HB 943

1
A bill to be entitled
2An act relating to capital collateral representation;
3amending s. 27.7001, F.S.; providing a legislative finding
4that not all capital cases are extraordinary or unusual;
5amending s. 27.701, F.S.; requiring that capital
6collateral regional counsel be appointed by and serve at
7the pleasure of the Commission on Capital Cases; removing
8provisions establishing a pilot program in the northern
9region of the state; amending s. 27.702, F.S.; clarifying
10the administrative roles and functions of the Justice
11Administrative Commission, the Commission on Capital
12Cases, and the capital collateral regional counsel;
13deleting references to a pilot project; amending s.
1427.709, F.S.; increasing the membership of the Commission
15on Capital Cases; relocating the commission from the
16Office of Legislative Services to the Justice
17Administrative Commission for administrative purposes;
18authorizing the commission to sponsor programs of
19continuing legal education on capital cases; authorizing
20the commission to request certain reports; authorizing the
21commission to issue subpoenas and hold hearings it
22considers appropriate for the administration of justice in
23capital cases; authorizing the commission to terminate the
24appointment of a capital collateral regional counsel
25before the end of the counsel's term; amending s. 27.710,
26F.S.; revising the criteria required for an attorney to be
27eligible to be placed on the registry of attorneys
28qualified to represent defendants in postconviction
29capital collateral proceedings; providing certain limited
30exceptions; requiring attorneys to sign a contract with
31the Chief Financial Officer in order to receive funds from
32the state; requiring each private attorney appointed by a
33court to represent a capital defendant to submit a report
34each quarter to the commission; providing for removal and
35reinstatement to the registry of attorneys; providing
36requirements with respect to finding another attorney to
37represent a defendant in federal proceedings under certain
38circumstances; amending s. 27.711, F.S.; providing for
39terms and conditions for appointment of counsel in
40postconviction capital collateral proceedings; providing
41for pro bono attorneys to receive reimbursement for
42certain specified expenses; revising fee and other expense
43provisions applicable to registry attorneys appointed to
44represent capital defendants; limiting representation by a
45court-appointed attorney to seven defendants; prohibiting
46an attorney from entering into an employment contract with
47any Office of Capital Collateral Regional Counsel if he or
48she represents seven or more defendants in capital
49collateral litigation; requiring a trial court judge who
50proposes to award attorney's fees in excess of those set
51forth in law to make written findings of fact that state
52the extraordinary nature of the expenditures of time,
53energy, and talents of the attorney in the case which are
54not ordinarily expended in other capital collateral cases
55and how the case is unusual; reenacting s. 27.7002, F.S.,
56relating to the limitation of cases on collateral
57representation, to incorporate the amendments made to ss.
5827.710 and 27.711, F.S., in references thereto; providing
59an effective date.
60
61Be It Enacted by the Legislature of the State of Florida:
62
63     Section 1.  Section 27.7001, Florida Statutes, is amended
64to read:
65     27.7001  Legislative intent and findings.--It is the intent
66of the Legislature to create part IV of this chapter, consisting
67of ss. 27.7001-27.711, inclusive, to provide for the collateral
68representation of any person convicted and sentenced to death in
69this state, so that collateral legal proceedings to challenge
70any Florida capital conviction and sentence may be commenced in
71a timely manner and so as to assure the people of this state
72that the judgments of its courts may be regarded with the
73finality to which they are entitled in the interests of justice.
74It is the further intent of the Legislature that collateral
75representation shall not include representation during retrials,
76resentencings, proceedings commenced under chapter 940, or civil
77litigation. The Legislature further finds that not all capital
78collateral cases are extraordinary or unusual.
