Bill Text: FL S1750 | 2013 | Regular Session | Comm Sub
Bill Title: Death Penalty
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2013-04-26 - Laid on Table, companion bill(s) passed, see CS/CS/HB 7083 (Ch. 2013-216) [S1750 Detail]
Download: Florida-2013-S1750-Comm_Sub.html
Florida Senate - 2013 CS for SB 1750
By the Committee on Appropriations; and Senator Negron
576-04673-13 20131750c1
1 A bill to be entitled
2 An act relating to the death penalty; providing a
3 short title; amending s. 27.40, F.S.; requiring the
4 court to appoint the capital collateral regional
5 counsel to represent persons convicted and sentenced
6 to death in clemency proceedings; amending s. 27.51,
7 F.S.; removing the court’s authority to appoint a
8 public defender to represent a person convicted and
9 sentenced to death in clemency proceedings; amending
10 s. 27.511, F.S., removing the court’s authority to
11 appoint the office of criminal conflict and civil
12 regional counsel to represent a person convicted and
13 sentenced to death in clemency proceedings; amending
14 s. 27.5303, F.S., removing the court’s authority to
15 appoint a public defender to represent an indigent
16 person convicted and sentenced to death in clemency
17 proceedings; amending s. 27.5304, F.S.; requiring
18 funds used to compensate court-appointed attorneys who
19 represent a person convicted and sentenced to death in
20 clemency proceedings to be paid by the Justice
21 Administrative Commission rather than the Department
22 of Corrections; amending s. 27.7001, F.S.; removing
23 legislative intent language indicating that collateral
24 representation of persons convicted and sentenced to
25 death should not include representation during
26 clemency proceedings; repealing s. 27.701(2), F.S.,
27 relating to a pilot project using registry attorneys
28 to provide capital collateral counsel services in the
29 northern region of the Capital Collateral Regional
30 Counsel; amending s. 27.702, F.S., authorizing the
31 capital collateral regional counsel to represent
32 persons convicted and sentenced to death in clemency
33 proceedings; removing language requiring the capital
34 collateral regional counsel to only file
35 postconviction actions authorized by statute; amending
36 s. 27.703, F.S.; prohibiting the capital collateral
37 regional counsel and replacement regional counsel from
38 accepting an appointment or taking and action that
39 creates an actual conflict of interest; describing
40 actual conflict of interest; amending s. 27.7045,
41 F.S.; prohibiting an attorney from representing a
42 person charged with a capital offense in specified
43 proceedings for five years if in two separate
44 instances a court, in a capital postconviction
45 proceeding, determined that the attorney provided
46 constitutionally deficient representation and relief
47 was granted; amending s. 27.7081, F.S.; providing
48 definitions; establishing procedures for public
49 records production in postconviction capital cases
50 proceedings; amending s. 27.710, F.S.; requiring
51 private registry attorneys appointed by the court to
52 represent persons in postconviction capital
53 proceedings to meet certain criteria; requiring
54 private registry attorneys appointed by the court to
55 represent persons in postconviction capital
56 proceedings to contract with the Justice
57 Administrative Commission rather than the Chief
58 Financial Officer; specifying that the Justice
59 Administrative Commission is the contract manager and
60 requiring the Justice Administrative Commission to
61 approve uniform contract forms and procedures;
62 amending s. 27.711, F.S.; replacing references to the
63 “Chief Financial Officer” with “Justice Administrative
64 Commission” for purposes of paying private registry
65 attorneys appointed by the court to represent persons
66 in postconviction capital proceedings; permitting
67 private registry attorneys appointed by the court to
68 represent persons in postconviction capital
69 proceedings to represent no more than ten, rather than
70 five, defendants in capital postconviction litigation
71 at any one time; amending s. 922.052, F.S.; requiring
72 the sheriff to send a copy of the conviction and
73 sentence to the Governor and the clerk of the Florida
74 Supreme Court; directing the clerk to inform the
75 Governor in writing certifying that a person convicted
76 and sentenced to death has completed the applicable
77 proceedings or has allowed the time permitted for
78 filing a habeas corpus petition in federal court to
79 expire; requiring the Governor to issue a warrant of
80 execution within a specified period of time; amending
81 s. 924.055, F.S.; removing obsolete language requiring
82 capital postconviction motions to be filed in
83 accordance with statute; requiring capital
84 postconviction motions to be filed in accordance with
85 the Florida Rules of Criminal Procedure; amending s.
86 924.056, F.S.; requiring the Florida Supreme Court to
87 annually report certain information regarding capital
88 postconviction cases to the Legislature; requiring
89 courts to report specified findings of ineffective
90 assistance of counsel to The Florida Bar; amending s.
91 924.057, F.S.; creating legislative intent regarding
92 postconviction proceedings in capital cases; creating
93 s. 940.031, F.S.; requiring the Governor and Cabinet,
94 sitting as the Board of Executive Clemency, to appoint
95 counsel to represent a person sentenced to death for
96 relief by executive clemency; providing for a
97 limitation on attorney fees and costs; requiring the
98 Board to maintain a list of counsel available for
99 appointment;; repealing sections 924.058, 924.059, and
100 924.395, F.S.; relating to postconviction capital case
101 proceedings; providing for severability; providing an
102 effective date.
