Florida Senate - 2013                                    SB 1510
       
       
       
       By the Committee on Appropriations
       
       
       
       
       576-03523-13                                          20131510__
    1                        A bill to be entitled                      
    2         An act relating to postconviction capital collateral
    3         proceedings; amending s. 27.701, F.S.; providing for
    4         the elimination of a capital collateral counsel pilot
    5         program in the northern region of the state; amending
    6         s. 27.702, F.S.; requiring each capital collateral
    7         regional counsel to provide a report to the Justice
    8         Administrative Commission; amending ss. 27.710 and
    9         27.711, F.S.; providing for the assumption of certain
   10         duties of the Chief Financial Officer by the Justice
   11         Administrative Commission; providing an effective
   12         date.
   13  
   14  Be It Enacted by the Legislature of the State of Florida:
   15  
   16         Section 1. Section 27.701, Florida Statutes, is amended to
   17  read:
   18         27.701 Capital collateral regional counsel.—
   19         (1) There are created three regional offices of capital
   20  collateral counsel, which shall be located in a northern,
   21  middle, and southern region of the state. The northern region
   22  shall consist of the First, Second, Third, Fourth, Eighth, and
   23  Fourteenth Judicial Circuits; the middle region shall consist of
   24  the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth,
   25  and Eighteenth Judicial Circuits; and the southern region shall
   26  consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth,
   27  Nineteenth, and Twentieth Judicial Circuits. Each regional
   28  office shall be administered by a regional counsel. A regional
   29  counsel must be, and must have been for the preceding 5 years, a
   30  member in good standing of The Florida Bar or a similar
   31  organization in another state. Each capital collateral regional
   32  counsel shall be appointed by the Governor, and is subject to
   33  confirmation by the Senate. The Supreme Court Judicial
   34  Nominating Commission shall recommend to the Governor three
   35  qualified candidates for each appointment as regional counsel.
   36  The Governor shall appoint a regional counsel for each region
   37  from among the recommendations, or, if it is in the best
   38  interest of the fair administration of justice in capital cases,
   39  the Governor may reject the nominations and request submission
   40  of three new nominees by the Supreme Court Judicial Nominating
   41  Commission. Each capital collateral regional counsel shall be
   42  appointed to a term of 3 years. Vacancies in the office of
   43  capital collateral regional counsel shall be filled in the same
   44  manner as appointments. A person appointed as a regional counsel
   45  may not run for or accept appointment to any state office for 2
   46  years following vacation of office.
   47         (2) Notwithstanding the provisions of subsection (1), the
   48  responsibilities of the regional office of capital collateral
   49  counsel for the northern region of the state shall be met
   50  through a pilot program using only attorneys from the registry
   51  of attorneys maintained pursuant to s. 27.710. Each attorney
   52  participating in the pilot must be qualified to provide
   53  representation in federal court. The Auditor General shall
   54  schedule a performance review of the pilot program to determine
   55  the effectiveness and efficiency of using attorneys from the
   56  registry compared to the capital collateral regional counsel.
   57  The review, at a minimum, shall include comparisons of the
   58  timeliness and costs of the pilot and the counsel and shall be
   59  submitted to the President of the Senate and the Speaker of the
   60  House of Representatives by January 30, 2007. The Legislature
   61  may determine whether to convert the pilot program to a
   62  permanent program after receipt of the Auditor General’s review.
   63         Section 2. Section 27.702, Florida Statutes, is amended to
   64  read:
   65         27.702 Duties of the capital collateral regional counsel;
   66  reports.—
   67         (1) The capital collateral regional counsel shall represent
   68  each person convicted and sentenced to death in this state for
   69  the sole purpose of instituting and prosecuting collateral
   70  actions challenging the legality of the judgment and sentence
   71  imposed against such person in the state courts, federal courts
   72  in this state, the United States Court of Appeals for the
   73  Eleventh Circuit, and the United States Supreme Court. The
   74  capital collateral regional counsel and the attorneys appointed
   75  pursuant to s. 27.710 shall file only those postconviction or
   76  collateral actions authorized by statute. The three capital
   77  collateral regional counsel’s offices shall function
   78  independently and be separate budget entities, and the regional
   79  counsel shall be the office heads for all purposes. The Justice
   80  Administrative Commission shall provide administrative support
   81  and service to the three offices to the extent requested by the
   82  regional counsel. The three regional offices shall not be
   83  subject to control, supervision, or direction by the Justice
   84  Administrative Commission in any manner, including, but not
   85  limited to, personnel, purchasing, transactions involving real
   86  or personal property, and budgetary matters.
