Senate Bill sb0360c2

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    Florida Senate - 2006                     CS for CS for SB 360

    By the Committees on Justice Appropriations; Criminal Justice;
    and Senator Campbell




    604-2164-06

  1                      A bill to be entitled

  2         An act relating to the Commission on Capital

  3         Cases; amending s. 27.701, F.S.; specifying

  4         that the capital collateral regional counsels

  5         are a part of the legislative branch; providing

  6         for the appointment of the capital collateral

  7         regional counsels by the President of the

  8         Senate and the Speaker of the House of

  9         Representatives; amending s. 27.702, F.S.;

10         removing the requirement that the Justice

11         Administrative Commission provide

12         administrative support to the capital

13         collateral regional counsels; amending s.

14         27.709, F.S.; specifying that the Commission on

15         Capital Cases is a part of the legislative

16         branch; authorizing the Commission on Capital

17         Cases to sponsor continuing legal education

18         programs devoted specifically to capital cases;

19         amending s. 27.710, F.S.; specifying criteria

20         that a private attorney must satisfy in order

21         to be eligible to be appointed as counsel in a

22         postconviction capital collateral proceeding;

23         providing that a judge may appoint an attorney

24         who does not meet the appointment criteria if

25         exceptional circumstances exist; providing that

26         an attorney may be removed from the capital

27         collateral registry if the attorney does not

28         meet the criteria; directing the executive

29         director of the commission to remove an

30         attorney from the registry if the attorney

31         fails to timely file an executed contract;

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 1         requiring a private attorney appointed by a

 2         court to represent a capital defendant to

 3         submit a report each quarter to the commission;

 4         requiring that the executive director remove an

 5         attorney from the registry if the attorney does

 6         not submit the report within a specified time;

 7         requiring that an attorney make reasonable

 8         efforts to assist the person under a sentence

 9         of death in finding an attorney under certain

10         circumstances; amending s. 27.711, F.S.;

11         providing that an attorney who is listed on the

12         registry and representing at least one capital

13         defendant is entitled to tuition and expenses

14         for continuing legal education courses;

15         providing that an attorney may represent no

16         more than 7 inmates in capital postconviction

17         cases at any one time; authorizing a trial

18         judge to award fees exceeding those set by law;

19         requiring a judge intending to award such fees

20         to make specific written findings of fact;

21         amending s. 216.011, F.S.; providing that the

22         capital collateral regional counsels are not a

23         state agency; providing an effective date.

24  

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

26  

27         Section 1.  Subsection (1) of section 27.701, Florida

28  Statutes, is amended to read:

29         27.701  Capital collateral regional counsels.--

30         (1)  There are created three regional offices of

31  capital collateral counsel, which shall be located in a

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 1  northern, middle, and southern region of the state. The

 2  capital collateral counsels shall be a part of the legislative

 3  branch of government. The northern region shall consist of the

 4  First, Second, Third, Fourth, Eighth, and Fourteenth Judicial

 5  Circuits; the middle region shall consist of the Fifth, Sixth,

 6  Seventh, Ninth, Tenth, Twelfth, Thirteenth, and Eighteenth

 7  Judicial Circuits; and the southern region shall consist of

 8  the Eleventh, Fifteenth, Sixteenth, Seventeenth, Nineteenth,

 9  and Twentieth Judicial Circuits. Each regional office shall be

10  administered by a regional counsel. A regional counsel must

11  be, and must have been for the preceding 5 years, a member in

12  good standing of The Florida Bar or a similar organization in

13  another state. Each capital collateral regional counsel shall

14  be appointed by the President of the Senate and the Speaker of

15  the House of Representatives Governor, and is subject to

16  confirmation by the Senate. The Supreme Court Judicial

17  Nominating Commission shall recommend to the President of the

18  Senate and the Speaker of the House of Representatives

19  Governor three qualified candidates for each appointment as

20  regional counsel. The President of the Senate and the Speaker

21  of the House of Representatives Governor shall appoint a

22  regional counsel for each region from among the

23  recommendations, or, if it is in the best interest of the fair

24  administration of justice in capital cases, they the Governor

25  may reject the nominations and request submission of three new

26  nominees by the Supreme Court Judicial Nominating Commission.

