Florida Senate - 2008 SB 1690

By Senator Crist

12-02681B-08 20081690__

A bill to be entitled

An act relating to capital collateral representation;

amending s. 27.7001, F.S.; providing a legislative finding

that not all capital cases are extraordinary or unusual;

amending s. 27.701, F.S.; requiring that regional counsel

be appointed by and serve at the pleasure of the

Commission on Capital Cases; removing provisions

establishing a pilot program in the northern region of the

state; amending s. 27.702, F.S.; clarifying the

administrative roles and functions of the Justice

Administrative Commission, the Commission on Capital

Cases, and the Capital Collateral Regional Counsel;

amending s. 27.709, F.S.; increasing and revising the

membership of the Commission on Capital Cases; relocating

the commission from the Office of Legislative Services to

the Justice Administrative Commission for purposes of

administration; authorizing the commission to sponsor

programs of continuing legal education on capital cases;

authorizing the commission to issue subpoenas and hold

hearings it considers appropriate for the administration

of justice in capital cases; authorizing the commission to

terminate the appointment of a capital collateral regional

counsel before the end of the counsel's term; amending s.

27.710, F.S.; revising the criteria required for an

attorney to be eligible to be placed on the registry of

attorneys qualified to represent defendants in

postconviction capital collateral proceedings; providing

certain limited exceptions; requiring attorneys to sign a

contract with the Chief Financial Officer in order to

receive funds from the state; requiring each private

attorney appointed by a court to represent a capital

defendant to submit a report each quarter to the

commission; providing for removal and reinstatement to the

registry of attorneys; amending s. 27.711, F.S.; providing

for terms and conditions for appointment of counsel in

postconviction capital collateral proceedings; providing

for pro bono attorneys to receive reimbursement for

certain specified expenses; limiting representation by a

court-appointed attorney to seven defendants; prohibiting

an attorney from entering into an employment contract with

the offices of the Capital Collateral Regional Counsel if

he or she represents seven or more defendants in capital

collateral litigation; requiring a trial court judge who

proposes to award attorney's fees in excess of those set

forth in law to make written findings of fact that state

the extraordinary nature of the expenditures of time,

energy, and talents of the attorney in the case which are

not ordinarily expended in other capital collateral cases

and how the case is unusual; reenacting s. 27.7002, F.S.,

relating to the limitation of cases on collateral

representation, to incorporate the amendments made to ss.

27.710 and 27.711, F.S., in references thereto; providing

an effective date.

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

Section 1. Section 27.7001, Florida Statutes, is amended to

read:

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

of the Legislature to create part IV of this chapter, consisting

of ss. 27.7001-27.711, inclusive, to provide for the collateral

representation of any person convicted and sentenced to death in

this state, so that collateral legal proceedings to challenge any

Florida capital conviction and sentence may be commenced in a

timely manner and so as to assure the people of this state that

the judgments of its courts may be regarded with the finality to

which they are entitled in the interests of justice. It is the

further intent of the Legislature that collateral representation

shall not include representation during retrials, resentencings,

proceedings commenced under chapter 940, or civil litigation. The

Legislature further finds that not all capital collateral cases

are extraordinary or unusual.

Section 2. Section 27.701, Florida Statutes, is amended to

read:

27.701 Capital collateral regional counsel.--

(1) There are created three regional offices of capital

collateral counsel, which shall be located in a northern, middle,

and southern region of the state. The northern region shall

consist of the First, Second, Third, Fourth, Eighth, and

Fourteenth Judicial Circuits; the middle region shall consist of

the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, and

Eighteenth Judicial Circuits; and the southern region shall

consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth,

Nineteenth, and Twentieth Judicial Circuits. Each regional office

shall be administered by a regional counsel. A regional counsel

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

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

another state. Each capital collateral regional counsel shall be

appointed by the Commission on Capital Cases Governor, and is

subject to confirmation by the Senate. The Supreme Court Judicial

Nominating Commission shall recommend to the Commission on

Capital Cases Governor three qualified candidates for each

appointment as regional counsel. The commission Governor shall

appoint a regional counsel for each region from among the

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

administration of justice in capital cases, the commission

Governor may reject the nominations and request submission of

three new nominees by the Supreme Court Judicial Nominating

Commission. Each capital collateral regional counsel shall be

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appointed to a term of 3 years. Vacancies in the office of

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capital collateral regional counsel shall be filled in the same

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manner as appointments. A person appointed as a regional counsel

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

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years following vacation of office. Each capital collateral

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counsel shall report to and serve at the pleasure of the

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Commission on Capital Cases.

