| 1 | A bill to be entitled |
| 2 | An act relating to capital collateral representation; |
| 3 | amending s. 27.7001, F.S.; providing a legislative finding |
| 4 | that not all capital cases are extraordinary or unusual; |
| 5 | amending s. 27.701, F.S.; requiring that capital |
| 6 | collateral regional counsel be appointed by and serve at |
| 7 | the pleasure of the Commission on Capital Cases; removing |
| 8 | provisions establishing a pilot program in the northern |
| 9 | region of the state; amending s. 27.702, F.S.; clarifying |
| 10 | the administrative roles and functions of the Justice |
| 11 | Administrative Commission, the Commission on Capital |
| 12 | Cases, and the capital collateral regional counsel; |
| 13 | deleting references to a pilot project; amending s. |
| 14 | 27.709, F.S.; increasing the membership of the Commission |
| 15 | on Capital Cases; relocating the commission from the |
| 16 | Office of Legislative Services to the Justice |
| 17 | Administrative Commission for administrative purposes; |
| 18 | authorizing the commission to sponsor programs of |
| 19 | continuing legal education on capital cases; authorizing |
| 20 | the commission to request certain reports; authorizing the |
| 21 | commission to issue subpoenas and hold hearings it |
| 22 | considers appropriate for the administration of justice in |
| 23 | capital cases; authorizing the commission to terminate the |
| 24 | appointment of a capital collateral regional counsel |
| 25 | before the end of the counsel's term; amending s. 27.710, |
| 26 | F.S.; revising the criteria required for an attorney to be |
| 27 | eligible to be placed on the registry of attorneys |
| 28 | qualified to represent defendants in postconviction |
| 29 | capital collateral proceedings; providing certain limited |
| 30 | exceptions; requiring attorneys to sign a contract with |
| 31 | the Chief Financial Officer in order to receive funds from |
| 32 | the state; requiring each private attorney appointed by a |
| 33 | court to represent a capital defendant to submit a report |
| 34 | each quarter to the commission; providing for removal and |
| 35 | reinstatement to the registry of attorneys; providing |
| 36 | requirements with respect to finding another attorney to |
| 37 | represent a defendant in federal proceedings under certain |
| 38 | circumstances; amending s. 27.711, F.S.; providing for |
| 39 | terms and conditions for appointment of counsel in |
| 40 | postconviction capital collateral proceedings; providing |
| 41 | for pro bono attorneys to receive reimbursement for |
| 42 | certain specified expenses; revising fee and other expense |
| 43 | provisions applicable to registry attorneys appointed to |
| 44 | represent capital defendants; limiting representation by a |
| 45 | court-appointed attorney to seven defendants; prohibiting |
| 46 | an attorney from entering into an employment contract with |
| 47 | any Office of Capital Collateral Regional Counsel if he or |
| 48 | she represents seven or more defendants in capital |
| 49 | collateral litigation; requiring a trial court judge who |
| 50 | proposes to award attorney's fees in excess of those set |
| 51 | forth in law to make written findings of fact that state |
| 52 | the extraordinary nature of the expenditures of time, |
| 53 | energy, and talents of the attorney in the case which are |
| 54 | not ordinarily expended in other capital collateral cases |
| 55 | and how the case is unusual; reenacting s. 27.7002, F.S., |
| 56 | relating to the limitation of cases on collateral |
| 57 | representation, to incorporate the amendments made to ss. |
| 58 | 27.710 and 27.711, F.S., in references thereto; providing |
| 59 | an effective date. |
| 60 |
|
| 61 | Be It Enacted by the Legislature of the State of Florida: |
| 62 |
|
| 63 | Section 1. Section 27.7001, Florida Statutes, is amended |
| 64 | to read: |
| 65 | 27.7001 Legislative intent and findings.--It is the intent |
| 66 | of the Legislature to create part IV of this chapter, consisting |
| 67 | of ss. 27.7001-27.711, inclusive, to provide for the collateral |
| 68 | representation of any person convicted and sentenced to death in |
| 69 | this state, so that collateral legal proceedings to challenge |
| 70 | any Florida capital conviction and sentence may be commenced in |
| 71 | a timely manner and so as to assure the people of this state |
| 72 | that the judgments of its courts may be regarded with the |
| 73 | finality to which they are entitled in the interests of justice. |
| 74 | It is the further intent of the Legislature that collateral |
| 75 | representation shall not include representation during retrials, |
| 76 | resentencings, proceedings commenced under chapter 940, or civil |
| 77 | litigation. The Legislature further finds that not all capital |
| 78 | collateral cases are extraordinary or unusual. |
| 79 | Section 2. Section 27.701, Florida Statutes, is amended to |
| 80 | read: |
| 81 | 27.701 Capital collateral regional counsel.-- |
| 82 | (1) There are created three regional offices of capital |
| 83 | collateral counsel, which shall be located in a northern, |
| 84 | middle, and southern region of the state. The northern region |
| 85 | shall consist of the First, Second, Third, Fourth, Eighth, and |
| 86 | Fourteenth Judicial Circuits; the middle region shall consist of |
| 87 | the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, |
| 88 | and Eighteenth Judicial Circuits; and the southern region shall |
| 89 | consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth, |
| 90 | Nineteenth, and Twentieth Judicial Circuits. Each regional |
| 91 | office shall be administered by a regional counsel. A regional |
| 92 | counsel must be, and must have been for the preceding 5 years, a |
| 93 | member in good standing of The Florida Bar or a similar |
| 94 | organization in another state. Each capital collateral regional |
| 95 | counsel shall be appointed by the Commission on Capital Cases |
| 96 | Governor, and is subject to confirmation by the Senate. The |
