1 | A bill to be entitled |
2 | An act relating to capital collateral representation; |
3 | amending s. 27.7001, F.S.; providing a legislative finding |
4 | that not all capital cases are extraordinary or unusual; |
5 | amending s. 27.701, F.S.; requiring that capital |
6 | collateral regional counsel be appointed by and serve at |
7 | the pleasure of the Commission on Capital Cases; removing |
8 | provisions establishing a pilot program in the northern |
9 | region of the state; amending s. 27.702, F.S.; clarifying |
10 | the administrative roles and functions of the Justice |
11 | Administrative Commission, the Commission on Capital |
12 | Cases, and the capital collateral regional counsel; |
13 | deleting references to a pilot project; amending s. |
14 | 27.709, F.S.; increasing the membership of the Commission |
15 | on Capital Cases; relocating the commission from the |
16 | Office of Legislative Services to the Justice |
17 | Administrative Commission for administrative purposes; |
18 | authorizing the commission to sponsor programs of |
19 | continuing legal education on capital cases; authorizing |
20 | the commission to request certain reports; authorizing the |
21 | commission to issue subpoenas and hold hearings it |
22 | considers appropriate for the administration of justice in |
23 | capital cases; authorizing the commission to terminate the |
24 | appointment of a capital collateral regional counsel |
25 | before the end of the counsel's term; amending s. 27.710, |
26 | F.S.; revising the criteria required for an attorney to be |
27 | eligible to be placed on the registry of attorneys |
28 | qualified to represent defendants in postconviction |
29 | capital collateral proceedings; providing certain limited |
30 | exceptions; requiring attorneys to sign a contract with |
31 | the Chief Financial Officer in order to receive funds from |
32 | the state; requiring each private attorney appointed by a |
33 | court to represent a capital defendant to submit a report |
34 | each quarter to the commission; providing for removal and |
35 | reinstatement to the registry of attorneys; providing |
36 | requirements with respect to finding another attorney to |
37 | represent a defendant in federal proceedings under certain |
38 | circumstances; amending s. 27.711, F.S.; providing for |
39 | terms and conditions for appointment of counsel in |
40 | postconviction capital collateral proceedings; providing |
41 | for pro bono attorneys to receive reimbursement for |
42 | certain specified expenses; revising fee and other expense |
43 | provisions applicable to registry attorneys appointed to |
44 | represent capital defendants; limiting representation by a |
45 | court-appointed attorney to seven defendants; prohibiting |
46 | an attorney from entering into an employment contract with |
47 | any Office of Capital Collateral Regional Counsel if he or |
48 | she represents seven or more defendants in capital |
49 | collateral litigation; requiring a trial court judge who |
50 | proposes to award attorney's fees in excess of those set |
51 | forth in law to make written findings of fact that state |
52 | the extraordinary nature of the expenditures of time, |
53 | energy, and talents of the attorney in the case which are |
54 | not ordinarily expended in other capital collateral cases |
55 | and how the case is unusual; reenacting s. 27.7002, F.S., |
56 | relating to the limitation of cases on collateral |
57 | representation, to incorporate the amendments made to ss. |
58 | 27.710 and 27.711, F.S., in references thereto; providing |
59 | an effective date. |
60 |
|
61 | Be It Enacted by the Legislature of the State of Florida: |
62 |
|
63 | Section 1. Section 27.7001, Florida Statutes, is amended |
64 | to read: |
65 | 27.7001 Legislative intent and findings.--It is the intent |
66 | of the Legislature to create part IV of this chapter, consisting |
67 | of ss. 27.7001-27.711, inclusive, to provide for the collateral |
68 | representation of any person convicted and sentenced to death in |
69 | this state, so that collateral legal proceedings to challenge |
70 | any Florida capital conviction and sentence may be commenced in |
71 | a timely manner and so as to assure the people of this state |
72 | that the judgments of its courts may be regarded with the |
73 | finality to which they are entitled in the interests of justice. |
74 | It is the further intent of the Legislature that collateral |
75 | representation shall not include representation during retrials, |
76 | resentencings, proceedings commenced under chapter 940, or civil |
77 | litigation. The Legislature further finds that not all capital |
78 | collateral cases are extraordinary or unusual. |
79 | Section 2. Section 27.701, Florida Statutes, is amended to |
80 | read: |
81 | 27.701 Capital collateral regional counsel.-- |
82 | (1) There are created three regional offices of capital |
83 | collateral counsel, which shall be located in a northern, |
84 | middle, and southern region of the state. The northern region |
85 | shall consist of the First, Second, Third, Fourth, Eighth, and |
86 | Fourteenth Judicial Circuits; the middle region shall consist of |
87 | the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, |
88 | and Eighteenth Judicial Circuits; and the southern region shall |
89 | consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth, |
90 | Nineteenth, and Twentieth Judicial Circuits. Each regional |
91 | office shall be administered by a regional counsel. A regional |