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(2) Notwithstanding the provisions of subsection (1), the

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responsibilities of the regional office of capital collateral

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counsel for the northern region of the state shall be met through

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a pilot program using only attorneys from the registry of

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attorneys maintained pursuant to s. 27.710. Each attorney

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participating in the pilot must be qualified to provide

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representation in federal court. The Auditor General shall

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schedule a performance review of the pilot program to determine

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the effectiveness and efficiency of using attorneys from the

116

registry compared to the capital collateral regional counsel. The

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review, at a minimum, shall include comparisons of the timeliness

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and costs of the pilot and the counsel and shall be submitted to

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the President of the Senate and the Speaker of the House of

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Representatives by January 30, 2007. The Legislature may

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determine whether to convert the pilot program to a permanent

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program after receipt of the Auditor General's review.

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Section 3. Section 27.702, Florida Statutes, is amended to

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read:

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27.702 Duties of the capital collateral regional counsel;

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reports.--

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(1) The capital collateral regional counsel shall represent

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each person convicted and sentenced to death in this state for

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the sole purpose of instituting and prosecuting collateral

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actions challenging the legality of the judgment and sentence

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imposed against such person in the state courts, federal courts

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in this state, the United States Court of Appeals for the

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Eleventh Circuit, and the United States Supreme Court. The

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capital collateral regional counsel and the attorneys appointed

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pursuant to s. 27.710 shall file only those postconviction or

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collateral actions authorized by statute. The three capital

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collateral regional counsel's offices shall function

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independently and be separate budget entities, and the regional

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counsel shall be the office heads for all purposes. The capital

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collateral regional counsel shall be housed, for administrative

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purposes, within the Justice Administrative Commission. The

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Justice Administrative Commission shall provide administrative

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support and service to the three offices to the extent requested

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by the regional counsel. The three regional offices shall not be

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subject to control, supervision, or direction by the Justice

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Administrative Commission in any manner, including, but not

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limited to, personnel, purchasing, transactions involving real or

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personal property, and budgetary matters.

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(2) The capital collateral regional counsel shall represent

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persons convicted and sentenced to death within the region in

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collateral postconviction proceedings, unless a court appoints or

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permits other counsel to appear as counsel of record pursuant to

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ss. 27.710 and 27.711.

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(3)(a) The capital collateral regional counsel shall file

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motions seeking compensation for representation and reimbursement

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for expenses pursuant to 18 U.S.C. s. 3006A when providing

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representation to indigent persons in the federal courts, and

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shall deposit all such payments received into the General Revenue

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Fund.

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(b) The court having jurisdiction over any nonindigent or

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indigent-but-able-to-contribute defendant who has been receiving

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the services of the capital collateral regional counsel may

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assess attorney's fees and costs against the defendant at any

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stage in the proceedings as the court may deem appropriate. The

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determination of indigence of any defendant shall be made

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pursuant to s. 27.52. Liability for the costs of such

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representation may be imposed in the form of a lien against the

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property of the nonindigent or indigent-but-able-to-contribute

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defendant, which lien shall be enforceable as provided in s.

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27.561 or s. 938.29.

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(4)(a) The capital collateral regional counsel or private

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counsel shall give written notification of each pleading filed by

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that office and the name of the person filing the pleading to the

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Commission on Capital Cases and to the trial court assigned to

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the case.