| 97 | Supreme Court Judicial Nominating Commission shall recommend to |
| 98 | the Commission on Capital Cases Governor three qualified |
| 99 | candidates for each appointment as regional counsel. The |
| 100 | commission Governor shall appoint a regional counsel for each |
| 101 | region from among the recommendations, or, if it is in the best |
| 102 | interest of the fair administration of justice in capital cases, |
| 103 | the commission Governor may reject the nominations and request |
| 104 | submission of three new nominees by the Supreme Court Judicial |
| 105 | Nominating Commission. Each capital collateral regional counsel |
| 106 | shall be appointed to a term of 3 years. Vacancies in the office |
| 107 | of capital collateral regional counsel shall be filled in the |
| 108 | same manner as appointments. A person appointed as a regional |
| 109 | counsel may not run for or accept appointment to any state |
| 110 | office for 2 years following vacation of office. Each capital |
| 111 | collateral counsel shall report to and serve at the pleasure of |
| 112 | the Commission on Capital Cases. |
| 113 | (2) Notwithstanding the provisions of subsection (1), the |
| 114 | responsibilities of the regional office of capital collateral |
| 115 | counsel for the northern region of the state shall be met |
| 116 | through a pilot program using only attorneys from the registry |
| 117 | of attorneys maintained pursuant to s. 27.710. Each attorney |
| 118 | participating in the pilot must be qualified to provide |
| 119 | representation in federal court. The Auditor General shall |
| 120 | schedule a performance review of the pilot program to determine |
| 121 | the effectiveness and efficiency of using attorneys from the |
| 122 | registry compared to the capital collateral regional counsel. |
| 123 | The review, at a minimum, shall include comparisons of the |
| 124 | timeliness and costs of the pilot and the counsel and shall be |
| 125 | submitted to the President of the Senate and the Speaker of the |
| 126 | House of Representatives by January 30, 2007. The Legislature |
| 127 | may determine whether to convert the pilot program to a |
| 128 | permanent program after receipt of the Auditor General's review. |
| 129 | Section 3. Section 27.702, Florida Statutes, is amended to |
| 130 | read: |
| 131 | 27.702 Duties of the capital collateral regional counsel; |
| 132 | reports.-- |
| 133 | (1) The capital collateral regional counsel shall |
| 134 | represent each person convicted and sentenced to death in this |
| 135 | state for the sole purpose of instituting and prosecuting |
| 136 | collateral actions challenging the legality of the judgment and |
| 137 | sentence imposed against such person in the state courts, |
| 138 | federal courts in this state, the United States Court of Appeals |
| 139 | for the Eleventh Circuit, and the United States Supreme Court. |
| 140 | The capital collateral regional counsel and the attorneys |
| 141 | appointed pursuant to s. 27.710 shall file only those |
| 142 | postconviction or collateral actions authorized by statute. The |
| 143 | three capital collateral regional counsel's offices shall |
| 144 | function independently and be separate budget entities, and the |
| 145 | regional counsel shall be the office heads for all purposes. The |
| 146 | capital collateral regional counsel shall be housed, for |
| 147 | administrative purposes, within the Justice Administrative |
| 148 | Commission. The Justice Administrative Commission shall provide |
| 149 | administrative support and service to the three offices to the |
| 150 | extent requested by the regional counsel. The three regional |
| 151 | offices shall not be subject to control, supervision, or |
| 152 | direction by the Justice Administrative Commission in any |
| 153 | manner, including, but not limited to, personnel, purchasing, |
| 154 | transactions involving real or personal property, and budgetary |
| 155 | matters. |
| 156 | (2) The capital collateral regional counsel shall |
| 157 | represent persons convicted and sentenced to death within the |
| 158 | region in collateral postconviction proceedings, unless a court |
| 159 | appoints or permits other counsel to appear as counsel of record |
| 160 | pursuant to ss. 27.710 and 27.711. |
| 161 | (3)(a) The capital collateral regional counsel shall file |
| 162 | motions seeking compensation for representation and |
| 163 | reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when |
| 164 | providing representation to indigent persons in the federal |
| 165 | courts, and shall deposit all such payments received into the |
| 166 | General Revenue Fund. |
| 167 | (b) The court having jurisdiction over any nonindigent or |
| 168 | indigent-but-able-to-contribute defendant who has been receiving |
| 169 | the services of the capital collateral regional counsel may |
| 170 | assess attorney's fees and costs against the defendant at any |
| 171 | stage in the proceedings as the court may deem appropriate. The |
| 172 | determination of indigence of any defendant shall be made |
| 173 | pursuant to s. 27.52. Liability for the costs of such |
| 174 | representation may be imposed in the form of a lien against the |
| 175 | property of the nonindigent or indigent-but-able-to-contribute |
| 176 | defendant, which lien shall be enforceable as provided in s. |
| 177 | 27.561 or s. 938.29. |
| 178 | (4)(a) The capital collateral regional counsel or private |
| 179 | counsel shall give written notification of each pleading filed |
| 180 | by that office and the name of the person filing the pleading to |
| 181 | the Commission on Capital Cases and to the trial court assigned |
| 182 | to the case. |
| 183 | (b) Each capital collateral regional counsel and each |
| 184 | attorney participating in the pilot program in the northern |
| 185 | region pursuant to s. 27.701(2) shall provide a quarterly report |
| 186 | to the President of the Senate, the Speaker of the House of |