   87         (2) The capital collateral regional counsel shall represent
   88  persons convicted and sentenced to death within the region in
   89  collateral postconviction proceedings, unless a court appoints
   90  or permits other counsel to appear as counsel of record.
   91         (3)(a) The capital collateral regional counsel shall file
   92  motions seeking compensation for representation and
   93  reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when
   94  providing representation to indigent persons in the federal
   95  courts, and shall deposit all such payments received into the
   96  Capital Collateral Regional Counsel Trust Fund.
   97         (b) The court having jurisdiction over any nonindigent or
   98  indigent-but-able-to-contribute defendant who has been receiving
   99  the services of the capital collateral regional counsel may
  100  assess attorney attorney’s fees and costs against the defendant
  101  at any stage in the proceedings as the court may deem
  102  appropriate. The determination of indigence of any defendant
  103  shall be made pursuant to s. 27.52. Liability for the costs of
  104  such representation may be imposed in the form of a lien against
  105  the property of the nonindigent or indigent-but-able-to
  106  contribute defendant, which lien shall be enforceable as
  107  provided in s. 27.561 or s. 938.29.
  108         (4)(a) The capital collateral regional counsel or private
  109  counsel shall give written notification of each pleading filed
  110  by that office and the name of the person filing the pleading to
  111  the trial court assigned to the case.
  112         (b) Each capital collateral regional counsel and each
  113  attorney participating in the pilot program in the northern
  114  region pursuant to s. 27.701(2) shall provide a quarterly report
  115  to the President of the Senate, and the Speaker of the House of
  116  Representatives, and the Justice Administrative Commission which
  117  details the number of hours worked by investigators and legal
  118  counsel per case and the amounts per case expended during the
  119  preceding quarter in investigating and litigating capital
  120  collateral cases.
  121         Section 3. Section 27.710, Florida Statutes, is amended to
  122  read:
  123         27.710 Registry of attorneys applying to represent persons
  124  in postconviction capital collateral proceedings; certification
  125  of minimum requirements; appointment by trial court.—
  126         (1) The executive director of the Justice Administrative
  127  Commission shall compile and maintain a statewide registry of
  128  attorneys in private practice who have certified that they meet
  129  the minimum requirements of s. 27.704(2), who are available for
  130  appointment by the court under this section to represent persons
  131  convicted and sentenced to death in this state in postconviction
  132  collateral proceedings, and who have attended within the last
  133  year a continuing legal education program of at least 10 hours’
  134  duration devoted specifically to the defense of capital cases,
  135  if available. Continuing legal education programs meeting the
  136  requirements of this rule offered by The Florida Bar or another
  137  recognized provider and approved for continuing legal education
  138  credit by The Florida Bar shall satisfy this requirement. The
  139  failure to comply with this requirement may be cause for removal
  140  from the list until the requirement is fulfilled. To ensure that
  141  sufficient attorneys are available for appointment by the court,
  142  when the number of attorneys on the registry falls below 50, the
  143  executive director shall notify the chief judge of each circuit
  144  by letter and request the chief judge to promptly submit the
  145  names of at least three private attorneys who regularly practice
  146  criminal law in that circuit and who appear to meet the minimum
  147  requirements to represent persons in postconviction capital
  148  collateral proceedings. The executive director shall send an
  149  application to each attorney identified by the chief judge so
  150  that the attorney may register for appointment as counsel in
  151  postconviction capital collateral proceedings. As necessary, the
  152  executive director may also advertise in legal publications and
  153  other appropriate media for qualified attorneys interested in
  154  registering for appointment as counsel in postconviction capital
  155  collateral proceedings. Not later than September 1 of each year,
  156  and as necessary thereafter, the executive director shall
  157  provide to the Chief Justice of the Supreme Court, the chief
  158  judge and state attorney in each judicial circuit, and the
  159  Attorney General a current copy of its registry of attorneys who
  160  are available for appointment as counsel in postconviction
  161  capital collateral proceedings. The registry must be indexed by
  162  judicial circuit and must contain the requisite information
  163  submitted by the applicants in accordance with this section.
