Florida Senate - 2009 SB 1224
By Senator Crist
12-01174B-09 20091224__
1 A bill to be entitled
2 An act relating to capital collateral representation;
3 amending s. 27.7001, F.S.; providing a legislative
4 finding that not all capital cases are extraordinary
5 or unusual; amending s. 27.701, F.S.; extending the
6 term of years regional counsel are appointed to serve;
7 providing a deadline for the appointment of counsel;
8 deleting the 2-year prohibition against former
9 regional counsel running for state office or accepting
10 another state appointment; requiring that regional
11 counsel be appointed by and serve at the pleasure of
12 the Commission on Capital Cases; removing provisions
13 establishing a pilot program in the northern region of
14 the state; amending s. 27.702, F.S.; clarifying the
15 administrative roles and functions of the Justice
16 Administrative Commission, the Commission on Capital
17 Cases, and the Capital Collateral Regional Counsel;
18 amending s. 27.709, F.S.; increasing and revising the
19 membership of the Commission on Capital Cases;
20 relocating the commission from the Office of
21 Legislative Services to the Justice Administrative
22 Commission for purposes of administration; authorizing
23 the commission to sponsor programs of continuing legal
24 education on capital cases; authorizing the commission
25 to issue subpoenas and hold hearings it considers
26 appropriate for the administration of justice in
27 capital cases; authorizing the commission to terminate
28 the appointment of a capital collateral regional
29 counsel before the end of the counsel's term; amending
30 s. 27.710, F.S.; changing the terms of the capital
31 collateral regional counsel; eliminating the
32 restriction for running for or appointment to a state
33 office; revising the criteria required for an attorney
34 to be eligible to be placed on the registry of
35 attorneys qualified to represent defendants in
36 postconviction capital collateral proceedings;
37 providing certain limited exceptions; requiring
38 attorneys to sign a contract with the Chief Financial
39 Officer in order to receive funds from the state;
40 requiring each private attorney appointed by a court
41 to represent a capital defendant to submit a report
42 each quarter to the commission; providing for removal
43 from and reinstatement to the registry of attorneys;
44 amending s. 27.711, F.S.; providing terms and
45 conditions for appointment of counsel in
46 postconviction capital collateral proceedings;
47 providing for pro bono attorneys to receive
48 reimbursement for certain specified expenses; limiting
49 representation by a court-appointed attorney to seven
50 defendants; prohibiting an attorney from entering into
51 an employment contract with the offices of the Capital
52 Collateral Regional Counsel if he or she represents
53 seven or more defendants in capital collateral
54 litigation; requiring a trial court judge who proposes
55 to award attorney's fees in excess of those set forth
56 in law to make written findings of fact that state the
57 extraordinary nature of the expenditures of time,
58 energy, and talents of the attorney in the case which
59 are not ordinarily expended in other capital
60 collateral cases and how the case is unusual;
61 reenacting s. 27.7002, F.S., relating to the
62 limitation of cases on collateral representation, to
63 incorporate the amendments made to ss. 27.710 and
64 27.711, F.S., in references thereto; providing an
65 effective date.
66
67 Be It Enacted by the Legislature of the State of Florida:
68
69 Section 1. Section 27.7001, Florida Statutes, is amended to
70 read:
71 27.7001 Legislative intent and findings.—It is the intent
72 of the Legislature to create part IV of this chapter, consisting
73 of ss. 27.7001-27.711, inclusive, to provide for the collateral
74 representation of any person convicted and sentenced to death in
75 this state, so that collateral legal proceedings to challenge
76 any Florida capital conviction and sentence may be commenced in
77 a timely manner and so as to assure the people of this state
78 that the judgments of its courts may be regarded with the
79 finality to which they are entitled in the interests of justice.
80 It is the further intent of the Legislature that collateral
81 representation shall not include representation during retrials,
82 resentencings, proceedings commenced under chapter 940, or civil
83 litigation. The Legislature further finds that not all capital
84 collateral cases are extraordinary or unusual.