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(b) Each capital collateral regional counsel and each

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attorney participating in the pilot program in the northern

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region pursuant to s. 27.701(2) shall provide a quarterly report

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to the President of the Senate, the Speaker of the House of

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Representatives, and the Commission on Capital Cases which

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details the number of hours worked by investigators and legal

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counsel per case and the amounts per case expended during the

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preceding quarter in investigating and litigating capital

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collateral cases.

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Section 4. Section 27.709, Florida Statutes, is amended to

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read:

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27.709 Commission on Capital Cases.--

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(1)(a) There is created the Commission on Capital Cases,

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which shall consist of the seven six following members:

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1. Three Two members appointed by the Governor.

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2. Two members appointed by the President of the Senate

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

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staff director of the Criminal Justice Committee a member of the

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majority party, and one member shall be the staff director of the

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Criminal and Civil Justice Appropriations Committee a member of

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the minority party.

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

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Representatives from the staff membership of the House of

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Representatives. One member shall be the staff director of the

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Safety and Security Council a member of the majority party, and

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one member shall be the budget chief of the Safety and Security

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Council a member of the minority party.

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(b) The chair of the commission shall be selected by the

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members for a term of 1 year.

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may be called by the chair upon giving at least 7 days' notice to

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all members and the public.

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(d) Members of the commission are entitled to per diem and

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travel expenses to be paid by the appointing entity.

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(e) Members of the commission shall be appointed to serve

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terms of 4 years each, except that a member's term shall expire

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upon leaving his or her position in office as a member of the

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Senate or the House of Representatives.

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(f) The Justice Administrative Commission Office of

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Legislative Services shall provide staff support for the

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commission, which shall be housed therein for administrative

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purposes.

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(2)(a) The commission shall review the administration of

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justice in capital collateral cases, receive relevant public

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input, review the operation of the capital collateral regional

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counsel and private counsel appointed pursuant to ss. 27.710 and

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27.711, and advise and make recommendations to the Governor,

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Legislature, and Supreme Court.

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(b) As part of its duties, the commission shall compile and

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analyze case-tracking reports produced by the Supreme Court. In

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analyzing these reports, the commission shall develop statistics

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to identify trends and changes in case management and case

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processing, identify and evaluate unproductive points of delay,

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and generally evaluate the way cases are progressing. The

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commission shall report these findings to the Legislature by

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January 1 of each year.

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regarding the practice of any office of regional counsel and

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private counsel appointed under pursuant to ss. 27.710 and 27.711

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and may investigate and shall refer any complaint to The Florida

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Bar, the State Supreme Court, the Department of Law Enforcement,

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the Chief Inspector General, or the Commission on Ethics, as

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appropriate.

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(d) The commission may sponsor programs of continuing legal

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education which are devoted specifically to capital cases and

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shall undertake any project recommended or approved by the

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commission members.

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(e) The commission may request each state attorney, circuit

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court judge, and the Office of the Attorney General to submit

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pertinent reports to the commission for its review.

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(f) The commission may exercise subpoena powers and may

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receive sworn testimony it deems necessary for the administration

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of justice in capital cases.

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(g) The commission shall appoint the capital collateral

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regional counsel, and may terminate the employment of regional

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counsel at any time prior to the expiration of the appointment.

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Section 5. Section 27.710, Florida Statutes, is amended to

253

read:

254

27.710 Registry of attorneys applying to represent persons

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in postconviction capital collateral proceedings; certification

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of minimum requirements; appointment by trial court.--

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(1) The executive director of the Commission on Capital

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Cases shall compile and maintain a statewide registry of

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attorneys in private practice who have certified that they meet

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the minimum requirements of this section and s. 27.704(2), who

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are available for appointment by the court under this section to

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represent persons convicted and sentenced to death in this state

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in postconviction collateral proceedings, and who have attended

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within the last year a continuing legal education program of at

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least 10 hours' duration devoted specifically to the defense of

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capital cases, if available. Continuing legal education programs

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meeting the requirements of this rule offered by The Florida Bar

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or another recognized provider and approved for continuing legal

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education credit by The Florida Bar shall satisfy this

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requirement. The failure to comply with this requirement may be

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cause for removal from the list until the requirement is