92 | counsel must be, and must have been for the preceding 5 years, a |
93 | member in good standing of The Florida Bar or a similar |
94 | organization in another state. Each capital collateral regional |
95 | counsel shall be appointed by the Commission on Capital Cases |
96 | Governor, and is subject to confirmation by the Senate. The |
97 | Supreme Court Judicial Nominating Commission shall recommend to |
98 | the Commission on Capital Cases Governor three qualified |
99 | candidates for each appointment as regional counsel. The |
100 | commission Governor shall appoint a regional counsel for each |
101 | region from among the recommendations, or, if it is in the best |
102 | interest of the fair administration of justice in capital cases, |
103 | the commission Governor may reject the nominations and request |
104 | submission of three new nominees by the Supreme Court Judicial |
105 | Nominating Commission. Each capital collateral regional counsel |
106 | shall be appointed to a term of 3 years. Vacancies in the office |
107 | of capital collateral regional counsel shall be filled in the |
108 | same manner as appointments. A person appointed as a regional |
109 | counsel may not run for or accept appointment to any state |
110 | office for 2 years following vacation of office. Each capital |
111 | collateral counsel shall report to and serve at the pleasure of |
112 | the Commission on Capital Cases. |
113 | (2) Notwithstanding the provisions of subsection (1), the |
114 | responsibilities of the regional office of capital collateral |
115 | counsel for the northern region of the state shall be met |
116 | through a pilot program using only attorneys from the registry |
117 | of attorneys maintained pursuant to s. 27.710. Each attorney |
118 | participating in the pilot must be qualified to provide |
119 | representation in federal court. The Auditor General shall |
120 | schedule a performance review of the pilot program to determine |
121 | the effectiveness and efficiency of using attorneys from the |
122 | registry compared to the capital collateral regional counsel. |
123 | The review, at a minimum, shall include comparisons of the |
124 | timeliness and costs of the pilot and the counsel and shall be |
125 | submitted to the President of the Senate and the Speaker of the |
126 | House of Representatives by January 30, 2007. The Legislature |
127 | may determine whether to convert the pilot program to a |
128 | permanent program after receipt of the Auditor General's review. |
129 | Section 3. Section 27.702, Florida Statutes, is amended to |
130 | read: |
131 | 27.702 Duties of the capital collateral regional counsel; |
132 | reports.-- |
133 | (1) The capital collateral regional counsel shall |
134 | represent each person convicted and sentenced to death in this |
135 | state for the sole purpose of instituting and prosecuting |
136 | collateral actions challenging the legality of the judgment and |
137 | sentence imposed against such person in the state courts, |
138 | federal courts in this state, the United States Court of Appeals |
139 | for the Eleventh Circuit, and the United States Supreme Court. |
140 | The capital collateral regional counsel and the attorneys |
141 | appointed pursuant to s. 27.710 shall file only those |
142 | postconviction or collateral actions authorized by statute. The |
143 | three capital collateral regional counsel's offices shall |
144 | function independently and be separate budget entities, and the |
145 | regional counsel shall be the office heads for all purposes. The |
146 | capital collateral regional counsel shall be housed, for |
147 | administrative purposes, within the Justice Administrative |
148 | Commission. The Justice Administrative Commission shall provide |
149 | administrative support and service to the three offices to the |
150 | extent requested by the regional counsel. The three regional |
151 | offices shall not be subject to control, supervision, or |
152 | direction by the Justice Administrative Commission in any |
153 | manner, including, but not limited to, personnel, purchasing, |
154 | transactions involving real or personal property, and budgetary |
155 | matters. |
156 | (2) The capital collateral regional counsel shall |
157 | represent persons convicted and sentenced to death within the |
158 | region in collateral postconviction proceedings, unless a court |
159 | appoints or permits other counsel to appear as counsel of record |
160 | pursuant to ss. 27.710 and 27.711. |
161 | (3)(a) The capital collateral regional counsel shall file |
162 | motions seeking compensation for representation and |
163 | reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when |
164 | providing representation to indigent persons in the federal |
165 | courts, and shall deposit all such payments received into the |
166 | General Revenue Fund. |
167 | (b) The court having jurisdiction over any nonindigent or |
168 | indigent-but-able-to-contribute defendant who has been receiving |
169 | the services of the capital collateral regional counsel may |
170 | assess attorney's fees and costs against the defendant at any |
171 | stage in the proceedings as the court may deem appropriate. The |
172 | determination of indigence of any defendant shall be made |
173 | pursuant to s. 27.52. Liability for the costs of such |
174 | representation may be imposed in the form of a lien against the |
175 | property of the nonindigent or indigent-but-able-to-contribute |
