Bill Text: FL S1080 | 2010 | Regular Session | Introduced
Bill Title: Capital Collateral Representation [SPSC]
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Criminal Justice [S1080 Detail]
Download: Florida-2010-S1080-Introduced.html
Florida Senate - 2010 SB 1080 By Senator Crist 12-00889-10 20101080__ 1 A bill to be entitled 2 An act relating to capital collateral representation; 3 amending s. 27.7001, F.S.; providing a legislative 4 finding that not all capital collateral cases are 5 extraordinary or unusual; amending s. 27.701, F.S.; 6 requiring that regional counsel report to and serve at 7 the pleasure of the Commission on Capital Cases; 8 amending s. 27.702, F.S.; revising the quarterly 9 reporting requirements for each capital collateral 10 regional counsel; amending s. 27.709, F.S.; 11 authorizing the commission to sponsor programs of 12 continuing legal education that are devoted 13 specifically to capital cases; authorizing the 14 commission to issue subpoenas and hold hearings it 15 considers appropriate for the administration of 16 justice in capital cases; authorizing the commission 17 to appoint capital collateral regional counsel and to 18 terminate the appointment of a capital collateral 19 regional counsel before the end of the counsel’s term; 20 amending s. 27.710, F.S.; revising the criteria 21 required for an attorney to be eligible to be placed 22 on the registry of attorneys qualified to represent 23 defendants in postconviction capital collateral 24 proceedings; providing certain limited exceptions; 25 requiring attorneys to file a detailed application to 26 be eligible for court appointment as counsel in 27 postconviction capital collateral proceedings; 28 requiring attorneys to sign a contract with the Chief 29 Financial Officer in order to receive funds from the 30 state; requiring each private attorney appointed by a 31 court to represent a capital defendant to submit a 32 report each quarter to the commission; providing for 33 removal from and reinstatement to the registry of 34 attorneys; amending s. 27.711, F.S.; providing terms 35 and conditions for appointment of counsel in 36 postconviction capital collateral proceedings; 37 providing for pro bono attorneys to receive 38 reimbursement for certain specified expenses; limiting 39 representation by a court-appointed attorney to seven 40 defendants; prohibiting an attorney from being 41 appointed to an additional postconviction case if he 42 or she represents seven or more defendants in capital 43 collateral litigation; requiring a trial court judge 44 who proposes to award attorney’s fees in excess of 45 those set forth in law to make written findings of 46 fact that state the extraordinary nature of the 47 expenditures of time, energy, and talents of the 48 attorney in the case which are not ordinarily expended 49 in other capital collateral cases and how the case is 50 unusual; reenacting s. 27.7002, F.S., relating to the 51 limitation of cases on collateral representation, to 52 incorporate the amendments made to ss. 27.710 and 53 27.711, F.S., in references thereto; providing an 54 effective date. 55 56 Be It Enacted by the Legislature of the State of Florida: 57 58 Section 1. Section 27.7001, Florida Statutes, is amended to 59 read: 60 27.7001 Legislative intent and findings.—It is the intent 61 of the Legislature to create part IV of this chapter, consisting 62 of ss. 27.7001-27.711, inclusive, to provide for the collateral 63 representation of any person convicted and sentenced to death in 64 this state, so that collateral legal proceedings to challenge 65 any Florida capital conviction and sentence may be commenced in 66 a timely manner and so as to assure the people of this state 67 that the judgments of its courts may be regarded with the 68 finality to which they are entitled in the interests of justice. 69 It is the further intent of the Legislature that collateral 70 representation shall not include representation during retrials, 71 resentencings, proceedings commenced under chapter 940, or civil 72 litigation. The Legislature further finds that not all capital 73 collateral cases are extraordinary or unusual. 74 Section 2. Subsection (1) of section 27.701, Florida 75 Statutes, is amended to read: 76 27.701 Capital collateral regional counsel.