103
104
105 Be It Enacted by the Legislature of the State of Florida:
106
107 Section 1. This act may be cited as the “Timely Justice Act
108 of 2013.”
109 Section 2. Subsection (1) of section 27.40, Florida
110 Statutes, is amended to read:
111 27.40 Court-appointed counsel; circuit registries; minimum
112 requirements; appointment by court.—
113 (1) Counsel shall be appointed to represent any individual
114 in a criminal or civil proceeding entitled to court-appointed
115 counsel under the Federal or State Constitution or as authorized
116 by general law. The court shall appoint a public defender to
117 represent indigent persons as authorized in s. 27.51. The office
118 of criminal conflict and civil regional counsel shall be
119 appointed to represent persons in those cases in which provision
120 is made for court-appointed counsel but the public defender is
121 unable to provide representation due to a conflict of interest
122 or is not authorized to provide representation. Capital
123 collateral regional counsel shall be appointed to represent
124 persons as provided in s. 27.702.
125 Section 3. Paragraph (a) of subsection (5) of section
126 27.51, Florida Statutes, is amended to read:
127 27.51 Duties of public defender.—
128 (5)(a) When direct appellate proceedings prosecuted by a
129 public defender on behalf of an accused and challenging a
130 judgment of conviction and sentence of death terminate in an
131 affirmance of such conviction and sentence, whether by the
132 Florida Supreme Court or by the United States Supreme Court or
133 by expiration of any deadline for filing such appeal in a state
134 or federal court, the public defender shall notify the accused
135 of his or her rights pursuant to Rule 3.850, Florida Rules of
136 Criminal Procedure, including any time limits pertinent thereto,
137 and shall advise such person that representation in any
138 collateral proceedings is the responsibility of the capital
139 collateral regional counsel. The public defender shall then
140 forward all original files on the matter to the capital
141 collateral regional counsel, retaining such copies for his or
142 her files as may be desired. However, the trial court shall
143 retain the power to appoint the public defender or other
144 attorney not employed by the capital collateral regional counsel
145 to represent such person in proceedings for relief by executive
146 clemency pursuant to ss. 27.40 and 27.5303.
147 Section 4. Subsection (9) of section 27.511, Florida
148 Statutes, is amended to read:
149 27.511 Offices of criminal conflict and civil regional
150 counsel; legislative intent; qualifications; appointment;
151 duties.—
152 (9) When direct appellate proceedings prosecuted by the
153 office of criminal conflict and civil regional counsel on behalf
154 of an accused and challenging a judgment of conviction and
155 sentence of death terminate in an affirmance of such conviction
156 and sentence, whether by the Supreme Court or by the United
157 States Supreme Court or by expiration of any deadline for filing
158 such appeal in a state or federal court, the office of criminal
159 conflict and civil regional counsel shall notify the accused of
160 his or her rights pursuant to Rule 3.850, Florida Rules of
161 Criminal Procedure, including any time limits pertinent thereto,
162 and shall advise such person that representation in any
163 collateral proceedings is the responsibility of the capital
164 collateral regional counsel. The office of criminal conflict and
165 civil regional counsel shall forward all original files on the
166 matter to the capital collateral regional counsel, retaining
167 such copies for his or her files as may be desired or required
168 by law. However, the trial court shall retain the power to
169 appoint the office of criminal conflict and civil regional
170 counsel or other attorney not employed by the capital collateral
171 regional counsel to represent such person in proceedings for
172 relief by executive clemency pursuant to ss. 27.40 and 27.5303.
173 Section 5. Subsection (4) of section 27.5303, Florida
174 Statutes, is amended to read:
175 27.5303 Public defenders; criminal conflict and civil
176 regional counsel; conflict of interest.—
177 (4)(a) If a defendant is convicted and the death sentence
178 is imposed, the appointed attorney shall continue representation
179 through appeal to the Supreme Court. The attorney shall be
180 compensated as provided in s. 27.5304. If the attorney first
181 appointed is unable to handle the appeal, the court shall
182 appoint another attorney and that attorney shall be compensated
183 as provided in s. 27.5304.
184 (b) The public defender or an attorney appointed pursuant
185 to this section may be appointed by the court rendering the
186 judgment imposing the death penalty to represent an indigent
187 defendant who has applied for executive clemency as relief from
188 the execution of the judgment imposing the death penalty.
189 (b)(c) When the appointed attorney in a capital case has
190 completed the duties imposed by this section, the attorney shall
191 file a written report in the trial court stating the duties
192 performed by the attorney and apply for discharge.