79     Section 2.  Section 27.701, Florida Statutes, is amended to
80read:
81     27.701  Capital collateral regional counsel.--
82     (1)  There are created three regional offices of capital
83collateral counsel, which shall be located in a northern,
84middle, and southern region of the state. The northern region
85shall consist of the First, Second, Third, Fourth, Eighth, and
86Fourteenth Judicial Circuits; the middle region shall consist of
87the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth,
88and Eighteenth Judicial Circuits; and the southern region shall
89consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth,
90Nineteenth, and Twentieth Judicial Circuits. Each regional
91office shall be administered by a regional counsel. A regional
92counsel must be, and must have been for the preceding 5 years, a
93member in good standing of The Florida Bar or a similar
94organization in another state. Each capital collateral regional
95counsel shall be appointed by the Commission on Capital Cases
96Governor, and is subject to confirmation by the Senate. The
97Supreme Court Judicial Nominating Commission shall recommend to
98the Commission on Capital Cases Governor three qualified
99candidates for each appointment as regional counsel. The
100commission Governor shall appoint a regional counsel for each
101region from among the recommendations, or, if it is in the best
102interest of the fair administration of justice in capital cases,
103the commission Governor may reject the nominations and request
104submission of three new nominees by the Supreme Court Judicial
105Nominating Commission. Each capital collateral regional counsel
106shall be appointed to a term of 3 years. Vacancies in the office
107of capital collateral regional counsel shall be filled in the
108same manner as appointments. A person appointed as a regional
109counsel may not run for or accept appointment to any state
110office for 2 years following vacation of office. Each capital
111collateral counsel shall report to and serve at the pleasure of
112the Commission on Capital Cases.
113     (2)  Notwithstanding the provisions of subsection (1), the
114responsibilities of the regional office of capital collateral
115counsel for the northern region of the state shall be met
116through a pilot program using only attorneys from the registry
117of attorneys maintained pursuant to s. 27.710. Each attorney
118participating in the pilot must be qualified to provide
119representation in federal court. The Auditor General shall
120schedule a performance review of the pilot program to determine
121the effectiveness and efficiency of using attorneys from the
122registry compared to the capital collateral regional counsel.
123The review, at a minimum, shall include comparisons of the
124timeliness and costs of the pilot and the counsel and shall be
125submitted to the President of the Senate and the Speaker of the
126House of Representatives by January 30, 2007. The Legislature
127may determine whether to convert the pilot program to a
128permanent program after receipt of the Auditor General's review.
129     Section 3.  Section 27.702, Florida Statutes, is amended to
130read:
131     27.702  Duties of the capital collateral regional counsel;
132reports.--
133     (1)  The capital collateral regional counsel shall
134represent each person convicted and sentenced to death in this
135state for the sole purpose of instituting and prosecuting
136collateral actions challenging the legality of the judgment and
137sentence imposed against such person in the state courts,
138federal courts in this state, the United States Court of Appeals
139for the Eleventh Circuit, and the United States Supreme Court.
140The capital collateral regional counsel and the attorneys
141appointed pursuant to s. 27.710 shall file only those
142postconviction or collateral actions authorized by statute. The
143three capital collateral regional counsel's offices shall
144function independently and be separate budget entities, and the
145regional counsel shall be the office heads for all purposes. The
146capital collateral regional counsel shall be housed, for
147administrative purposes, within the Justice Administrative
148Commission. The Justice Administrative Commission shall provide
149administrative support and service to the three offices to the
150extent requested by the regional counsel. The three regional
151offices shall not be subject to control, supervision, or
152direction by the Justice Administrative Commission in any
153manner, including, but not limited to, personnel, purchasing,
154transactions involving real or personal property, and budgetary
155matters.
156     (2)  The capital collateral regional counsel shall
157represent persons convicted and sentenced to death within the
158region in collateral postconviction proceedings, unless a court
159appoints or permits other counsel to appear as counsel of record
160pursuant to ss. 27.710 and 27.711.
161     (3)(a)  The capital collateral regional counsel shall file
162motions seeking compensation for representation and
163reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when
164providing representation to indigent persons in the federal
165courts, and shall deposit all such payments received into the
166General Revenue Fund.
167     (b)  The court having jurisdiction over any nonindigent or
168indigent-but-able-to-contribute defendant who has been receiving
169the services of the capital collateral regional counsel may
170assess attorney's fees and costs against the defendant at any
171stage in the proceedings as the court may deem appropriate. The
172determination of indigence of any defendant shall be made
173pursuant to s. 27.52. Liability for the costs of such
174representation may be imposed in the form of a lien against the
175property of the nonindigent or indigent-but-able-to-contribute
176defendant, which lien shall be enforceable as provided in s.
17727.561 or s. 938.29.
178     (4)(a)  The capital collateral regional counsel or private
179counsel shall give written notification of each pleading filed
180by that office and the name of the person filing the pleading to
181the Commission on Capital Cases and to the trial court assigned
182to the case.
