and has the high ethical standards necessary to represent a

10  person sentenced to death.

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

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

13  person in postconviction capital collateral proceedings.

14  However, an attorney appointed under this section may

15  designate another attorney to assist him or her if the

16  designated attorney meets the qualifications of this section.

17         Section 5.  Subsections (4), (7), and (9) of section

18  27.711, Florida Statutes, are amended, and subsection (15) is

19  added to that section, to read:

20         27.711  Terms and conditions of appointment of

21  attorneys as counsel in postconviction capital collateral

22  proceedings.--

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

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

25  entitled to payment of the following fees by the Chief

26  Financial Officer:

27         (a)  Regardless of the stage of postconviction capital

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

29  hour, up to a maximum of $2,500, before after accepting

30  appointment and filing a notice of appearance to review the

31  files and status of the case in order to determine whether to


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 1  accept appointment under the payment schedule in s. 27.711.

 2  If, after review of the case, the attorney determines that

 3  payment under the statutory schedule would not provide

 4  adequate compensation for the foreseeable duties associated

 5  with the prospective appointment, the attorney must either

 6  decline the appointment or submit to the Chief Financial

 7  Officer for approval a proposed budget that sets forth the

 8  attorney's projection of the number of hours and duties

 9  necessary for the representation. If the Chief Financial

10  Officer does not approve the budget, the attorney shall notify

11  the court that he or she is unable to accept the proposed

12  appointment. If the Chief Financial Officer approves the

13  attorney's proposed budget, the attorney must accept the

14  representation and execute with the Chief Financial Officer a

15  fixed-fee contract that incorporates the budget. By executing

16  the contract, the attorney agrees that the contract is a

17  fixed-fee contract and must be strictly construed and

18  interpreted under general contract law, notwithstanding the

19  cases of Makemson and its progeny.

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

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

22  capital defendant's complete original motion for

23  postconviction relief under the Florida Rules of Criminal

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

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

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

27  matter that makes the filing of the original motion for

28  postconviction relief unnecessary or if the court otherwise

29  disposes of the case.

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

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


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 1  issues a final order granting or denying the capital

 2  defendant's motion for postconviction relief.

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

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

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

 6  court's final order granting or denying the capital

 7  defendant's motion for postconviction relief and the state

 8  petition for writ of habeas corpus.

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

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

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

12  directs the trial court to hold further proceedings on the

13  capital defendant's motion for postconviction relief.

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

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

16  denial of the capital defendant's motion for postconviction

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

18  habeas corpus become final in the Supreme Court.

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

20  postconviction capital collateral proceedings in state court,

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

22  $2,500, for the preparation of the initial federal pleading

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

24  Court of the United States.

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

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

27  $5,000. This payment shall be full compensation for attorney's

28  fees and costs for representing the capital defendant

29  throughout the proceedings before the state courts of Florida.

30  

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 1  The hours billed by a contracting attorney under this

 2  subsection may include time devoted to representation of the

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

 4  and who has been designated by the contracting attorney to

 5  assist him or her.

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

 7  least one capital defendant actively representing a capital

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

 9  tuition and expenses for continuing legal education that

10  pertains to the representation of capital defendants,

11  regardless of the total number of capital defendants the

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

13  the attorney is entitled to payment by the Chief Financial

14  Officer for expenses for such tuition and continuing legal

15  education.

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

17  five defendants in capital postconviction litigation at any

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

19  postconviction cases proceeding under contract with the

20  capital collateral regional counsel, inmates represented pro

21  bono, and inmates privately retaining the attorney. An

22  attorney may not be appointed to additional capital

23  postconviction cases until the attorney's representation total

24  falls below the 7-case limit.

25         (15)  A trial judge may award fees that exceed those

26  outlined in this section. If a trial court judge intends to

27  award attorney fees in excess of those outlined in this

28  section, the judge must include written findings of fact that

29  specifically state the extraordinary nature of the

30  expenditures of the time, energy, and talents of the attorney

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 1  in the case which are not ordinarily expended in other capital

 2  collateral cases.

 3         Section 6.  Paragraph (qq) of subsection (1) of section

 4  216.011, Florida Statutes, is amended to read:

 5         216.011  Definitions.--

 6         (1)  For the purpose of fiscal affairs of the state,

 7  appropriations acts, legislative budgets, and approved

 8  budgets, each of the following terms has the meaning

 9  indicated:

10         (qq)  "State agency" or "agency" means any official,

11  officer, commission, board, authority, council, committee, or

12  department of the executive branch of state government.  For

13  purposes of this chapter and chapter 215, "state agency" or

14  "agency" includes, but is not limited to, state attorneys,

15  public defenders, the capital collateral regional counsels,

16  the Justice Administrative Commission, the Florida Housing

17  Finance Corporation, and the Florida Public Service

18  Commission. Solely for the purposes of implementing s. 19(h),

19  Art. III of the State Constitution, the terms "state agency"

20  or "agency" include the judicial branch.

21         Section 7.  This act shall take effect July 1, 2006.

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