193 Section 6. Paragraph (b) of subsection (5) of section
194 27.5304, Florida Statutes, is amended to read:
195 27.5304 Private court-appointed counsel; compensation;
196 notice.—
197 (5) The compensation for representation in a criminal
198 proceeding shall not exceed the following:
199 (b) If a death sentence is imposed and affirmed on appeal
200 to the Supreme Court, the appointed attorney shall be allowed
201 compensation, not to exceed $1,000, for attorney fees and costs
202 incurred in representing the defendant as to an application for
203 executive clemency, with compensation to be paid out of general
204 revenue from funds budgeted to the Justice Administrative
205 Commission Department of Corrections.
206 Section 7. Section 27.7001, Florida Statutes, is amended to
207 read:
208 27.7001 Legislative intent and findings.—It is the intent
209 of the Legislature to create part IV of this chapter, consisting
210 of ss. 27.7001-27.711, inclusive, to provide for the collateral
211 representation of any person convicted and sentenced to death in
212 this state, so that collateral legal proceedings to challenge
213 any Florida capital conviction and sentence may be commenced in
214 a timely manner and so as to assure the people of this state
215 that the judgments of its courts may be regarded with the
216 finality to which they are entitled in the interests of justice.
217 It is the further intent of the Legislature that collateral
218 representation shall not include representation during retrials,
219 resentencings, proceedings commenced under chapter 940, or civil
220 litigation.
221 Section 8. Section 27.701, Florida Statutes, is amended to
222 read:
223 27.701 Capital collateral regional counsel.—
224 (1) There are created three regional offices of capital
225 collateral counsel, which shall be located in a northern,
226 middle, and southern region of the state. The northern region
227 shall consist of the First, Second, Third, Fourth, Eighth, and
228 Fourteenth Judicial Circuits; the middle region shall consist of
229 the Fifth, Sixth, Seventh, Ninth, Tenth, Twelfth, Thirteenth,
230 and Eighteenth Judicial Circuits; and the southern region shall
231 consist of the Eleventh, Fifteenth, Sixteenth, Seventeenth,
232 Nineteenth, and Twentieth Judicial Circuits. Each regional
233 office shall be administered by a regional counsel. A regional
234 counsel must be, and must have been for the preceding 5 years, a
235 member in good standing of The Florida Bar or a similar
236 organization in another state. Each capital collateral regional
237 counsel shall be appointed by the Governor, and is subject to
238 confirmation by the Senate. The Supreme Court Judicial
239 Nominating Commission shall recommend to the Governor three
240 qualified candidates for each appointment as regional counsel.
241 The Governor shall appoint a regional counsel for each region
242 from among the recommendations, or, if it is in the best
243 interest of the fair administration of justice in capital cases,
244 the Governor may reject the nominations and request submission
245 of three new nominees by the Supreme Court Judicial Nominating
246 Commission. Each capital collateral regional counsel shall be
247 appointed to a term of 3 years. Vacancies in the office of
248 capital collateral regional counsel shall be filled in the same
249 manner as appointments. A person appointed as a regional counsel
250 may not run for or accept appointment to any state office for 2
251 years following vacation of office.
252 (2) Notwithstanding the provisions of subsection (1), the
253 responsibilities of the regional office of capital collateral
254 counsel for the northern region of the state shall be met
255 through a pilot program using only attorneys from the registry
256 of attorneys maintained pursuant to s. 27.710. Each attorney
257 participating in the pilot must be qualified to provide
258 representation in federal court. The Auditor General shall
259 schedule a performance review of the pilot program to determine
260 the effectiveness and efficiency of using attorneys from the
261 registry compared to the capital collateral regional counsel.
262 The review, at a minimum, shall include comparisons of the
263 timeliness and costs of the pilot and the counsel and shall be
264 submitted to the President of the Senate and the Speaker of the
265 House of Representatives by January 30, 2007. The Legislature
266 may determine whether to convert the pilot program to a
267 permanent program after receipt of the Auditor General’s review.
268 Section 9. Subsections (1) and (2) and paragraph (b) of
269 subsection (4) of section 27.702, Florida Statutes, are amended
270 to read:
271 27.702 Duties of the capital collateral regional counsel;
272 reports.—
273 (1) The capital collateral regional counsel shall represent
274 each person convicted and sentenced to death in this state for
275 the sole purpose of instituting and prosecuting collateral
276 actions challenging the legality of the judgment and sentence
277 imposed against such person in the state courts, federal courts
278 in this state, the United States Court of Appeals for the
279 Eleventh Circuit, and the United States Supreme Court; and in
280 proceedings commenced under chapter 940. The capital collateral
281 regional counsel and the attorneys appointed pursuant to s.
282 27.710 shall file only those postconviction or collateral
283 actions authorized by statute. The three capital collateral
284 regional counsel’s offices shall function independently and be
285 separate budget entities, and the regional counsel shall be the
286 office heads for all purposes. The Justice Administrative
287 Commission shall provide administrative support and service to
288 the three offices to the extent requested by the regional
289 counsel. The three regional offices shall not be subject to
290 control, supervision, or direction by the Justice Administrative
291 Commission in any manner, including, but not limited to,
292 personnel, purchasing, transactions involving real or personal
293 property, and budgetary matters.