176 | defendant, which lien shall be enforceable as provided in s. |
177 | 27.561 or s. 938.29. |
178 | (4)(a) The capital collateral regional counsel or private |
179 | counsel shall give written notification of each pleading filed |
180 | by that office and the name of the person filing the pleading to |
181 | the Commission on Capital Cases and to the trial court assigned |
182 | to the case. |
183 | (b) Each capital collateral regional counsel and each |
184 | attorney participating in the pilot program in the northern |
185 | region pursuant to s. 27.701(2) shall provide a quarterly report |
186 | to the President of the Senate, the Speaker of the House of |
187 | Representatives, and the Commission on Capital Cases which |
188 | details the number of hours worked by investigators and legal |
189 | counsel per case and the amounts per case expended during the |
190 | preceding quarter in investigating and litigating capital |
191 | collateral cases. |
192 | Section 4. Section 27.709, Florida Statutes, is amended to |
193 | read: |
194 | 27.709 Commission on Capital Cases.-- |
195 | (1)(a) There is created the Commission on Capital Cases, |
196 | which shall consist of the seven six following members: |
197 | 1. Three Two members appointed by the Governor. |
198 | 2. Two members appointed by the President of the Senate |
199 | from the membership of the Senate. One member shall be a member |
200 | of the majority party, and one member shall be a member of the |
201 | minority party. |
202 | 3. Two members appointed by the Speaker of the House of |
203 | Representatives from the membership of the House of |
204 | Representatives. One member shall be a member of the majority |
205 | party, and one member shall be a member of the minority party. |
206 | (b) The chair of the commission shall be selected by the |
207 | members for a term of 1 year. |
208 | (c) The commission shall meet quarterly, and other |
209 | meetings may be called by the chair upon giving at least 7 days' |
210 | notice to all members and the public. |
211 | (d) Members of the commission are entitled to per diem and |
212 | travel expenses to be paid by the appointing entity. |
213 | (e) Members of the commission shall be appointed to serve |
214 | terms of 4 years each, except that a member's term shall expire |
215 | upon leaving office as a member of the Senate or the House of |
216 | Representatives. |
217 | (f) The Justice Administrative Commission Office of |
218 | Legislative Services shall provide staff support for the |
219 | commission, which shall be housed therein for administrative |
220 | purposes. |
221 | (2)(a) The commission shall review the administration of |
222 | justice in capital collateral cases, receive relevant public |
223 | input, review the operation of the capital collateral regional |
224 | counsel and private counsel appointed pursuant to ss. 27.710 and |
225 | 27.711, and advise and make recommendations to the Governor, |
226 | Legislature, and Supreme Court. |
227 | (b) As part of its duties, the commission shall compile |
228 | and analyze case-tracking reports produced by the Supreme Court. |
229 | In analyzing these reports, the commission shall develop |
230 | statistics to identify trends and changes in case management and |
231 | case processing, identify and evaluate unproductive points of |
232 | delay, and generally evaluate the way cases are progressing. The |
233 | commission shall report these findings to the Legislature by |
234 | January 1 of each year. |
235 | (c) In addition, The commission shall receive complaints |
236 | regarding the practice of any office of regional counsel and |
237 | private counsel appointed under pursuant to ss. 27.710 and |
238 | 27.711 and may investigate and shall refer any complaint to The |
239 | Florida Bar, the State Supreme Court, the Department of Law |
240 | Enforcement, the Chief Inspector General, or the Commission on |
241 | Ethics, as appropriate. |
242 | (d) The commission may sponsor continuing legal education |
243 | programs that are devoted specifically to capital cases and |
244 | shall undertake any project recommended or approved by the |
245 | commission members. |
246 | (e) The commission may request each state attorney, |
247 | circuit court judge, and the Office of the Attorney General to |
248 | submit pertinent reports to the commission for its review. |
249 | (f) The commission may exercise subpoena powers and |
250 | receive sworn testimony it deems necessary for the |
251 | administration of justice in capital cases. |
252 | (g) The commission shall appoint the capital collateral |
253 | regional counsel and may terminate the employment of regional |
254 | counsel at any time prior to the expiration of the appointment. |
255 | Section 5. Section 27.710, Florida Statutes, is amended to |
256 | read: |
257 | 27.710 Registry of attorneys applying to represent persons |
258 | in postconviction capital collateral proceedings; certification |
259 | of minimum requirements; appointment by trial court.-- |
260 | (1) The executive director of the Commission on Capital |
261 | Cases shall compile and maintain a statewide registry of |
262 | attorneys in private practice who have certified that they meet |
263 | the minimum requirements of this section and s. 27.704(2), who |
264 | are available for appointment by the court under this section to |
265 | represent persons convicted and sentenced to death in this state |
266 | in postconviction collateral proceedings, and who have attended |