183     (b)  Each capital collateral regional counsel and each
184attorney participating in the pilot program in the northern
185region pursuant to s. 27.701(2) shall provide a quarterly report
186to the President of the Senate, the Speaker of the House of
187Representatives, and the Commission on Capital Cases which
188details the number of hours worked by investigators and legal
189counsel per case and the amounts per case expended during the
190preceding quarter in investigating and litigating capital
191collateral cases.
192     Section 4.  Section 27.709, Florida Statutes, is amended to
193read:
194     27.709  Commission on Capital Cases.--
195     (1)(a)  There is created the Commission on Capital Cases,
196which 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
199from the membership of the Senate. One member shall be a member
200of the majority party, and one member shall be a member of the
201minority party.
202     3.  Two members appointed by the Speaker of the House of
203Representatives from the membership of the House of
204Representatives. One member shall be a member of the majority
205party, and one member shall be a member of the minority party.
206     (b)  The chair of the commission shall be selected by the
207members for a term of 1 year.
208     (c)  The commission shall meet quarterly, and other
209meetings may be called by the chair upon giving at least 7 days'
210notice to all members and the public.
211     (d)  Members of the commission are entitled to per diem and
212travel expenses to be paid by the appointing entity.
213     (e)  Members of the commission shall be appointed to serve
214terms of 4 years each, except that a member's term shall expire
215upon leaving office as a member of the Senate or the House of
216Representatives.
217     (f)  The Justice Administrative Commission Office of
218Legislative Services shall provide staff support for the
219commission, which shall be housed therein for administrative
220purposes.
221     (2)(a)  The commission shall review the administration of
222justice in capital collateral cases, receive relevant public
223input, review the operation of the capital collateral regional
224counsel and private counsel appointed pursuant to ss. 27.710 and
22527.711, and advise and make recommendations to the Governor,
226Legislature, and Supreme Court.
227     (b)  As part of its duties, the commission shall compile
228and analyze case-tracking reports produced by the Supreme Court.
229In analyzing these reports, the commission shall develop
230statistics to identify trends and changes in case management and
231case processing, identify and evaluate unproductive points of
232delay, and generally evaluate the way cases are progressing. The
233commission shall report these findings to the Legislature by
234January 1 of each year.
235     (c)  In addition, The commission shall receive complaints
236regarding the practice of any office of regional counsel and
237private counsel appointed under pursuant to ss. 27.710 and
23827.711 and may investigate and shall refer any complaint to The
239Florida Bar, the State Supreme Court, the Department of Law
240Enforcement, the Chief Inspector General, or the Commission on
241Ethics, as appropriate.
242     (d)  The commission may sponsor continuing legal education
243programs that are devoted specifically to capital cases and
244shall undertake any project recommended or approved by the
245commission members.
246     (e)  The commission may request each state attorney,
247circuit court judge, and the Office of the Attorney General to
248submit pertinent reports to the commission for its review.
249     (f)  The commission may exercise subpoena powers and
250receive sworn testimony it deems necessary for the
251administration of justice in capital cases.
252     (g)  The commission shall appoint the capital collateral
253regional counsel and may terminate the employment of regional
254counsel at any time prior to the expiration of the appointment.