294 (2) The capital collateral regional counsel shall represent
295 persons convicted and sentenced to death within the region in
296 collateral postconviction proceedings and proceedings under
297 chapter 940, unless a court appoints or permits other counsel to
298 appear as counsel of record.
299 (4)
300 (b) Each capital collateral regional counsel and each
301 attorney participating in the pilot program in the northern
302 region pursuant to s. 27.701(2) shall provide a quarterly report
303 to the President of the Senate and the Speaker of the House of
304 Representatives which details the number of hours worked by
305 investigators and legal counsel per case and the amounts per
306 case expended during the preceding quarter in investigating and
307 litigating capital collateral cases.
308 Section 10. Section 27.703, Florida Statutes, is amended to
309 read:
310 27.703 Conflict of interest and substitute counsel.—
311 (1) The capital collateral regional counsel shall not
312 accept an appointment or take any other action that will create
313 an actual conflict of interest. If, at any time during the
314 representation of a person, the capital collateral regional
315 counsel alleges determines that the continued representation of
316 that person creates an actual conflict of interest, the
317 sentencing court shall, upon determining that an actual conflict
318 exists upon application by the regional counsel, designate
319 another regional counsel. If the replacement regional counsel
320 alleges that an actual conflict of interest exists, the
321 sentencing court shall, upon determining that an actual conflict
322 exists and, only if a conflict exists with the other two
323 counsel, appoint one or more members of The Florida Bar who
324 meets the requirements of s. 27.710 and who is not disqualified
325 pursuant to s. 27.7045 to represent the person one or more of
326 such persons. An actual conflict of interest exists when an
327 attorney actively represents conflicting interests. A possible,
328 speculative, or merely hypothetical conflict is insufficient to
329 support an allegation that a conflict of interest exists.
330 (2) Appointed counsel shall be paid from funds appropriated
331 to the Chief Financial Officer. The hourly rate may not exceed
332 $100. However, all appointments of private counsel under this
333 section shall be in accordance with ss. 27.710 and 27.711.
334 (3) Capital collateral regional Prior to employment,
335 counsel appointed pursuant to this section must have
336 participated in at least five felony jury trials, five felony
337 appeals, or five capital postconviction evidentiary hearings, or
338 any combination of at least five of such proceedings, and must
339 not be disqualified pursuant to s. 27.7045.
340 Section 11. Section 27.7045, Florida Statutes, is created
341 to read:
342 27.7045 Capital case proceedings; constitutionally
343 deficient representation.— Notwithstanding any other provision
344 of law, an attorney employed by the state of Florida or
345 appointed pursuant to s. 27.711 may not represent a person
346 charged with a capital offense at trial or on direct appeal, or
347 a person sentenced to death in a postconviction proceeding if,
348 in two separate instances, a court, in a capital postconviction
349 proceeding, determined that such attorney provided
350 constitutionally deficient representation and relief was granted
351 as a result. This prohibition on representation shall be for a
352 period of five years, which commences at the time relief is
353 granted after the highest court having jurisdiction to review
354 the deficient representation determination has issued its final
355 order affirming the second such determination.
356 Section 12. Section 27.7081, Florida Statutes, is amended
357 to read:
358 (Substantial rewording of section. See
359 s. 27.7081, F.S., for present text.)
360 27.7081 Capital postconviction public records production.—
361 (1) DEFINITIONS.—As used in this section, the term:
362 (a) “Agency” has the same meaning as provided in s.
363 119.011.
364 (b) “Collateral counsel” means a capital collateral
365 regional counsel from one of the three regions in Florida, a
366 private attorney who has been appointed to represent a capital
367 defendant for postconviction litigation, or a private attorney
368 who has been hired by the capital defendant or who has agreed to
369 work pro bono for a capital defendant for postconviction
370 litigation.
371 (c) “Public records” has the same meaning as provided in s.
372 119.011.
373 (d) “Trial court” means:
374 1. The judge who entered the judgment and imposed the
375 sentence of death; or
376 2. If a motion for postconviction relief in a capital case
377 has been filed and a different judge has already been assigned
378 to that motion, the judge who is assigned to rule on that
379 motion.
380 (2) APPLICABILITY AND SCOPE.—This section only applies to
381 the production of public records for capital postconviction
382 defendants and does not change or alter the time periods
383 specified in Rule 3.851, Florida Rules of Criminal Procedure.
384 Furthermore, this section does not affect, expand, or limit the
385 production of public records for any purpose other than use in a
386 proceeding held pursuant to Rule 3.850 or Rule 3.851, Florida
387 Rules of Criminal Procedure. This section shall not be a basis
388 for renewing public records requests that have been initiated
389 previously or for relitigating issues pertaining to production
390 of public records upon which a court has ruled before July 1,
391 2013. Public records requests made in postconviction proceedings
392 in capital cases in which the conviction and sentence of death
393 have been affirmed on direct appeal before July 1, 2013, shall
394 be governed by the rules and laws in effect immediately before
395 July 1, 2013.
396 (3) RECORDS REPOSITORY.—The Secretary of State shall
397 establish and maintain a records repository to archive capital
398 postconviction public records as provided for in this section.