85 Section 2. Subsection (1) of section 27.701, Florida
86 Statutes, is amended to read:
87 27.701 Capital collateral regional counsel.—
88 (1) There are created three regional offices of capital
89 collateral counsel, which shall be located in a northern,
90 middle, and southern region of the state. The northern region
91 shall consist of the First, Second, Third, Fourth, Eighth, and
92 Fourteenth Judicial Circuits; the middle region shall consist of
93 the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth,
94 and Eighteenth Judicial Circuits; and the southern region shall
95 consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth,
96 Nineteenth, and Twentieth Judicial Circuits. Each regional
97 office shall be administered by a regional counsel. A regional
98 counsel must be, and must have been for the preceding 5 years, a
99 member in good standing of The Florida Bar or a similar
100 organization in another state. Each capital collateral regional
101 counsel shall be appointed by the Governor, and is subject to
102 confirmation by the Senate. The Supreme Court Judicial
103 Nominating Commission shall recommend to the Governor three
104 qualified candidates for each appointment as regional counsel.
105 The Governor shall appoint a regional counsel for each region
106 from among the recommendations, or, if it is in the best
107 interest of the fair administration of justice in capital cases,
108 the Governor may reject the nominations and request submission
109 of three new nominees by the Supreme Court Judicial Nominating
110 Commission. Each capital collateral regional counsel shall be
111 appointed to a term of 4 3 years. Vacancies in the office of
112 capital collateral regional counsel shall be filled in the same
113 manner as appointments. The appointment process shall be
114 completed within 120 days, notwithstanding confirmation. Each
115 capital collateral counsel shall report to and serve at the
116 pleasure of the Governor. A person appointed as a regional
117 counsel may not run for or accept appointment to any state
118 office for 2 years following vacation of office.
119 Section 3. Subsections (2) and (4) of section 27.702,
120 Florida Statutes, is amended to read:
121 27.702 Duties of the capital collateral regional counsel;
122 reports.—
123 (2) The capital collateral regional counsel shall represent
124 persons convicted and sentenced to death within the region in
125 collateral postconviction proceedings, unless a court appoints
126 or permits other counsel to appear as counsel of record pursuant
127 to ss. 27.710 and 27.711.
128 (4)(a) The capital collateral regional counsel or private
129 counsel shall give written notification of each pleading filed
130 by that office and the name of the person filing the pleading to
131 the Commission on Capital Cases and to the trial court assigned
132 to the case.
133 (b) Each capital collateral regional counsel and each
134 attorney participating in the pilot program in the northern
135 region pursuant to s. 27.701(2) shall provide a quarterly report
136 to the President of the Senate, the Speaker of the House of
137 Representatives, and the Commission on Capital Cases which
138 details the number of hours worked by investigators and legal
139 counsel per case and the amounts per case expended during the
140 preceding quarter in investigating and litigating capital
141 collateral cases.
142 Section 4. Subsection (2) of section 27.709, Florida
143 Statutes, is amended to read:
144 27.709 Commission on Capital Cases.—
145 (2)(a) The commission shall review the administration of
146 justice in capital collateral cases, receive relevant public
147 input, review the operation of the capital collateral regional
148 counsel and private counsel appointed pursuant to ss. 27.710 and
149 27.711, and advise and make recommendations to the Governor,
150 Legislature, and Supreme Court.
151 (b) As part of its duties, the commission shall compile and
152 analyze case-tracking reports produced by the Supreme Court. In
153 analyzing these reports, the commission shall develop statistics
154 to identify trends and changes in case management and case
155 processing, identify and evaluate unproductive points of delay,
156 and generally evaluate the way cases are progressing. The
157 commission shall report these findings to the Legislature by
158 January 1 of each year.
159 (c) In addition, The commission shall receive complaints
160 regarding the practice of any office of regional counsel and
161 private counsel appointed pursuant to ss. 27.710 and 27.711 and
162 may investigate and shall refer any complaint to The Florida
163 Bar, the State Supreme Court, the Department of Law Enforcement,
164 the Chief Inspector General, or the Commission on Ethics, as
165 appropriate.
