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 counsel and each
122 attorney participating in the pilot program in the northern
123 region pursuant to s. 27.701(2) shall provide a quarterly report
124 to the President of the Senate, the Speaker of the House of
125 Representatives, and the 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
135 quarterly, 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 and shall refer 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 the minimum requirements of this section and s. 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 attended
183 within the last year a continuing legal education program of at
184 least 10 hours’ duration devoted specifically to the defense of
185 capital cases, if available. Continuing legal education programs
186 meeting the requirements of this rule offered by The Florida Bar
187 or another recognized provider and approved for continuing legal
188 education credit by The Florida Bar shall satisfy this
189 requirement. The failure to comply with this requirement may be
190 cause for removal from the list until the requirement is
191 fulfilled. 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. By Not later than September 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 mail satisfies the minimum requirements
268 for private counsel set forth in s. 27.704(2).
269 (3) An attorney who applies for registration and court
270 appointment as counsel in postconviction capital collateral
271 proceedings must certify that he or she is counsel of record in
272 not more than four such proceedings and, if appointed to
273 represent a person in postconviction capital collateral
274 proceedings, shall continue the such representation 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 the appointed
291 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
299 such contract, 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 may shall have the authority to strike 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, before after accepting
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 on trial court
456 issues a final order granting or denying the 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 to a 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
478 after filing a petition for writ of certiorari in the Supreme
479 Court 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 is shall be full 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 registry An attorney who is actively representing 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 seven five
532 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) Before Prior to the filing of a 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 has shall
572 have 10 business days following from receipt 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 the
602 pilot program in the northern region pursuant to s. 27.701(2),
603 as a condition of payment pursuant to this section, shall report
604 on the performance measures adopted by the Legislature for the
605 capital 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.