399 (4) FILING AND SERVICE.—
400 (a) The original of all notices, requests, or objections
401 filed under this section must be filed with the clerk of the
402 trial court. Copies must be served on the trial court, the
403 attorney general, the state attorney, collateral counsel, and
404 any affected person or agency, unless otherwise required by this
405 section.
406 (b) Service shall be made pursuant to Rule 3.030, Florida
407 Rules of Criminal Procedure.
408 (c) In all instances requiring written notification or
409 request, the party who has the obligation of providing a
410 notification or request shall provide proof of receipt.
411 (d) Persons and agencies receiving postconviction public
412 records notifications or requests pursuant to this section are
413 not required to furnish records filed in a trial court before
414 the receipt of the notice.
415 (5) ACTION UPON ISSUANCE OF THE MANDATE ON DIRECT APPEAL.—
416 (a) Within 15 days after receiving written notification of
417 the Florida Supreme Court’s mandate affirming the sentence of
418 death, the attorney general shall file with the trial court a
419 written notice of the mandate and serve a copy of the notice
420 upon the state attorney who prosecuted the case, the Department
421 of Corrections, and the defendant’s trial counsel. The notice to
422 the state attorney shall direct the state attorney to submit
423 public records to the records repository within 90 days after
424 receipt of written notification and to notify each law
425 enforcement agency involved in the investigation of the capital
426 offense to submit public records to the records repository
427 within 90 days after receipt of written notification. The notice
428 to the Department of Corrections shall direct the department to
429 submit public records to the records repository within 90 days
430 after receipt of written notification.
431 (b) Within 90 days after receiving written notification of
432 issuance of the Florida Supreme Court’s mandate affirming a
433 death sentence, the state attorney shall provide written
434 notification to the attorney general of the name and address of
435 an additional person or agency that has public records pertinent
436 to the case.
437 (c) Within 90 days after receiving written notification of
438 issuance of the Florida Supreme Court’s mandate affirming a
439 death sentence, the defendant’s trial counsel shall provide
440 written notification to the attorney general of the name and
441 address of a person or agency with information pertinent to the
442 case which has not previously been provided to collateral
443 counsel.
444 (d) Within 15 days after receiving written notification of
445 any additional person or agency pursuant to paragraph (b) or
446 paragraph (c), the attorney general shall notify all persons or
447 agencies identified pursuant to paragraph (b) or paragraph (c)
448 that these persons or agencies are required by law to copy,
449 index, and deliver to the records repository all public records
450 pertaining to the case that are in their possession. The person
451 or agency shall bear the costs related to copying, indexing, and
452 delivering the records.
453 (6) ACTION UPON RECEIPT OF NOTICE OF MANDATE.—
454 (a) Within 15 days after receipt of a written notice of the
455 mandate from the attorney general, the state attorney shall
456 provide written notification to each law enforcement agency
457 involved in the specific case to submit public records to the
458 records repository within 90 days after receipt of written
459 notification. A copy of the notice shall be served upon the
460 defendant’s trial counsel.
461 (b) Within 90 days after receipt of a written notice of the
462 mandate from the attorney general, the state attorney shall
463 copy, index, and deliver to the records repository all public
464 records that were produced in the state attorney’s investigation
465 or prosecution of the case. The state attorney shall bear the
466 costs. The state attorney shall also provide written
467 notification to the attorney general of compliance with this
468 section, including certifying that, to the best of the state
469 attorney’s knowledge or belief, all public records in the state
470 attorney’s possession have been copied, indexed, and delivered
471 to the records repository as required by this section.
472 (c) Within 90 days after receipt of written notification of
473 the mandate from the attorney general, the Department of
474 Corrections shall, at its own expense, copy, index, and deliver
475 to the records repository all public records determined by the
476 department to be relevant to the subject matter of a proceeding
477 under Rule 3.851, Florida Rules of Criminal Procedure, unless
478 such copying, indexing, and delivering would be unduly
479 burdensome. The secretary of the department shall provide
480 written notification to the attorney general of compliance with
481 this paragraph certifying that, to the best of the secretary of
482 the department’s knowledge or belief, all such public records in
483 the possession of the secretary of the department have been
484 copied, indexed, and delivered to the records repository.
485 (d) Within 90 days after receipt of written notification of
486 the mandate from the state attorney, a law enforcement agency
487 shall, at its own expense, copy, index, and deliver to the
488 records repository all public records that were produced in the
489 investigation or prosecution of the case. The chief law
490 enforcement officer of each law enforcement agency shall provide
491 written notification to the attorney general of compliance with
492 this paragraph including certifying that, to the best of the
493 chief law enforcement officer’s knowledge or belief, all such
494 public records in possession of the agency or in possession of
495 an employee of the agency, have been copied, indexed, and
496 delivered to the records repository.