  164         (2) To be eligible for court appointment as counsel in
  165  postconviction capital collateral proceedings, an attorney must
  166  certify on an application provided by the executive director
  167  that he or she satisfies the minimum requirements for private
  168  counsel set forth in s. 27.704(2).
  169         (3) An attorney who applies for registration and court
  170  appointment as counsel in postconviction capital collateral
  171  proceedings must certify that he or she is counsel of record in
  172  not more than four such proceedings and, if appointed to
  173  represent a person in postconviction capital collateral
  174  proceedings, shall continue such representation under the terms
  175  and conditions set forth in s. 27.711 until the sentence is
  176  reversed, reduced, or carried out or unless permitted to
  177  withdraw from representation by the trial court. The court may
  178  not permit an attorney to withdraw from representation without a
  179  finding of sufficient good cause. The court may impose
  180  appropriate sanctions if it finds that an attorney has shown bad
  181  faith with respect to continuing to represent a defendant in a
  182  postconviction capital collateral proceeding. This section does
  183  not preclude the court from reassigning a case to a capital
  184  collateral regional counsel following discontinuation of
  185  representation if a conflict of interest no longer exists with
  186  respect to the case.
  187         (4) Each private attorney who is appointed by the court to
  188  represent a capital defendant must enter into a contract with
  189  the Justice Administrative Commission Chief Financial Officer.
  190  If the appointed attorney fails to execute the contract within
  191  30 days after the date the contract is mailed to the attorney,
  192  the executive director shall notify the trial court. The Justice
  193  Administrative Commission Chief Financial Officer shall develop
  194  the form of the contract, function as contract manager, and
  195  enforce performance of the terms and conditions of the contract.
  196  The Justice Administrative Commission shall approve uniform
  197  contract forms for use in procuring the services of private
  198  court-appointed counsel and uniform procedures and forms for use
  199  by a court-appointed attorney in support of billing for attorney
  200  fees, costs, and related expenses to demonstrate attorney
  201  completion of specified duties. By signing such contract, the
  202  attorney certifies that he or she intends to continue the
  203  representation under the terms and conditions set forth in the
  204  contract until the sentence is reversed, reduced, or carried out
  205  or until released by order of the trial court.
  206         (5)(a) Upon the motion of the capital collateral regional
  207  counsel to withdraw pursuant to s. 924.056(1)(a); or
  208         (b) Upon notification by the state attorney or the Attorney
  209  General that:
  210         1. Thirty days have elapsed since appointment of the
  211  capital collateral regional counsel and no entry of appearance
  212  has been filed pursuant to s. 924.056; or
  213         2. A person under sentence of death who was previously
  214  represented by private counsel is currently unrepresented in a
  215  postconviction capital collateral proceeding,
  216  
  217  the executive director shall immediately notify the trial court
  218  that imposed the sentence of death that the court must
  219  immediately appoint an attorney, selected from the current
  220  registry, to represent such person in collateral actions
  221  challenging the legality of the judgment and sentence in the
  222  appropriate state and federal courts. The court shall have the
  223  authority to strike a notice of appearance filed by a Capital
  224  Collateral Regional Counsel, if the court finds the notice was
  225  not filed in good faith and may so notify the executive director
  226  that the client is no longer represented by the Office of
  227  Capital Collateral Regional Counsel. In making an assignment,
  228  the court shall give priority to attorneys whose experience and
  229  abilities in criminal law, especially in capital proceedings,
  230  are known by the court to be commensurate with the
  231  responsibility of representing a person sentenced to death. The
  232  trial court must issue an order of appointment which contains
  233  specific findings that the appointed counsel meets the statutory
  234  requirements and has the high ethical standards necessary to
  235  represent a person sentenced to death.