— 77 (1) There are created three regional offices of capital 78 collateral counsel, which shall be located in a northern, 79 middle, and southern region of the state. The northern region 80 shall consist of the First, Second, Third, Fourth, Eighth, and 81 Fourteenth Judicial Circuits; the middle region shall consist of 82 the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth, 83 and Eighteenth Judicial Circuits; and the southern region shall 84 consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth, 85 Nineteenth, and Twentieth Judicial Circuits. Each regional 86 office shall be administered by a regional counsel. A regional 87 counsel must be, and must have been for the preceding 5 years, a 88 member in good standing of The Florida Bar or a similar 89 organization in another state. Each capital collateral regional 90 counsel shall be appointed by the Governor, and is subject to 91 confirmation by the Senate. The Supreme Court Judicial 92 Nominating Commission shall recommend to the Governor three 93 qualified candidates for each appointment as regional counsel. 94 The Governor shall appoint a regional counsel for each region 95 from among the recommendations, or, if it is in the best 96 interest of the fair administration of justice in capital cases, 97 the Governor may reject the nominations and request submission 98 of three new nominees by the Supreme Court Judicial Nominating 99 Commission. Each capital collateral regional counsel shall be 100 appointed to a term of 3 years. Vacancies in the office of 101 capital collateral regional counsel shall be filled in the same 102 manner as appointments. A person appointed as a regional counsel 103 may not run for or accept appointment to any state office for 2 104 years following vacation of office. Each capital collateral 105 counsel shall report to and serve at the pleasure of the 106 Commission on Capital Cases. 107 Section 3. Subsections (2) and (4) of section 27.702, 108 Florida Statutes, are amended to read: 109 27.702 Duties of the capital collateral regional counsel; 110 reports.— 111 (2) The capital collateral regional counsel shall represent 112 persons convicted and sentenced to death within the region in 113 collateral postconviction proceedings, unless a court appoints 114 or permits other counsel to appear as counsel of record pursuant 115 to ss. 27.710 and 27.711. 116 (4)(a) The capital collateral regional counsel or private 117 counsel shall give written notification of each pleading filed 118 by that office and the name of the person filing the pleading to 119 the Commission on Capital Cases and to the trial court assigned 120 to the case. 121 (b) Each capital collateral regional counseland each122attorney participating in the pilot program in the northern123region pursuant to s.27.701(2)shall provide a quarterly report 124 tothePresident of the Senate, the Speaker of the House of125Representatives, andthe Commission on Capital Cases which 126 details the number of hours worked by investigators and legal 127 counsel per case and the amounts per case expended during the 128 preceding quarter in investigating and litigating capital 129 collateral cases. 130 Section 4. Paragraph (c) of subsection (1) and subsection 131 (2) of section 27.709, Florida Statutes, are amended to read: 132 27.709 Commission on Capital Cases.— 133 (1) 134 (c) The commission shall meet upon the call of the chair 135quarterly, and other meetings may be called by the chair upon 136 giving at least 7 days’ notice to all members and the public. 137 (2)(a) The commission shall review the administration of 138 justice in capital collateral cases, receive relevant public 139 input, review the operation of the capital collateral regional 140 counsel and private counsel appointed pursuant to ss. 27.710 and 141 27.711, and advise and make recommendations to the Governor, 142 Legislature, and Supreme Court. 143 (b) As part of its duties, the commission shall compile and 144 analyze case-tracking reports produced by the Supreme Court. In 145 analyzing these reports, the commission shall develop statistics 146 to identify trends and changes in case management and case 147 processing, identify and evaluate unproductive points of delay, 148 and generally evaluate the way cases are progressing. The 149 commission shall report these findings to the Legislature by 150 January 1 of each year. 151 (c)In addition,The commission shall receive complaints 152 regarding the practice of any office of regional counsel and 153 private counsel appointed pursuant to ss. 27.710 and 27.711 and 154 may investigate andshallrefer any complaint to The Florida 155 Bar, the State Supreme Court, the Department of Law Enforcement, 156 the Chief Inspector General, or the Commission on Ethics, as 157 appropriate. 158 (d) The commission may sponsor programs of continuing legal 159 education which are devoted specifically to capital cases and 160 shall undertake any project recommended or approved by the 161 commission members. 162 (e) The commission may request each state attorney, circuit 163 court judge, and the Office of the Attorney General to submit 164 pertinent reports to the commission for its review. 165 (f) The commission may exercise subpoena powers and may 166 receive sworn testimony it deems necessary for the 167 administration of justice in capital cases. 