267 | within the last year a continuing legal education program of at |
268 | least 10 hours' duration devoted specifically to the defense of |
269 | capital cases, if available. Continuing legal education programs |
270 | meeting the requirements of this rule offered by The Florida Bar |
271 | or another recognized provider and approved for continuing legal |
272 | education credit by The Florida Bar shall satisfy this |
273 | requirement. The failure to comply with this requirement may be |
274 | cause for removal from the list until the requirement is |
275 | fulfilled. To ensure that sufficient attorneys are available for |
276 | appointment by the court, when the number of attorneys on the |
277 | registry falls below 50, the executive director shall notify the |
278 | chief judge of each circuit by letter and request the chief |
279 | judge to promptly submit the names of at least three private |
280 | attorneys who regularly practice criminal law in that circuit |
281 | and who appear to meet the minimum requirements to represent |
282 | persons in postconviction capital collateral proceedings. The |
283 | executive director shall send an application to each attorney |
284 | identified by the chief judge so that the attorney may register |
285 | for appointment as counsel in postconviction capital collateral |
286 | proceedings. As necessary, the executive director may also |
287 | advertise in legal publications and other appropriate media for |
288 | qualified attorneys interested in registering for appointment as |
289 | counsel in postconviction capital collateral proceedings. When |
290 | the number of qualified lawyers on the registry falls below 50, |
291 | upon the application of an attorney who does not meet the |
292 | minimum qualifications set forth in this section, the |
293 | application may be forwarded by the executive director to the |
294 | full commission for its approval of the applicant being included |
295 | on the list of available registry attorneys. By Not later than |
296 | September 1 of each year, and as necessary thereafter, the |
297 | executive director shall provide to the Chief Justice of the |
298 | Supreme Court, the chief judge and state attorney in each |
299 | judicial circuit, and the Attorney General a current copy of its |
300 | registry of attorneys who are available for appointment as |
301 | counsel in postconviction capital collateral proceedings. The |
302 | registry must be indexed by judicial circuit and must contain |
303 | the requisite information submitted by the applicants in |
304 | accordance with this section. |
305 | (2)(a) To be eligible for court appointment as counsel in |
306 | postconviction capital collateral proceedings, an attorney must |
307 | certify on an application provided by the executive director |
308 | that he or she is a member in good standing of The Florida Bar |
309 | and: |
310 | 1. Is an active practicing attorney who has at least 5 |
311 | years' experience in the practice of criminal law and has |
312 | demonstrated the proficiency necessary to represent defendants |
313 | in capital cases, including proficiency in the production and |
314 | admission of evidence, including psychiatric and forensic |
315 | evidence, the use of expert witnesses, and the investigation and |
316 | presentation of mitigation evidence; |
317 | 2. Has attended and completed a minimum of 12 hours of |
318 | continuing legal education programs within the previous 2 years |
319 | which were devoted to the defense of capital cases and offered |
320 | by The Florida Bar, the Commission on Capital Cases, or another |
321 | authorized provider of continuing legal education courses; and |
322 | 3.a. Has tried at least nine state or federal jury trials |
323 | to completion, two of which must have been capital cases, and: |
324 | (I) Three of which must have been murder trials; |
325 | (II) One of which must have been a murder trial and five |
326 | of which must have been other felony trials; or |
327 | (III) One of which must have included a postconviction |
328 | evidentiary hearing and five of which must have been other |
329 | felony trials; |
330 | b. Has appealed one capital conviction and appealed: |
331 | (I) At least three felony convictions, one of which must |
332 | have been a murder conviction; |
333 | (II) At least three felony convictions and participated in |
334 | one capital postconviction evidentiary hearing; or |
335 | (III) At least six felony convictions, two of which must |
336 | have been murder convictions; or |
337 | c. Has litigated as a first chair attorney at least three |
338 | capital collateral evidentiary hearings. |
339 | (b) If the trial court finds that exceptional |
340 | circumstances exist requiring appointment of an attorney who |
341 | does not meet the criteria set forth in paragraph (a), the trial |
342 | court shall enter a written order specifying the circumstances |
343 | and making explicit findings that the attorney appointed is |
344 | capable of providing competent representation in accordance with |
345 | the intent of this section. |
346 | (c) Failure by an attorney to comply with any criteria set |
347 | forth in paragraph (a) may be cause to remove the attorney from |
348 | the registry until such criteria is satisfied. |
349 | (d) Compliance may be proven by submitting written |
350 | certification of compliance to the commission and may be |
351 | submitted by electronic mail satisfies the minimum requirements |
