Florida Senate - 2008 CS for SB 1690

By the Committee on Criminal Justice; and Senator Crist

591-05776-08 20081690c1

A bill to be entitled

An act relating to capital collateral representation;

amending s. 27.7001, F.S.; establishing that the

collateral representation system is a legislative branch

entity; providing a legislative finding that not all

capital cases are extraordinary or unusual; amending s.

27.701, F.S.; extending the term of years regional counsel

are appointed to serve; providing a deadline on the

appointment process; deleting the 2-year prohibition

against former regional counsel running for state office

or accepting another state appointment; 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 a legislative branch entity, as set

forth in 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

100

appointment as regional counsel. The commission Governor shall

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appoint a regional counsel for each region from among the

102

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

103

administration of justice in capital cases, the commission

104

Governor may reject the nominations and request submission of

105

three new nominees by the Supreme Court Judicial Nominating

106

Commission. Each capital collateral regional counsel shall be

107

appointed to a term of 4 3 years. Vacancies in the office of

108

capital collateral regional counsel shall be filled in the same

109

manner as appointments. The appointment process shall be

110

completed within 120 days, notwithstanding confirmation. Each

111

capital collateral counsel shall report to and serve at the

112

pleasure of the Commission on Capital Cases. A person appointed

113

as a regional counsel may not run for or accept appointment to

114

any state office for 2 years following vacation of office.

115

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

116

responsibilities of the regional office of capital collateral

117

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

119

attorneys maintained pursuant to s. 27.710. Each attorney

120

participating in the pilot must be qualified to provide

121

representation in federal court. The Auditor General shall

122

schedule a performance review of the pilot program to determine

123

the effectiveness and efficiency of using attorneys from the

124

registry compared to the capital collateral regional counsel. The

125

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

126

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

127

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

128

Representatives by January 30, 2007. The Legislature may

129

determine whether to convert the pilot program to a permanent

130

program after receipt of the Auditor General's review.

131

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

132

read:

133

27.702 Duties of the capital collateral regional counsel;

134

reports.--

135

(1) The capital collateral regional counsel shall represent

136

each person convicted and sentenced to death in this state for

137

the sole purpose of instituting and prosecuting collateral

138

actions challenging the legality of the judgment and sentence

139

imposed against such person in the state courts, federal courts

140

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

141

Eleventh Circuit, and the United States Supreme Court. The

142

capital collateral regional counsel and the attorneys appointed

143

pursuant to s. 27.710 shall file only those postconviction or

144

collateral actions authorized by statute. The three capital

145

collateral regional counsel's offices shall function

146

independently and be separate budget entities, and the regional

147

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

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collateral regional counsel shall be housed, for administrative

149

purposes, within the Justice Administrative Commission. The

150

Justice Administrative Commission shall provide administrative

151

support and service to the three offices to the extent requested

152

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

153

subject to control, supervision, or direction by the Justice

154

Administrative Commission in any manner, including, but not

155

limited to, personnel, purchasing, transactions involving real or

156

personal property, and budgetary matters.

157

(2) The capital collateral regional counsel shall represent

158

persons convicted and sentenced to death within the region in

159

collateral postconviction proceedings, unless a court appoints or

160

permits other counsel to appear as counsel of record pursuant to

161

ss. 27.710 and 27.711.

162

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

163

motions seeking compensation for representation and reimbursement

164

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

165

representation to indigent persons in the federal courts, and

166

shall deposit all such payments received into the General Revenue

167

Fund.

168

(b) The court having jurisdiction over any nonindigent or

169

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

170

the services of the capital collateral regional counsel may

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

172

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

173

determination of indigence of any defendant shall be made

174

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

175

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

177

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

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27.561 or s. 938.29.

179

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

180

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

182

Commission on Capital Cases and to the trial court assigned to

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the case.

184

(b) Each capital collateral regional counsel and each

185

attorney participating in the pilot program in the northern

186

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

187

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

188

Representatives, and the Commission on Capital Cases which

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details the number of hours worked by investigators and legal

190

counsel per case and the amounts per case expended during the

191

preceding quarter in investigating and litigating capital

192

collateral cases.

193

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

194

read:

195

27.709 Commission on Capital Cases.--

196

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

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which shall consist of the seven six following members:

198

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 membership of the Senate. One member shall be a member

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

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minority party.