  236         (6) More than one attorney may not be appointed and
  237  compensated at any one time under s. 27.711 to represent a
  238  person in postconviction capital collateral proceedings.
  239  However, an attorney appointed under this section may designate
  240  another attorney to assist him or her if the designated attorney
  241  meets the qualifications of this section.
  242         Section 4. Section 27.711, Florida Statutes, is amended to
  243  read:
  244         27.711 Terms and conditions of appointment of attorneys as
  245  counsel in postconviction capital collateral proceedings.—
  246         (1) As used in s. 27.710 and this section, the term:
  247         (a) “Capital defendant” means the person who is represented
  248  in postconviction capital collateral proceedings by an attorney
  249  appointed under s. 27.710.
  250         (b) “Executive director” means the executive director of
  251  the Justice Administrative Commission.
  252         (c) “Postconviction capital collateral proceedings” means
  253  one series of collateral litigation of an affirmed conviction
  254  and sentence of death, including the proceedings in the trial
  255  court that imposed the capital sentence, any appellate review of
  256  the sentence by the Supreme Court, any certiorari review of the
  257  sentence by the United States Supreme Court, and any authorized
  258  federal habeas corpus litigation with respect to the sentence.
  259  The term does not include repetitive or successive collateral
  260  challenges to a conviction and sentence of death which is
  261  affirmed by the Supreme Court and undisturbed by any collateral
  262  litigation.
  263         (2) After appointment by the trial court under s. 27.710,
  264  the attorney must immediately file a notice of appearance with
  265  the trial court indicating acceptance of the appointment to
  266  represent the capital defendant throughout all postconviction
  267  capital collateral proceedings, including federal habeas corpus
  268  proceedings, in accordance with this section or until released
  269  by order of the trial court.
  270         (3) An attorney appointed to represent a capital defendant
  271  is entitled to payment of the fees set forth in this section
  272  only upon full performance by the attorney of the duties
  273  specified in this section and approval of payment by the trial
  274  court, and the submission of a payment request by the attorney,
  275  subject to the availability of sufficient funding specifically
  276  appropriated for this purpose. An attorney may not be
  277  compensated under this section for work performed by the
  278  attorney before July 1, 2003, while employed by the northern
  279  regional office of the capital collateral counsel. The Justice
  280  Administrative Commission Chief Financial Officer shall notify
  281  the executive director and the court if it appears that
  282  sufficient funding has not been specifically appropriated for
  283  this purpose to pay any fees which may be incurred. The attorney
  284  shall maintain appropriate documentation, including a current
  285  and detailed hourly accounting of time spent representing the
  286  capital defendant. The fee and payment schedule in this section
  287  is the exclusive means of compensating a court-appointed
  288  attorney who represents a capital defendant. When appropriate, a
  289  court-appointed attorney must seek further compensation from the
  290  Federal Government, as provided in 18 U.S.C. s. 3006A or other
  291  federal law, in habeas corpus litigation in the federal courts.
  292         (4) Upon approval by the trial court, an attorney appointed
  293  to represent a capital defendant under s. 27.710 is entitled to
  294  payment of the following fees by the Justice Administrative
  295  Commission Chief Financial Officer:
  296         (a) Regardless of the stage of postconviction capital
  297  collateral proceedings, the attorney is entitled to $100 per
  298  hour, up to a maximum of $2,500, after accepting appointment and
  299  filing a notice of appearance.
  300         (b) The attorney is entitled to $100 per hour, up to a
  301  maximum of $20,000, after timely filing in the trial court the
  302  capital defendant’s complete original motion for postconviction
  303  relief under the Florida Rules of Criminal Procedure. The motion
  304  must raise all issues to be addressed by the trial court.