166 (d) The commission may sponsor programs of continuing legal
167 education which are devoted specifically to capital cases and
168 shall undertake any project recommended or approved by the
169 commission members.
170 (e) The commission may request each state attorney, circuit
171 court judge, and the Office of the Attorney General to submit
172 pertinent reports to the commission for its review.
173 (f) The commission may exercise subpoena powers and may
174 receive sworn testimony it deems necessary for the
175 administration of justice in capital cases.
176 (g) The commission shall appoint the capital collateral
177 regional counsel by a majority vote, and may terminate the
178 employment of regional counsel by a super majority vote, at any
179 time prior to the expiration of the appointment.
180 Section 5. Section 27.710, Florida Statutes, is amended to
181 read:
182 27.710 Registry of attorneys applying to represent persons
183 in postconviction capital collateral proceedings; certification
184 of minimum requirements; appointment by trial court.—
185 (1) The executive director of the Commission on Capital
186 Cases shall compile and maintain a statewide registry of
187 attorneys in private practice who have certified that they meet
188 the minimum requirements of this section and s. 27.704(2), who
189 are available for appointment by the court under this section to
190 represent persons convicted and sentenced to death in this state
191 in postconviction collateral proceedings, and who have attended
192 within the last year a continuing legal education program of at
193 least 10 hours' duration devoted specifically to the defense of
194 capital cases, if available. Continuing legal education programs
195 meeting the requirements of this rule offered by The Florida Bar
196 or another recognized provider and approved for continuing legal
197 education credit by The Florida Bar shall satisfy this
198 requirement. The failure to comply with this requirement may be
199 cause for removal from the list until the requirement is
200 fulfilled. To ensure that sufficient attorneys are available for
201 appointment by the court, when the number of attorneys on the
202 registry falls below 50, the executive director shall notify the
203 chief judge of each circuit by letter and request the chief
204 judge to promptly submit the names of at least three private
205 attorneys who regularly practice criminal law in that circuit
206 and who appear to meet the minimum requirements to represent
207 persons in postconviction capital collateral proceedings. The
208 executive director shall send an application to each attorney
209 identified by the chief judge so that the attorney may register
210 for appointment as counsel in postconviction capital collateral
211 proceedings. As necessary, the executive director may also
212 advertise in legal publications and other appropriate media for
213 qualified attorneys interested in registering for appointment as
214 counsel in postconviction capital collateral proceedings. Under
215 limited circumstances, when the number of qualified lawyers on
216 the registry falls below 50, and upon the application of an
217 attorney who does not meet the minimum qualifications set forth
218 in this section, the application may be forwarded by the
219 executive director to the full commission for its approval of
220 the applicant being included on the list of available registry
221 attorneys. By Not later than September 1 of each year, and as
222 necessary thereafter, the executive director shall provide to
223 the Chief Justice of the Supreme Court, the chief judge and
224 state attorney in each judicial circuit, and the Attorney
225 General a current copy of its registry of attorneys who are
226 available for appointment as counsel in postconviction capital
227 collateral proceedings. The registry must be indexed by judicial
228 circuit and must contain the requisite information submitted by
229 the applicants in accordance with this section.
230 (2)(a) To be eligible for court appointment as counsel in
231 postconviction capital collateral proceedings, an attorney must
232 certify on an application provided by the executive director
233 that he or she is a member in good standing of the Florida Bar
234 and:
235 1. Is an active practicing attorney who has at least 5
236 years' experience in the practice of criminal law and has
237 demonstrated the proficiency necessary to represent defendants
238 in capital cases, including proficiency in the production and
239 admission of evidence, including psychiatric and forensic
240 evidence, the use of expert witnesses, and the investigation and
241 presentation of mitigation evidence;
242 2. Has attended and completed a minimum of 12 hours of
243 continuing legal education programs within the previous 2 years
244 which were devoted to the defense of capital cases and offered
245 by the Florida Bar, the Commission on Capital Cases, or another
246 authorized provider of continuing legal education courses; and
247 3.a. Has tried at least nine state or federal jury trials
248 to completion, two of which must have been capital cases, and:
249 (I) Three of which must have been murder trials;
250 (II) One of which must have been a murder trial and five of
251 which must have been other felony trials; or
252 (III) One of which must have included a postconviction
253 evidentiary hearing and five of which must have been other
254 felony trials;
255 b. Has appealed one capital conviction and appealed:
256 (I) At least three felony convictions, one of which must
257 have been a murder conviction;
258 (II) At least three felony convictions and participated in
259 one capital postconviction evidentiary hearing; or
260 (III) At least six felony convictions, two of which must
261 have been murder convictions; or
262 c. Has litigated as a first chair attorney at least three
263 capital collateral evidentiary hearings.