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

204

Representatives from the membership of the House of

205

Representatives. One member shall be a member of the majority

206

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

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

208

members for a term of 1 year.

209

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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.

212

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

213

travel expenses to be paid by the appointing entity.

214

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

215

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

216

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

217

Senate or the House of Representatives.

218

(f) The Justice Administrative Commission Office of

219

Legislative Services shall provide staff support for the

220

commission, which shall be housed therein for administrative

221

purposes.

222

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

223

justice in capital collateral cases, receive relevant public

224

input, review the operation of the capital collateral regional

225

counsel and private counsel appointed pursuant to ss. 27.710 and

226

27.711, and advise and make recommendations to the Governor,

227

Legislature, and Supreme Court.

228

(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

230

analyzing these reports, the commission shall develop statistics

231

to identify trends and changes in case management and case

232

processing, identify and evaluate unproductive points of delay,

233

and generally evaluate the way cases are progressing. The

234

commission shall report these findings to the Legislature by

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January 1 of each year.

236

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regarding the practice of any office of regional counsel and

238

private counsel appointed under pursuant to ss. 27.710 and 27.711

239

and may investigate and shall refer any complaint to The Florida

240

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

241

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

242

appropriate.

243

(d) The commission may sponsor programs of continuing legal

244

education which are devoted specifically to capital cases and

245

shall undertake any project recommended or approved by the

246

commission members.

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

248

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

249

pertinent reports to the commission for its review.

250

(f) The commission may exercise subpoena powers and may

251

receive sworn testimony it deems necessary for the administration

252

of justice in capital cases.

253

(g) The commission shall appoint the capital collateral

254

regional counsel by a majority vote, and may terminate the

255

employment of regional counsel, by a super majority vote, at any

256

time prior to the expiration of the appointment.

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

258

read:

259

27.710 Registry of attorneys applying to represent persons

260

in postconviction capital collateral proceedings; certification

261

of minimum requirements; appointment by trial court.--

262

(1) The executive director of the Commission on Capital

263

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

266

are available for appointment by the court under this section to

267

represent persons convicted and sentenced to death in this state

268

in postconviction collateral proceedings, and who have attended

269

within the last year a continuing legal education program of at

270

least 10 hours' duration devoted specifically to the defense of

271

capital cases, if available. Continuing legal education programs

272

meeting the requirements of this rule offered by The Florida Bar

273

or another recognized provider and approved for continuing legal

274

education credit by The Florida Bar shall satisfy this

275

requirement. The failure to comply with this requirement may be

276

cause for removal from the list until the requirement is

277

fulfilled. To ensure that sufficient attorneys are available for

278

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

279

registry falls below 50, the executive director shall notify the

280

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

281

to promptly submit the names of at least three private attorneys

282

who regularly practice criminal law in that circuit and who

283

appear to meet the minimum requirements to represent persons in

284

postconviction capital collateral proceedings. The executive

285

director shall send an application to each attorney identified by

286

the chief judge so that the attorney may register for appointment

287

as counsel in postconviction capital collateral proceedings. As

288

necessary, the executive director may also advertise in legal

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publications and other appropriate media for qualified attorneys

290

interested in registering for appointment as counsel in

291

postconviction capital collateral proceedings. Under limited

292

circumstances, when the number of qualified lawyers on the

293

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

294

who does not meet the minimum qualifications set forth in this

295

section, the application may be forwarded by the executive

296

director to the full commission for its approval of the applicant

297

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

299

thereafter, the executive director shall provide to the Chief

300

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

301

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

302

of its registry of attorneys who are available for appointment as

303

counsel in postconviction capital collateral proceedings. The

304

registry must be indexed by judicial circuit and must contain the

305

requisite information submitted by the applicants in accordance

306

with this section.

307

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

308

postconviction capital collateral proceedings, an attorney must

309

certify on an application provided by the executive director that

310

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

311

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

312

years' experience in the practice of criminal law and has

313

demonstrated the proficiency necessary to represent defendants in

314

capital cases, including proficiency in the production and

315

admission of evidence, including psychiatric and forensic

316

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

317

presentation of mitigation evidence;

318

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

319

continuing legal education programs within the previous 2 years

320

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

321

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

322

authorized provider of continuing legal education courses; and

323

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

324

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

325

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

326

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

327

which must have been other felony trials; or

328

(III) One of which must have included a postconviction

329

evidentiary hearing and five of which must have been other felony

330

trials;

331

b. Has appealed one capital conviction and appealed:

332

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

333

have been a murder conviction;

334

(II) At least three felony convictions and participated in

335

one capital postconviction evidentiary hearing; or

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

337

have been murder convictions; or

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

339

capital collateral evidentiary hearings.