| 187 | Representatives, and the Commission on Capital Cases which |
| 188 | details the number of hours worked by investigators and legal |
| 189 | counsel per case and the amounts per case expended during the |
| 190 | preceding quarter in investigating and litigating capital |
| 191 | collateral cases. |
| 192 | Section 4. Section 27.709, Florida Statutes, is amended to |
| 193 | read: |
| 194 | 27.709 Commission on Capital Cases.-- |
| 195 | (1)(a) There is created the Commission on Capital Cases, |
| 196 | which shall consist of the seven six following members: |
| 197 | 1. Three Two members appointed by the Governor. |
| 198 | 2. Two members appointed by the President of the Senate |
| 199 | from the membership of the Senate. One member shall be a member |
| 200 | of the majority party, and one member shall be a member of the |
| 201 | minority party. |
| 202 | 3. Two members appointed by the Speaker of the House of |
| 203 | Representatives from the membership of the House of |
| 204 | Representatives. One member shall be a member of the majority |
| 205 | party, and one member shall be a member of the minority party. |
| 206 | (b) The chair of the commission shall be selected by the |
| 207 | members for a term of 1 year. |
| 208 | (c) The commission shall meet quarterly, and other |
| 209 | meetings may be called by the chair upon giving at least 7 days' |
| 210 | notice to all members and the public. |
| 211 | (d) Members of the commission are entitled to per diem and |
| 212 | travel expenses to be paid by the appointing entity. |
| 213 | (e) Members of the commission shall be appointed to serve |
| 214 | terms of 4 years each, except that a member's term shall expire |
| 215 | upon leaving office as a member of the Senate or the House of |
| 216 | Representatives. |
| 217 | (f) The Justice Administrative Commission Office of |
| 218 | Legislative Services shall provide staff support for the |
| 219 | commission, which shall be housed therein for administrative |
| 220 | purposes. |
| 221 | (2)(a) The commission shall review the administration of |
| 222 | justice in capital collateral cases, receive relevant public |
| 223 | input, review the operation of the capital collateral regional |
| 224 | counsel and private counsel appointed pursuant to ss. 27.710 and |
| 225 | 27.711, and advise and make recommendations to the Governor, |
| 226 | Legislature, and Supreme Court. |
| 227 | (b) As part of its duties, the commission shall compile |
| 228 | and analyze case-tracking reports produced by the Supreme Court. |
| 229 | In analyzing these reports, the commission shall develop |
| 230 | statistics to identify trends and changes in case management and |
| 231 | case processing, identify and evaluate unproductive points of |
| 232 | delay, and generally evaluate the way cases are progressing. The |
| 233 | commission shall report these findings to the Legislature by |
| 234 | January 1 of each year. |
| 235 | (c) In addition, The commission shall receive complaints |
| 236 | regarding the practice of any office of regional counsel and |
| 237 | private counsel appointed under pursuant to ss. 27.710 and |
| 238 | 27.711 and may investigate and shall refer any complaint to The |
| 239 | Florida Bar, the State Supreme Court, the Department of Law |
| 240 | Enforcement, the Chief Inspector General, or the Commission on |
| 241 | Ethics, as appropriate. |
| 242 | (d) The commission may sponsor continuing legal education |
| 243 | programs that are devoted specifically to capital cases and |
| 244 | shall undertake any project recommended or approved by the |
| 245 | commission members. |
| 246 | (e) The commission may request each state attorney, |
| 247 | circuit court judge, and the Office of the Attorney General to |
| 248 | submit pertinent reports to the commission for its review. |
| 249 | (f) The commission may exercise subpoena powers and |
| 250 | receive sworn testimony it deems necessary for the |
| 251 | administration of justice in capital cases. |
| 252 | (g) The commission shall appoint the capital collateral |
| 253 | regional counsel and may terminate the employment of regional |
| 254 | counsel at any time prior to the expiration of the appointment. |
| 255 | Section 5. Section 27.710, Florida Statutes, is amended to |
| 256 | read: |
| 257 | 27.710 Registry of attorneys applying to represent persons |
| 258 | in postconviction capital collateral proceedings; certification |
| 259 | of minimum requirements; appointment by trial court.-- |
| 260 | (1) The executive director of the Commission on Capital |
| 261 | Cases shall compile and maintain a statewide registry of |
| 262 | attorneys in private practice who have certified that they meet |
| 263 | the minimum requirements of this section and s. 27.704(2), who |
| 264 | are available for appointment by the court under this section to |
| 265 | represent persons convicted and sentenced to death in this state |
| 266 | in postconviction collateral proceedings, and who have attended |
| 267 | within the last year a continuing legal education program of at |
| 268 | least 10 hours' duration devoted specifically to the defense of |
| 269 | capital cases, if available. Continuing legal education programs |
| 270 | meeting the requirements of this rule offered by The Florida Bar |
| 271 | or another recognized provider and approved for continuing legal |
| 272 | education credit by The Florida Bar shall satisfy this |
| 273 | requirement. The failure to comply with this requirement may be |
| 274 | cause for removal from the list until the requirement is |
| 275 | fulfilled. To ensure that sufficient attorneys are available for |
| 276 | appointment by the court, when the number of attorneys on the |
| 277 | registry falls below 50, the executive director shall notify the |
| 278 | chief judge of each circuit by letter and request the chief |
| 279 | judge to promptly submit the names of at least three private |
| 280 | attorneys who regularly practice criminal law in that circuit |