264 (b) If the trial court finds that exceptional circumstances
265 exist requiring appointment of an attorney who does not meet the
266 criteria set forth in paragraph (a), the trial court shall enter
267 a written order specifying the circumstances and making explicit
268 findings that the attorney appointed is capable of providing
269 competent representation in accordance with the intent of this
270 section.
271 (c) Failure by an attorney to comply with any criteria set
272 forth in paragraph (a) may be cause to remove the attorney from
273 the registry until such criteria are satisfied.
274 (d) Compliance may be proven by submitting written
275 certification of compliance to the commission, which may be
276 submitted by electronic mail satisfies the minimum requirements
277 for private counsel set forth in s. 27.704(2).
278 (3) An attorney who applies for registration and court
279 appointment as counsel in postconviction capital collateral
280 proceedings must certify that he or she is counsel of record in
281 not more than four such proceedings and, if appointed to
282 represent a person in postconviction capital collateral
283 proceedings, shall continue the such representation under the
284 terms and conditions set forth in s. 27.711 until the sentence
285 is reversed, reduced, or carried out or unless permitted to
286 withdraw from representation by the trial court. The court may
287 not permit an attorney to withdraw from representation without a
288 finding of sufficient good cause. The court may impose
289 appropriate sanctions if it finds that an attorney has shown bad
290 faith with respect to continuing to represent a defendant in a
291 postconviction capital collateral proceeding. This section does
292 not preclude the court from reassigning a case to a capital
293 collateral regional counsel following discontinuation of
294 representation if a conflict of interest no longer exists with
295 respect to the case.
296 (4)(a) Each private attorney who is appointed by the court
297 to represent a capital defendant, including court-appointed
298 attorneys who elect to proceed pro bono, must enter into a
299 contract with the Chief Financial Officer. If the appointed
300 attorney fails to execute the contract within 30 days after the
301 date the contract is mailed to the attorney, the executive
302 director of the Commission on Capital Cases shall notify the
303 trial court and remove the attorney from the registry. The Chief
304 Financial Officer shall develop the form of the contract for
305 court-appointed attorneys, function as contract manager, and
306 enforce performance of the terms and conditions of the contract
307 consistent with the requirements of this chapter. By signing
308 such contract, the attorney certifies that he or she intends to
309 continue the representation under the terms and conditions set
310 forth in the contract until the sentence is reversed, reduced,
311 or carried out or until released by order of the trial court. An
312 attorney may not receive state funds for any fee or expense
313 incurred under this section unless he or she has been appointed
314 by the trial court to represent the inmate and has executed the
315 contract required under this paragraph.
316 (b) Each attorney appointed under this section must submit
317 a report each quarter to the commission, in the format
318 designated by the commission. If the report is not submitted
319 within 60 days after the end of the quarter, the executive
320 director shall remove the attorney from the registry and the
321 court may impose a fine for noncompliance. The court may also
322 remove the attorney from the case or cases to which he or she
323 has been appointed under this section.
324 (c) An attorney removed from the registry may, at the
325 discretion of the court, continue to represent any clients that
326 the attorney has been appointed to represent as of the date of
327 removal. If the court allows an attorney who has been removed
328 from the registry to continue to represent appointed capital
329 defendants, the court must take all necessary actions to ensure
330 compliance with the requirements of this subsection. An attorney
331 who has been removed from the registry may not accept further
332 appointments to represent any new capital defendant unless the
333 attorney is placed back on the registry as provided in paragraph
334 (d).