168 (g) The commission shall appoint the capital collateral 169 regional counsel, and may terminate the employment of regional 170 counsel at any time before the expiration of the appointment. 171 Section 5. Section 27.710, Florida Statutes, is amended to 172 read: 173 27.710 Registry of attorneys applying to represent persons 174 in postconviction capital collateral proceedings; certification 175 of minimum requirements; appointment by trial court.— 176 (1) The executive director of the Commission on Capital 177 Cases shall compile and maintain a statewide registry of 178 attorneys in private practice who have certified that they meet 179 theminimumrequirements of this section ands.27.704(2),who 180 are available for appointment by the court under this section to 181 represent persons convicted and sentenced to death in this state 182 in postconviction collateral proceedings, and who have attended183within the last year a continuing legal education program of at184least 10 hours’ duration devoted specifically to the defense of185capital cases, if available.Continuing legal education programs186meeting the requirements of this rule offered by The Florida Bar187or another recognized provider and approved for continuing legal188education credit by The Florida Bar shall satisfy this189requirement. The failure to comply with this requirement may be190cause for removal from the list until the requirement is191fulfilled.To ensure that sufficient attorneys are available for 192 appointment by the court, when the number of attorneys on the 193 registry falls below 50, the executive director shall notify the 194 chief judge of each circuit by letter and request the chief 195 judge to promptly submit the names of at least three private 196 attorneys who regularly practice criminal law in that circuit 197 and who appear to meet the minimum requirements to represent 198 persons in postconviction capital collateral proceedings. The 199 executive director shall send an application to each attorney 200 identified by the chief judge so that the attorney may register 201 for appointment as counsel in postconviction capital collateral 202 proceedings. As necessary, the executive director may also 203 advertise in legal publications and other appropriate media for 204 qualified attorneys interested in registering for appointment as 205 counsel in postconviction capital collateral proceedings. Under 206 limited circumstances, when the number of qualified lawyers on 207 the registry fall below 50, and upon the application of an 208 attorney who does not meet the minimum qualifications set forth 209 in this section, the application may be forwarded by the 210 executive director to the full commission for its approval of 211 the applicant being included on the list of available registry 212 attorneys. ByNotlater thanSeptember 1 of each year, and as 213 necessary thereafter, the executive director shall provide to 214 the Chief Justice of the Supreme Court, the chief judge and 215 state attorney in each judicial circuit, and the Attorney 216 General a current copy of its registry of attorneys who are 217 available for appointment as counsel in postconviction capital 218 collateral proceedings. The registry must be indexed by judicial 219 circuit and must contain the requisite information submitted by 220 the applicants in accordance with this section. 221 (2)(a) To be eligible for court appointment as counsel in 222 postconviction capital collateral proceedings, an attorney must 223 certify on an application provided by the executive director 224 that he or she is a member in good standing of The Florida Bar 225 and: 226 1. Is an active practicing attorney who has at least 5 227 years’ experience in the practice of criminal law and has 228 demonstrated the proficiency necessary to represent defendants 229 in capital cases, including proficiency in the production and 230 admission of evidence, including psychiatric and forensic 231 evidence, the use of expert witnesses, and the investigation and 232 presentation of mitigation evidence; 233 2. Has attended and completed a minimum of 12 hours of 234 continuing legal education programs within the previous 2 years 235 which were devoted to the defense of capital cases and offered 236 by The Florida Bar, the Commission on Capital Cases, or another 237 authorized provider of continuing legal education courses; and 238 3.a. Has tried at least nine state or federal jury trials 239 to completion, two of which must have been capital cases, and: 240 (I) Three of which must have been murder trials; 241 (II) One of which must have been a murder trial and five of 242 which must have been other felony trials; or 243 (III) One of which must have included a postconviction 244 evidentiary hearing and five of which must have been other 245 felony trials; 246 b. Has appealed one capital conviction and appealed: 247 (I) At least three felony convictions, one of which must 248 have been a murder conviction; 249 (II) At least three felony convictions and participated in 250 one capital postconviction evidentiary hearing; or 251 (III) At least six felony convictions, two of which must 252 have been murder convictions; or 253 c. Has litigated as a first-chair attorney at least three 254 capital collateral evidentiary hearings. 