House Bill 4521
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Florida House of Representatives - 1998 HB 4521
By Representative Alexander
1 A bill to be entitled
2 An act relating to the administration of
3 capital cases; creating s. 119.19, F.S.;
4 defining terms; requiring that the Secretary of
5 State establish a records repository for
6 archiving capital postconviction records;
7 requiring that the law enforcement agencies and
8 the state attorney copy and deliver to the
9 records repository public records produced in
10 capital cases; requiring the Department of
11 Corrections to copy and deliver to the records
12 repository public records that pertain to the
13 defendant; providing requirements for notifying
14 the Attorney General upon delivery of such
15 records to the repository; requiring that the
16 Attorney General request public records from
17 certain additional persons and agencies;
18 providing requirements for sealing confidential
19 records and records that are exempt from
20 disclosure under the Public Records Law;
21 prohibiting the opening of such records without
22 a court order; providing for written demand for
23 additional public records; prohibiting the
24 capital collateral regional counsel or private
25 counsel from obtaining the production of
26 additional public records in a capital case
27 until after filing an affidavit and obtaining a
28 court order; requiring that the capital
29 collateral regional counsel or private counsel
30 provide the personnel and equipment for copying
31 records held at the repository; providing for
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1 resolving certain disputes with respect to the
2 production of records; prohibiting the capital
3 collateral regional counsel or private counsel
4 from soliciting another person to make a
5 request for public records on the counsel's
6 behalf; providing for sanctions; specifying
7 circumstances under which the Secretary of
8 State may destroy records held by a repository;
9 clarifying the application of provisions
10 governing the production of records in capital
11 postconviction proceedings; amending s. 27.702,
12 F.S.; requiring that the capital collateral
13 regional counsel or private counsel notify the
14 Commission on the Administration of Justice in
15 Capital Cases and the trial court of pleadings
16 filed in capital cases; requiring that a notice
17 of hearing be filed with each pleading;
18 requiring that the trial court expedite the
19 hearings in capital cases; amending s. 27.708,
20 F.S.; deleting references to Rule 3.852,
21 Florida Rules of Criminal Procedure; limiting
22 certain public-records requests made on behalf
23 of clients; repealing Rule 3.852, Florida Rules
24 of Criminal Procedure, relating to the
25 production of records in postconviction
26 proceedings in capital cases; providing an
27 appropriation; providing an effective date.
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29 Be It Enacted by the Legislature of the State of Florida:
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1 Section 1. Section 119.19, Florida Statutes, is
2 created to read:
3 119.19 Capital postconviction public-records
4 production.--
5 (1) As used in this section, the term "trial court"
6 means:
7 (a) The judge who entered the judgment and imposed the
8 sentence of death; or
9 (b) If a motion under Rule 3.850 or Rule 3.851,
10 Florida Rules of Criminal Procedure, has been filed and a
11 different judge has already been assigned to that motion, the
12 judge who is assigned to rule on that motion.
13 (2) The Secretary of State shall establish and
14 maintain a records repository for the purpose of archiving
15 capital postconviction public records as provided for in this
16 section.
17 (3)(a) Upon issuance of the Florida Supreme Court's
18 mandate, the Attorney General shall promptly provide written
19 notification to the state attorney who prosecuted the case
20 that a death sentence has been affirmed. Upon receipt of such
21 notification, the state attorney shall promptly provide
22 written notification to each law enforcement agency involved
23 in the case.
24 (b) Within 90 days after receipt of notification each
25 law enforcement agency involved in the case and the state
26 attorney who prosecuted the case shall copy, seal, and deliver
27 to the repository all public records, except for those filed
28 in the trial court, which were produced in the investigation
29 or prosecution of the case. Each agency shall bear the costs.
30 (4)(a) Upon issuance of the Florida Supreme Court's
31 mandate, the Attorney General shall promptly provide written
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1 notification to the Department of Corrections that a death row
2 inmate's sentence has been affirmed.