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fulfilled. To ensure that sufficient attorneys are available for

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

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registry falls below 50, the executive director shall notify the

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

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to promptly submit the names of at least three private attorneys

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who regularly practice criminal law in that circuit and who

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appear to meet the minimum requirements to represent persons in

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postconviction capital collateral proceedings. The executive

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director shall send an application to each attorney identified by

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the chief judge so that the attorney may register for appointment

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as counsel in postconviction capital collateral proceedings. As

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necessary, the executive director may also advertise in legal

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publications and other appropriate media for qualified attorneys

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interested in registering for appointment as counsel in

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postconviction capital collateral proceedings. Under limited

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circumstances, when the number of qualified lawyers on the

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registry fall below 50, and upon the application of an attorney

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who does not meet the minimum qualifications set forth in this

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section, the application may be forwarded by the executive

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director to the full commission for its approval of the applicant

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being included on the list of available registry attorneys. By

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Not later than September 1 of each year, and as necessary

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thereafter, the executive director shall provide to the Chief

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Justice of the Supreme Court, the chief judge and state attorney

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in each judicial circuit, and the Attorney General a current copy

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of its registry of attorneys who are available for appointment as

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counsel in postconviction capital collateral proceedings. The

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registry must be indexed by judicial circuit and must contain the

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requisite information submitted by the applicants in accordance

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with this section.

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

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postconviction capital collateral proceedings, an attorney must

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certify on an application provided by the executive director that

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he or she is a member in good standing of The Florida Bar and:

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1. Is an active practicing attorney who has at least 5

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years' experience in the practice of criminal law and has

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demonstrated the proficiency necessary to represent defendants in

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capital cases, including proficiency in the production and

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admission of evidence, including psychiatric and forensic

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evidence, the use of expert witnesses, and the investigation and

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presentation of mitigation evidence;

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2. Has attended and completed a minimum of 12 hours of

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continuing legal education programs within the previous 2 years

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

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The Florida Bar, the Commission on Capital Cases, or another

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authorized provider of continuing legal education courses; and

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

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to completion, two of which must have been capital cases, and:

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

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

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which must have been other felony trials; or

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(III) One of which must have included a postconviction

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evidentiary hearing and five of which must have been other felony

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trials;

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b. Has appealed one capital conviction and appealed:

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

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have been a murder conviction;

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(II) At least three felony convictions and participated in

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one capital postconviction evidentiary hearing; or

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

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have been murder convictions; or

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c. Has litigated as a first chair attorney at least three

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capital collateral evidentiary hearings.

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(b) If the trial court finds that exceptional circumstances

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exist requiring appointment of an attorney who does not meet the

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criteria set forth in paragraph (a), the trial court shall enter

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a written order specifying the circumstances and making explicit

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findings that the attorney appointed is capable of providing

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competent representation in accordance with the intent of this

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section.

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

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the registry until such criteria is satisfied.

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(d) Compliance may be proven by submitting written

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certification of compliance to the commission, and may be

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submitted by electronic mail satisfies the minimum requirements

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

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(3) An attorney who applies for registration and court

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appointment as counsel in postconviction capital collateral

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

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not more than four such proceedings and, if appointed to

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represent a person in postconviction capital collateral

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proceedings, shall continue the such representation under the

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

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reversed, reduced, or carried out or unless permitted to withdraw

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from representation by the trial court. The court may not permit

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an attorney to withdraw from representation without a finding of

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sufficient good cause. The court may impose appropriate sanctions

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if it finds that an attorney has shown bad faith with respect to

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continuing to represent a defendant in a postconviction capital

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collateral proceeding. This section does not preclude the court

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from reassigning a case to a capital collateral regional counsel

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following discontinuation of representation if a conflict of

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interest no longer exists with respect to the case.