  305  However, an attorney is entitled to fees under this paragraph if
  306  the court schedules a hearing on a matter that makes the filing
  307  of the original motion for postconviction relief unnecessary or
  308  if the court otherwise disposes of the case.
  309         (c) The attorney is entitled to $100 per hour, up to a
  310  maximum of $20,000, after the trial court issues a final order
  311  granting or denying the capital defendant’s motion for
  312  postconviction relief.
  313         (d) The attorney is entitled to $100 per hour, up to a
  314  maximum of $20,000, after timely filing in the Supreme Court the
  315  capital defendant’s brief or briefs that address the trial
  316  court’s final order granting or denying the capital defendant’s
  317  motion for postconviction relief and the state petition for writ
  318  of habeas corpus.
  319         (e) The attorney is entitled to $100 per hour, up to a
  320  maximum of $10,000, after the trial court issues an order,
  321  pursuant to a remand from the Supreme Court, which directs the
  322  trial court to hold further proceedings on the capital
  323  defendant’s motion for postconviction relief.
  324         (f) The attorney is entitled to $100 per hour, up to a
  325  maximum of $4,000, after the appeal of the trial court’s denial
  326  of the capital defendant’s motion for postconviction relief and
  327  the capital defendant’s state petition for writ of habeas corpus
  328  become final in the Supreme Court.
  329         (g) At the conclusion of the capital defendant’s
  330  postconviction capital collateral proceedings in state court,
  331  the attorney is entitled to $100 per hour, up to a maximum of
  332  $2,500, after filing a petition for writ of certiorari in the
  333  Supreme Court of the United States.
  334         (h) If, at any time, a death warrant is issued, the
  335  attorney is entitled to $100 per hour, up to a maximum of
  336  $5,000. This payment shall be full compensation for attorney
  337  attorney’s fees and costs for representing the capital defendant
  338  throughout the proceedings before the state courts of Florida.
  339  
  340  The hours billed by a contracting attorney under this subsection
  341  may include time devoted to representation of the defendant by
  342  another attorney who is qualified under s. 27.710 and who has
  343  been designated by the contracting attorney to assist him or
  344  her.
  345         (5) An attorney who represents a capital defendant may use
  346  the services of one or more investigators to assist in
  347  representing a capital defendant. Upon approval by the trial
  348  court, the attorney is entitled to payment from the Justice
  349  Administrative Commission Chief Financial Officer of $40 per
  350  hour, up to a maximum of $15,000, for the purpose of paying for
  351  investigative services.
  352         (6) An attorney who represents a capital defendant is
  353  entitled to a maximum of $15,000 for miscellaneous expenses,
  354  such as the costs of preparing transcripts, compensating expert
  355  witnesses, and copying documents. Upon approval by the trial
  356  court, the attorney is entitled to payment by the Justice
  357  Administrative Commission Chief Financial Officer of up to
  358  $15,000 for miscellaneous expenses, except that, if the trial
  359  court finds that extraordinary circumstances exist, the attorney
  360  is entitled to payment in excess of $15,000.
  361         (7) An attorney who is actively representing a capital
  362  defendant is entitled to a maximum of $500 per fiscal year for
  363  tuition and expenses for continuing legal education that
  364  pertains to the representation of capital defendants. Upon
  365  approval by the trial court, the attorney is entitled to payment
  366  by the Justice Administrative Commission Chief Financial Officer
  367  for expenses for such tuition and continuing legal education.
  368         (8) By accepting court appointment under s. 27.710 to
  369  represent a capital defendant, the attorney agrees to continue
  370  such representation under the terms and conditions set forth in
  371  this section until the capital defendant’s sentence is reversed,
  372  reduced, or carried out, and the attorney is permitted to
  373  withdraw from such representation by a court of competent
  374  jurisdiction. However, if an attorney is permitted to withdraw
  375  or is otherwise removed from representation prior to full
  376  performance of the duties specified in this section, the trial
  377  court shall approve payment of fees and costs for work
  378  performed, which may not exceed the amounts specified in this
  379  section. An attorney who withdraws or is removed from
  380  representation shall deliver all files, notes, documents, and
  381  research to the successor attorney within 15 days after notice
  382  from the successor attorney. The successor attorney shall bear
  383  the cost of transmitting the files, notes, documents, and
  384  research.