255     Section 5.  Section 27.710, Florida Statutes, is amended to
256read:
257     27.710  Registry of attorneys applying to represent persons
258in postconviction capital collateral proceedings; certification
259of minimum requirements; appointment by trial court.--
260     (1)  The executive director of the Commission on Capital
261Cases shall compile and maintain a statewide registry of
262attorneys in private practice who have certified that they meet
263the minimum requirements of this section and s. 27.704(2), who
264are available for appointment by the court under this section to
265represent persons convicted and sentenced to death in this state
266in postconviction collateral proceedings, and who have attended
267within the last year a continuing legal education program of at
268least 10 hours' duration devoted specifically to the defense of
269capital cases, if available. Continuing legal education programs
270meeting the requirements of this rule offered by The Florida Bar
271or another recognized provider and approved for continuing legal
272education credit by The Florida Bar shall satisfy this
273requirement. The failure to comply with this requirement may be
274cause for removal from the list until the requirement is
275fulfilled. To ensure that sufficient attorneys are available for
276appointment by the court, when the number of attorneys on the
277registry falls below 50, the executive director shall notify the
278chief judge of each circuit by letter and request the chief
279judge to promptly submit the names of at least three private
280attorneys who regularly practice criminal law in that circuit
281and who appear to meet the minimum requirements to represent
282persons in postconviction capital collateral proceedings. The
283executive director shall send an application to each attorney
284identified by the chief judge so that the attorney may register
285for appointment as counsel in postconviction capital collateral
286proceedings. As necessary, the executive director may also
287advertise in legal publications and other appropriate media for
288qualified attorneys interested in registering for appointment as
289counsel in postconviction capital collateral proceedings. When
290the number of qualified lawyers on the registry falls below 50,
291upon the application of an attorney who does not meet the
292minimum qualifications set forth in this section, the
293application may be forwarded by the executive director to the
294full commission for its approval of the applicant being included
295on the list of available registry attorneys. By Not later than
296September 1 of each year, and as necessary thereafter, the
297executive director shall provide to the Chief Justice of the
298Supreme Court, the chief judge and state attorney in each
299judicial circuit, and the Attorney General a current copy of its
300registry of attorneys who are available for appointment as
301counsel in postconviction capital collateral proceedings. The
302registry must be indexed by judicial circuit and must contain
303the requisite information submitted by the applicants in
304accordance with this section.
305     (2)(a)  To be eligible for court appointment as counsel in
306postconviction capital collateral proceedings, an attorney must
307certify on an application provided by the executive director
308that he or she is a member in good standing of The Florida Bar
309and:
310     1.  Is an active practicing attorney who has at least 5
311years' experience in the practice of criminal law and has
312demonstrated the proficiency necessary to represent defendants
313in capital cases, including proficiency in the production and
314admission of evidence, including psychiatric and forensic
315evidence, the use of expert witnesses, and the investigation and
316presentation of mitigation evidence;
317     2.  Has attended and completed a minimum of 12 hours of
318continuing legal education programs within the previous 2 years
319which were devoted to the defense of capital cases and offered
320by The Florida Bar, the Commission on Capital Cases, or another
321authorized provider of continuing legal education courses; and
322     3.a.  Has tried at least nine state or federal jury trials
323to 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
326of which must have been other felony trials; or
327     (III)  One of which must have included a postconviction
328evidentiary hearing and five of which must have been other
329felony trials;
330     b.  Has appealed one capital conviction and appealed:
331     (I)  At least three felony convictions, one of which must
332have been a murder conviction;
333     (II)  At least three felony convictions and participated in
334one capital postconviction evidentiary hearing; or
335     (III)  At least six felony convictions, two of which must
336have been murder convictions; or
337     c.  Has litigated as a first chair attorney at least three
338capital collateral evidentiary hearings.
339     (b)  If the trial court finds that exceptional
340circumstances exist requiring appointment of an attorney who
341does not meet the criteria set forth in paragraph (a), the trial
342court shall enter a written order specifying the circumstances
343and making explicit findings that the attorney appointed is
344capable of providing competent representation in accordance with
345the intent of this section.
346     (c)  Failure by an attorney to comply with any criteria set
347forth in paragraph (a) may be cause to remove the attorney from
348the registry until such criteria is satisfied.
349     (d)  Compliance may be proven by submitting written
350certification of compliance to the commission and may be
351submitted by electronic mail satisfies the minimum requirements
352for private counsel set forth in s. 27.704(2).
353     (3)  An attorney who applies for registration and court
354appointment as counsel in postconviction capital collateral
355proceedings must certify that he or she is counsel of record in
356not more than four such proceedings and, if appointed to
357represent a person in postconviction capital collateral
358proceedings, shall continue the such representation under the
359terms and conditions set forth in s. 27.711 until the sentence
360is reversed, reduced, or carried out or unless permitted to
361withdraw from representation by the trial court. The court may
362not permit an attorney to withdraw from representation without a
363finding of sufficient good cause. The court may impose
364appropriate sanctions if it finds that an attorney has shown bad
365faith with respect to continuing to represent a defendant in a
366postconviction capital collateral proceeding. This section does
367not preclude the court from reassigning a case to a capital
368collateral regional counsel following discontinuation of
369representation if a conflict of interest no longer exists with
370respect to the case.