3 (b) Within 90 days after notification, the Department
4 of Corrections shall copy, seal, and deliver to the repository
5 all public records determined by the department to be relevant
6 to the subject matter of a proceeding under Rule 3.850 or Rule
7 3.851 and where such production would not be unduly burdensome
8 for the department. The department shall bear the costs.
9 (5)(a) The chief law enforcement officer of each law
10 enforcement agency that was involved in the case, whether
11 through an investigation, arrest, prosecution, or
12 incarceration, shall notify the Attorney General upon
13 compliance with subsection (3) and shall certify that to the
14 best of his or her knowledge and belief all public records in
15 possession of the agency or in possession of any employee of
16 the agency have been copied, indexed, and delivered to the
17 records repository as required by subsection (3).
18 (b) The state attorney who prosecuted the case shall
19 provide written notification to the Attorney General upon
20 compliance with subsection (3) and shall certify that to the
21 best of his or her knowledge and belief all public records in
22 his or her possession have been copied, indexed, and delivered
23 to the records repository as required by subsection (3).
24 (c) The Secretary of Corrections shall provide written
25 notification to the Attorney General upon compliance with
26 subsection (4) and shall certify that to the best of his or
27 her knowledge and belief all public records in the
28 department's possession have been copied, indexed, and
29 delivered to the records repository as required by paragraph
30 (4)(b).
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1 (6)(a) Within 90 days after issuance of the Florida
2 Supreme Court's mandate affirming a death sentence, both the
3 public defender or private counsel for the defendant and the
4 state attorney involved in the case shall provide written
5 notification to the Attorney General of the name and address
6 of any person or agency in addition to those persons and
7 agencies listed in subsections (3) and (4) which may have
8 information pertinent to the case. The Attorney General shall
9 promptly provide written notification to each identified
10 person or agency after receiving the information from the
11 public defender, private counsel for the defendant, or state
12 attorney and shall request that all public records in the
13 possession of the person or agency which pertain to the case
14 be copied, sealed, and delivered to the records repository.
15 (b) Within 90 days after receiving a request for
16 public records under paragraph (a), the person or agency shall
17 provide written notification to the Attorney General of
18 compliance with this subsection and shall certify that to the
19 best of his or her knowledge and belief all public records
20 requested have been copied, indexed, and delivered to the
21 records repository.
22 (7)(a) Any public record delivered to the records
23 repository under this section which is confidential or exempt
24 from the requirements of s. 119.07(1) and s. 24(a), Art. I of
25 the State Constitution must be separately boxed, without being
26 redacted, and sealed. The outside of the box must clearly
27 identify the public records as exempt, and the seal may not be
28 broken without an order of the trial court. The outside of the
29 box must identify the nature of the public records and the
30 legal basis under which the public records are exempt.
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1 (b) Upon the entry of an appropriate court order,
2 sealed boxes subject to an inspection by the trial court shall
3 be shipped to the respective clerk of court. Such a box may be
4 opened only for an inspection by the trial court in camera and
5 only with a representative of the agency present at the
6 unsealing by the court. The moving party shall bear all costs
7 associated with the transportation and inspection of such
8 records by the trial court.
9 (8)(a) Within 90 days after a capital collateral
10 regional counsel or private counsel is appointed to represent
11 a defendant sentenced to death, the regional counsel, private
12 counsel, or other counsel who is a member of The Florida Bar
13 and is authorized by such counsel representing a defendant
14 shall send a written demand for additional public records to
15 each person or agency submitting public records under
16 subsections (3) and (4) and to each person or agency
17 identified as having information pertinent to the case under
18 subsection (6). Each person or agency notified under this
19 subsection shall, within 90 days after receipt of the written
20 demand, deliver to the records repository any additional
21 public records in the possession of the person or agency which
22 pertain to the case and shall certify that to the best of his
23 or her knowledge and belief all additional public records have
24 been delivered to the Attorney General or, if no additional
25 public records are found, shall recertify that the public
26 records previously delivered are complete.
27 (b) Within 60 days after receiving the written demand,
28 the agency or person may file an objection in the trial court.