497 (e) Within 90 days after receipt of written notification of
498 the mandate from the attorney general, each additional person or
499 agency identified pursuant to paragraph (5)(b) or paragraph
500 (5)(c) shall copy, index, and deliver to the records repository
501 all public records which were produced during the prosecution of
502 the case. The person or agency shall bear the costs. The person
503 or agency shall provide written notification to the attorney
504 general of compliance with this subdivision and shall certify,
505 to the best of the person or agency’s knowledge and belief, all
506 such public records in the possession of the person or agency
507 have been copied, indexed, and delivered to the records
508 repository.
509 (7) EXEMPT OR CONFIDENTIAL PUBLIC RECORDS.—
510 (a) Public records delivered to the records repository
511 pursuant to this section that are confidential or exempt from
512 the requirements of s. 119.07(1) or article I, section 24(a), of
513 the Constitution, must be separately contained, without being
514 redacted, and sealed. The outside of the container must clearly
515 identify that the public record is confidential or exempt and
516 that the seal may not be broken without an order of the trial
517 court. The outside of the container must identify the nature of
518 the public records and the legal basis for the exemption.
519 (b) Upon the entry of an appropriate court order, sealed
520 containers subject to an inspection by the trial court shall be
521 shipped to the clerk of court. The containers may be opened only
522 for inspection by the trial court. The moving party shall bear
523 all costs associated with the transportation and inspection of
524 such records by the trial court.
525 (8) DEMAND FOR ADDITIONAL PUBLIC RECORDS.—
526 (a) Within 240 days after collateral counsel is appointed,
527 retained, or appears pro bono, such counsel shall send a written
528 demand for additional public records to each person or agency
529 submitting public records or identified as having information
530 pertinent to the case under subsection (5).
531 (b) Within 90 days after receipt of the written demand,
532 each person or agency notified under this subsection shall
533 deliver to the records repository additional public records in
534 the possession of the person or agency that pertain to the case
535 and shall certify to the best of the person or agency’s
536 knowledge and belief that all additional public records have
537 been delivered to the records repository or, if no additional
538 public records are found, shall recertify that the public
539 records previously delivered are complete.
540 (c) Within 60 days after receipt of the written demand, a
541 person or agency may file with the trial court an objection to
542 the written demand described in paragraph (a). The trial court
543 may order a person or agency to produce additional public
544 records if the court determines that:
545 1. Collateral counsel has made a timely and diligent search
546 as provided in this section.
547 2. Collateral counsel’s written demand identifies, with
548 specificity, those additional public records that are not at the
549 records repository.
550 3. The additional public records sought are relevant to the
551 subject matter of a postconviction proceeding under Rule 3.851,
552 Florida Rules of Criminal Procedure, or appear reasonably
553 calculated to lead to the discovery of admissible evidence.
554 4. The additional public records request is not overly
555 broad or unduly burdensome.
556 (9) LIMITATION ON POSTPRODUCTION REQUEST FOR ADDITIONAL
557 RECORDS.—
558 (a) In order to obtain public records in addition to those
559 provided under subsections (6), (7), and (8), collateral counsel
560 must file an affidavit in the trial court which:
561 1. Attests that collateral counsel has made a timely and
562 diligent search of the records repository.
563 2. Identifies with specificity those public records not at
564 the records repository.
565 3. Establishes that the additional public records are
566 either relevant to the subject matter of the postconviction
567 proceeding or are reasonably calculated to lead to the discovery
568 of admissible evidence.
569 4. Must be served in accordance with subsection (4).
570 (b) The trial court may order a person or agency to produce
571 additional public records only upon finding that:
572 1. Collateral counsel has made a timely and diligent search
573 of the records repository.
574 2. Collateral counsel’s affidavit identifies with
575 specificity those additional public records that are not at the
576 records repository.
577 3. The additional public records sought are either relevant
578 to the subject matter of a capital postconviction proceeding or
579 appear reasonably calculated to lead to the discovery of
580 admissible evidence.
581 4. The additional records request is not overly broad or
582 unduly burdensome.
583 (10) COPYING RECORDS.— The Secretary of State shall provide
584 the personnel, supplies, and any necessary equipment to copy
585 records held at the records repository.
586 (11) AUTHORITY OF THE COURT.—In proceedings under this
587 section the trial court may:
588 (a) Compel or deny disclosure of records.
589 (b) Conduct an inspection in camera.
590 (c) Extend the time periods in this section upon a showing
591 of good cause.
592 (d) Impose sanctions upon a party, person, or agency
593 affected by this section, including initiating contempt
594 proceedings, taxing expenses, extending time periods, ordering
595 facts to be established, and granting other relief.
596 (e) Resolve a dispute arising under this section unless
597 jurisdiction is in an appellate court.
598 (12) SCOPE OF PRODUCTION AND RESOLUTION OF PRODUCTION
599 ISSUES.—
600 (a) Unless otherwise limited, the scope of production under
601 any part of this section shall be that the public records sought
602 are not privileged or immune from production and are either
603 relevant to the subject matter of a postconviction proceeding
604 under Rule 3.851, Florida Rules of Criminal Procedure, or are
605 reasonably calculated to lead to the discovery of admissible
606 evidence.