352 | for private counsel set forth in s. 27.704(2). |
353 | (3) An attorney who applies for registration and court |
354 | appointment as counsel in postconviction capital collateral |
355 | proceedings must certify that he or she is counsel of record in |
356 | not more than four such proceedings and, if appointed to |
357 | represent a person in postconviction capital collateral |
358 | proceedings, shall continue the such representation under the |
359 | terms and conditions set forth in s. 27.711 until the sentence |
360 | is reversed, reduced, or carried out or unless permitted to |
361 | withdraw from representation by the trial court. The court may |
362 | not permit an attorney to withdraw from representation without a |
363 | finding of sufficient good cause. The court may impose |
364 | appropriate sanctions if it finds that an attorney has shown bad |
365 | faith with respect to continuing to represent a defendant in a |
366 | postconviction capital collateral proceeding. This section does |
367 | not preclude the court from reassigning a case to a capital |
368 | collateral regional counsel following discontinuation of |
369 | representation if a conflict of interest no longer exists with |
370 | respect to the case. |
371 | (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 |
376 | 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 |
383 | such contract, the attorney certifies that he or she intends to |
384 | continue the representation under the terms and conditions set |
385 | forth in the contract until the sentence is reversed, reduced, |
386 | or carried out or until released by order of the trial court. A |
387 | court-appointed attorney may not receive state funds unless he |
388 | or she has executed the contract required under this paragraph. |
389 | (b) Each attorney appointed under this section must submit |
390 | a report each quarter to the commission in the format designated |
391 | by the commission. If the report is not submitted within 60 days |
392 | after the end of the quarter, the executive director shall |
393 | remove the attorney from the registry and the court may impose a |
394 | fine for noncompliance. The court may also remove the attorney |
395 | from the case or cases to which he or she has been appointed |
396 | under this section. |
397 | (c) An attorney removed from the registry may, at the |
398 | 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). |
408 | (d) After certifying to the executive director that he or |
409 | 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 |
414 | of 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 |
418 | Attorney General that: |
419 | 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 |
|
426 | 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 |
436 | specified in subsection (2) and is willing to represent the |
437 | defendant in federal proceedings. The court may shall have the |
438 | authority to strike a notice of appearance filed by a capital |
439 | collateral regional counsel Capital Collateral Regional Counsel, |
440 | if the court finds the notice was not filed in good faith and |
441 | may so notify the executive director that the client is no |
442 | longer represented by the Office of Capital Collateral Regional |
443 | Counsel. In making an assignment, the court shall give priority |
444 | to attorneys whose experience and abilities in criminal law, |
445 | especially in capital proceedings, are known by the court to be |
446 | commensurate with the responsibility of representing a person |
447 | sentenced to death. The trial court must issue an order of |
448 | appointment which contains specific findings that the appointed |
449 | counsel meets the statutory requirements and has the high |
450 | ethical standards necessary to represent a person sentenced to |
451 | death. |
452 | (6) More than one attorney may not be appointed and |
453 | compensated at any one time under s. 27.711 to represent a |
454 | person in postconviction capital collateral proceedings. |
455 | However, an attorney appointed under this section may designate |
456 | another attorney to assist him or her if the designated attorney |
457 | meets the qualifications of this section. |
458 | Section 6. Section 27.711, Florida Statutes, is amended to |
459 | read: |
460 | 27.711 Terms and conditions of appointment of attorneys as |
461 | counsel in postconviction capital collateral proceedings.-- |
462 | (1) As used in s. 27.710 and this section, the term: |
463 | (a) "Capital defendant" means the person who is |
464 | represented in postconviction capital collateral proceedings by |
465 | an attorney appointed under s. 27.710. |
466 | (b) "Executive director" means the executive director of |
467 | the Commission on Capital Cases. |
468 | (c) "Postconviction capital collateral proceedings" means |
469 | one series of collateral litigation of an affirmed conviction |
470 | and sentence of death, including the proceedings in the trial |
471 | court that imposed the capital sentence, any appellate review of |
472 | the sentence by the Supreme Court, any certiorari review of the |
473 | sentence by the United States Supreme Court, and any authorized |
474 | federal habeas corpus litigation with respect to the sentence. |
475 | The term does not include repetitive or successive collateral |
476 | challenges to a conviction and sentence of death which is |
477 | affirmed by the Supreme Court and undisturbed by any collateral |
478 | litigation. |
479 | (2) After appointment by the trial court under s. 27.710, |