| 281 | and who appear to meet the minimum requirements to represent |
| 282 | persons in postconviction capital collateral proceedings. The |
| 283 | executive director shall send an application to each attorney |
| 284 | identified by the chief judge so that the attorney may register |
| 285 | for appointment as counsel in postconviction capital collateral |
| 286 | proceedings. As necessary, the executive director may also |
| 287 | advertise in legal publications and other appropriate media for |
| 288 | qualified attorneys interested in registering for appointment as |
| 289 | counsel in postconviction capital collateral proceedings. When |
| 290 | the number of qualified lawyers on the registry falls below 50, |
| 291 | upon the application of an attorney who does not meet the |
| 292 | minimum qualifications set forth in this section, the |
| 293 | application may be forwarded by the executive director to the |
| 294 | full commission for its approval of the applicant being included |
| 295 | on the list of available registry attorneys. By Not later than |
| 296 | September 1 of each year, and as necessary thereafter, the |
| 297 | executive director shall provide to the Chief Justice of the |
| 298 | Supreme Court, the chief judge and state attorney in each |
| 299 | judicial circuit, and the Attorney General a current copy of its |
| 300 | registry of attorneys who are available for appointment as |
| 301 | counsel in postconviction capital collateral proceedings. The |
| 302 | registry must be indexed by judicial circuit and must contain |
| 303 | the requisite information submitted by the applicants in |
| 304 | accordance with this section. |
| 305 | (2)(a) To be eligible for court appointment as counsel in |
| 306 | postconviction capital collateral proceedings, an attorney must |
| 307 | certify on an application provided by the executive director |
| 308 | that he or she is a member in good standing of The Florida Bar |
| 309 | and: |
| 310 | 1. Is an active practicing attorney who has at least 5 |
| 311 | years' experience in the practice of criminal law and has |
| 312 | demonstrated the proficiency necessary to represent defendants |
| 313 | in capital cases, including proficiency in the production and |
| 314 | admission of evidence, including psychiatric and forensic |
| 315 | evidence, the use of expert witnesses, and the investigation and |
| 316 | presentation of mitigation evidence; |
| 317 | 2. Has attended and completed a minimum of 12 hours of |
| 318 | continuing legal education programs within the previous 2 years |
| 319 | which were devoted to the defense of capital cases and offered |
| 320 | by The Florida Bar, the Commission on Capital Cases, or another |
| 321 | authorized provider of continuing legal education courses; and |
| 322 | 3.a. Has tried at least nine state or federal jury trials |
| 323 | to completion, two of which must have been capital cases, and: |
| 324 | (I) Three of which must have been murder trials; |
| 325 | (II) One of which must have been a murder trial and five |
| 326 | of which must have been other felony trials; or |
| 327 | (III) One of which must have included a postconviction |
| 328 | evidentiary hearing and five of which must have been other |
| 329 | felony trials; |
| 330 | b. Has appealed one capital conviction and appealed: |
| 331 | (I) At least three felony convictions, one of which must |
| 332 | have been a murder conviction; |
| 333 | (II) At least three felony convictions and participated in |
| 334 | one capital postconviction evidentiary hearing; or |
| 335 | (III) At least six felony convictions, two of which must |
| 336 | have been murder convictions; or |
| 337 | c. Has litigated as a first chair attorney at least three |
| 338 | capital collateral evidentiary hearings. |
| 339 | (b) If the trial court finds that exceptional |
| 340 | circumstances exist requiring appointment of an attorney who |
| 341 | does not meet the criteria set forth in paragraph (a), the trial |
| 342 | court shall enter a written order specifying the circumstances |
| 343 | and making explicit findings that the attorney appointed is |
| 344 | capable of providing competent representation in accordance with |
| 345 | the intent of this section. |
| 346 | (c) Failure by an attorney to comply with any criteria set |
| 347 | forth in paragraph (a) may be cause to remove the attorney from |
| 348 | the registry until such criteria is satisfied. |
| 349 | (d) Compliance may be proven by submitting written |
| 350 | certification of compliance to the commission and may be |
| 351 | submitted by electronic mail satisfies the minimum requirements |
| 352 | for private counsel set forth in s. 27.704(2). |
| 353 | (3) An attorney who applies for registration and court |
| 354 | appointment as counsel in postconviction capital collateral |
| 355 | proceedings must certify that he or she is counsel of record in |
| 356 | not more than four such proceedings and, if appointed to |
| 357 | represent a person in postconviction capital collateral |
| 358 | proceedings, shall continue the such representation under the |
| 359 | terms and conditions set forth in s. 27.711 until the sentence |
| 360 | is reversed, reduced, or carried out or unless permitted to |
| 361 | withdraw from representation by the trial court. The court may |
| 362 | not permit an attorney to withdraw from representation without a |
| 363 | finding of sufficient good cause. The court may impose |
| 364 | appropriate sanctions if it finds that an attorney has shown bad |
| 365 | faith with respect to continuing to represent a defendant in a |
| 366 | postconviction capital collateral proceeding. This section does |
| 367 | not preclude the court from reassigning a case to a capital |
| 368 | collateral regional counsel following discontinuation of |
| 369 | representation if a conflict of interest no longer exists with |
| 370 | respect to the case. |
| 371 | (4)(a) Each private attorney who is appointed by the court |
| 372 | to represent a capital defendant, including court-appointed |