335 (d) After certifying to the executive director that he or
336 she will act in accordance with the provisions of this
337 subsection, an attorney removed from the registry may, after 60
338 days, reapply for inclusion in the registry as provided in
339 subsection (2). An attorney may reapply for inclusion in the
340 registry no more than two times under this paragraph for failure
341 to adhere to the requirements of this subsection.
342 (5)(a) Upon the motion of the capital collateral regional
343 counsel to withdraw under pursuant to s. 924.056(1)(a); or
344 (b) Upon notification by the state attorney or the Attorney
345 General that:
346 1. Thirty days have elapsed since appointment of the
347 capital collateral regional counsel and no entry of appearance
348 has been filed under pursuant to s. 924.056; or
349 2. A person under sentence of death who was previously
350 represented by private counsel is currently unrepresented in a
351 postconviction capital collateral proceeding,
352 the executive director shall immediately notify the trial court
353 that imposed the sentence of death that the court must
354 immediately appoint an attorney, selected from the current
355 registry, to represent such person in collateral actions
356 challenging the legality of the judgment and sentence in the
357 appropriate state and federal courts. If the attorney appointed
358 to represent a defendant under a sentence of death does not wish
359 to continue representing the defendant in federal proceedings,
360 the attorney must make a good faith effort to assist the
361 defendant in finding an attorney who meets the criteria and is
362 willing to represent the defendant in federal proceedings. The
363 court may shall have the authority to strike a notice of
364 appearance filed by a Capital Collateral Regional Counsel, if
365 the court finds the notice was not filed in good faith and may
366 so notify the executive director that the client is no longer
367 represented by the Office of Capital Collateral Regional
368 Counsel. In making an assignment, the court shall give priority
369 to attorneys whose experience and abilities in criminal law,
370 especially in capital proceedings, are known by the court to be
371 commensurate with the responsibility of representing a person
372 sentenced to death. The trial court must issue an order of
373 appointment which contains specific findings that the appointed
374 counsel meets the statutory requirements and has the high
375 ethical standards necessary to represent a person sentenced to
376 death.
377 (6) More than one attorney may not be appointed and
378 compensated at any one time under s. 27.711 to represent a
379 person in postconviction capital collateral proceedings.
380 However, an attorney appointed under this section may designate
381 another attorney to assist him or her if the designated attorney
382 meets the qualifications of this section.
383 Section 6. Section 27.711, Florida Statutes, is amended to
384 read:
385 27.711 Terms and conditions of appointment of attorneys as
386 counsel in postconviction capital collateral proceedings.—
387 (1) As used in s. 27.710 and this section, the term:
388 (a) “Capital defendant” means the person who is represented
389 in postconviction capital collateral proceedings by an attorney
390 appointed under s. 27.710.
391 (b) “Executive director” means the executive director of
392 the Commission on Capital Cases.
393 (c) “Postconviction capital collateral proceedings” means
394 one series of collateral litigation of an affirmed conviction
395 and sentence of death, including the proceedings in the trial
396 court that imposed the capital sentence, any appellate review of
397 the sentence by the Supreme Court, any certiorari review of the
398 sentence by the United States Supreme Court, and any authorized
399 federal habeas corpus litigation with respect to the sentence.
400 The term does not include repetitive or successive collateral
401 challenges to a conviction and sentence of death which is
402 affirmed by the Supreme Court and undisturbed by any collateral
403 litigation.
404 (2) After appointment by the trial court under s. 27.710,
405 the attorney must immediately file a notice of appearance with
406 the trial court indicating acceptance of the appointment to
407 represent the capital defendant throughout all postconviction
408 capital collateral proceedings, including federal habeas corpus
409 proceedings, in accordance with this section or until released
410 by order of the trial court.