480 | the attorney must immediately file a notice of appearance with |
481 | the trial court indicating acceptance of the appointment to |
482 | represent the capital defendant throughout all postconviction |
483 | capital collateral proceedings, including federal habeas corpus |
484 | proceedings, in accordance with this section or until released |
485 | by order of the trial court. |
486 | (3) An attorney appointed to represent a capital defendant |
487 | is entitled to payment of the fees set forth in this section |
488 | only upon full performance by the attorney of the duties |
489 | specified in this section and approval of payment by the trial |
490 | court, and the submission of a payment request by the attorney, |
491 | subject to the availability of sufficient funding specifically |
492 | appropriated for this purpose. An attorney may not be |
493 | compensated under this section for work performed by the |
494 | attorney before July 1, 2003, while employed by the northern |
495 | regional office of the capital collateral counsel. The Chief |
496 | Financial Officer shall notify the executive director and the |
497 | court if it appears that sufficient funding has not been |
498 | specifically appropriated for this purpose to pay any fees which |
499 | may be incurred. The attorney shall maintain appropriate |
500 | documentation, including a current and detailed hourly |
501 | accounting of time spent representing the capital defendant. The |
502 | fee and payment schedule in this section is the exclusive means |
503 | of compensating a court-appointed attorney who represents a |
504 | capital defendant. When appropriate, a court-appointed attorney |
505 | must seek further compensation from the Federal Government, as |
506 | provided in 18 U.S.C. s. 3006A or other federal law, in habeas |
507 | corpus litigation in the federal courts. An attorney who is |
508 | appointed by a court to represent a capital defendant on a pro |
509 | bono basis is not entitled to attorney's fees as provided for in |
510 | subsection (4). However, after executing a contract with the |
511 | Chief Financial Officer, a pro bono attorney is entitled to |
512 | payment for investigative services as specified in subsection |
513 | (5) and for miscellaneous expenses actually incurred on behalf |
514 | of the capital defendant as specified in subsection (6). If a |
515 | registry attorney has been appointed to represent a defendant, a |
516 | payment may not be made to any other attorney who volunteers to |
517 | represent the same defendant on a pro bono basis. |
518 | (4) Upon approval by the trial court, an attorney |
519 | appointed to represent a capital defendant under s. 27.710 is |
520 | entitled to payment of the following fees by the Chief Financial |
521 | Officer: |
522 | (a) Regardless of the stage of postconviction capital |
523 | collateral proceedings, the attorney is entitled to $100 per |
524 | hour, up to a maximum of $2,500, before after accepting |
525 | appointment and filing a notice of appearance in order to review |
526 | the files and status of the case to determine whether to accept |
527 | an appointment under the payment schedule in this section. If, |
528 | after reviewing the case files, the attorney determines that |
529 | payment under this section does not provide adequate |
530 | compensation for the foreseeable duties associated with the |
531 | prospective appointment, the attorney must decline the |
532 | appointment. |
533 | (b) The attorney is entitled to $100 per hour, up to a |
534 | maximum of $20,000, after timely filing in the trial court the |
535 | capital defendant's complete original motion for postconviction |
536 | relief under the Florida Rules of Criminal Procedure. The motion |
537 | must raise all issues to be addressed by the trial court. |
538 | However, an attorney is entitled to fees under this paragraph if |
539 | the court schedules a hearing on a matter that makes the filing |
540 | of the original motion for postconviction relief unnecessary or |
541 | if the court otherwise disposes of the case. |
542 | (c) The attorney is entitled to $100 per hour, up to a |
543 | maximum of $20,000, after the final hearing on trial court |
544 | issues a final order granting or denying the capital defendant's |
545 | motion for postconviction relief. |
546 | (d) The attorney is entitled to $100 per hour, up to a |
547 | maximum of $20,000, after timely filing in the Supreme Court the |
548 | capital defendant's brief or briefs that address the trial |
549 | court's final order granting or denying the capital defendant's |
550 | motion for postconviction relief and the state petition for writ |
551 | of habeas corpus. |
552 | (e) The attorney is entitled to $100 per hour, up to a |
553 | maximum of $10,000, after the trial court issues an order |
554 | following, pursuant to a remand from the Supreme Court, which |
555 | directs the trial court to hold further proceedings on the |
556 | capital defendant's motion for postconviction relief. |
557 | (f) The attorney is entitled to $100 per hour, up to a |
558 | maximum of $4,000, after the appeal of the trial court's denial |
559 | of the capital defendant's motion for postconviction relief and |
560 | the capital defendant's state petition for writ of habeas corpus |
561 | become final in the Supreme Court. |
562 | (g) At the conclusion of the capital defendant's |
563 | postconviction capital collateral proceedings in state court, |