| 373 | attorneys who elect to proceed pro bono, must enter into a |
| 374 | contract with the Chief Financial Officer. If the appointed |
| 375 | attorney fails to execute the contract within 30 days after the |
| 376 | date the contract is mailed to the attorney, the executive |
| 377 | director of the Commission on Capital Cases shall notify the |
| 378 | trial court and remove the attorney from the registry. The Chief |
| 379 | Financial Officer shall develop the form of the contract for |
| 380 | court-appointed attorneys, function as contract manager, and |
| 381 | enforce performance of the terms and conditions of the contract |
| 382 | consistent with the requirements of this chapter. By signing |
| 383 | such contract, the attorney certifies that he or she intends to |
| 384 | continue the representation under the terms and conditions set |
| 385 | forth in the contract until the sentence is reversed, reduced, |
| 386 | or carried out or until released by order of the trial court. A |
| 387 | court-appointed attorney may not receive state funds unless he |
| 388 | or she has executed the contract required under this paragraph. |
| 389 | (b) Each attorney appointed under this section must submit |
| 390 | a report each quarter to the commission in the format designated |
| 391 | by the commission. If the report is not submitted within 60 days |
| 392 | after the end of the quarter, the executive director shall |
| 393 | remove the attorney from the registry and the court may impose a |
| 394 | fine for noncompliance. The court may also remove the attorney |
| 395 | from the case or cases to which he or she has been appointed |
| 396 | under this section. |
| 397 | (c) An attorney removed from the registry may, at the |
| 398 | discretion of the court, continue to represent any clients that |
| 399 | the attorney has been appointed to represent as of the date of |
| 400 | removal. If the court allows an attorney who has been removed |
| 401 | from the registry to continue to represent appointed capital |
| 402 | defendants, the court must take all necessary actions to ensure |
| 403 | compliance with the requirements of this subsection. An attorney |
| 404 | who has been removed from the registry may not accept further |
| 405 | appointments to represent any new capital defendant unless the |
| 406 | attorney is placed back on the registry as provided in paragraph |
| 407 | (d). |
| 408 | (d) After certifying to the executive director that he or |
| 409 | she will act in accordance with the provisions of this |
| 410 | subsection, an attorney removed from the registry may, after 60 |
| 411 | days, reapply for the registry as provided in subsection (2). An |
| 412 | attorney may reapply for the registry no more than two times |
| 413 | under this paragraph for failure to adhere to the requirements |
| 414 | of this subsection. |
| 415 | (5)(a) Upon the motion of the capital collateral regional |
| 416 | counsel to withdraw under pursuant to s. 924.056(1)(a); or |
| 417 | (b) Upon notification by the state attorney or the |
| 418 | Attorney General that: |
| 419 | 1. Thirty days have elapsed since appointment of the |
| 420 | capital collateral regional counsel and no entry of appearance |
| 421 | has been filed under pursuant to s. 924.056; or |
| 422 | 2. A person under sentence of death who was previously |
| 423 | represented by private counsel is currently unrepresented in a |
| 424 | postconviction capital collateral proceeding, |
| 425 |
|
| 426 | the executive director shall immediately notify the trial court |
| 427 | that imposed the sentence of death that the court must |
| 428 | immediately appoint an attorney, selected from the current |
| 429 | registry, to represent such person in collateral actions |
| 430 | challenging the legality of the judgment and sentence in the |
| 431 | appropriate state and federal courts. If the attorney appointed |
| 432 | to represent a defendant under a sentence of death does not wish |
| 433 | to continue representing the defendant in federal proceedings, |
| 434 | the attorney must make a good-faith effort to assist the |
| 435 | defendant in finding an attorney who meets the criteria |
| 436 | specified in subsection (2) and is willing to represent the |
| 437 | defendant in federal proceedings. The court may shall have the |
| 438 | authority to strike a notice of appearance filed by a capital |
| 439 | collateral regional counsel Capital Collateral Regional Counsel, |
| 440 | if the court finds the notice was not filed in good faith and |
| 441 | may so notify the executive director that the client is no |
| 442 | longer represented by the Office of Capital Collateral Regional |
| 443 | Counsel. In making an assignment, the court shall give priority |
| 444 | to attorneys whose experience and abilities in criminal law, |
| 445 | especially in capital proceedings, are known by the court to be |
| 446 | commensurate with the responsibility of representing a person |
| 447 | sentenced to death. The trial court must issue an order of |
| 448 | appointment which contains specific findings that the appointed |
| 449 | counsel meets the statutory requirements and has the high |
| 450 | ethical standards necessary to represent a person sentenced to |
| 451 | death. |
| 452 | (6) More than one attorney may not be appointed and |
| 453 | compensated at any one time under s. 27.711 to represent a |
| 454 | person in postconviction capital collateral proceedings. |
| 455 | However, an attorney appointed under this section may designate |
| 456 | another attorney to assist him or her if the designated attorney |
| 457 | meets the qualifications of this section. |
| 458 | Section 6. Section 27.711, Florida Statutes, is amended to |
| 459 | read: |
| 460 | 27.711 Terms and conditions of appointment of attorneys as |
| 461 | counsel in postconviction capital collateral proceedings.-- |
| 462 | (1) As used in s. 27.710 and this section, the term: |
| 463 | (a) "Capital defendant" means the person who is |
