Senate Bill sb1802c1

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    Florida Senate - 2005                           CS for SB 1802

    By the Committee on Criminal Justice; and Senator Campbell





    591-2026-05

  1                      A bill to be entitled

  2         An act relating to capital collateral

  3         representation; amending s. 27.709, F.S.;

  4         authorizing the Commission on Capital Cases to

  5         sponsor certain continuing legal education

  6         classes; amending s. 27.710, F.S.; revising

  7         provisions relating to continuing legal

  8         education requirements for attorneys on the

  9         registry of attorneys applying to represent

10         persons in postconviction capital collateral

11         proceedings; providing for minimum

12         qualification of attorneys on the registry;

13         providing for notification to the court when

14         appointed attorneys fail to submit specified

15         reports; requiring an appointed attorney who

16         does not wish to continue representation at the

17         federal level to make reasonable efforts to

18         assist the client in finding replacement

19         counsel; amending s. 27.711, F.S.; providing

20         for payment of attorneys after a final hearing,

21         rather than after a final order; providing for

22         additional payments to attorneys; increasing

23         the maximum number of inmates which may be

24         represented by a capital collateral attorney;

25         providing an effective date.

26  

27  Be It Enacted by the Legislature of the State of Florida:

28  

29         Section 1.  Subsection (2) of section 27.709, Florida

30  Statutes, is amended to read:

31         27.709  Commission on Capital Cases.--

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    Florida Senate - 2005                           CS for SB 1802
    591-2026-05




 1         (2)  The commission shall:

 2         (a)  The commission shall Review the administration of

 3  justice in capital collateral cases, receive relevant public

 4  input, review the operation of the capital collateral regional

 5  counsel and private counsel appointed pursuant to ss. 27.710

 6  and 27.711, and advise and make recommendations to the

 7  Governor, Legislature, and Supreme Court.

 8         (b)  As part of its duties, the commission shall

 9  Compile and analyze case-tracking reports produced by the

10  Supreme Court. In analyzing these reports, the commission

11  shall develop statistics to identify trends and changes in

12  case management and case processing, identify and evaluate

13  unproductive points of delay, and generally evaluate the way

14  cases are progressing. The commission shall report these

15  findings to the Legislature by January 1 of each year.

16         (c)  In addition, the commission shall Receive

17  complaints regarding the practice of any office of regional

18  counsel and private counsel appointed pursuant to ss. 27.710

19  and 27.711 and shall refer any complaint to The Florida Bar,

20  the State Supreme Court, or the Commission on Ethics, as

21  appropriate.

22         (d)  Have the authority to sponsor continuing legal

23  education training devoted specifically to capital cases.

24         Section 2.  Subsections (1), (2), (3), (4), and (5) of

25  section 27.710, Florida Statutes, are amended to read:

26         27.710  Registry of attorneys applying to represent

27  persons in postconviction capital collateral proceedings;

28  certification of minimum requirements; appointment by trial

29  court.--

30         (1)  The executive director of the Commission on

31  Capital Cases shall compile and maintain a statewide registry

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    Florida Senate - 2005                           CS for SB 1802
    591-2026-05




 1  of attorneys in private practice who have certified that they

 2  meet the minimum requirements of s. 27.704(2), who are

 3  available for appointment by the court under this section to

 4  represent persons convicted and sentenced to death in this

 5  state in postconviction collateral proceedings, and who have

 6  attended at least 12 hours of continuing legal education

 7  within the last 2 years year a continuing legal education

 8  program of at least 10 hours' duration devoted specifically to

 9  the defense of capital cases, if available. Every 2 years,

10  attorneys who satisfy the minimum requirements of s. 27.704(2)

11  and who are handling a capital case shall be required to

12  attend at least 12 hours of continuing legal education.

13  Continuing legal education programs meeting the requirements

14  of this rule offered by The Florida Bar or another recognized

15  provider and approved for continuing legal education credit by

16  The Florida Bar shall satisfy this requirement. The failure to

17  comply with this requirement may be cause for removal from the

18  list until the requirement is fulfilled. To ensure that

19  sufficient attorneys are available for appointment by the

20  court, when the number of attorneys on the registry falls

21  below 50, the executive director shall notify the chief judge

22  of each circuit by letter and request the chief judge to

23  promptly submit the names of at least three private attorneys

24  who regularly practice criminal law in that circuit and who

25  appear to meet the minimum requirements to represent persons

26  in postconviction capital collateral proceedings. The

27  executive director shall send an application to each attorney

28  identified by the chief judge so that the attorney may

29  register for appointment as counsel in postconviction capital

30  collateral proceedings. As necessary, the executive director

31  may also advertise in legal publications and other appropriate

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    Florida Senate - 2005                           CS for SB 1802
    591-2026-05