27  Each capital collateral regional counsel shall be appointed to

28  a term of 3 years. Vacancies in the office of capital

29  collateral regional counsel shall be filled in the same manner

30  as appointments. A person appointed as a regional counsel may

31  

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 1  not run for or accept appointment to any state office for 2

 2  years following vacation of office.

 3         Section 2.  Subsection (1) of section 27.702, Florida

 4  Statutes, is amended to read:

 5         27.702  Duties of the capital collateral regional

 6  counsel; reports.--

 7         (1)  The capital collateral regional counsel shall

 8  represent each person convicted and sentenced to death in this

 9  state for the sole purpose of instituting and prosecuting

10  collateral actions challenging the legality of the judgment

11  and sentence imposed against such person in the state courts,

12  federal courts in this state, the United States Court of

13  Appeals for the Eleventh Circuit, and the United States

14  Supreme Court. The capital collateral regional counsel and the

15  attorneys appointed pursuant to s. 27.710 shall file only

16  those postconviction or collateral actions authorized by

17  statute. The three capital collateral regional counsels'

18  offices shall function independently and be separate budget

19  entities, and the regional counsels shall be the office heads

20  for all purposes. The Justice Administrative Commission shall

21  provide administrative support and service to the three

22  offices to the extent requested by the regional counsels. The

23  three regional offices shall not be subject to control,

24  supervision, or direction by the Justice Administrative

25  Commission in any manner, including, but not limited to,

26  personnel, purchasing, transactions involving real or personal

27  property, and budgetary matters.

28         Section 3.  Paragraph (a) of subsection (1) of section

29  27.709, Florida Statutes, is amended, and paragraph (d) is

30  added to subsection (2) of that section, to read:

31         27.709  Commission on Capital Cases.--

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 1         (1)(a)  There is created within the legislative branch

 2  of government the Commission on Capital Cases, which shall

 3  consist of the six following members:

 4         1.  Two members appointed by the Governor.

 5         2.  Two members appointed by the President of the

 6  Senate from the membership of the Senate. One member shall be

 7  a member of the majority party, and one member shall be a

 8  member of the minority party.

 9         3.  Two members appointed by the Speaker of the House

10  of Representatives from the membership of the House of

11  Representatives. One member shall be a member of the majority

12  party, and one member shall be a member of the minority party.

13         (2)

14         (d)  The commission may sponsor programs of continuing

15  legal education which are devoted specifically to capital

16  cases and shall undertake any project recommended or approved

17  by the commission members.

18         Section 4.  Section 27.710, Florida Statutes, is

19  amended to read:

20         27.710  Registry of attorneys applying to represent

21  persons in postconviction capital collateral proceedings;

22  certification of minimum requirements; appointment by trial

23  court.--

24         (1)  The executive director of the Commission on

25  Capital Cases shall compile and maintain a statewide registry

26  of attorneys in private practice who have certified that they

27  meet the minimum requirements of this section and s.

28  27.704(2), who are available for appointment by the court

29  under this section to represent persons convicted and

30  sentenced to death in this state in postconviction collateral

31  proceedings, and who have attended within the last year a

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 1  continuing legal education program of at least 10 hours'