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

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to represent a capital defendant, including court-appointed

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attorneys who elect to proceed pro bono, must enter into a

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contract with the Chief Financial Officer. If the appointed

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attorney fails to execute the contract within 30 days after the

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date the contract is mailed to the attorney, the executive

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director of the Commission on Capital Cases shall notify the

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trial court and remove the attorney from the registry. The Chief

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Financial Officer shall develop the form of the contract for

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court-appointed attorneys, function as contract manager, and

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enforce performance of the terms and conditions of the contract

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consistent with the requirements of this chapter. By signing such

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contract, the attorney certifies that he or she intends to

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continue the representation under the terms and conditions set

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forth in the contract until the sentence is reversed, reduced, or

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carried out or until released by order of the trial court. A

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court-appointed attorney may not receive state funds unless he or

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she has executed the contract required under this paragraph.

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(b) Each attorney appointed under this section must submit

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a report each quarter to the commission, in the format designated

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by the commission. If the report is not submitted within 60 days

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after the end of the quarter, the executive director shall remove

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the attorney from the registry and the court may impose a fine

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for noncompliance. The court may also remove the attorney from

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the case or cases to which he or she has been appointed under

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this section.

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discretion of the court, continue to represent any clients that

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the attorney has been appointed to represent as of the date of

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removal. If the court allows an attorney who has been removed

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from the registry to continue to represent appointed capital

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defendants, the court must take all necessary actions to ensure

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compliance with the requirements of this subsection. An attorney

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who has been removed from the registry may not accept further

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appointments to represent any new capital defendant unless the

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attorney is placed back on the registry as provided in paragraph

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(d).

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(d) After certifying to the executive director that he or

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she will act in accordance with the provisions of this

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subsection, an attorney removed from the registry may, after 60

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days, reapply for the registry as provided in subsection (2). An

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attorney may reapply for the registry no more than two times

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under this paragraph for failure to adhere to the requirements of

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this subsection.

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

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

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

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General that:

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1. Thirty days have elapsed since appointment of the

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capital collateral regional counsel and no entry of appearance

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has been filed under pursuant to s. 924.056; or

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2. A person under sentence of death who was previously

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represented by private counsel is currently unrepresented in a

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postconviction capital collateral proceeding,

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the executive director shall immediately notify the trial court

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that imposed the sentence of death that the court must

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immediately appoint an attorney, selected from the current

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registry, to represent such person in collateral actions

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challenging the legality of the judgment and sentence in the

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appropriate state and federal courts. If the attorney appointed

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to represent a defendant under a sentence of death does not wish

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to continue representing the defendant in federal proceedings,

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the attorney must make a good-faith effort to assist the

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defendant in finding an attorney who meets the criteria and is

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willing to represent the defendant in federal proceedings. The

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court may shall have the authority to strike a notice of

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appearance filed by a Capital Collateral Regional Counsel, if the

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

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notify the executive director that the client is no longer

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represented by the Office of Capital Collateral Regional Counsel.

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In making an assignment, the court shall give priority to

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attorneys whose experience and abilities in criminal law,

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especially in capital proceedings, are known by the court to be

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commensurate with the responsibility of representing a person

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sentenced to death. The trial court must issue an order of

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appointment which contains specific findings that the appointed

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counsel meets the statutory requirements and has the high ethical

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standards necessary to represent a person sentenced to death.

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

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

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in postconviction capital collateral proceedings. However, an

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attorney appointed under this section may designate another

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attorney to assist him or her if the designated attorney meets

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the qualifications of this section.

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Section 6. Section 27.711, Florida Statutes, is amended to

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read:

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27.711 Terms and conditions of appointment of attorneys as

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counsel in postconviction capital collateral proceedings.--

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(1) As used in s. 27.710 and this section, the term:

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(a) "Capital defendant" means the person who is represented

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in postconviction capital collateral proceedings by an attorney

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appointed under s. 27.710.

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(b) "Executive director" means the executive director of

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the Commission on Capital Cases.

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one series of collateral litigation of an affirmed conviction and

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sentence of death, including the proceedings in the trial court

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that imposed the capital sentence, any appellate review of the

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sentence by the Supreme Court, any certiorari review of the

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sentence by the United States Supreme Court, and any authorized

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federal habeas corpus litigation with respect to the sentence.