340

(b) If the trial court finds that exceptional circumstances

341

exist requiring appointment of an attorney who does not meet the

342

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

343

a written order specifying the circumstances and making explicit

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findings that the attorney appointed is capable of providing

345

competent representation in accordance with the intent of this

346

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

351

certification of compliance to the commission, and may be

352

submitted by electronic mail satisfies the minimum requirements

353

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

356

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

357

not more than four such proceedings and, if appointed to

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represent a person in postconviction capital collateral

359

proceedings, shall continue the such representation under the

360

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

361

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

362

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

363

an attorney to withdraw from representation without a finding of

364

sufficient good cause. The court may impose appropriate sanctions

365

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

367

collateral proceeding. This section does not preclude the court

368

from reassigning a case to a capital collateral regional counsel

369

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

372

to represent a capital defendant, including court-appointed

373

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

374

contract with the Chief Financial Officer. If the appointed

375

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

377

director of the Commission on Capital Cases shall notify the

378

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

379

Financial Officer shall develop the form of the contract for

380

court-appointed attorneys, function as contract manager, and

381

enforce performance of the terms and conditions of the contract

382

consistent with the requirements of this chapter. By signing such

383

contract, the attorney certifies that he or she intends to

384

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

387

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

388

she has executed the contract required under this paragraph.

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(b) Each attorney appointed under this section must submit

390

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

399

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

400

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

401

from the registry to continue to represent appointed capital

402

defendants, the court must take all necessary actions to ensure

403

compliance with the requirements of this subsection. An attorney

404

who has been removed from the registry may not accept further

405

appointments to represent any new capital defendant unless the

406

attorney is placed back on the registry as provided in paragraph

407

(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

410

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

411

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

412

attorney may reapply for the registry no more than two times

413

under this paragraph for failure to adhere to the requirements of

414

this subsection.

415

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

416

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

417

(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

420

capital collateral regional counsel and no entry of appearance

421

has been filed under pursuant to s. 924.056; or

422

2. A person under sentence of death who was previously

423

represented by private counsel is currently unrepresented in a

424

postconviction capital collateral proceeding,

425

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the executive director shall immediately notify the trial court

427

that imposed the sentence of death that the court must

428

immediately appoint an attorney, selected from the current

429

registry, to represent such person in collateral actions

430

challenging the legality of the judgment and sentence in the

431

appropriate state and federal courts. If the attorney appointed

432

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

433

to continue representing the defendant in federal proceedings,

434

the attorney must make a good faith effort to assist the

435

defendant in finding an attorney who meets the criteria and is

436

willing to represent the defendant in federal proceedings. The

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court may shall have the authority to strike a notice of

438

appearance filed by a Capital Collateral Regional Counsel, if the

439

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,

444

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

445

commensurate with the responsibility of representing a person

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

447

appointment which contains specific findings that the appointed

448

counsel meets the statutory requirements and has the high ethical

449

standards necessary to represent a person sentenced to death.

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

451

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

452

in postconviction capital collateral proceedings. However, an

453

attorney appointed under this section may designate another

454

attorney to assist him or her if the designated attorney meets

455

the qualifications of this section.

456

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

457

read:

458

27.711 Terms and conditions of appointment of attorneys as

459

counsel in postconviction capital collateral proceedings.--

460

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

461

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

462

in postconviction capital collateral proceedings by an attorney

463

appointed under s. 27.710.

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

465

the Commission on Capital Cases.

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one series of collateral litigation of an affirmed conviction and

468

sentence of death, including the proceedings in the trial court

469

that imposed the capital sentence, any appellate review of the

470

sentence by the Supreme Court, any certiorari review of the

471

sentence by the United States Supreme Court, and any authorized

472

federal habeas corpus litigation with respect to the sentence.