371     (4)(a)  Each private attorney who is appointed by the court
372to represent a capital defendant, including court-appointed
373attorneys who elect to proceed pro bono, must enter into a
374contract with the Chief Financial Officer. If the appointed
375attorney fails to execute the contract within 30 days after the
376date the contract is mailed to the attorney, the executive
377director of the Commission on Capital Cases shall notify the
378trial court and remove the attorney from the registry. The Chief
379Financial Officer shall develop the form of the contract for
380court-appointed attorneys, function as contract manager, and
381enforce performance of the terms and conditions of the contract
382consistent with the requirements of this chapter. By signing
383such contract, the attorney certifies that he or she intends to
384continue the representation under the terms and conditions set
385forth in the contract until the sentence is reversed, reduced,
386or carried out or until released by order of the trial court. A
387court-appointed attorney may not receive state funds unless he
388or she has executed the contract required under this paragraph.
389     (b)  Each attorney appointed under this section must submit
390a report each quarter to the commission in the format designated
391by the commission. If the report is not submitted within 60 days
392after the end of the quarter, the executive director shall
393remove the attorney from the registry and the court may impose a
394fine for noncompliance. The court may also remove the attorney
395from the case or cases to which he or she has been appointed
396under this section.
397     (c)  An attorney removed from the registry may, at the
398discretion of the court, continue to represent any clients that
399the attorney has been appointed to represent as of the date of
400removal. If the court allows an attorney who has been removed
401from the registry to continue to represent appointed capital
402defendants, the court must take all necessary actions to ensure
403compliance with the requirements of this subsection. An attorney
404who has been removed from the registry may not accept further
405appointments to represent any new capital defendant unless the
406attorney is placed back on the registry as provided in paragraph
407(d).
408     (d)  After certifying to the executive director that he or
409she will act in accordance with the provisions of this
410subsection, an attorney removed from the registry may, after 60
411days, reapply for the registry as provided in subsection (2). An
412attorney may reapply for the registry no more than two times
413under this paragraph for failure to adhere to the requirements
414of this subsection.
415     (5)(a)  Upon the motion of the capital collateral regional
416counsel to withdraw under pursuant to s. 924.056(1)(a); or
417     (b)  Upon notification by the state attorney or the
418Attorney General that:
419     1.  Thirty days have elapsed since appointment of the
420capital collateral regional counsel and no entry of appearance
421has been filed under pursuant to s. 924.056; or
422     2.  A person under sentence of death who was previously
423represented by private counsel is currently unrepresented in a
424postconviction capital collateral proceeding,
425
426the executive director shall immediately notify the trial court
427that imposed the sentence of death that the court must
428immediately appoint an attorney, selected from the current
429registry, to represent such person in collateral actions
430challenging the legality of the judgment and sentence in the
431appropriate state and federal courts. If the attorney appointed
432to represent a defendant under a sentence of death does not wish
433to continue representing the defendant in federal proceedings,
434the attorney must make a good-faith effort to assist the
435defendant in finding an attorney who meets the criteria
436specified in subsection (2) and is willing to represent the
437defendant in federal proceedings. The court may shall have the
438authority to strike a notice of appearance filed by a capital
439collateral regional counsel Capital Collateral Regional Counsel,
440if the court finds the notice was not filed in good faith and
441may so notify the executive director that the client is no
442longer represented by the Office of Capital Collateral Regional
443Counsel. In making an assignment, the court shall give priority
444to attorneys whose experience and abilities in criminal law,
445especially in capital proceedings, are known by the court to be
446commensurate with the responsibility of representing a person
447sentenced to death. The trial court must issue an order of
448appointment which contains specific findings that the appointed
449counsel meets the statutory requirements and has the high
450ethical standards necessary to represent a person sentenced to
451death.
452     (6)  More than one attorney may not be appointed and
453compensated at any one time under s. 27.711 to represent a
454person in postconviction capital collateral proceedings.
455However, an attorney appointed under this section may designate
456another attorney to assist him or her if the designated attorney
457meets the qualifications of this section.
458     Section 6.  Section 27.711, Florida Statutes, is amended to
459read:
460     27.711  Terms and conditions of appointment of attorneys as
461counsel 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
464represented in postconviction capital collateral proceedings by
465an attorney appointed under s. 27.710.
466     (b)  "Executive director" means the executive director of
467the Commission on Capital Cases.
