The Florida Senate

27.711  Terms and conditions of appointment of attorneys as counsel in postconviction capital collateral proceedings.--

(1)  As used in s. 27.710 and this section, the term:

(a)  "Capital defendant" means the person who is represented in postconviction capital collateral proceedings by an attorney appointed under s. 27.710

(b)  "Executive director" means the executive director of the Commission on Capital Cases.

(c)  "Postconviction capital collateral proceedings" means one series of collateral litigation of an affirmed conviction and sentence of death, including the proceedings in the trial court that imposed the capital sentence, any appellate review of the sentence by the Supreme Court, any certiorari review of the sentence by the United States Supreme Court, and any authorized federal habeas corpus litigation with respect to the sentence. The term does not include repetitive or successive collateral challenges to a conviction and sentence of death which is affirmed by the Supreme Court and undisturbed by any collateral litigation.

(2)  After appointment by the trial court under s. 27.710, the attorney must immediately file a notice of appearance with the trial court indicating acceptance of the appointment to represent the capital defendant throughout all postconviction capital collateral proceedings, including federal habeas corpus proceedings, in accordance with this section or until released by order of the trial court.

¹(3)  An attorney appointed to represent a capital defendant is entitled to payment of the fees set forth in this section only upon full performance by the attorney of the duties specified in this section and approval of payment by the trial court, and the submission of a payment request by the attorney, subject to the availability of sufficient funding specifically appropriated for this purpose. An attorney may not be compensated under this section for work performed by the attorney before July 1, 2003, while employed by the northern regional office of the capital collateral counsel. The Chief Financial Officer shall notify the executive director and the court if it appears that sufficient funding has not been specifically appropriated for this purpose to pay any fees which may be incurred. The attorney shall maintain appropriate documentation, including a current and detailed hourly accounting of time spent representing the capital defendant. The fee and payment schedule in this section is the exclusive means of compensating a court-appointed attorney who represents a capital defendant. When appropriate, a court-appointed attorney must seek further compensation from the Federal Government, as provided in 18 U.S.C. s. 3006A or other federal law, in habeas corpus litigation in the federal courts.

(4)  Upon approval by the trial court, an attorney appointed to represent a capital defendant under s. 27.710 is entitled to payment of the following fees by the Chief Financial Officer:

(a)  Regardless of the stage of postconviction capital collateral proceedings, the attorney is entitled to $100 per hour, up to a maximum of $2,500, after accepting appointment and filing a notice of appearance.

(b)  The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the trial court the capital defendant's complete original motion for postconviction relief under the Florida Rules of Criminal Procedure. The motion must raise all issues to be addressed by the trial court. However, an attorney is entitled to fees under this paragraph if the court schedules a hearing on a matter that makes the filing of the original motion for postconviction relief unnecessary or if the court otherwise disposes of the case.

(c)  The attorney is entitled to $100 per hour, up to a maximum of $20,000, after the trial court issues a final order granting or denying the capital defendant's motion for postconviction relief.

(d)  The attorney is entitled to $100 per hour, up to a maximum of $20,000, after timely filing in the Supreme Court the capital defendant's brief or briefs that address the trial court's final order granting or denying the capital defendant's motion for postconviction relief and the state petition for writ of habeas corpus.

(e)  The attorney is entitled to $100 per hour, up to a maximum of $10,000, after the trial court issues an order, pursuant to a remand from the Supreme Court, which directs the trial court to hold further proceedings on the capital defendant's motion for postconviction relief.

(f)  The attorney is entitled to $100 per hour, up to a maximum of $4,000, after the appeal of the trial court's denial of the capital defendant's motion for postconviction relief and the capital defendant's state petition for writ of habeas corpus become final in the Supreme Court.

(g)  At the conclusion of the capital defendant's postconviction capital collateral proceedings in state court, the attorney is entitled to $100 per hour, up to a maximum of $2,500, after filing a petition for writ of certiorari in the Supreme Court of the United States.

(h)  If, at any time, a death warrant is issued, the attorney is entitled to $100 per hour, up to a maximum of $5,000. This payment shall be full compensation for attorney's fees and costs for representing the capital defendant throughout the proceedings before the state courts of Florida.

The hours billed by a contracting attorney under this subsection may include time devoted to representation of the defendant by another attorney who is qualified under s. 27.710 and who has been designated by the contracting attorney to assist him or her.

(5)  An attorney who represents a capital defendant may use the services of one or more investigators to assist in representing a capital defendant. Upon approval by the trial court, the attorney is entitled to payment from the Chief Financial Officer of $40 per hour, up to a maximum of $15,000, for the purpose of paying for investigative services.