411 (3) An attorney appointed to represent a capital defendant
412 is entitled to payment of the fees set forth in this section
413 only upon full performance by the attorney of the duties
414 specified in this section and approval of payment by the trial
415 court, and the submission of a payment request by the attorney,
416 subject to the availability of sufficient funding specifically
417 appropriated for this purpose. An attorney may not be
418 compensated under this section for work performed by the
419 attorney before July 1, 2003, while employed by the northern
420 regional office of the capital collateral counsel. The Chief
421 Financial Officer shall notify the executive director and the
422 court if it appears that sufficient funding has not been
423 specifically appropriated for this purpose to pay any fees which
424 may be incurred. The attorney shall maintain appropriate
425 documentation, including a current and detailed hourly
426 accounting of time spent representing the capital defendant. The
427 fee and payment schedule in this section is the exclusive means
428 of compensating a court-appointed attorney who represents a
429 capital defendant. When appropriate, a court-appointed attorney
430 must seek further compensation from the Federal Government, as
431 provided in 18 U.S.C. s. 3006A or other federal law, in habeas
432 corpus litigation in the federal courts. An attorney who is
433 appointed by a court to represent a capital defendant on a pro
434 bono basis is not entitled to attorney's fees as provided for in
435 subsection (4). However, after executing a contract with the
436 Chief Financial Officer, a pro bono attorney is entitled to
437 payment for investigative services as specified in subsection
438 (5) and for miscellaneous expenses actually incurred on behalf
439 of the capital defendant as specified in subsection (6). If a
440 registry attorney has been appointed to represent a defendant, a
441 payment may not be made to any other attorney who volunteers to
442 represent the same defendant on a pro bono basis.
443 (4) Upon approval by the trial court, an attorney appointed
444 to represent a capital defendant under s. 27.710 is entitled to
445 payment of the following fees by the Chief Financial Officer:
446 (a) Regardless of the stage of postconviction capital
447 collateral proceedings, the attorney is entitled to $100 per
448 hour, up to a maximum of $2,500, before after accepting
449 appointment and filing a notice of appearance in order to review
450 the files and status of the case to determine whether to accept
451 an appointment under the payment schedule in this section. If,
452 after reviewing the case files, the attorney determines that
453 payment under this section does not provide adequate
454 compensation for the foreseeable duties associated with the
455 prospective appointment, the attorney must decline the
456 appointment.
457 (b) The attorney is entitled to $100 per hour, up to a
458 maximum of $20,000, after timely filing in the trial court the
459 capital defendant's complete original motion for postconviction
460 relief under the Florida Rules of Criminal Procedure. The motion
461 must raise all issues to be addressed by the trial court.
462 However, an attorney is entitled to fees under this paragraph if
463 the court schedules a hearing on a matter that makes the filing
464 of the original motion for postconviction relief unnecessary or
465 if the court otherwise disposes of the case.
466 (c) The attorney is entitled to $100 per hour, up to a
467 maximum of $20,000, after the final hearing on trial court
468 issues a final order granting or denying the capital defendant's
469 motion for postconviction relief.
470 (d) The attorney is entitled to $100 per hour, up to a
471 maximum of $20,000, after timely filing in the Supreme Court the
472 capital defendant's brief or briefs that address the trial
473 court's final order granting or denying the capital defendant's
474 motion for postconviction relief and the state petition for writ
475 of habeas corpus.
476 (e) The attorney is entitled to $100 per hour, up to a
477 maximum of $10,000, after the trial court issues an order
478 following, pursuant to a remand from the Supreme Court, which
479 directs the trial court to hold further proceedings on the
480 capital defendant's motion for postconviction relief.
481 (f) The attorney is entitled to $100 per hour, up to a
482 maximum of $4,000, after the appeal of the trial court's denial
483 of the capital defendant's motion for postconviction relief and
484 the capital defendant's state petition for writ of habeas corpus
485 become final in the Supreme Court.
486 (g) At the conclusion of the capital defendant's
487 postconviction capital collateral proceedings in state court,
488 the attorney is entitled to $100 per hour, up to a maximum of
489 $2,500, for the preparation of the initial federal pleading
490 after filing a petition for writ of certiorari in the Supreme
491 Court of the United States.
492 (h) If, at any time, a death warrant is issued, the
493 attorney is entitled to $100 per hour, up to a maximum of
494 $5,000. This payment is shall be full compensation for
495 attorney's fees and costs for representing the capital defendant
496 throughout the proceedings before the state courts of Florida.