255 (b) If the trial court finds that exceptional circumstances 256 exist requiring appointment of an attorney who does not meet the 257 criteria set forth in paragraph (a), the trial court shall enter 258 a written order specifying the circumstances and making explicit 259 findings that the attorney appointed is capable of providing 260 competent representation in accordance with the intent of this 261 section. 262 (c) Failure by an attorney to comply with any criteria set 263 forth in paragraph (a) may be cause to remove the attorney from 264 the registry until such criteria is satisfied. 265 (d) Compliance may be proven by submitting written 266 certification of compliance to the commission, and may be 267 submitted by electronic mailsatisfies the minimum requirements268for private counsel set forth in s.27.704(2). 269 (3) An attorneywho applies for registration and court270appointment as counsel in postconviction capital collateral271proceedings must certify that he or she is counsel of record in272not more than four such proceedings and, ifappointed to 273 represent a person in postconviction capital collateral 274 proceedings,shall continue thesuchrepresentation under the 275 terms and conditions set forth in s. 27.711 until the sentence 276 is reversed, reduced, or carried out or unless permitted to 277 withdraw from representation by the trial court. The court may 278 not permit an attorney to withdraw from representation without a 279 finding of sufficient good cause. The court may impose 280 appropriate sanctions if it finds that an attorney has shown bad 281 faith with respect to continuing to represent a defendant in a 282 postconviction capital collateral proceeding. This section does 283 not preclude the court from reassigning a case to a capital 284 collateral regional counsel following discontinuation of 285 representation if a conflict of interest no longer exists with 286 respect to the case. 287 (4)(a) Each private attorney who is appointed by the court 288 to represent a capital defendant, including court-appointed 289 attorneys who elect to proceed pro bono, must enter into a 290 contract with the Chief Financial Officer. If theappointed291 attorney fails to execute the contract within 30 days after the 292 date the contract is mailed to the attorney, the executive 293 director of the Commission on Capital Cases shall notify the 294 trial court and remove the attorney from the registry. The Chief 295 Financial Officer shall develop the form of the contract for 296 court-appointed attorneys, function as contract manager, and 297 enforce performance of the terms and conditions of the contract 298 consistent with the requirements of this chapter. By signing the 299suchcontract, the attorney certifies that he or she intends to 300 continue the representation under the terms and conditions set 301 forth in the contract until the sentence is reversed, reduced, 302 or carried out or until released by order of the trial court. 303 (b) Each attorney appointed under this section must submit 304 a report each quarter to the commission, in the format 305 designated by the commission. If the report is not submitted 306 within 60 days after the end of the quarter, the executive 307 director shall remove the attorney from the registry and the 308 court may impose a fine for noncompliance. The court may also 309 remove the attorney from the case or cases to which he or she 310 has been appointed under this section. 311 (c) An attorney removed from the registry may, at the 312 discretion of the court, continue to represent any clients that 313 the attorney has been appointed to represent as of the date of 314 removal. If the court allows an attorney who has been removed 315 from the registry to continue to represent appointed capital 316 defendants, the court must take all necessary actions to ensure 317 compliance with the requirements of this subsection. An attorney 318 who has been removed from the registry may not accept further 319 appointments to represent any new capital defendant unless the 320 attorney is placed back on the registry as provided in paragraph 321 (d). 