564 | the attorney is entitled to $100 per hour, up to a maximum of |
565 | $2,500, for the preparation of the initial federal pleading |
566 | after filing a petition for writ of certiorari in the Supreme |
567 | Court of the United States. |
568 | (h) If, at any time, a death warrant is issued, the |
569 | attorney is entitled to $100 per hour, up to a maximum of |
570 | $5,000. This payment is shall be full compensation for |
571 | attorney's fees and costs for representing the capital defendant |
572 | throughout the proceedings before the state courts of Florida. |
573 |
|
574 | The hours billed by a contracting attorney under this subsection |
575 | may include time devoted to representation of the defendant by |
576 | another attorney who is qualified under s. 27.710 and who has |
577 | been designated by the contracting attorney to assist him or |
578 | her. |
579 | (5) An attorney who represents a capital defendant may use |
580 | the services of one or more investigators to assist in |
581 | representing a capital defendant. Upon approval by the trial |
582 | court, the attorney is entitled to payment from the Chief |
583 | Financial Officer of $40 per hour, up to a maximum of $15,000, |
584 | for the purpose of paying for investigative services. |
585 | (6) An attorney who represents a capital defendant is |
586 | entitled to a maximum of $15,000 for miscellaneous expenses, |
587 | such as the costs of preparing transcripts, compensating expert |
588 | witnesses, and copying documents. Upon approval by the trial |
589 | court, the attorney is entitled to payment by the Chief |
590 | Financial Officer of up to $15,000 for miscellaneous expenses, |
591 | except that, if the trial court finds that extraordinary |
592 | circumstances exist, the attorney is entitled to payment in |
593 | excess of $15,000. |
594 | (7) A registry An attorney who is actively representing a |
595 | capital defendant is entitled to a maximum of $500 per fiscal |
596 | year for tuition and expenses for continuing legal education |
597 | that pertains to the representation of capital defendants |
598 | regardless of the total number of capital defendants the |
599 | attorney is representing. Upon approval by the trial court, the |
600 | attorney is entitled to payment by the Chief Financial Officer |
601 | for expenses for such tuition and continuing legal education. |
602 | (8) By accepting court appointment under s. 27.710 to |
603 | represent a capital defendant, the attorney agrees to continue |
604 | such representation under the terms and conditions set forth in |
605 | this section until the capital defendant's sentence is reversed, |
606 | reduced, or carried out, and the attorney is permitted to |
607 | withdraw from such representation by a court of competent |
608 | jurisdiction. However, if an attorney is permitted to withdraw |
609 | or is otherwise removed from representation prior to full |
610 | performance of the duties specified in this section, the trial |
611 | court shall approve payment of fees and costs for work |
612 | performed, which may not exceed the amounts specified in this |
613 | section. An attorney who withdraws or is removed from |
614 | representation shall deliver all files, notes, documents, and |
615 | research to the successor attorney within 15 days after notice |
616 | from the successor attorney. The successor attorney shall bear |
617 | the cost of transmitting the files, notes, documents, and |
618 | research. |
619 | (9) An attorney may not represent more than seven five |
620 | defendants in capital postconviction litigation at any one time. |
621 | The defendant-representation limit includes cases involving |
622 | capital postconviction proceedings under contract with the |
623 | capital collateral regional counsel, pro bono cases, registry |
624 | cases, and privately retained cases. An attorney may not be |
625 | appointed to an additional capital postconviction case until the |
626 | attorney's capital postconviction representation total falls |
627 | below the seven-case limit. An attorney may not enter into an |
628 | employment contract with any Office of Capital Collateral |
629 | Regional Counsel if he or she currently represents more than |
630 | seven defendants in capital collateral litigation in the |
631 | categories specified in this subsection. |
632 | (10) This section does not authorize an attorney who |
633 | represents a capital defendant to file repetitive or frivolous |
634 | pleadings that are not supported by law or by the facts of the |
635 | case. An action taken by an attorney who represents a capital |
636 | defendant in postconviction capital collateral proceedings may |
637 | not be the basis for a claim of ineffective assistance of |
638 | counsel. |
639 | (11) An attorney appointed under s. 27.710 to represent a |
640 | capital defendant may not represent the capital defendant during |
641 | a retrial, a resentencing proceeding, a proceeding commenced |
642 | under chapter 940, a proceeding challenging a conviction or |
643 | sentence other than the conviction and sentence of death for |
644 | which the appointment was made, or any civil litigation other |
645 | than habeas corpus proceedings. |
646 | (12) The court shall monitor the performance of assigned |
647 | counsel to ensure that the capital defendant is receiving |
648 | quality representation. The court shall also receive and |
649 | evaluate allegations that are made regarding the performance of |