29 Within 30 days after the filing of an objection, the trial
30 court shall hold a hearing and order an agency or person to
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1 produce additional public records if it finds each of the
2 following:
3 1. The regional counsel or private counsel has made a
4 timely and diligent search as provided in this section.
5 2. The regional or private counsel's written demand
6 identifies, with specificity, those additional public records
7 that are not at the repository.
8 3. The additional public records sought are relevant
9 to the subject matter of a proceeding under Rule 3.850 or Rule
10 3.851 or appear reasonably calculated to lead to the discovery
11 of admissible evidence.
12 4. The additional public-records request is not
13 overbroad or unduly burdensome.
14 (9)(a) After production of additional public records
15 or recertification as provided in subsection (8), the regional
16 counsel or the private counsel is prohibited from making any
17 further public-records requests under this chapter. An agency
18 is not required to produce additional public records except by
19 court order as provided in this subsection.
20 (b) In order to obtain additional public records
21 beyond those provided under subsection (8), the regional
22 counsel, private counsel, or other counsel who is a member of
23 The Florida Bar and is authorized by the regional counsel or
24 private counsel shall file an affidavit in the trial court
25 which attests that he or she has made a timely and diligent
26 search of the records repository and specifically identifies
27 those additional public records that are not at the repository
28 and are relevant to the subject matter of a proceeding under
29 Rule 3.850 or Rule 3.851 or are reasonably calculated to lead
30 to the discovery of admissible evidence. The affiant shall
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1 provide a copy of the affidavit to all affected agencies upon
2 the filing of such affidavit in the trial court.
3 (c) Within 30 days after the filing of an affidavit,
4 the trial court shall order an agency to produce additional
5 public records only if it finds each of the following:
6 1. The regional counsel or private counsel has made a
7 timely and diligent search as provided in this section.
8 2. The regional or private counsel's affidavit
9 identifies, with specificity, those additional public records
10 that are not at the repository.
11 3. The additional public records sought are relevant
12 to the subject matter of a proceeding under Rule 3.850 or Rule
13 3.851 or appear reasonably calculated to lead to the discovery
14 of admissible evidence.
15 4. The additional public-records request is not
16 overbroad or unduly burdensome.
17 (10) The capital collateral regional counsel or
18 private counsel shall provide the personnel, supplies, and any
19 necessary equipment used by the capital collateral regional
20 counsel or private counsel to copy records held at the records
21 repository.
22 (11) The trial court shall resolve any dispute that
23 arises under this section, unless the appellate court has
24 exclusive jurisdiction.
25 (12) The capital collateral regional counsel or
26 private counsel shall not solicit another person to make a
27 request for public records on behalf of the regional counsel
28 or private counsel. The trial court shall impose appropriate
29 sanctions against any regional counsel or private counsel
30 found in violation of this subsection.
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1 (13) Sixty days after a capital sentence is carried
2 out, 60 days after a defendant is released from incarceration
3 following the granting of a pardon or reversal of the
4 sentence, or 60 days after the defendant has been resentenced
5 to a term of years, the Attorney General shall provide written
6 notification to the Secretary of State, who may then destroy
7 the records held by the records repository which pertain to
8 that case.
9 (14) This section pertains only to the production of
10 records for capital postconviction defendants and does not
11 change or alter any times periods specified in Rule 3.850 or
12 Rule 3.851, Florida Rules of Criminal Procedure. Furthermore,
13 this section does not affect, expand, or limit the production
14 of public records for any purposes other than use in a
15 proceeding held pursuant to Rule 3.850 or Rule 3.851, Florida
16 Rules of Criminal Procedure.
17 Section 2. Subsection (4) of section 27.702, Florida
18 Statutes, is amended to read:
19 27.702 Duties of the capital collateral regional
20 counsel; reports.--
21 (4)(a) The capital collateral regional counsel or
22 private counsel shall give written notification of each
23 pleading filed by that office and the name of the person
24 filing the pleading to the Commission on the Administration of
25 Justice in Capital Cases and to the trial court assigned to
26 the case.