  385         (9) An attorney may not represent more than five defendants
  386  in capital postconviction litigation at any one time.
  387         (10) This section does not authorize an attorney who
  388  represents a capital defendant to file repetitive or frivolous
  389  pleadings that are not supported by law or by the facts of the
  390  case. An action taken by an attorney who represents a capital
  391  defendant in postconviction capital collateral proceedings may
  392  not be the basis for a claim of ineffective assistance of
  393  counsel.
  394         (11) An attorney appointed under s. 27.710 to represent a
  395  capital defendant may not represent the capital defendant during
  396  a retrial, a resentencing proceeding, a proceeding commenced
  397  under chapter 940, a proceeding challenging a conviction or
  398  sentence other than the conviction and sentence of death for
  399  which the appointment was made, or any civil litigation other
  400  than habeas corpus proceedings.
  401         (12) The court shall monitor the performance of assigned
  402  counsel to ensure that the capital defendant is receiving
  403  quality representation. The court shall also receive and
  404  evaluate allegations that are made regarding the performance of
  405  assigned counsel. The Justice Administrative Commission Chief
  406  Financial Officer, the Department of Legal Affairs, the
  407  executive director, or any interested person may advise the
  408  court of any circumstance that could affect the quality of
  409  representation, including, but not limited to, false or
  410  fraudulent billing, misconduct, failure to meet continuing legal
  411  education requirements, solicitation to receive compensation
  412  from the capital defendant, or failure to file appropriate
  413  motions in a timely manner.
  414         (13) Prior to the filing of a motion for order approving
  415  payment of attorney attorney’s fees, costs, or related expenses,
  416  the assigned counsel shall deliver a copy of his intended
  417  billing, together with supporting affidavits and all other
  418  necessary documentation, to the Justice Administrative
  419  Commission Chief Financial Officer’s named contract manager. The
  420  Justice Administrative Commission shall review the intended
  421  billing contract manager shall have 10 business days from
  422  receipt to review the billings, affidavit, and documentation for
  423  completeness and compliance with contractual and statutory
  424  requirements. If the Justice Administrative Commission contract
  425  manager objects to any portion of the proposed billing, the
  426  objection and reasons therefor shall be communicated to the
  427  assigned counsel. The assigned counsel may thereafter file his
  428  or her motion for order approving payment of attorney attorney’s
  429  fees, costs, or related expenses together with supporting
  430  affidavits and all other necessary documentation. The motion
  431  must specify whether the Justice Administrative Commission Chief
  432  Financial Officer’s contract manager objects to any portion of
  433  the billing or the sufficiency of documentation and, if so, the
  434  reason therefor. A copy of the motions and attachments shall be
  435  served on the Justice Administrative Commission at least 5
  436  business days before the date of a hearing. The Justice
  437  Administrative Commission has standing to appear before the
  438  court to contest any motion for an order approving payment of
  439  attorney fees, costs, or related expenses and may participate in
  440  a hearing on the motion by use of telephonic or other
  441  communication equipment A copy of the motion and attachments
  442  shall be served on the Chief Financial Officer’s contract
  443  manager, who shall have standing to file pleadings and appear
  444  before the court to contest any motion for order approving
  445  payment. The fact that the Justice Administrative Commission
  446  Chief Financial Officer’s contract manager has not objected to
  447  any portion of the billing or to the sufficiency of the
  448  documentation is not binding on the court, which retains primary
  449  authority and responsibility for determining the reasonableness
  450  of all billings for fees, costs, and related expenses, subject
  451  to statutory limitations.
  452         (14) Each attorney participating in the pilot program in
  453  the northern region pursuant to s. 27.701(2), as a condition of
  454  payment pursuant to this section, shall report on the
  455  performance measures adopted by the Legislature for the capital
  456  collateral regional counsel.
  457         Section 5. This act shall take effect October 1, 2013.