 1  media for qualified attorneys interested in registering for

 2  appointment as counsel in postconviction capital collateral

 3  proceedings. Not later than September 1 of each year, and as

 4  necessary thereafter, the executive director shall provide to

 5  the Chief Justice of the Supreme Court, the chief judge and

 6  state attorney in each judicial circuit, and the Attorney

 7  General a current copy of its registry of attorneys who are

 8  available for appointment as counsel in postconviction capital

 9  collateral proceedings. The registry must be indexed by

10  judicial circuit and must contain the requisite information

11  submitted by the applicants in accordance with this section.

12         (2)  To be eligible for court appointment as counsel in

13  postconviction capital collateral proceedings, an attorney

14  must certify on an application provided by the executive

15  director that he or she:

16         (a)  Is familiar with the production of evidence and

17  use of expert witnesses, including psychiatric and forensic

18  evidence;

19         (b)  Has demonstrated proficiency necessary for

20  representation in capital cases, including the investigation

21  and presentation of mitigation evidence; and

22         (c)  Satisfies the minimum requirements for private

23  counsel set forth in subsection (1) and has 5 years'

24  experience in felony criminal law practice, which must have

25  included serving as lead or co-counsel in:

26         1.  Nine state or federal criminal jury trials tried to

27  completion, of which two were capital and three must have been

28  murder trials or one murder trial and five felony trials or

29  one postconviction evidentiary hearing and five felony trials;

30  or

31  

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    Florida Senate - 2005                           CS for SB 1802
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 1         2.  One capital appeal and no fewer than three felony

 2  appeals, of which one was murder; or six felony appeals, of

 3  which two were murder; or one capital postconviction

 4  evidentiary hearing and three felony appeals.

 5         (d)  Satisfaction of the minimum requirements must be

 6  proven by written notification to the commission. The

 7  certification requirement shall be satisfied upon the

 8  submission of the application by electronic mail without a

 9  signature.

10         (e)  If the trial court determines that exceptional

11  circumstances require appointment of counsel not meeting the

12  requirements of this section, the trial court may appoint that

13  person and shall enter an order specifying, in writing, the

14  exceptional circumstances requiring deviation from this

15  section and the court's explicit determination that counsel

16  chosen will provide competent representation in accordance

17  with the policy concerns of this section s. 27.704(2).

18         (3)  An attorney who applies for registration and court

19  appointment as counsel in postconviction capital collateral

20  proceedings must certify that he or she is counsel of record

21  in not more than four such proceedings and, if appointed to

22  represent a person in postconviction capital collateral

23  proceedings, shall continue such representation under the

24  terms and conditions set forth in s. 27.711 until the sentence

25  is reversed, reduced, or carried out or unless permitted to

26  withdraw from representation by the trial court. The court may

27  not permit an attorney to withdraw from representation without

28  a finding of sufficient good cause. The court may impose

29  appropriate sanctions if it finds that an attorney has shown

30  bad faith with respect to continuing to represent a defendant

31  in a postconviction capital collateral proceeding. This

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    Florida Senate - 2005                           CS for SB 1802
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 1  section does not preclude the court from reassigning a case to

 2  a capital collateral regional counsel following

 3  discontinuation of representation if a conflict of interest no

 4  longer exists with respect to the case.

 5         (4)  Each private attorney who is appointed by the

 6  court to represent a capital defendant must enter into a

 7  contract with the Chief Financial Officer. If the appointed

 8  attorney fails to execute the contract within 30 days after

 9  the date the contract is mailed to the attorney, the executive

10  director of the Commission on Capital Cases shall notify the

11  trial court. The Chief Financial Officer shall develop the

12  form of the contract, function as contract manager, and

13  enforce performance of the terms and conditions of the

14  contract. By signing such contract, the attorney certifies

15  that he or she intends to continue the representation under

16  the terms and conditions set forth in the contract until the

17  sentence is reversed, reduced, or carried out or until

18  released by order of the trial court. Additionally, the

19  attorney shall agree to submit quarterly reports to the

20  Commission on Capital Cases in a consistent format designated

21  by the commission. If the appointed attorney fails to submit a

22  quarterly report within 30 days following the end of the

23  quarter, the executive director shall notify the trial court

24  and the attorney.