322 (d) After certifying to the executive director that he or 323 she will act in accordance with the provisions of this 324 subsection, an attorney removed from the registry may, after 60 325 days, reapply for the registry as provided in subsection (2). An 326 attorney may reapply for the registry no more than two times 327 under this paragraph for failure to adhere to the requirements 328 of this subsection. 329 (5)(a) Upon the motion of the capital collateral regional 330 counsel to withdraw pursuant to s. 924.056(1)(a); or 331 (b) Upon notification by the state attorney or the Attorney 332 General that: 333 1. Thirty days have elapsed since appointment of the 334 capital collateral regional counsel and no entry of appearance 335 has been filed pursuant to s. 924.056; or 336 2. A person under sentence of death who was previously 337 represented by private counsel is currently unrepresented in a 338 postconviction capital collateral proceeding, 339 340 the executive director shall immediately notify the trial court 341 that imposed the sentence of death that the court must 342 immediately appoint an attorney, selected from the current 343 registry, to represent such person in collateral actions 344 challenging the legality of the judgment and sentence in the 345 appropriate state and federal courts. If the attorney appointed 346 to represent a defendant under a sentence of death does not wish 347 to continue representing the defendant in federal proceedings, 348 the attorney must make a good faith effort to assist the 349 defendant in finding an attorney who meets the criteria and is 350 willing to represent the defendant in federal proceedings. The 351 court mayshall have the authority tostrike a notice of 352 appearance filed by a capital collateral regional counsel, if 353 the court finds the notice was not filed in good faith and may 354 so notify the executive director that the client is no longer 355 represented by the Office of Capital Collateral Regional 356 Counsel. In making an assignment, the court shall give priority 357 to attorneys whose experience and abilities in criminal law, 358 especially in capital proceedings, are known by the court to be 359 commensurate with the responsibility of representing a person 360 sentenced to death. The trial court must issue an order of 361 appointment which contains specific findings that the appointed 362 counsel meets the statutory requirements and has the high 363 ethical standards necessary to represent a person sentenced to 364 death. 365 (6) More than one attorney may not be appointed and 366 compensated at any one time under s. 27.711 to represent a 367 person in postconviction capital collateral proceedings. 368 However, an attorney appointed under this section may designate 369 another attorney to assist him or her if the designated attorney 370 meets the qualifications of this section. 371 Section 6. Section 27.711, Florida Statutes, is amended to 372 read: 373 27.711 Terms and conditions of appointment of attorneys as 374 counsel in postconviction capital collateral proceedings.— 375 (1) As used in s. 27.710 and this section, the term: 376 (a) “Capital defendant” means the person who is represented 377 in postconviction capital collateral proceedings by an attorney 378 appointed under s. 27.710. 379 (b) “Executive director” means the executive director of 380 the Commission on Capital Cases. 381 (c) “Postconviction capital collateral proceedings” means 382 one series of collateral litigation of an affirmed conviction 383 and sentence of death, including the proceedings in the trial 384 court that imposed the capital sentence, any appellate review of 385 the sentence by the Supreme Court, any certiorari review of the 386 sentence by the United States Supreme Court, and any authorized 387 federal habeas corpus litigation with respect to the sentence. 388 The term does not include repetitive or successive collateral 389 challenges to a conviction and sentence of death which is 390 affirmed by the Supreme Court and undisturbed by any collateral 391 litigation. 392 (2) After appointment by the trial court under s. 27.710, 393 the attorney must immediately file a notice of appearance with 394 the trial court indicating acceptance of the appointment to 395 represent the capital defendant throughout all postconviction 396 capital collateral proceedings, including federal habeas corpus 397 proceedings, in accordance with this section or until released 398 by order of the trial court. 