650 | assigned counsel. The Chief Financial Officer, the Department of |
651 | Legal Affairs, the executive director, or any interested person |
652 | may advise the court of any circumstance that could affect the |
653 | quality of representation, including, but not limited to, false |
654 | or fraudulent billing, misconduct, failure to meet continuing |
655 | legal education requirements, solicitation to receive |
656 | compensation from the capital defendant, or failure to file |
657 | appropriate motions in a timely manner. |
658 | (13) Prior to the filing of a motion for order approving |
659 | payment of attorney's fees, costs, or related expenses, the |
660 | assigned counsel shall deliver a copy of his intended billing, |
661 | together with supporting affidavits and all other necessary |
662 | documentation, to the Chief Financial Officer's named contract |
663 | manager. The contract manager shall have 10 business days from |
664 | receipt to review the billings, affidavit, and documentation for |
665 | completeness and compliance with contractual and statutory |
666 | requirements. If the contract manager objects to any portion of |
667 | the proposed billing, the objection and reasons therefor shall |
668 | be communicated to the assigned counsel. The assigned counsel |
669 | may thereafter file his or her motion for order approving |
670 | payment of attorney's fees, costs, or related expenses together |
671 | with supporting affidavits and all other necessary |
672 | documentation. The motion must specify whether the Chief |
673 | Financial Officer's contract manager objects to any portion of |
674 | the billing or the sufficiency of documentation and, if so, the |
675 | reason therefor. A copy of the motion and attachments shall be |
676 | served on the Chief Financial Officer's contract manager, who |
677 | shall have standing to file pleadings and appear before the |
678 | court to contest any motion for order approving payment. The |
679 | fact that the Chief Financial Officer's contract manager has not |
680 | objected to any portion of the billing or to the sufficiency of |
681 | the documentation is not binding on the court, which retains |
682 | primary authority and responsibility for determining the |
683 | reasonableness of all billings for fees, costs, and related |
684 | expenses, subject to statutory limitations. |
685 | (14) If a trial court judge proposes to award attorney's |
686 | fees in excess of those set forth in this section, the judge |
687 | must include written findings of fact that state in detail the |
688 | extraordinary nature of the expenditures of the time, energy, |
689 | and talents of the attorney in the case which are not ordinarily |
690 | expended in other capital collateral cases and the basis for the |
691 | court finding that the case is unusual compared to other capital |
692 | postconviction cases. Each attorney participating in the pilot |
693 | program in the northern region pursuant to s. 27.701(2), as a |
694 | condition of payment pursuant to this section, shall report on |
695 | the performance measures adopted by the Legislature for the |
696 | capital collateral regional counsel. |
697 | Section 7. For the purpose of incorporating the amendments |
698 | made by this act to sections 27.710 and 27.711, Florida |
699 | Statutes, in references thereto, section 27.7002, Florida |
700 | Statutes, is reenacted to read: |
701 | 27.7002 Limitation on collateral representation; lawyer |
702 | disqualification; use of state funds for excess fees not |
703 | authorized.-- |
704 | (1) This chapter does not create any right on behalf of |
705 | any person, provided counsel pursuant to any provision of this |
706 | chapter, to challenge in any form or manner the adequacy of the |
707 | collateral representation provided. |
708 | (2) With respect to counsel appointed to represent |
709 | defendants in collateral proceedings pursuant to ss. 27.710 and |
710 | 27.711, the sole method of assuring adequacy of representation |
711 | provided shall be in accordance with the provisions of s. |
712 | 27.711(12). |
713 | (3) No provision of this chapter shall be construed to |
714 | generate any right on behalf of any attorney appointed pursuant |
715 | to s. 27.710, or seeking appointment pursuant to s. 27.710, to |
716 | be compensated above the amounts provided in s. 27.711. |
717 | (4) No attorney may be appointed, at state expense, to |
718 | represent any defendant in collateral legal proceedings except |
719 | as expressly authorized in this chapter. |
720 | (5) The use of state funds for compensation of counsel |
721 | appointed pursuant to s. 27.710 above the amounts set forth in |
722 | s. 27.711 is not authorized. |
723 | (6) The executive director of the Commission on Capital |
724 | Cases is authorized to permanently remove from the registry of |
725 | attorneys provided in ss. 27.710 and 27.711 any attorney who |
726 | seeks compensation for services above the amounts provided in s. |
727 | 27.711. |
728 | (7) Any attorney who notifies any court, judge, state |
729 | attorney, the Attorney General, or the executive director of the |
730 | Commission on Capital Cases, that he or she cannot provide |
731 | adequate or proper representation under the terms and conditions |
732 | set forth in s. 27.711 shall be permanently disqualified from |
733 | any attorney registry created under this chapter unless good |
734 | cause arises after a change in circumstances. |
735 | Section 8. This act shall take effect July 1, 2008. |