 2  duration devoted specifically to the defense of capital cases,

 3  if available. Continuing legal education programs meeting the

 4  requirements of this rule offered by The Florida Bar or

 5  another recognized provider and approved for continuing legal

 6  education credit by The Florida Bar shall satisfy this

 7  requirement. The failure to comply with this requirement may

 8  be cause for removal from the list until the requirement is

 9  fulfilled. To ensure that sufficient attorneys are available

10  for appointment by the court, when the number of attorneys on

11  the registry falls below 50, the executive director shall

12  notify the chief judge of each circuit by letter and request

13  the chief judge to promptly submit the names of at least three

14  private attorneys who regularly practice criminal law in that

15  circuit and who appear to meet the minimum requirements to

16  represent persons in postconviction capital collateral

17  proceedings. The executive director shall send an application

18  to each attorney identified by the chief judge so that the

19  attorney may register for appointment as counsel in

20  postconviction capital collateral proceedings. As necessary,

21  the executive director may also advertise in legal

22  publications and other appropriate media for qualified

23  attorneys interested in registering for appointment as counsel

24  in postconviction capital collateral proceedings. Not later

25  than September 1 of each year, and as necessary thereafter,

26  the executive director shall provide to the Chief Justice of

27  the Supreme Court, the chief judge and state attorney in each

28  judicial circuit, and the Attorney General a current copy of

29  its registry of attorneys who are available for appointment as

30  counsel in postconviction capital collateral proceedings. The

31  registry must be indexed by judicial circuit and must contain

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 1  the requisite information submitted by the applicants in

 2  accordance with this section.

 3         (2)(a)  To be eligible for court appointment as counsel

 4  in postconviction capital collateral proceedings, an attorney

 5  must certify on an application provided by the executive

 6  director that he or she is a member in good standing of The

 7  Florida Bar and:

 8         1.  Is an active practitioner who has at least 5 years'

 9  experience in the practice of criminal law, is familiar with

10  the production of evidence and the use of expert witnesses,

11  including psychiatric and forensic evidence, and has

12  demonstrated the proficiency necessary for representation in

13  capital cases, including the investigation and presentation of

14  mitigation evidence;

15         2.  Has attended a minimum of 12 hours of continuing

16  legal education programs within the previous 2 years which

17  were devoted to the defense of capital cases and offered by

18  The Florida Bar or another recognized provider of continuing

19  legal education courses; and

20         3.a.  Has tried at least nine state or federal jury

21  trials to completion, two of which must have been capital

22  cases and:

23         (I)  Three of which must have been murder trials;

24         (II)  One of which must have been a murder trial and

25  five of which must have been other felony trials; or

26         (III)  One of which must have included a postconviction

27  evidentiary hearing and five of which must have been other

28  felony trials; or

29         b.  Has appealed one capital conviction and appealed:

30         (I)  At least three felony convictions, one of which

31  must have been a murder;

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 1         (II)  At least three felony convictions and

 2  participated in one capital postconviction evidentiary

 3  hearing; or

 4         (III)  At least six felony convictions, two of which

 5  must have been murders.

 6         (b)  If the trial court finds that exceptional

 7  circumstances exist requiring appointment of an attorney who

 8  does not meet the criteria set forth in paragraph (a), the

 9  trial court shall enter a written order specifying the

10  exceptional circumstances requiring appointment of the

11  attorney and explicit findings that the attorney chosen will

12  provide competent representation in accordance with the intent

13  of this section.

14         (c)  A failure to comply with any criterion set forth

15  in paragraph (a) may be cause to remove the attorney from the

16  registry until the criterion is satisfied.

17         (d)  Satisfaction of the criterion may be proven by

18  submitting a written certification to the commission. The

19  certification is complete upon submission of the application

20  by electronic mail without a signature satisfies the minimum

21  requirements for private counsel set forth in s. 27.704(2).

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

23  appointment as counsel in postconviction capital collateral

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

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

26  represent a person in postconviction capital collateral

27  proceedings, shall continue the such representation under the

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

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

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

31  not permit an attorney to withdraw from representation without

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

 2  appropriate sanctions if it finds that an attorney has shown

 3  bad faith with respect to continuing to represent a defendant

 4  in a postconviction capital collateral proceeding. This

 5  section does not preclude the court from reassigning a case to

 6  a capital collateral regional counsel following

 7  discontinuation of representation if a conflict of interest no

 8  longer exists with respect to the case.