497 The hours billed by a contracting attorney under this subsection
498 may include time devoted to representation of the defendant by
499 another attorney who is qualified under s. 27.710 and who has
500 been designated by the contracting attorney to assist him or
501 her.
502 (5) An attorney who represents a capital defendant may use
503 the services of one or more investigators to assist in
504 representing a capital defendant. Upon approval by the trial
505 court, the attorney is entitled to payment from the Chief
506 Financial Officer of $40 per hour, up to a maximum of $15,000,
507 for the purpose of paying for investigative services.
508 (6) An attorney who represents a capital defendant is
509 entitled to a maximum of $15,000 for miscellaneous expenses,
510 such as the costs of preparing transcripts, compensating expert
511 witnesses, and copying documents. Upon approval by the trial
512 court, the attorney is entitled to payment by the Chief
513 Financial Officer of up to $15,000 for miscellaneous expenses,
514 except that, if the trial court finds that extraordinary
515 circumstances exist, the attorney is entitled to payment in
516 excess of $15,000.
517 (7) A registry An attorney who is actively representing a
518 capital defendant is entitled to a maximum of $500 per fiscal
519 year for tuition and expenses for continuing legal education
520 that pertains to the representation of capital defendants
521 regardless of the total number of capital defendants the
522 attorney is representing. Upon approval by the trial court, the
523 attorney is entitled to payment by the Chief Financial Officer
524 for expenses for such tuition and continuing legal education.
525 (8) By accepting court appointment under s. 27.710 to
526 represent a capital defendant, the attorney agrees to continue
527 such representation under the terms and conditions set forth in
528 this section until the capital defendant's sentence is reversed,
529 reduced, or carried out, and the attorney is permitted to
530 withdraw from such representation by a court of competent
531 jurisdiction. However, if an attorney is permitted to withdraw
532 or is otherwise removed from representation prior to full
533 performance of the duties specified in this section, the trial
534 court shall approve payment of fees and costs for work
535 performed, which may not exceed the amounts specified in this
536 section. An attorney who withdraws or is removed from
537 representation shall deliver all files, notes, documents, and
538 research to the successor attorney within 15 days after notice
539 from the successor attorney. The successor attorney shall bear
540 the cost of transmitting the files, notes, documents, and
541 research.
542 (9) An attorney may not represent more than seven five
543 defendants in capital postconviction litigation at any one time.
544 The defendant-representation limit includes cases involving
545 capital postconviction proceedings under contract with the
546 Capital Collateral Regional Counsel, pro bono cases, registry
547 cases, and privately retained cases. An attorney may not be
548 appointed to an additional capital postconviction case until the
549 attorney's capital postconviction representation total falls
550 below the seven-case limit.
551 (10) This section does not authorize an attorney who
552 represents a capital defendant to file repetitive or frivolous
553 pleadings that are not supported by law or by the facts of the
554 case. An action taken by an attorney who represents a capital
555 defendant in postconviction capital collateral proceedings may
556 not be the basis for a claim of ineffective assistance of
557 counsel.
558 (11) An attorney appointed under s. 27.710 to represent a
559 capital defendant may not represent the capital defendant during
560 a retrial, a resentencing proceeding, a proceeding commenced
561 under chapter 940, a proceeding challenging a conviction or
562 sentence other than the conviction and sentence of death for
563 which the appointment was made, or any civil litigation other
564 than habeas corpus proceedings.
565 (12) The court shall monitor the performance of assigned
566 counsel to ensure that the capital defendant is receiving
567 quality representation. The court shall also receive and
568 evaluate allegations that are made regarding the performance of
569 assigned counsel. The Chief Financial Officer, the Department of
570 Legal Affairs, the executive director, or any interested person
571 may advise the court of any circumstance that could affect the
572 quality of representation, including, but not limited to, false
573 or fraudulent billing, misconduct, failure to meet continuing
574 legal education requirements, solicitation to receive
575 compensation from the capital defendant, or failure to file
576 appropriate motions in a timely manner.