(6)  An attorney who represents a capital defendant is entitled to a maximum of $15,000 for miscellaneous expenses, such as the costs of preparing transcripts, compensating expert witnesses, and copying documents. Upon approval by the trial court, the attorney is entitled to payment by the Chief Financial Officer of up to $15,000 for miscellaneous expenses, except that, if the trial court finds that extraordinary circumstances exist, the attorney is entitled to payment in excess of $15,000.

(7)  An attorney who is actively representing a capital defendant is entitled to a maximum of $500 per fiscal year for tuition and expenses for continuing legal education that pertains to the representation of capital defendants. Upon approval by the trial court, the attorney is entitled to payment by the Chief Financial Officer for expenses for such tuition and continuing legal education.

(8)  By accepting court appointment under s. 27.710 to represent a capital defendant, the attorney agrees to continue such representation under the terms and conditions set forth in this section until the capital defendant's sentence is reversed, reduced, or carried out, and the attorney is permitted to withdraw from such representation by a court of competent jurisdiction. However, if an attorney is permitted to withdraw or is otherwise removed from representation prior to full performance of the duties specified in this section, the trial court shall approve payment of fees and costs for work performed, which may not exceed the amounts specified in this section. An attorney who withdraws or is removed from representation shall deliver all files, notes, documents, and research to the successor attorney within 15 days after notice from the successor attorney. The successor attorney shall bear the cost of transmitting the files, notes, documents, and research.

¹(9)  An attorney may not represent more than five defendants in capital postconviction litigation at any one time.

(10)  This section does not authorize an attorney who represents a capital defendant to file repetitive or frivolous pleadings that are not supported by law or by the facts of the case. An action taken by an attorney who represents a capital defendant in postconviction capital collateral proceedings may not be the basis for a claim of ineffective assistance of counsel.

(11)  An attorney appointed under s. 27.710 to represent a capital defendant may not represent the capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under chapter 940, a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.

(12)  The court shall monitor the performance of assigned counsel to ensure that the capital defendant is receiving quality representation. The court shall also receive and evaluate allegations that are made regarding the performance of assigned counsel. The Chief Financial Officer, the Department of Legal Affairs, the executive director, or any interested person may advise the court of any circumstance that could affect the quality of representation, including, but not limited to, false or fraudulent billing, misconduct, failure to meet continuing legal education requirements, solicitation to receive compensation from the capital defendant, or failure to file appropriate motions in a timely manner.

(13)  Prior to the filing of a motion for order approving payment of attorney's fees, costs, or related expenses, the assigned counsel shall deliver a copy of his intended billing, together with supporting affidavits and all other necessary documentation, to the Chief Financial Officer's named contract manager. The contract manager shall have 10 business days from receipt to review the billings, affidavit, and documentation for completeness and compliance with contractual and statutory requirements. If the contract manager objects to any portion of the proposed billing, the objection and reasons therefor shall be communicated to the assigned counsel. The assigned counsel may thereafter file his or her motion for order approving payment of attorney's fees, costs, or related expenses together with supporting affidavits and all other necessary documentation. The motion must specify whether the Chief Financial Officer's contract manager objects to any portion of the billing or the sufficiency of documentation and, if so, the reason therefor. A copy of the motion and attachments shall be served on the Chief Financial Officer's contract manager, who shall have standing to file pleadings and appear before the court to contest any motion for order approving payment. The fact that the Chief Financial Officer's contract manager has not objected to any portion of the billing or to the sufficiency of the documentation is not binding on the court, which retains primary authority and responsibility for determining the reasonableness of all billings for fees, costs, and related expenses, subject to statutory limitations.

¹(14)  Each attorney participating in the pilot program in the northern region pursuant to s. 27.701(2), as a condition of payment pursuant to this section, shall report on the performance measures adopted by the Legislature for the capital collateral regional counsels.

History.--s. 4, ch. 98-197; s. 5, ch. 99-221; s. 16, ch. 2000-3; s. 4, ch. 2002-31; s. 88, ch. 2003-261; ss. 87, 88, ch. 2003-399; s. 3, ch. 2004-240; ss. 66, 67, 76, ch. 2004-269.

¹Note.--

A.  Section 66, ch. 2004-269, amended subsections (3) and (9) and added subsection (14) "[i]n order to implement Specific Appropriation 831 of the 2004-2005 General Appropriations Act."

B.  Section 76, ch. 2004-269, provides that "[i]f any other act passed in 2004 contains a provision that is substantively the same as a provision in this act, but that removes or is otherwise not subject to the future repeal applied to such provision by this act, the Legislature intends that the provision in the other act shall take precedence and shall continue to operate, notwithstanding the future repeal provided by this act." Section 3, ch. 2004-240, amended s. 27.711(3) and (9) and added subsection (14) to continue the provisions and did not include a reversion provision.