| 464 | represented in postconviction capital collateral proceedings by |
| 465 | an attorney appointed under s. 27.710. |
| 466 | (b) "Executive director" means the executive director of |
| 467 | the Commission on Capital Cases. |
| 468 | (c) "Postconviction capital collateral proceedings" means |
| 469 | one series of collateral litigation of an affirmed conviction |
| 470 | and sentence of death, including the proceedings in the trial |
| 471 | court that imposed the capital sentence, any appellate review of |
| 472 | the sentence by the Supreme Court, any certiorari review of the |
| 473 | sentence by the United States Supreme Court, and any authorized |
| 474 | federal habeas corpus litigation with respect to the sentence. |
| 475 | The term does not include repetitive or successive collateral |
| 476 | challenges to a conviction and sentence of death which is |
| 477 | affirmed by the Supreme Court and undisturbed by any collateral |
| 478 | litigation. |
| 479 | (2) After appointment by the trial court under s. 27.710, |
| 480 | the attorney must immediately file a notice of appearance with |
| 481 | the trial court indicating acceptance of the appointment to |
| 482 | represent the capital defendant throughout all postconviction |
| 483 | capital collateral proceedings, including federal habeas corpus |
| 484 | proceedings, in accordance with this section or until released |
| 485 | by order of the trial court. |
| 486 | (3) An attorney appointed to represent a capital defendant |
| 487 | is entitled to payment of the fees set forth in this section |
| 488 | only upon full performance by the attorney of the duties |
| 489 | specified in this section and approval of payment by the trial |
| 490 | court, and the submission of a payment request by the attorney, |
| 491 | subject to the availability of sufficient funding specifically |
| 492 | appropriated for this purpose. An attorney may not be |
| 493 | compensated under this section for work performed by the |
| 494 | attorney before July 1, 2003, while employed by the northern |
| 495 | regional office of the capital collateral counsel. The Chief |
| 496 | Financial Officer shall notify the executive director and the |
| 497 | court if it appears that sufficient funding has not been |
| 498 | specifically appropriated for this purpose to pay any fees which |
| 499 | may be incurred. The attorney shall maintain appropriate |
| 500 | documentation, including a current and detailed hourly |
| 501 | accounting of time spent representing the capital defendant. The |
| 502 | fee and payment schedule in this section is the exclusive means |
| 503 | of compensating a court-appointed attorney who represents a |
| 504 | capital defendant. When appropriate, a court-appointed attorney |
| 505 | must seek further compensation from the Federal Government, as |
| 506 | provided in 18 U.S.C. s. 3006A or other federal law, in habeas |
| 507 | corpus litigation in the federal courts. An attorney who is |
| 508 | appointed by a court to represent a capital defendant on a pro |
| 509 | bono basis is not entitled to attorney's fees as provided for in |
| 510 | subsection (4). However, after executing a contract with the |
| 511 | Chief Financial Officer, a pro bono attorney is entitled to |
| 512 | payment for investigative services as specified in subsection |
| 513 | (5) and for miscellaneous expenses actually incurred on behalf |
| 514 | of the capital defendant as specified in subsection (6). If a |
| 515 | registry attorney has been appointed to represent a defendant, a |
| 516 | payment may not be made to any other attorney who volunteers to |
| 517 | represent the same defendant on a pro bono basis. |
| 518 | (4) Upon approval by the trial court, an attorney |
| 519 | appointed to represent a capital defendant under s. 27.710 is |
| 520 | entitled to payment of the following fees by the Chief Financial |
| 521 | Officer: |
| 522 | (a) Regardless of the stage of postconviction capital |
| 523 | collateral proceedings, the attorney is entitled to $100 per |
| 524 | hour, up to a maximum of $2,500, before after accepting |
| 525 | appointment and filing a notice of appearance in order to review |
| 526 | the files and status of the case to determine whether to accept |
| 527 | an appointment under the payment schedule in this section. If, |
| 528 | after reviewing the case files, the attorney determines that |
| 529 | payment under this section does not provide adequate |
| 530 | compensation for the foreseeable duties associated with the |
| 531 | prospective appointment, the attorney must decline the |
| 532 | appointment. |
| 533 | (b) The attorney is entitled to $100 per hour, up to a |
| 534 | maximum of $20,000, after timely filing in the trial court the |
| 535 | capital defendant's complete original motion for postconviction |
| 536 | relief under the Florida Rules of Criminal Procedure. The motion |
| 537 | must raise all issues to be addressed by the trial court. |
| 538 | However, an attorney is entitled to fees under this paragraph if |
| 539 | the court schedules a hearing on a matter that makes the filing |
| 540 | of the original motion for postconviction relief unnecessary or |
| 541 | if the court otherwise disposes of the case. |
| 542 | (c) The attorney is entitled to $100 per hour, up to a |
| 543 | maximum of $20,000, after the final hearing on trial court |
| 544 | issues a final order granting or denying the capital defendant's |
| 545 | motion for postconviction relief. |
| 546 | (d) The attorney is entitled to $100 per hour, up to a |
| 547 | maximum of $20,000, after timely filing in the Supreme Court the |
| 548 | capital defendant's brief or briefs that address the trial |
| 549 | court's final order granting or denying the capital defendant's |
| 550 | motion for postconviction relief and the state petition for writ |
| 551 | of habeas corpus. |
| 552 | (e) The attorney is entitled to $100 per hour, up to a |
| 553 | maximum of $10,000, after the trial court issues an order |