468     (c)  "Postconviction capital collateral proceedings" means
469one series of collateral litigation of an affirmed conviction
470and sentence of death, including the proceedings in the trial
471court that imposed the capital sentence, any appellate review of
472the sentence by the Supreme Court, any certiorari review of the
473sentence by the United States Supreme Court, and any authorized
474federal habeas corpus litigation with respect to the sentence.
475The term does not include repetitive or successive collateral
476challenges to a conviction and sentence of death which is
477affirmed by the Supreme Court and undisturbed by any collateral
478litigation.
479     (2)  After appointment by the trial court under s. 27.710,
480the attorney must immediately file a notice of appearance with
481the trial court indicating acceptance of the appointment to
482represent the capital defendant throughout all postconviction
483capital collateral proceedings, including federal habeas corpus
484proceedings, in accordance with this section or until released
485by order of the trial court.
486     (3)  An attorney appointed to represent a capital defendant
487is entitled to payment of the fees set forth in this section
488only upon full performance by the attorney of the duties
489specified in this section and approval of payment by the trial
490court, and the submission of a payment request by the attorney,
491subject to the availability of sufficient funding specifically
492appropriated for this purpose. An attorney may not be
493compensated under this section for work performed by the
494attorney before July 1, 2003, while employed by the northern
495regional office of the capital collateral counsel. The Chief
496Financial Officer shall notify the executive director and the
497court if it appears that sufficient funding has not been
498specifically appropriated for this purpose to pay any fees which
499may be incurred. The attorney shall maintain appropriate
500documentation, including a current and detailed hourly
501accounting of time spent representing the capital defendant. The
502fee and payment schedule in this section is the exclusive means
503of compensating a court-appointed attorney who represents a
504capital defendant. When appropriate, a court-appointed attorney
505must seek further compensation from the Federal Government, as
506provided in 18 U.S.C. s. 3006A or other federal law, in habeas
507corpus litigation in the federal courts. An attorney who is
508appointed by a court to represent a capital defendant on a pro
509bono basis is not entitled to attorney's fees as provided for in
510subsection (4). However, after executing a contract with the
511Chief Financial Officer, a pro bono attorney is entitled to
512payment for investigative services as specified in subsection
513(5) and for miscellaneous expenses actually incurred on behalf
514of the capital defendant as specified in subsection (6). If a
515registry attorney has been appointed to represent a defendant, a
516payment may not be made to any other attorney who volunteers to
517represent the same defendant on a pro bono basis.
518     (4)  Upon approval by the trial court, an attorney
519appointed to represent a capital defendant under s. 27.710 is
520entitled to payment of the following fees by the Chief Financial
521Officer:
522     (a)  Regardless of the stage of postconviction capital
523collateral proceedings, the attorney is entitled to $100 per
524hour, up to a maximum of $2,500, before after accepting
525appointment and filing a notice of appearance in order to review
526the files and status of the case to determine whether to accept
527an appointment under the payment schedule in this section. If,
528after reviewing the case files, the attorney determines that
529payment under this section does not provide adequate
530compensation for the foreseeable duties associated with the
531prospective appointment, the attorney must decline the
532appointment.
533     (b)  The attorney is entitled to $100 per hour, up to a
534maximum of $20,000, after timely filing in the trial court the
535capital defendant's complete original motion for postconviction
536relief under the Florida Rules of Criminal Procedure. The motion
537must raise all issues to be addressed by the trial court.
538However, an attorney is entitled to fees under this paragraph if
539the court schedules a hearing on a matter that makes the filing
540of the original motion for postconviction relief unnecessary or
541if the court otherwise disposes of the case.
542     (c)  The attorney is entitled to $100 per hour, up to a
543maximum of $20,000, after the final hearing on trial court
544issues a final order granting or denying the capital defendant's
545motion for postconviction relief.
546     (d)  The attorney is entitled to $100 per hour, up to a
547maximum of $20,000, after timely filing in the Supreme Court the
548capital defendant's brief or briefs that address the trial
549court's final order granting or denying the capital defendant's
550motion for postconviction relief and the state petition for writ
551of habeas corpus.
552     (e)  The attorney is entitled to $100 per hour, up to a
553maximum of $10,000, after the trial court issues an order
554following, pursuant to a remand from the Supreme Court, which
555directs the trial court to hold further proceedings on the
556capital defendant's motion for postconviction relief.