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The term does not include repetitive or successive collateral

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challenges to a conviction and sentence of death which is

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affirmed by the Supreme Court and undisturbed by any collateral

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litigation.

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(2) After appointment by the trial court under s. 27.710,

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the attorney must immediately file a notice of appearance with

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the trial court indicating acceptance of the appointment to

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represent the capital defendant throughout all postconviction

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capital collateral proceedings, including federal habeas corpus

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proceedings, in accordance with this section or until released by

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order of the trial court.

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(3) An attorney appointed to represent a capital defendant

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is entitled to payment of the fees set forth in this section only

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upon full performance by the attorney of the duties specified in

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this section and approval of payment by the trial court, and the

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submission of a payment request by the attorney, subject to the

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availability of sufficient funding specifically appropriated for

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this purpose. An attorney may not be compensated under this

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section for work performed by the attorney before July 1, 2003,

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while employed by the northern regional office of the capital

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collateral counsel. The Chief Financial Officer shall notify the

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executive director and the court if it appears that sufficient

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funding has not been specifically appropriated for this purpose

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to pay any fees which may be incurred. The attorney shall

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maintain appropriate documentation, including a current and

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detailed hourly accounting of time spent representing the capital

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defendant. The fee and payment schedule in this section is the

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exclusive means of compensating a court-appointed attorney who

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represents a capital defendant. When appropriate, a court-

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appointed attorney must seek further compensation from the

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Federal Government, as provided in 18 U.S.C. s. 3006A or other

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federal law, in habeas corpus litigation in the federal courts.

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An attorney who is appointed by a court to represent a capital

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defendant on a pro bono basis is not entitled to attorney's fees

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as provided for in subsection (4). However, after executing a

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contract with the Chief Financial Officer, a pro bono attorney is

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entitled to payment for investigative services as specified in

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subsection (5) and for miscellaneous expenses actually incurred

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on behalf of the capital defendant as specified in subsection

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(6). If a registry attorney has been appointed to represent a

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defendant, a payment may not be made to any other attorney who

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volunteers to represent the same defendant on a pro bono basis.

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

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to represent a capital defendant under s. 27.710 is entitled to

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payment of the following fees by the Chief Financial Officer:

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(a) Regardless of the stage of postconviction capital

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collateral proceedings, the attorney is entitled to $100 per

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

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appointment and filing a notice of appearance in order to review

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the files and status of the case to determine whether to accept

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an appointment under the payment schedule in this section. If,

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after reviewing the case files, the attorney determines that

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payment under this section does not provide adequate compensation

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for the foreseeable duties associated with the prospective

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appointment, the attorney must decline the appointment.

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

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

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capital defendant's complete original motion for postconviction

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relief under the Florida Rules of Criminal Procedure. The motion

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must raise all issues to be addressed by the trial court.

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However, an attorney is entitled to fees under this paragraph if

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the court schedules a hearing on a matter that makes the filing

530

of the original motion for postconviction relief unnecessary or

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if the court otherwise disposes of the case.

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

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a final order granting or denying the capital defendant's motion

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for postconviction relief.

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

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

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capital defendant's brief or briefs that address the trial

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court's final order granting or denying the capital defendant's

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motion for postconviction relief and the state petition for writ

541

of habeas corpus.

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

543

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

544

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

545

directs the trial court to hold further proceedings on the

546

capital defendant's motion for postconviction relief.

547

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

548

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

549

of the capital defendant's motion for postconviction relief and

550

the capital defendant's state petition for writ of habeas corpus

551

become final in the Supreme Court.

552

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

553

postconviction capital collateral proceedings in state court, the

554

attorney is entitled to $100 per hour, up to a maximum of $2,500,

555

for the preparation of the initial federal pleading after filing

556

a petition for writ of certiorari in the Supreme Court of the

557

United States.

558

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

559

attorney is entitled to $100 per hour, up to a maximum of $5,000.

560

This payment is shall be full compensation for attorney's fees

561

and costs for representing the capital defendant throughout the

562

proceedings before the state courts of Florida.