473

The term does not include repetitive or successive collateral

474

challenges to a conviction and sentence of death which is

475

affirmed by the Supreme Court and undisturbed by any collateral

476

litigation.

477

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

478

the attorney must immediately file a notice of appearance with

479

the trial court indicating acceptance of the appointment to

480

represent the capital defendant throughout all postconviction

481

capital collateral proceedings, including federal habeas corpus

482

proceedings, in accordance with this section or until released by

483

order of the trial court.

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(3) An attorney appointed to represent a capital defendant

485

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

486

upon full performance by the attorney of the duties specified in

487

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

488

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

489

availability of sufficient funding specifically appropriated for

490

this purpose. An attorney may not be compensated under this

491

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

493

collateral counsel. The Chief Financial Officer shall notify the

494

executive director and the court if it appears that sufficient

495

funding has not been specifically appropriated for this purpose

496

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

497

maintain appropriate documentation, including a current and

498

detailed hourly accounting of time spent representing the capital

499

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

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exclusive means of compensating a court-appointed attorney who

501

represents a capital defendant. When appropriate, a court-

502

appointed attorney must seek further compensation from the

503

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

504

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

505

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

506

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

507

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

508

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

509

entitled to payment for investigative services as specified in

510

subsection (5) and for miscellaneous expenses actually incurred

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on behalf of the capital defendant as specified in subsection

512

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

513

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

514

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

516

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

517

payment of the following fees by the Chief Financial Officer:

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(a) Regardless of the stage of postconviction capital

519

collateral proceedings, the attorney is entitled to $100 per

520

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

521

appointment and filing a notice of appearance in order to review

522

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

523

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

524

after reviewing the case files, the attorney determines that

525

payment under this section does not provide adequate compensation

526

for the foreseeable duties associated with the prospective

527

appointment, the attorney must decline the appointment.

528

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

529

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

530

capital defendant's complete original motion for postconviction

531

relief under the Florida Rules of Criminal Procedure. The motion

532

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

533

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

534

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

535

of the original motion for postconviction relief unnecessary or

536

if the court otherwise disposes of the case.

537

538

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

539

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

540

for postconviction relief.

541

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

542

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

543

capital defendant's brief or briefs that address the trial

544

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

545

motion for postconviction relief and the state petition for writ

546

of habeas corpus.

547

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

548

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

549

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

550

directs the trial court to hold further proceedings on the

551

capital defendant's motion for postconviction relief.

552

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

553

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

554

of the capital defendant's motion for postconviction relief and

555

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

556

become final in the Supreme Court.

557

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

558

postconviction capital collateral proceedings in state court, the

559

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

560

for the preparation of the initial federal pleading after filing

561

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

562

United States.

563

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

564

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

565

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

566

and costs for representing the capital defendant throughout the

567

proceedings before the state courts of Florida.

568

569

The hours billed by a contracting attorney under this subsection

570

may include time devoted to representation of the defendant by

571

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

572

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

573

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

574

the services of one or more investigators to assist in

575

representing a capital defendant. Upon approval by the trial

576

court, the attorney is entitled to payment from the Chief

577

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

578

for the purpose of paying for investigative services.

579

(6) An attorney who represents a capital defendant is

580

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

581

as the costs of preparing transcripts, compensating expert

582

witnesses, and copying documents. Upon approval by the trial

583

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

584

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

585

if the trial court finds that extraordinary circumstances exist,

586

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

587

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

588

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

589

year for tuition and expenses for continuing legal education that

590

pertains to the representation of capital defendants regardless

591

of the total number of capital defendants the attorney is

592

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

593

entitled to payment by the Chief Financial Officer for expenses

594

for such tuition and continuing legal education.

595

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

596

represent a capital defendant, the attorney agrees to continue

597

such representation under the terms and conditions set forth in

598

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

599

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

600

withdraw from such representation by a court of competent

601

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

602

is otherwise removed from representation prior to full

603

performance of the duties specified in this section, the trial

604

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

605

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

606

attorney who withdraws or is removed from representation shall

607

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

608

successor attorney within 15 days after notice from the successor

609

attorney. The successor attorney shall bear the cost of

610

transmitting the files, notes, documents, and research.

611

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

612

defendants in capital postconviction litigation at any one time.