557     (f)  The attorney is entitled to $100 per hour, up to a
558maximum of $4,000, after the appeal of the trial court's denial
559of the capital defendant's motion for postconviction relief and
560the capital defendant's state petition for writ of habeas corpus
561become final in the Supreme Court.
562     (g)  At the conclusion of the capital defendant's
563postconviction capital collateral proceedings in state court,
564the attorney is entitled to $100 per hour, up to a maximum of
565$2,500, for the preparation of the initial federal pleading
566after filing a petition for writ of certiorari in the Supreme
567Court of the United States.
568     (h)  If, at any time, a death warrant is issued, the
569attorney is entitled to $100 per hour, up to a maximum of
570$5,000. This payment is shall be full compensation for
571attorney's fees and costs for representing the capital defendant
572throughout the proceedings before the state courts of Florida.
573
574The hours billed by a contracting attorney under this subsection
575may include time devoted to representation of the defendant by
576another attorney who is qualified under s. 27.710 and who has
577been designated by the contracting attorney to assist him or
578her.
579     (5)  An attorney who represents a capital defendant may use
580the services of one or more investigators to assist in
581representing a capital defendant. Upon approval by the trial
582court, the attorney is entitled to payment from the Chief
583Financial Officer of $40 per hour, up to a maximum of $15,000,
584for the purpose of paying for investigative services.
585     (6)  An attorney who represents a capital defendant is
586entitled to a maximum of $15,000 for miscellaneous expenses,
587such as the costs of preparing transcripts, compensating expert
588witnesses, and copying documents. Upon approval by the trial
589court, the attorney is entitled to payment by the Chief
590Financial Officer of up to $15,000 for miscellaneous expenses,
591except that, if the trial court finds that extraordinary
592circumstances exist, the attorney is entitled to payment in
593excess of $15,000.
594     (7)  A registry An attorney who is actively representing a
595capital defendant is entitled to a maximum of $500 per fiscal
596year for tuition and expenses for continuing legal education
597that pertains to the representation of capital defendants
598regardless of the total number of capital defendants the
599attorney is representing. Upon approval by the trial court, the
600attorney is entitled to payment by the Chief Financial Officer
601for expenses for such tuition and continuing legal education.
602     (8)  By accepting court appointment under s. 27.710 to
603represent a capital defendant, the attorney agrees to continue
604such representation under the terms and conditions set forth in
605this section until the capital defendant's sentence is reversed,
606reduced, or carried out, and the attorney is permitted to
607withdraw from such representation by a court of competent
608jurisdiction. However, if an attorney is permitted to withdraw
609or is otherwise removed from representation prior to full
610performance of the duties specified in this section, the trial
611court shall approve payment of fees and costs for work
612performed, which may not exceed the amounts specified in this
613section. An attorney who withdraws or is removed from
614representation shall deliver all files, notes, documents, and
615research to the successor attorney within 15 days after notice
616from the successor attorney. The successor attorney shall bear
617the cost of transmitting the files, notes, documents, and
618research.
619     (9)  An attorney may not represent more than seven five
620defendants in capital postconviction litigation at any one time.
621The defendant-representation limit includes cases involving
622capital postconviction proceedings under contract with the
623capital collateral regional counsel, pro bono cases, registry
624cases, and privately retained cases. An attorney may not be
625appointed to an additional capital postconviction case until the
626attorney's capital postconviction representation total falls
627below the seven-case limit. An attorney may not enter into an
628employment contract with any Office of Capital Collateral
629Regional Counsel if he or she currently represents more than
630seven defendants in capital collateral litigation in the
631categories specified in this subsection.
632     (10)  This section does not authorize an attorney who
633represents a capital defendant to file repetitive or frivolous
634pleadings that are not supported by law or by the facts of the
635case. An action taken by an attorney who represents a capital
636defendant in postconviction capital collateral proceedings may
637not be the basis for a claim of ineffective assistance of
638counsel.
639     (11)  An attorney appointed under s. 27.710 to represent a
640capital defendant may not represent the capital defendant during
641a retrial, a resentencing proceeding, a proceeding commenced
642under chapter 940, a proceeding challenging a conviction or
643sentence other than the conviction and sentence of death for
644which the appointment was made, or any civil litigation other
645than habeas corpus proceedings.