| 554 | following, pursuant to a remand from the Supreme Court, which |
| 555 | directs the trial court to hold further proceedings on the |
| 556 | capital defendant's motion for postconviction relief. |
| 557 | (f) The attorney is entitled to $100 per hour, up to a |
| 558 | maximum of $4,000, after the appeal of the trial court's denial |
| 559 | of the capital defendant's motion for postconviction relief and |
| 560 | the capital defendant's state petition for writ of habeas corpus |
| 561 | become final in the Supreme Court. |
| 562 | (g) At the conclusion of the capital defendant's |
| 563 | postconviction capital collateral proceedings in state court, |
| 564 | the attorney is entitled to $100 per hour, up to a maximum of |
| 565 | $2,500, for the preparation of the initial federal pleading |
| 566 | after filing a petition for writ of certiorari in the Supreme |
| 567 | Court of the United States. |
| 568 | (h) If, at any time, a death warrant is issued, the |
| 569 | attorney is entitled to $100 per hour, up to a maximum of |
| 570 | $5,000. This payment is shall be full compensation for |
| 571 | attorney's fees and costs for representing the capital defendant |
| 572 | throughout the proceedings before the state courts of Florida. |
| 573 |
|
| 574 | The hours billed by a contracting attorney under this subsection |
| 575 | may include time devoted to representation of the defendant by |
| 576 | another attorney who is qualified under s. 27.710 and who has |
| 577 | been designated by the contracting attorney to assist him or |
| 578 | her. |
| 579 | (5) An attorney who represents a capital defendant may use |
| 580 | the services of one or more investigators to assist in |
| 581 | representing a capital defendant. Upon approval by the trial |
| 582 | court, the attorney is entitled to payment from the Chief |
| 583 | Financial Officer of $40 per hour, up to a maximum of $15,000, |
| 584 | for the purpose of paying for investigative services. |
| 585 | (6) An attorney who represents a capital defendant is |
| 586 | entitled to a maximum of $15,000 for miscellaneous expenses, |
| 587 | such as the costs of preparing transcripts, compensating expert |
| 588 | witnesses, and copying documents. Upon approval by the trial |
| 589 | court, the attorney is entitled to payment by the Chief |
| 590 | Financial Officer of up to $15,000 for miscellaneous expenses, |
| 591 | except that, if the trial court finds that extraordinary |
| 592 | circumstances exist, the attorney is entitled to payment in |
| 593 | excess of $15,000. |
| 594 | (7) A registry An attorney who is actively representing a |
| 595 | capital defendant is entitled to a maximum of $500 per fiscal |
| 596 | year for tuition and expenses for continuing legal education |
| 597 | that pertains to the representation of capital defendants |
| 598 | regardless of the total number of capital defendants the |
| 599 | attorney is representing. Upon approval by the trial court, the |
| 600 | attorney is entitled to payment by the Chief Financial Officer |
| 601 | for expenses for such tuition and continuing legal education. |
| 602 | (8) By accepting court appointment under s. 27.710 to |
| 603 | represent a capital defendant, the attorney agrees to continue |
| 604 | such representation under the terms and conditions set forth in |
| 605 | this section until the capital defendant's sentence is reversed, |
| 606 | reduced, or carried out, and the attorney is permitted to |
| 607 | withdraw from such representation by a court of competent |
| 608 | jurisdiction. However, if an attorney is permitted to withdraw |
| 609 | or is otherwise removed from representation prior to full |
| 610 | performance of the duties specified in this section, the trial |
| 611 | court shall approve payment of fees and costs for work |
| 612 | performed, which may not exceed the amounts specified in this |
| 613 | section. An attorney who withdraws or is removed from |
| 614 | representation shall deliver all files, notes, documents, and |
| 615 | research to the successor attorney within 15 days after notice |
| 616 | from the successor attorney. The successor attorney shall bear |
| 617 | the cost of transmitting the files, notes, documents, and |
| 618 | research. |
| 619 | (9) An attorney may not represent more than seven five |
| 620 | defendants in capital postconviction litigation at any one time. |
| 621 | The defendant-representation limit includes cases involving |
| 622 | capital postconviction proceedings under contract with the |
| 623 | capital collateral regional counsel, pro bono cases, registry |
| 624 | cases, and privately retained cases. An attorney may not be |
| 625 | appointed to an additional capital postconviction case until the |
| 626 | attorney's capital postconviction representation total falls |
| 627 | below the seven-case limit. An attorney may not enter into an |
| 628 | employment contract with any Office of Capital Collateral |
| 629 | Regional Counsel if he or she currently represents more than |
| 630 | seven defendants in capital collateral litigation in the |
| 631 | categories specified in this subsection. |
| 632 | (10) This section does not authorize an attorney who |
| 633 | represents a capital defendant to file repetitive or frivolous |
| 634 | pleadings that are not supported by law or by the facts of the |
| 635 | case. An action taken by an attorney who represents a capital |
| 636 | defendant in postconviction capital collateral proceedings may |
| 637 | not be the basis for a claim of ineffective assistance of |
| 638 | counsel. |
| 639 | (11) An attorney appointed under s. 27.710 to represent a |
| 640 | capital defendant may not represent the capital defendant during |
| 641 | a retrial, a resentencing proceeding, a proceeding commenced |
| 642 | under chapter 940, a proceeding challenging a conviction or |
| 643 | sentence other than the conviction and sentence of death for |
| 644 | which the appointment was made, or any civil litigation other |
