Florida Senate - 2013 (PROPOSED COMMITTEE BILL) SPB 7050
FOR CONSIDERATION By the Committee on Appropriations
576-02908-13 20137050__
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.