27 (b) Each capital collateral regional counsel shall
28 provide a quarterly report to the President of the Senate, the
29 Speaker of the House of Representatives, and the Commission on
30 the Administration of Justice in Capital Cases which details
31 the number of hours worked by investigators and legal counsel
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1 per case and the amounts per case expended during the
2 preceding quarter in investigating and litigating capital
3 collateral cases.
4 Section 3. Subsections (2) and (3) of section 27.708,
5 Florida Statutes, are amended to read:
6 27.708 Access to prisoners; compliance with the
7 Florida Rules of Criminal Procedure in capital collateral
8 litigation; records requests; approval of records requests.--
9 (2) The capital collateral regional counsel and
10 contracted private counsel must timely comply with all
11 provisions of the Florida Rules of Criminal Procedure
12 governing collateral review of capital cases, including
13 provisions pertaining to requests for records under Rule
14 3.852, Florida Rules of Criminal Procedure.
15 (3) Except as provided in s. 119.19, the capital
16 collateral regional counsel or contracted private counsel
17 shall not make any public-records request on behalf of his or
18 her client. All requests for records in capital postconviction
19 proceedings must be made in accordance with Rule 3.852,
20 Florida Rules of Criminal Procedure, and, if the person
21 sentenced to death is represented by an assistant capital
22 collateral regional counsel or other attorney appointed to
23 assist the regional counsel, the regional counsel must approve
24 the request.
25 Section 4. Notice of hearings in capital cases;
26 expedited hearings.--
27 (1) A notice of hearing must be filed
28 contemporaneously with each pleading filed with the court in a
29 capital case.
30 (2) The trial court shall make every effort to
31 expedite any hearing held by the court in a capital case.
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1 Section 5. Rule 3.852, Florida Rules of Criminal
2 Procedure, is repealed.
3 Section 6. Funds sufficient to carry out the
4 provisions of this act are appropriated from the General
5 Revenue Fund to the Secretary of State.
6 Section 7. This act shall take effect July 1 of the
7 year in which enacted, but section 5 shall take effect only if
8 enacted by the affirmative vote of two-thirds of the
9 membership of each house of the Legislature.
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2 HOUSE SUMMARY
3
Requires that the Secretary of State establish a records
4 repository for archiving capital postconviction records.
Requires that the law enforcement agencies and the state
5 attorney copy and deliver to the records repository
public records produced in capital cases. Requires the
6 Department of Corrections to copy and deliver to the
records repository public records that pertain to the
7 defendant. Provides requirements for notifying the
Attorney General upon delivery of such records to the
8 repository. Requires that the Attorney General request
public records from certain additional persons and
9 agencies. Provides requirements for sealing confidential
records and records that are exempt from disclosure under
10 the Public Records Law. Prohibits the opening of such
records without a court order. Provides for written
11 demand for additional public records. Prohibits the
capital collateral regional counsel or private counsel
12 from obtaining the production of additional public
records in a capital case until after filing an affidavit
13 and obtaining a court order. Requires that the capital
collateral regional counsel or private counsel provide
14 the personnel and equipment for copying records held at
the repository. Provides for resolving certain disputes
15 with respect to the production of records. Prohibits the
capital collateral regional counsel or private counsel
16 from soliciting another person to make a request for
public records on the counsel's behalf. Provides for
17 sanctions. Specifies circumstances under which the
Secretary of State may destroy records held by a
18 repository. Clarifies the application of provisions
governing the production of records in capital
19 postconviction proceedings.
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Requires that the capital collateral regional counsel or
21 private counsel notify the Commission on the
Administration of Justice in Capital Cases and the trial
22 court of pleadings filed in capital cases. Requires that
a notice of hearing be filed with each pleading. Requires
23 that the trial court expedite the hearings in capital
cases. Limits certain public-records requests made on
24 behalf of clients of capital collateral regional counsel
or contracted private counsel.
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26 Repeals Rule 3.852, Florida Rules of Criminal Procedure,
governing the production of public records for any
27 postconviction proceeding in a capital case.
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Provides an appropriation.
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