399 (3) An attorney appointed to represent a capital defendant 400 is entitled to payment of the fees set forth in this section 401 only upon full performance by the attorney of the duties 402 specified in this section and approval of payment by the trial 403 court, and the submission of a payment request by the attorney, 404 subject to the availability of sufficient funding specifically 405 appropriated for this purpose. An attorney may not be 406 compensated under this section for work performed by the 407 attorney before July 1, 2003, while employed by the northern 408 regional office of the capital collateral counsel. The Chief 409 Financial Officer shall notify the executive director and the 410 court if it appears that sufficient funding has not been 411 specifically appropriated for this purpose to pay any fees which 412 may be incurred. The attorney shall maintain appropriate 413 documentation, including a current and detailed hourly 414 accounting of time spent representing the capital defendant. The 415 fee and payment schedule in this section is the exclusive means 416 of compensating a court-appointed attorney who represents a 417 capital defendant. When appropriate, a court-appointed attorney 418 must seek further compensation from the Federal Government, as 419 provided in 18 U.S.C. s. 3006A or other federal law, in habeas 420 corpus litigation in the federal courts. An attorney who is 421 appointed by a court to represent a capital defendant on a pro 422 bono basis is not entitled to attorney’s fees as provided for in 423 subsection (4). However, after executing a contract with the 424 Chief Financial Officer, a pro bono attorney is entitled to 425 payment for investigative services as specified in subsection 426 (5) and for miscellaneous expenses actually incurred on behalf 427 of the capital defendant as specified in subsection (6). If a 428 registry attorney has been appointed to represent a defendant, a 429 payment may not be made to any other attorney who volunteers to 430 represent the same defendant on a pro bono basis. 431 (4) Upon approval by the trial court, an attorney appointed 432 to represent a capital defendant under s. 27.710 is entitled to 433 payment of the following fees by the Chief Financial Officer: 434 (a) Regardless of the stage of postconviction capital 435 collateral proceedings, the attorney is entitled to $100 per 436 hour, up to a maximum of $2,500, beforeafteraccepting 437 appointment and filing a notice of appearance in order to review 438 the files and status of the case to determine whether to accept 439 an appointment under the payment schedule in this section. If, 440 after reviewing the case files, the attorney determines that 441 payment under this section does not provide adequate 442 compensation for the foreseeable duties associated with the 443 prospective appointment, the attorney must decline the 444 appointment. 445 (b) The attorney is entitled to $100 per hour, up to a 446 maximum of $20,000, after timely filing in the trial court the 447 capital defendant’s complete original motion for postconviction 448 relief under the Florida Rules of Criminal Procedure. The motion 449 must raise all issues to be addressed by the trial court. 450 However, an attorney is entitled to fees under this paragraph if 451 the court schedules a hearing on a matter that makes the filing 452 of the original motion for postconviction relief unnecessary or 453 if the court otherwise disposes of the case. 454 (c) The attorney is entitled to $100 per hour, up to a 455 maximum of $20,000, after the final hearing ontrial court456issues a final order granting or denyingthe capital defendant’s 457 motion for postconviction relief. 458 (d) The attorney is entitled to $100 per hour, up to a 459 maximum of $20,000, after timely filing in the Supreme Court the 460 capital defendant’s brief or briefs that address the trial 461 court’s final order granting or denying the capital defendant’s 462 motion for postconviction relief and the state petition for writ 463 of habeas corpus. 464 (e) The attorney is entitled to $100 per hour, up to a 465 maximum of $10,000, after the trial court issues an order 466 following, pursuant toa remand from the Supreme Court,which 467 directs the trial court to hold further proceedings on the 468 capital defendant’s motion for postconviction relief. 469 (f) The attorney is entitled to $100 per hour, up to a 470 maximum of $4,000, after the appeal of the trial court’s denial 471 of the capital defendant’s motion for postconviction relief and 472 the capital defendant’s state petition for writ of habeas corpus 473 become final in the Supreme Court. 474 (g) At the conclusion of the capital defendant’s 475 postconviction capital collateral proceedings in state court, 476 the attorney is entitled to $100 per hour, up to a maximum of 477 $2,500, for the preparation of the initial federal pleading 478after filing a petition for writ of certiorari in the Supreme479Court of the United States. 480 (h) If, at any time, a death warrant is issued, the 481 attorney is entitled to $100 per hour, up to a maximum of 482 $5,000. This payment isshall befull compensation for 483 attorney’s fees and costs for representing the capital defendant 484 throughout the proceedings before the state courts of Florida. 