613

The defendant-representation limit includes cases involving

614

capital postconviction proceedings under contract with the

615

Capital Collateral Regional Counsel, pro bono cases, registry

616

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

617

appointed to an additional capital postconviction case until the

618

attorney's capital postconviction representation total falls

619

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

620

employment contract with the offices of the Capital Collateral

621

Regional Counsel if he or she currently represents more than

622

seven defendants in capital collateral litigation in the

623

categories specified in this subsection.

624

(10) This section does not authorize an attorney who

625

represents a capital defendant to file repetitive or frivolous

626

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

627

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

628

defendant in postconviction capital collateral proceedings may

629

not be the basis for a claim of ineffective assistance of

630

counsel.

631

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

632

capital defendant may not represent the capital defendant during

633

a retrial, a resentencing proceeding, a proceeding commenced

634

under chapter 940, a proceeding challenging a conviction or

635

sentence other than the conviction and sentence of death for

636

which the appointment was made, or any civil litigation other

637

than habeas corpus proceedings.

638

(12) The court shall monitor the performance of assigned

639

counsel to ensure that the capital defendant is receiving quality

640

representation. The court shall also receive and evaluate

641

allegations that are made regarding the performance of assigned

642

counsel. The Chief Financial Officer, the Department of Legal

643

Affairs, the executive director, or any interested person may

644

advise the court of any circumstance that could affect the

645

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

646

or fraudulent billing, misconduct, failure to meet continuing

647

legal education requirements, solicitation to receive

648

compensation from the capital defendant, or failure to file

649

appropriate motions in a timely manner.

650

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

651

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

652

assigned counsel shall deliver a copy of his intended billing,

653

together with supporting affidavits and all other necessary

654

documentation, to the Chief Financial Officer's named contract

655

manager. The contract manager shall have 10 business days from

656

receipt to review the billings, affidavit, and documentation for

657

completeness and compliance with contractual and statutory

658

requirements. If the contract manager objects to any portion of

659

the proposed billing, the objection and reasons therefor shall be

660

communicated to the assigned counsel. The assigned counsel may

661

thereafter file his or her motion for order approving payment of

662

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

663

supporting affidavits and all other necessary documentation. The

664

motion must specify whether the Chief Financial Officer's

665

contract manager objects to any portion of the billing or the

666

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

667

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

668

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

669

file pleadings and appear before the court to contest any motion

670

for order approving payment. The fact that the Chief Financial

671

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

672

billing or to the sufficiency of the documentation is not binding

673

on the court, which retains primary authority and responsibility

674

for determining the reasonableness of all billings for fees,

675

costs, and related expenses, subject to statutory limitations.

676

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

677

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

678

include written findings of fact that state in detail the

679

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

680

talents of the attorney in the case which are not ordinarily

681

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

682

court finding that the case is unusual compared to other capital

683

postconviction cases. Each attorney participating in the pilot

684

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

685

condition of payment pursuant to this section, shall report on

686

the performance measures adopted by the Legislature for the

687

capital collateral regional counsel.

688

Section 7. For the purpose of incorporating the amendments

689

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

690

in references thereto, section 27.7002, Florida Statutes, is

691

reenacted to read:

692

27.7002 Limitation on collateral representation; lawyer

693

disqualification; use of state funds for excess fees not

694

authorized.--

695

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

696

person, provided counsel pursuant to any provision of this

697

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

698

collateral representation provided.

699

(2) With respect to counsel appointed to represent

700

defendants in collateral proceedings pursuant to ss. 27.710 and

701

27.711, the sole method of assuring adequacy of representation

702

provided shall be in accordance with the provisions of s.

703

27.711(12).

704

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

705

generate any right on behalf of any attorney appointed pursuant

706

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

707

compensated above the amounts provided in s. 27.711.

708

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

709

represent any defendant in collateral legal proceedings except as

710

expressly authorized in this chapter.

711

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

712

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

713

27.711 is not authorized.

714

(6) The executive director of the Commission on Capital

715

Cases is authorized to permanently remove from the registry of

716

attorneys provided in ss. 27.710 and 27.711 any attorney who

717

seeks compensation for services above the amounts provided in s.

718

27.711.

719

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

720

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

721

Commission on Capital Cases, that he or she cannot provide

722

adequate or proper representation under the terms and conditions

723

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

724

attorney registry created under this chapter unless good cause

725

arises after a change in circumstances.

726

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

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