 9         (4)(a)  Each private attorney who is appointed by the

10  court to represent a capital defendant must enter into a

11  contract with the Chief Financial Officer. If the appointed

12  attorney fails to execute the contract within 30 days after

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

14  director of the Commission on Capital Cases shall notify the

15  trial court and shall remove the attorney from the registry

16  list. The Chief Financial Officer shall develop the form of

17  the contract, function as contract manager, and enforce

18  performance of the terms and conditions of the contract. By

19  signing such contract, the attorney certifies that he or she

20  intends to continue the representation under the terms and

21  conditions set forth in the contract until the sentence is

22  reversed, reduced, or carried out or until released by order

23  of the trial court.

24         (b)  Each private attorney appointed by a court to

25  represent a capital defendant shall submit a report each

26  quarter to the commission in the format designated by the

27  commission. If the attorney does not submit the report within

28  30 days after the end of the quarter, the executive director

29  shall remove the attorney from the registry and the court may

30  impose a fine or remove the attorney from the case.

31  

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

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

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

 4  Attorney General that:

 5         1.  Thirty days have elapsed since appointment of the

 6  capital collateral regional counsel and no entry of appearance

 7  has been filed under pursuant to s. 924.056; or

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

 9  represented by private counsel is currently unrepresented in a

10  postconviction capital collateral proceeding,

11  

12  the executive director shall immediately notify the trial

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

14  immediately appoint an attorney, selected from the current

15  registry, to represent the such person in collateral actions

16  challenging the legality of the judgment and sentence in the

17  appropriate state and federal courts. If the attorney

18  appointed to represent a person under a sentence of death does

19  not wish to continue representing the person in federal

20  proceedings, the attorney must make reasonable efforts to

21  assist the person in finding an attorney who meets the federal

22  criteria to represent the person in any federal proceedings.

23  The court shall have the authority to strike a notice of

24  appearance filed by a Capital Collateral Regional Counsel, if

25  the court finds the notice was not filed in good faith and may

26  so notify the executive director that the client is no longer

27  represented by the Office of Capital Collateral Regional

28  Counsel.  In making an assignment, the court shall give

29  priority to attorneys whose experience and abilities in

30  criminal law, especially in capital proceedings, are known by

31  the court to be commensurate with the responsibility of

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 1  representing a person sentenced to death. The trial court must

 2  issue an order of appointment which contains specific findings

 3  that the appointed counsel meets the statutory requirements

 4  and has the high ethical standards necessary to represent a

 5  person sentenced to death.

 6         (6)  More than one attorney may not be appointed and

 7  compensated at any one time under s. 27.711 to represent a

 8  person in postconviction capital collateral proceedings.

 9  However, an attorney appointed under this section may

10  designate another attorney to assist him or her if the

11  designated attorney meets the qualifications of this section.

12         Section 5.  Subsections (4), (7), and (9) of section

13  27.711, Florida Statutes, are amended, and subsection (15) is

14  added to that section, to read:

15         27.711  Terms and conditions of appointment of

16  attorneys as counsel in postconviction capital collateral

17  proceedings.--

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

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

20  entitled to payment of the following fees by the Chief

21  Financial Officer:

22         (a)  Regardless of the stage of postconviction capital

23  collateral proceedings, the attorney is entitled to $100 per

24  hour, up to a maximum of $2,500, after accepting appointment

25  and filing a notice of appearance.

26         (b)  The attorney is entitled to $100 per hour, up to a

27  maximum of $20,000, after timely filing in the trial court the

28  capital defendant's complete original motion for

29  postconviction relief under the Florida Rules of Criminal

30  Procedure. The motion must raise all issues to be addressed by

31  the trial court. However, an attorney is entitled to fees

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 1  under this paragraph if the court schedules a hearing on a

 2  matter that makes the filing of the original motion for

 3  postconviction relief unnecessary or if the court otherwise

 4  disposes of the case.

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

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

 7  issues a final order granting or denying the capital

 8  defendant's motion for postconviction relief.

 9         (d)  The attorney is entitled to $100 per hour, up to a

10  maximum of $20,000, after timely filing in the Supreme Court

11  the capital defendant's brief or briefs that address the trial

12  court's final order granting or denying the capital

13  defendant's motion for postconviction relief and the state

14  petition for writ of habeas corpus.