| 645 | than habeas corpus proceedings. |
| 646 | (12) The court shall monitor the performance of assigned |
| 647 | counsel to ensure that the capital defendant is receiving |
| 648 | quality representation. The court shall also receive and |
| 649 | evaluate allegations that are made regarding the performance of |
| 650 | assigned counsel. The Chief Financial Officer, the Department of |
| 651 | Legal Affairs, the executive director, or any interested person |
| 652 | may advise the court of any circumstance that could affect the |
| 653 | quality of representation, including, but not limited to, false |
| 654 | or fraudulent billing, misconduct, failure to meet continuing |
| 655 | legal education requirements, solicitation to receive |
| 656 | compensation from the capital defendant, or failure to file |
| 657 | appropriate motions in a timely manner. |
| 658 | (13) Prior to the filing of a motion for order approving |
| 659 | payment of attorney's fees, costs, or related expenses, the |
| 660 | assigned counsel shall deliver a copy of his intended billing, |
| 661 | together with supporting affidavits and all other necessary |
| 662 | documentation, to the Chief Financial Officer's named contract |
| 663 | manager. The contract manager shall have 10 business days from |
| 664 | receipt to review the billings, affidavit, and documentation for |
| 665 | completeness and compliance with contractual and statutory |
| 666 | requirements. If the contract manager objects to any portion of |
| 667 | the proposed billing, the objection and reasons therefor shall |
| 668 | be communicated to the assigned counsel. The assigned counsel |
| 669 | may thereafter file his or her motion for order approving |
| 670 | payment of attorney's fees, costs, or related expenses together |
| 671 | with supporting affidavits and all other necessary |
| 672 | documentation. The motion must specify whether the Chief |
| 673 | Financial Officer's contract manager objects to any portion of |
| 674 | the billing or the sufficiency of documentation and, if so, the |
| 675 | reason therefor. A copy of the motion and attachments shall be |
| 676 | served on the Chief Financial Officer's contract manager, who |
| 677 | shall have standing to file pleadings and appear before the |
| 678 | court to contest any motion for order approving payment. The |
| 679 | fact that the Chief Financial Officer's contract manager has not |
| 680 | objected to any portion of the billing or to the sufficiency of |
| 681 | the documentation is not binding on the court, which retains |
| 682 | primary authority and responsibility for determining the |
| 683 | reasonableness of all billings for fees, costs, and related |
| 684 | expenses, subject to statutory limitations. |
| 685 | (14) If a trial court judge proposes to award attorney's |
| 686 | fees in excess of those set forth in this section, the judge |
| 687 | must include written findings of fact that state in detail the |
| 688 | extraordinary nature of the expenditures of the time, energy, |
| 689 | and talents of the attorney in the case which are not ordinarily |
| 690 | expended in other capital collateral cases and the basis for the |
| 691 | court finding that the case is unusual compared to other capital |
| 692 | postconviction cases. Each attorney participating in the pilot |
| 693 | program in the northern region pursuant to s. 27.701(2), as a |
| 694 | condition of payment pursuant to this section, shall report on |
| 695 | the performance measures adopted by the Legislature for the |
| 696 | capital collateral regional counsel. |
| 697 | Section 7. For the purpose of incorporating the amendments |
| 698 | made by this act to sections 27.710 and 27.711, Florida |
| 699 | Statutes, in references thereto, section 27.7002, Florida |
| 700 | Statutes, is reenacted to read: |
| 701 | 27.7002 Limitation on collateral representation; lawyer |
| 702 | disqualification; use of state funds for excess fees not |
| 703 | authorized.-- |
| 704 | (1) This chapter does not create any right on behalf of |
| 705 | any person, provided counsel pursuant to any provision of this |
| 706 | chapter, to challenge in any form or manner the adequacy of the |
| 707 | collateral representation provided. |
| 708 | (2) With respect to counsel appointed to represent |
| 709 | defendants in collateral proceedings pursuant to ss. 27.710 and |
| 710 | 27.711, the sole method of assuring adequacy of representation |
| 711 | provided shall be in accordance with the provisions of s. |
| 712 | 27.711(12). |
| 713 | (3) No provision of this chapter shall be construed to |
| 714 | generate any right on behalf of any attorney appointed pursuant |
| 715 | to s. 27.710, or seeking appointment pursuant to s. 27.710, to |
| 716 | be compensated above the amounts provided in s. 27.711. |
| 717 | (4) No attorney may be appointed, at state expense, to |
| 718 | represent any defendant in collateral legal proceedings except |
| 719 | as expressly authorized in this chapter. |
| 720 | (5) The use of state funds for compensation of counsel |
| 721 | appointed pursuant to s. 27.710 above the amounts set forth in |
| 722 | s. 27.711 is not authorized. |
| 723 | (6) The executive director of the Commission on Capital |
| 724 | Cases is authorized to permanently remove from the registry of |
| 725 | attorneys provided in ss. 27.710 and 27.711 any attorney who |
| 726 | seeks compensation for services above the amounts provided in s. |
| 727 | 27.711. |
| 728 | (7) Any attorney who notifies any court, judge, state |
| 729 | attorney, the Attorney General, or the executive director of the |
| 730 | Commission on Capital Cases, that he or she cannot provide |
| 731 | adequate or proper representation under the terms and conditions |
| 732 | set forth in s. 27.711 shall be permanently disqualified from |
| 733 | any attorney registry created under this chapter unless good |
| 734 | cause arises after a change in circumstances. |
| 735 | Section 8. This act shall take effect July 1, 2008. |