485 486 The hours billed by a contracting attorney under this subsection 487 may include time devoted to representation of the defendant by 488 another attorney who is qualified under s. 27.710 and who has 489 been designated by the contracting attorney to assist him or 490 her. 491 (5) An attorney who represents a capital defendant may use 492 the services of one or more investigators to assist in 493 representing a capital defendant. Upon approval by the trial 494 court, the attorney is entitled to payment from the Chief 495 Financial Officer of $40 per hour, up to a maximum of $15,000, 496 for the purpose of paying for investigative services. 497 (6) An attorney who represents a capital defendant is 498 entitled to a maximum of $15,000 for miscellaneous expenses, 499 such as the costs of preparing transcripts, compensating expert 500 witnesses, and copying documents. Upon approval by the trial 501 court, the attorney is entitled to payment by the Chief 502 Financial Officer of up to $15,000 for miscellaneous expenses, 503 except that, if the trial court finds that extraordinary 504 circumstances exist, the attorney is entitled to payment in 505 excess of $15,000. 506 (7) A registryAnattorney who isactivelyrepresenting a 507 capital defendant is entitled to a maximum of $500 per fiscal 508 year for tuition and expenses for continuing legal education 509 that pertains to the representation of capital defendants 510 regardless of the total number of capital defendants the 511 attorney is representing. Upon approval by the trial court, the 512 attorney is entitled to payment by the Chief Financial Officer 513 for expenses for such tuition and continuing legal education. 514 (8) By accepting court appointment under s. 27.710 to 515 represent a capital defendant, the attorney agrees to continue 516 such representation under the terms and conditions set forth in 517 this section until the capital defendant’s sentence is reversed, 518 reduced, or carried out, and the attorney is permitted to 519 withdraw from such representation by a court of competent 520 jurisdiction. However, if an attorney is permitted to withdraw 521 or is otherwise removed from representation prior to full 522 performance of the duties specified in this section, the trial 523 court shall approve payment of fees and costs for work 524 performed, which may not exceed the amounts specified in this 525 section. An attorney who withdraws or is removed from 526 representation shall deliver all files, notes, documents, and 527 research to the successor attorney within 15 days after notice 528 from the successor attorney. The successor attorney shall bear 529 the cost of transmitting the files, notes, documents, and 530 research. 531 (9) An attorney may not represent more than sevenfive532 defendants in capital postconviction litigation at any one time. 533 The defendant-representation limit includes cases involving 534 capital postconviction proceedings under contract with the 535 capital collateral regional counsel, pro bono cases, registry 536 cases, and privately retained cases. An attorney may not be 537 appointed to an additional capital postconviction case until the 538 attorney’s capital postconviction representation total falls 539 below the seven-case limit. 540 (10) This section does not authorize an attorney who 541 represents a capital defendant to file repetitive or frivolous 542 pleadings that are not supported by law or by the facts of the 543 case. An action taken by an attorney who represents a capital 544 defendant in postconviction capital collateral proceedings may 545 not be the basis for a claim of ineffective assistance of 546 counsel. 547 (11) An attorney appointed under s. 27.710 to represent a 548 capital defendant may not represent the capital defendant during 549 a retrial, a resentencing proceeding, a proceeding commenced 550 under chapter 940, a proceeding challenging a conviction or 551 sentence other than the conviction and sentence of death for 552 which the appointment was made, or any civil litigation other 553 than habeas corpus proceedings. 554 (12) The court shall monitor the performance of assigned 555 counsel to ensure that the capital defendant is receiving 556 quality representation. The court shall also receive and 557 evaluate allegations that are made regarding the performance of 558 assigned counsel. The Chief Financial Officer, the Department of 559 Legal Affairs, the executive director, or any interested person 560 may advise the court of any circumstance that could affect the 561 quality of representation, including, but not limited to, false 562 or fraudulent billing, misconduct, failure to meet continuing 563 legal education requirements, solicitation to receive 564 compensation from the capital defendant, or failure to file 565 appropriate motions in a timely manner. 