563

564

The hours billed by a contracting attorney under this subsection

565

may include time devoted to representation of the defendant by

566

another attorney who is qualified under s. 27.710 and who has

567

been designated by the contracting attorney to assist him or her.

568

(5) An attorney who represents a capital defendant may use

569

the services of one or more investigators to assist in

570

representing a capital defendant. Upon approval by the trial

571

court, the attorney is entitled to payment from the Chief

572

Financial Officer of $40 per hour, up to a maximum of $15,000,

573

for the purpose of paying for investigative services.

574

(6) An attorney who represents a capital defendant is

575

entitled to a maximum of $15,000 for miscellaneous expenses, such

576

as the costs of preparing transcripts, compensating expert

577

witnesses, and copying documents. Upon approval by the trial

578

court, the attorney is entitled to payment by the Chief Financial

579

Officer of up to $15,000 for miscellaneous expenses, except that,

580

if the trial court finds that extraordinary circumstances exist,

581

the attorney is entitled to payment in excess of $15,000.

582

(7) A registry An attorney who is actively representing a

583

capital defendant is entitled to a maximum of $500 per fiscal

584

year for tuition and expenses for continuing legal education that

585

pertains to the representation of capital defendants regardless

586

of the total number of capital defendants the attorney is

587

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

588

entitled to payment by the Chief Financial Officer for expenses

589

for such tuition and continuing legal education.

590

(8) By accepting court appointment under s. 27.710 to

591

represent a capital defendant, the attorney agrees to continue

592

such representation under the terms and conditions set forth in

593

this section until the capital defendant's sentence is reversed,

594

reduced, or carried out, and the attorney is permitted to

595

withdraw from such representation by a court of competent

596

jurisdiction. However, if an attorney is permitted to withdraw or

597

is otherwise removed from representation prior to full

598

performance of the duties specified in this section, the trial

599

court shall approve payment of fees and costs for work performed,

600

which may not exceed the amounts specified in this section. An

601

attorney who withdraws or is removed from representation shall

602

deliver all files, notes, documents, and research to the

603

successor attorney within 15 days after notice from the successor

604

attorney. The successor attorney shall bear the cost of

605

transmitting the files, notes, documents, and research.

606

(9) An attorney may not represent more than seven five

607

defendants in capital postconviction litigation at any one time.

608

The defendant-representation limit includes cases involving

609

capital postconviction proceedings under contract with the

610

Capital Collateral Regional Counsel, pro bono cases, registry

611

cases, and privately retained cases. An attorney may not be

612

appointed to an additional capital postconviction case until the

613

attorney's capital postconviction representation total falls

614

below the seven-case limit. An attorney may not enter into an

615

employment contract with the offices of the Capital Collateral

616

Regional Counsel if he or she currently represents more than

617

seven defendants in capital collateral litigation in the

618

categories specified in this subsection.

619

(10) This section does not authorize an attorney who

620

represents a capital defendant to file repetitive or frivolous

621

pleadings that are not supported by law or by the facts of the

622

case. An action taken by an attorney who represents a capital

623

defendant in postconviction capital collateral proceedings may

624

not be the basis for a claim of ineffective assistance of

625

counsel.

626

(11) An attorney appointed under s. 27.710 to represent a

627

capital defendant may not represent the capital defendant during

628

a retrial, a resentencing proceeding, a proceeding commenced

629

under chapter 940, a proceeding challenging a conviction or

630

sentence other than the conviction and sentence of death for

631

which the appointment was made, or any civil litigation other

632

than habeas corpus proceedings.

633

(12) The court shall monitor the performance of assigned

634

counsel to ensure that the capital defendant is receiving quality

635

representation. The court shall also receive and evaluate

636

allegations that are made regarding the performance of assigned

637

counsel. The Chief Financial Officer, the Department of Legal

638

Affairs, the executive director, or any interested person may

639

advise the court of any circumstance that could affect the

640

quality of representation, including, but not limited to, false

641

or fraudulent billing, misconduct, failure to meet continuing

642

legal education requirements, solicitation to receive

643

compensation from the capital defendant, or failure to file

644

appropriate motions in a timely manner.