607 (b) Counsel for a party objecting or moving to compel
608 production of public records pursuant to this section must file
609 a copy of the objection or motion directly with the trial court.
610 (c) The trial court may order mediation for a controversy
611 as to public records production pursuant to this section in
612 accord with Rules 1.700, 1.710, 1.720, and 1.730, Florida Rules
613 of Civil Procedure, or the trial court may refer such
614 controversy to a magistrate in accord with Rule 1.490, Florida
615 Rules of Civil Procedure.
616 (13) DESTRUCTION OF RECORDS.—Sixty days after a capital
617 sentence is carried out, after a defendant is released from
618 incarceration after the granting of a pardon or reversal of the
619 sentence, or after a defendant has been resentenced to a term of
620 years, the attorney general shall provide written notification
621 of this occurrence to the Secretary of State. After the
622 expiration of the 60 days, the Secretary of State may destroy
623 the copies of the records held by the records repository that
624 pertain to that case, unless an objection to the destruction is
625 filed in the trial court and served upon the Secretary of State.
626 If no objection is served within the 60-day period, the records
627 may then be destroyed. If an objection is served, the records
628 shall not be destroyed until a final disposition of the
629 objection.
630 Section 13. Subsections (1), (2), (3), and (4) of section
631 27.710, Florida Statutes, are amended to read:
632 27.710 Registry of attorneys applying to represent persons
633 in postconviction capital collateral proceedings; certification
634 of minimum requirements; appointment by trial court.—
635 (1) The executive director of the Justice Administrative
636 Commission shall compile and maintain a statewide registry of
637 attorneys in private practice who have certified that they meet
638 the minimum requirements of s. 27.704(2), who have participated
639 in at least two capital trials or two capital sentencing
640 proceedings, who are available for appointment by the court
641 under this section to represent persons convicted and sentenced
642 to death in this state in postconviction collateral proceedings,
643 and who have attended within the last year a continuing legal
644 education program of at least 10 hours’ duration devoted
645 specifically to the defense of capital cases, if available.
646 Continuing legal education programs meeting the requirements of
647 this rule offered by The Florida Bar or another recognized
648 provider and approved for continuing legal education credit by
649 The Florida Bar shall satisfy this requirement. The failure to
650 comply with this requirement may be cause for removal from the
651 list until the requirement is fulfilled. To ensure that
652 sufficient attorneys are available for appointment by the court,
653 when the number of attorneys on the registry falls below 50, the
654 executive director shall notify the chief judge of each circuit
655 by letter and request the chief judge to promptly submit the
656 names of at least three private attorneys who regularly practice
657 criminal law in that circuit and who appear to meet the minimum
658 requirements to represent persons in postconviction capital
659 collateral proceedings. The executive director shall send an
660 application to each attorney identified by the chief judge so
661 that the attorney may register for appointment as counsel in
662 postconviction capital collateral proceedings. As necessary, the
663 executive director may also advertise in legal publications and
664 other appropriate media for qualified attorneys interested in
665 registering for appointment as counsel in postconviction capital
666 collateral proceedings. Not later than September 1 of each year,
667 and as necessary thereafter, the executive director shall
668 provide to the Chief Justice of the Supreme Court, the chief
669 judge and state attorney in each judicial circuit, and the
670 Attorney General a current copy of its registry of attorneys who
671 are available for appointment as counsel in postconviction
672 capital collateral proceedings. The registry must be indexed by
673 judicial circuit and must contain the requisite information
674 submitted by the applicants in accordance with this section.
675 (2) To be eligible for court appointment as counsel in
676 postconviction capital collateral proceedings, an attorney must
677 certify on an application provided by the executive director
678 that he or she satisfies the minimum requirements for private
679 counsel set forth in s. 27.704(2)and that he or she has
680 participated in at least two capital trials or two capital
681 sentencing proceedings.
682 (3) An attorney who applies for registration and court
683 appointment as counsel in postconviction capital collateral
684 proceedings must certify that he or she is counsel of record in
685 not more than nine four such proceedings and, if appointed to
686 represent a person in postconviction capital collateral
687 proceedings, shall continue such representation under the terms
688 and conditions set forth in s. 27.711 until the sentence is
689 reversed, reduced, or carried out or unless permitted to
690 withdraw from representation by the trial court. The court may
691 not permit an attorney to withdraw from representation without a
692 finding of sufficient good cause. The court may impose
693 appropriate sanctions if it finds that an attorney has shown bad
694 faith with respect to continuing to represent a defendant in a
695 postconviction capital collateral proceeding. This section does
696 not preclude the court from reassigning a case to a capital
697 collateral regional counsel following discontinuation of
698 representation if a conflict of interest no longer exists with
699 respect to the case.
700 (4) Each private attorney who is appointed by the court to
701 represent a capital defendant must enter into a contract with
702 the Justice Administrative Commission Chief Financial Officer.
703 If the appointed attorney fails to execute the contract within
704 30 days after the date the contract is mailed to the attorney,
705 the executive director shall notify the trial court. The Justice
706 Administrative Commission Chief Financial Officer shall develop
707 the form of the contract, function as contract manager, and
708 enforce performance of the terms and conditions of the contract.