646     (12)  The court shall monitor the performance of assigned
647counsel to ensure that the capital defendant is receiving
648quality representation. The court shall also receive and
649evaluate allegations that are made regarding the performance of
650assigned counsel. The Chief Financial Officer, the Department of
651Legal Affairs, the executive director, or any interested person
652may advise the court of any circumstance that could affect the
653quality of representation, including, but not limited to, false
654or fraudulent billing, misconduct, failure to meet continuing
655legal education requirements, solicitation to receive
656compensation from the capital defendant, or failure to file
657appropriate motions in a timely manner.
658     (13)  Prior to the filing of a motion for order approving
659payment of attorney's fees, costs, or related expenses, the
660assigned counsel shall deliver a copy of his intended billing,
661together with supporting affidavits and all other necessary
662documentation, to the Chief Financial Officer's named contract
663manager. The contract manager shall have 10 business days from
664receipt to review the billings, affidavit, and documentation for
665completeness and compliance with contractual and statutory
666requirements. If the contract manager objects to any portion of
667the proposed billing, the objection and reasons therefor shall
668be communicated to the assigned counsel. The assigned counsel
669may thereafter file his or her motion for order approving
670payment of attorney's fees, costs, or related expenses together
671with supporting affidavits and all other necessary
672documentation. The motion must specify whether the Chief
673Financial Officer's contract manager objects to any portion of
674the billing or the sufficiency of documentation and, if so, the
675reason therefor. A copy of the motion and attachments shall be
676served on the Chief Financial Officer's contract manager, who
677shall have standing to file pleadings and appear before the
678court to contest any motion for order approving payment. The
679fact that the Chief Financial Officer's contract manager has not
680objected to any portion of the billing or to the sufficiency of
681the documentation is not binding on the court, which retains
682primary authority and responsibility for determining the
683reasonableness of all billings for fees, costs, and related
684expenses, subject to statutory limitations.
685     (14)  If a trial court judge proposes to award attorney's
686fees in excess of those set forth in this section, the judge
687must include written findings of fact that state in detail the
688extraordinary nature of the expenditures of the time, energy,
689and talents of the attorney in the case which are not ordinarily
690expended in other capital collateral cases and the basis for the
691court finding that the case is unusual compared to other capital
692postconviction cases. Each attorney participating in the pilot
693program in the northern region pursuant to s. 27.701(2), as a
694condition of payment pursuant to this section, shall report on
695the performance measures adopted by the Legislature for the
696capital collateral regional counsel.
697     Section 7.  For the purpose of incorporating the amendments
698made by this act to sections 27.710 and 27.711, Florida
699Statutes, in references thereto, section 27.7002, Florida
700Statutes, is reenacted to read:
701     27.7002  Limitation on collateral representation; lawyer
702disqualification; use of state funds for excess fees not
703authorized.--
704     (1)  This chapter does not create any right on behalf of
705any person, provided counsel pursuant to any provision of this
706chapter, to challenge in any form or manner the adequacy of the
707collateral representation provided.
708     (2)  With respect to counsel appointed to represent
709defendants in collateral proceedings pursuant to ss. 27.710 and
71027.711, the sole method of assuring adequacy of representation
711provided shall be in accordance with the provisions of s.
71227.711(12).
713     (3)  No provision of this chapter shall be construed to
714generate any right on behalf of any attorney appointed pursuant
715to s. 27.710, or seeking appointment pursuant to s. 27.710, to
716be compensated above the amounts provided in s. 27.711.
717     (4)  No attorney may be appointed, at state expense, to
718represent any defendant in collateral legal proceedings except
719as expressly authorized in this chapter.
720     (5)  The use of state funds for compensation of counsel
721appointed pursuant to s. 27.710 above the amounts set forth in
722s. 27.711 is not authorized.
723     (6)  The executive director of the Commission on Capital
724Cases is authorized to permanently remove from the registry of
725attorneys provided in ss. 27.710 and 27.711 any attorney who
726seeks compensation for services above the amounts provided in s.
72727.711.
728     (7)  Any attorney who notifies any court, judge, state
729attorney, the Attorney General, or the executive director of the
730Commission on Capital Cases, that he or she cannot provide
731adequate or proper representation under the terms and conditions
732set forth in s. 27.711 shall be permanently disqualified from
733any attorney registry created under this chapter unless good
734cause arises after a change in circumstances.
735     Section 8.  This act shall take effect July 1, 2008.


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