645

(13) Prior to the filing of a motion for order approving

646

payment of attorney's fees, costs, or related expenses, the

647

assigned counsel shall deliver a copy of his intended billing,

648

together with supporting affidavits and all other necessary

649

documentation, to the Chief Financial Officer's named contract

650

manager. The contract manager shall have 10 business days from

651

receipt to review the billings, affidavit, and documentation for

652

completeness and compliance with contractual and statutory

653

requirements. If the contract manager objects to any portion of

654

the proposed billing, the objection and reasons therefor shall be

655

communicated to the assigned counsel. The assigned counsel may

656

thereafter file his or her motion for order approving payment of

657

attorney's fees, costs, or related expenses together with

658

supporting affidavits and all other necessary documentation. The

659

motion must specify whether the Chief Financial Officer's

660

contract manager objects to any portion of the billing or the

661

sufficiency of documentation and, if so, the reason therefor. A

662

copy of the motion and attachments shall be served on the Chief

663

Financial Officer's contract manager, who shall have standing to

664

file pleadings and appear before the court to contest any motion

665

for order approving payment. The fact that the Chief Financial

666

Officer's contract manager has not objected to any portion of the

667

billing or to the sufficiency of the documentation is not binding

668

on the court, which retains primary authority and responsibility

669

for determining the reasonableness of all billings for fees,

670

costs, and related expenses, subject to statutory limitations.

671

(14) If a trial court judge proposes to award attorney's

672

fees in excess of those set forth in this section, the judge must

673

include written findings of fact that state in detail the

674

extraordinary nature of the expenditures of the time, energy, and

675

talents of the attorney in the case which are not ordinarily

676

expended in other capital collateral cases, and the basis for the

677

court finding that the case is unusual compared to other capital

678

postconviction cases. Each attorney participating in the pilot

679

program in the northern region pursuant to s. 27.701(2), as a

680

condition of payment pursuant to this section, shall report on

681

the performance measures adopted by the Legislature for the

682

capital collateral regional counsel.

683

Section 7. For the purpose of incorporating the amendments

684

made by this act to sections 27.710 and 27.711, Florida Statutes,

685

in references thereto, section 27.7002, Florida Statutes, is

686

reenacted to read:

687

27.7002 Limitation on collateral representation; lawyer

688

disqualification; use of state funds for excess fees not

689

authorized.--

690

(1) This chapter does not create any right on behalf of any

691

person, provided counsel pursuant to any provision of this

692

chapter, to challenge in any form or manner the adequacy of the

693

collateral representation provided.

694

(2) With respect to counsel appointed to represent

695

defendants in collateral proceedings pursuant to ss. 27.710 and

696

27.711, the sole method of assuring adequacy of representation

697

provided shall be in accordance with the provisions of s.

698

27.711(12).

699

(3) No provision of this chapter shall be construed to

700

generate any right on behalf of any attorney appointed pursuant

701

to s. 27.710, or seeking appointment pursuant to s. 27.710, to be

702

compensated above the amounts provided in s. 27.711.

703

(4) No attorney may be appointed, at state expense, to

704

represent any defendant in collateral legal proceedings except as

705

expressly authorized in this chapter.

706

(5) The use of state funds for compensation of counsel

707

appointed pursuant to s. 27.710 above the amounts set forth in s.

708

27.711 is not authorized.

709

(6) The executive director of the Commission on Capital

710

Cases is authorized to permanently remove from the registry of

711

attorneys provided in ss. 27.710 and 27.711 any attorney who

712

seeks compensation for services above the amounts provided in s.

713

27.711.

714

(7) Any attorney who notifies any court, judge, state

715

attorney, the Attorney General, or the executive director of the

716

Commission on Capital Cases, that he or she cannot provide

717

adequate or proper representation under the terms and conditions

718

set forth in s. 27.711 shall be permanently disqualified from any

719

attorney registry created under this chapter unless good cause

720

arises after a change in circumstances.

721

Section 8. This act shall take effect July 1, 2008.

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