577 (13) Prior to the filing of a motion for order approving
578 payment of attorney's fees, costs, or related expenses, the
579 assigned counsel shall deliver a copy of his intended billing,
580 together with supporting affidavits and all other necessary
581 documentation, to the Chief Financial Officer's named contract
582 manager. The contract manager shall have 10 business days from
583 receipt to review the billings, affidavit, and documentation for
584 completeness and compliance with contractual and statutory
585 requirements. If the contract manager objects to any portion of
586 the proposed billing, the objection and reasons therefor shall
587 be communicated to the assigned counsel. The assigned counsel
588 may thereafter file his or her motion for order approving
589 payment of attorney's fees, costs, or related expenses together
590 with supporting affidavits and all other necessary
591 documentation. The motion must specify whether the Chief
592 Financial Officer's contract manager objects to any portion of
593 the billing or the sufficiency of documentation and, if so, the
594 reason for the objection therefor. A copy of the motion and
595 attachments shall be served on the Chief Financial Officer's
596 contract manager, who shall have standing to file pleadings and
597 appear before the court to contest any motion for order
598 approving payment. The fact that the Chief Financial Officer's
599 contract manager has not objected to any portion of the billing
600 or to the sufficiency of the documentation is not binding on the
601 court, which retains primary authority and responsibility for
602 determining the reasonableness of all billings for fees, costs,
603 and related expenses, subject to statutory limitations.
604 (14) If a trial court judge proposes to award attorney's
605 fees in excess of those set forth in this section, the judge
606 must include written findings of fact that state in detail the
607 extraordinary nature of the expenditures of the time, energy,
608 and talents of the attorney in the case which are not ordinarily
609 expended in other capital collateral cases, and the basis for
610 the court finding that the case is unusual compared to other
611 capital postconviction cases. Each attorney participating in the
612 pilot program in the northern region pursuant to s. 27.701(2),
613 as a condition of payment pursuant to this section, shall report
614 on the performance measures adopted by the Legislature for the
615 capital collateral regional counsel.
616 Section 7. For the purpose of incorporating the amendments
617 made by this act to sections 27.710 and 27.711, Florida
618 Statutes, in references thereto, section 27.7002, Florida
619 Statutes, is reenacted to read:
620 27.7002 Limitation on collateral representation; lawyer
621 disqualification; use of state funds for excess fees not
622 authorized.—
623 (1) This chapter does not create any right on behalf of any
624 person, provided counsel pursuant to any provision of this
625 chapter, to challenge in any form or manner the adequacy of the
626 collateral representation provided.
627 (2) With respect to counsel appointed to represent
628 defendants in collateral proceedings pursuant to ss. 27.710 and
629 27.711, the sole method of assuring adequacy of representation
630 provided shall be in accordance with the provisions of s.
631 27.711(12).
632 (3) No provision of this chapter shall be construed to
633 generate any right on behalf of any attorney appointed pursuant
634 to s. 27.710, or seeking appointment pursuant to s. 27.710, to
635 be compensated above the amounts provided in s. 27.711.
636 (4) No attorney may be appointed, at state expense, to
637 represent any defendant in collateral legal proceedings except
638 as expressly authorized in this chapter.
639 (5) The use of state funds for compensation of counsel
640 appointed pursuant to s. 27.710 above the amounts set forth in
641 s. 27.711 is not authorized.
642 (6) The executive director of the Commission on Capital
643 Cases is authorized to permanently remove from the registry of
644 attorneys provided in ss. 27.710 and 27.711 any attorney who
645 seeks compensation for services above the amounts provided in s.
646 27.711.
647 (7) Any attorney who notifies any court, judge, state
648 attorney, the Attorney General, or the executive director of the
649 Commission on Capital Cases, that he or she cannot provide
650 adequate or proper representation under the terms and conditions
651 set forth in s. 27.711 shall be permanently disqualified from
652 any attorney registry created under this chapter unless good
653 cause arises after a change in circumstances.
654 Section 8. This act shall take effect July 1, 2009.