566 (13) BeforePrior to thefilingofa motion for an order 567 approving payment of attorney’s fees, costs, or related 568 expenses, the assigned counsel shall deliver a copy of his or 569 her intended billing, together with supporting affidavits and 570 all other necessary documentation, to the Chief Financial 571 Officer’s named contract manager. The contract manager hasshall572have10 business days followingfromreceipt to review the 573 billings, affidavit, and documentation for completeness and 574 compliance with contractual and statutory requirements. If the 575 contract manager objects to any portion of the proposed billing, 576 the objection and reasons therefor shall be communicated to the 577 assigned counsel. The assigned counsel may thereafter file his 578 or her motion for order approving payment of attorney’s fees, 579 costs, or related expenses together with supporting affidavits 580 and all other necessary documentation. The motion must specify 581 whether the Chief Financial Officer’s contract manager objects 582 to any portion of the billing or the sufficiency of 583 documentation and, if so, the reason therefor. A copy of the 584 motion and attachments shall be served on the Chief Financial 585 Officer’s contract manager, who shall have standing to file 586 pleadings and appear before the court to contest any motion for 587 order approving payment. The fact that the Chief Financial 588 Officer’s contract manager has not objected to any portion of 589 the billing or to the sufficiency of the documentation is not 590 binding on the court, which retains primary authority and 591 responsibility for determining the reasonableness of all 592 billings for fees, costs, and related expenses, subject to 593 statutory limitations. 594 (14) If a trial court judge proposes to award attorney’s 595 fees in excess of those set forth in this section, the judge 596 must include written findings of fact that state in detail the 597 extraordinary nature of the expenditures of the time, energy, 598 and talents of the attorney in the case which are not ordinarily 599 expended in other capital collateral cases, and the basis for 600 the court finding that the case is unusual compared to other 601 capital postconviction cases.Each attorney participating in the602pilot program in the northern region pursuant to s.27.701(2),603as a condition of payment pursuant to this section, shall report604on the performance measures adopted by the Legislature for the605capital collateral regional counsel.606 Section 7. For the purpose of incorporating the amendments 607 made by this act to sections 27.710 and 27.711, Florida 608 Statutes, in references thereto, section 27.7002, Florida 609 Statutes, is reenacted to read: 610 27.7002 Limitation on collateral representation; lawyer 611 disqualification; use of state funds for excess fees not 612 authorized.— 613 (1) This chapter does not create any right on behalf of any 614 person, provided counsel pursuant to any provision of this 615 chapter, to challenge in any form or manner the adequacy of the 616 collateral representation provided. 617 (2) With respect to counsel appointed to represent 618 defendants in collateral proceedings pursuant to ss. 27.710 and 619 27.711, the sole method of assuring adequacy of representation 620 provided shall be in accordance with the provisions of s. 621 27.711(12). 622 (3) No provision of this chapter shall be construed to 623 generate any right on behalf of any attorney appointed pursuant 624 to s. 27.710, or seeking appointment pursuant to s. 27.710, to 625 be compensated above the amounts provided in s. 27.711. 626 (4) No attorney may be appointed, at state expense, to 627 represent any defendant in collateral legal proceedings except 628 as expressly authorized in this chapter. 629 (5) The use of state funds for compensation of counsel 630 appointed pursuant to s. 27.710 above the amounts set forth in 631 s. 27.711 is not authorized. 632 (6) The executive director of the Commission on Capital 633 Cases is authorized to permanently remove from the registry of 634 attorneys provided in ss. 27.710 and 27.711 any attorney who 635 seeks compensation for services above the amounts provided in s. 636 27.711. 637 (7) Any attorney who notifies any court, judge, state 638 attorney, the Attorney General, or the executive director of the 639 Commission on Capital Cases, that he or she cannot provide 640 adequate or proper representation under the terms and conditions 641 set forth in s. 27.711 shall be permanently disqualified from 642 any attorney registry created under this chapter unless good 643 cause arises after a change in circumstances. 644 Section 8. This act shall take effect July 1, 2010.