15         (e)  The attorney is entitled to $100 per hour, up to a

16  maximum of $10,000, after the trial court issues an order,

17  following pursuant to a remand from the Supreme Court, which

18  directs the trial court to hold further proceedings on the

19  capital defendant's motion for postconviction relief.

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

21  maximum of $4,000, after the appeal of the trial court's

22  denial of the capital defendant's motion for postconviction

23  relief and the capital defendant's state petition for writ of

24  habeas corpus become final in the Supreme Court.

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

26  postconviction capital collateral proceedings in state court,

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

28  $2,500, for the preparation of the initial federal pleading

29  after filing a petition for writ of certiorari in the Supreme

30  Court of the United States.

31  

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 1         (h)  If, at any time, a death warrant is issued, the

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

 3  $5,000. This payment shall be full compensation for attorney's

 4  fees and costs for representing the capital defendant

 5  throughout the proceedings before the state courts of Florida.

 6  

 7  The hours billed by a contracting attorney under this

 8  subsection may include time devoted to representation of the

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

10  and who has been designated by the contracting attorney to

11  assist him or her.

12         (7)  Each registry An attorney who is representing at

13  least one capital defendant actively representing a capital

14  defendant is entitled to a maximum of $500 per fiscal year for

15  tuition and expenses for continuing legal education that

16  pertains to the representation of capital defendants,

17  regardless of the total number of capital defendants the

18  attorney is representing. Upon approval by the trial court,

19  the attorney is entitled to payment by the Chief Financial

20  Officer for expenses for such tuition and continuing legal

21  education.

22         (9)  An attorney may not represent more than 7 inmates

23  five defendants in capital postconviction litigation at any

24  one time. The 7-inmate-representation limit includes capital

25  postconviction cases proceeding under contract with the

26  capital collateral regional counsel, inmates represented pro

27  bono, and inmates privately retaining the attorney. An

28  attorney may not be appointed to additional capital

29  postconviction cases until the attorney's representation total

30  falls below the 7-case limit.

31  

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 1         (15)  A trial judge may award fees that exceed those

 2  outlined in this section. If a trial court judge intends to

 3  award attorney fees in excess of those outlined in this

 4  section, the judge must include written findings of fact that

 5  specifically state the extraordinary nature of the

 6  expenditures of the time, energy, and talents of the attorney

 7  in the case which are not ordinarily expended in other capital

 8  collateral cases.

 9         Section 6.  Paragraph (qq) of subsection (1) of section

10  216.011, Florida Statutes, is amended to read:

11         216.011  Definitions.--

12         (1)  For the purpose of fiscal affairs of the state,

13  appropriations acts, legislative budgets, and approved

14  budgets, each of the following terms has the meaning

15  indicated:

16         (qq)  "State agency" or "agency" means any official,

17  officer, commission, board, authority, council, committee, or

18  department of the executive branch of state government.  For

19  purposes of this chapter and chapter 215, "state agency" or

20  "agency" includes, but is not limited to, state attorneys,

21  public defenders, the capital collateral regional counsels,

22  the Justice Administrative Commission, the Florida Housing

23  Finance Corporation, and the Florida Public Service

24  Commission. Solely for the purposes of implementing s. 19(h),

25  Art. III of the State Constitution, the terms "state agency"

26  or "agency" include the judicial branch.

27         Section 7.  This act shall take effect July 1, 2006.

28  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                      CS for Senate Bill 360

 3                                 

 4  Removes proposed language finding that all capital collateral
    cases are not extraordinary.
 5  
    States that the capital collateral regional counsels are a
 6  part of the legislative branch of government and shall be
    appointed by the President of the Senate and the Speaker of
 7  the House.

 8  Deletes provisions requiring the Justice Administrative
    Commission to provide administrative support to the capital
 9  collateral regional counsels.

10  States that the Commission on Capital Cases is a part of the
    legislative branch of government.
11  
    Removes a provision that would require the state to reimburse
12  attorneys for case costs that take capital collateral cases
    pro-bono.
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