25         (5)(a)  Upon the motion of the capital collateral

26  regional counsel to withdraw pursuant to s. 924.056(1)(a); or

27         (b)  Upon notification by the state attorney or the

28  Attorney General that:

29         1.  Thirty days have elapsed since appointment of the

30  capital collateral regional counsel and no entry of appearance

31  has been filed pursuant to s. 924.056; or

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    Florida Senate - 2005                           CS for SB 1802
    591-2026-05




 1         2.  A person under sentence of death who was previously

 2  represented by private counsel is currently unrepresented in a

 3  postconviction capital collateral proceeding,

 4  

 5  the executive director shall immediately notify the trial

 6  court that imposed the sentence of death that the court must

 7  immediately appoint an attorney, selected from the current

 8  registry, to represent such person in collateral actions

 9  challenging the legality of the judgment and sentence in the

10  appropriate state and federal courts. If the appointed

11  attorney does not wish to continue representation at the

12  federal level, the appointed attorney shall make reasonable

13  efforts to assist the client in finding replacement counsel

14  who meets the federal requirements to represent a capital

15  defendant in federal proceedings. The court shall have the

16  authority to strike a notice of appearance filed by a Capital

17  Collateral Regional Counsel, if the court finds the notice was

18  not filed in good faith and may so notify the executive

19  director that the client is no longer represented by the

20  Office of Capital Collateral Regional Counsel. In making an

21  assignment, the court shall give priority to attorneys whose

22  experience and abilities in criminal law, especially in

23  capital proceedings, are known by the court to be commensurate

24  with the responsibility of representing a person sentenced to

25  death. The trial court must issue an order of appointment

26  which contains specific findings that the appointed counsel

27  meets the statutory requirements and has the high ethical

28  standards necessary to represent a person sentenced to death.

29         Section 3.  Paragraphs (c) and (g) of subsection (4)

30  and subsections (7) and (9) of section 27.711, Florida

31  

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    Florida Senate - 2005                           CS for SB 1802
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 1  Statutes, are amended, and paragraph (i) is added to

 2  subsection (4) of that section, to read:

 3         27.711  Terms and conditions of appointment of

 4  attorneys as counsel in postconviction capital collateral

 5  proceedings.--

 6         (4)  Upon approval by the trial court, an attorney

 7  appointed to represent a capital defendant under s. 27.710 is

 8  entitled to payment of the following fees by the Chief

 9  Financial Officer:

10         (c)  The attorney is entitled to $100 per hour, up to a

11  maximum of $20,000, after the final hearing on trial court

12  issues a final order granting or denying the capital

13  defendant's motion for postconviction relief.

14         (g)  At the conclusion of the capital defendant's

15  postconviction capital collateral proceedings in state court,

16  the attorney is entitled to $100 per hour, up to a maximum of

17  $2,500, after filing a petition for writ of habeas corpus

18  pursuant to 28 U.S.C. s. 2254 certiorari in the Supreme Court

19  of the United States.

20         (i)  The attorney is entitled to $100 per hour, up to a

21  maximum of $10,000, as a supplement to attorney's fees in

22  paragraphs (a)-(h), for good cause shown and if approved by

23  the court, if those paragraphs do not provide adequate

24  compensation due to extraordinary circumstances.

25  

26  The hours billed by a contracting attorney under this

27  subsection may include time devoted to representation of the

28  defendant by another attorney who is qualified under s. 27.710

29  and who has been designated by the contracting attorney to

30  assist him or her.

31  

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    Florida Senate - 2005                           CS for SB 1802
    591-2026-05




 1         (7)  Each registry An attorney handling at least one

 2  capital case, regardless of the total number of capital

 3  defendants he or she is representing, who is actively

 4  representing a capital defendant is entitled to a maximum of

 5  $1,000 within 2 fiscal years $500 per fiscal year for tuition

 6  and expenses for continuing legal education that pertains to

 7  the representation of capital defendants in this state. Upon

 8  approval by the trial court, the attorney is entitled to

 9  payment by the Chief Financial Officer for expenses for such

10  tuition and continuing legal education.

11         (9)  An attorney may not represent more than 10 inmates

12  five defendants in capital postconviction litigation at any

13  one time.

14         Section 4.  This act shall take effect July 1, 2005.

15  

16          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
17                         Senate Bill 1802

18                                 

19  -    The CS raises the requirements for court appointed
         attorneys in capital postconviction litigation.
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    -    It provides for additional payment to registry counsel of
21       up to $10,000, for good cause, in extraordinary
         circumstances.
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