709 The Justice Administrative Commission shall approve uniform
710 contract forms for use in procuring the services of private
711 court-appointed counsel and uniform procedures and forms for use
712 by a court-appointed attorney in support of billing for attorney
713 fees, costs, and related expenses to demonstrate attorney
714 completion of specified duties. By signing such contract, the
715 attorney certifies that he or she intends to continue the
716 representation under the terms and conditions set forth in the
717 contract until the sentence is reversed, reduced, or carried out
718 or until released by order of the trial court.
719 Section 14. Subsections (3), (4), (5), (6), (7), (9), (12),
720 (13), and (14) of section 27.711, Florida Statutes, are amended
721 to read:
722 27.711 Terms and conditions of appointment of attorneys as
723 counsel in postconviction capital collateral proceedings.—
724 (3) An attorney appointed to represent a capital defendant
725 is entitled to payment of the fees set forth in this section
726 only upon full performance by the attorney of the duties
727 specified in this section and approval of payment by the trial
728 court, and the submission of a payment request by the attorney,
729 subject to the availability of sufficient funding specifically
730 appropriated for this purpose. An attorney may not be
731 compensated under this section for work performed by the
732 attorney before July 1, 2003, while employed by the northern
733 regional office of the capital collateral counsel. The Justice
734 Administrative Commission Chief Financial Officer shall notify
735 the executive director and the court if it appears that
736 sufficient funding has not been specifically appropriated for
737 this purpose to pay any fees which may be incurred. The attorney
738 shall maintain appropriate documentation, including a current
739 and detailed hourly accounting of time spent representing the
740 capital defendant. The fee and payment schedule in this section
741 is the exclusive means of compensating a court-appointed
742 attorney who represents a capital defendant. When appropriate, a
743 court-appointed attorney must seek further compensation from the
744 Federal Government, as provided in 18 U.S.C. s. 3006A or other
745 federal law, in habeas corpus litigation in the federal courts.
746 (4) Upon approval by the trial court, an attorney appointed
747 to represent a capital defendant under s. 27.710 is entitled to
748 payment of the following fees by the Justice Administrative
749 Commission Chief Financial Officer:
750 (a) Regardless of the stage of postconviction capital
751 collateral proceedings, the attorney is entitled to $100 per
752 hour, up to a maximum of $2,500, after accepting appointment and
753 filing a notice of appearance.
754 (b) The attorney is entitled to $100 per hour, up to a
755 maximum of $20,000, after timely filing in the trial court the
756 capital defendant’s complete original motion for postconviction
757 relief under the Florida Rules of Criminal Procedure. The motion
758 must raise all issues to be addressed by the trial court.
759 However, an attorney is entitled to fees under this paragraph if
760 the court schedules a hearing on a matter that makes the filing
761 of the original motion for postconviction relief unnecessary or
762 if the court otherwise disposes of the case.
763 (c) The attorney is entitled to $100 per hour, up to a
764 maximum of $20,000, after the trial court issues a final order
765 granting or denying the capital defendant’s motion for
766 postconviction relief.
767 (d) The attorney is entitled to $100 per hour, up to a
768 maximum of $20,000, after timely filing in the Supreme Court the
769 capital defendant’s brief or briefs that address the trial
770 court’s final order granting or denying the capital defendant’s
771 motion for postconviction relief and the state petition for writ
772 of habeas corpus.
773 (e) The attorney is entitled to $100 per hour, up to a
774 maximum of $10,000, after the trial court issues an order,
775 pursuant to a remand from the Supreme Court, which directs the
776 trial court to hold further proceedings on the capital
777 defendant’s motion for postconviction relief.
778 (f) The attorney is entitled to $100 per hour, up to a
779 maximum of $4,000, after the appeal of the trial court’s denial
780 of the capital defendant’s motion for postconviction relief and
781 the capital defendant’s state petition for writ of habeas corpus
782 become final in the Supreme Court.
783 (g) At the conclusion of the capital defendant’s
784 postconviction capital collateral proceedings in state court,
785 the attorney is entitled to $100 per hour, up to a maximum of
786 $2,500, after filing a petition for writ of certiorari in the
787 Supreme Court of the United States.
788 (h) If, at any time, a death warrant is issued, the
789 attorney is entitled to $100 per hour, up to a maximum of
790 $5,000. This payment shall be full compensation for attorney’s
791 fees and costs for representing the capital defendant throughout
792 the proceedings before the state courts of Florida.
793
794 The hours billed by a contracting attorney under this subsection
795 may include time devoted to representation of the defendant by
796 another attorney who is qualified under s. 27.710 and who has
797 been designated by the contracting attorney to assist him or
798 her.
799 (5) An attorney who represents a capital defendant may use
800 the services of one or more investigators to assist in
801 representing a capital defendant. Upon approval by the trial
802 court, the attorney is entitled to payment from the Justice
803 Administrative Commission Chief Financial Officer of $40 per
804 hour, up to a maximum of $15,000, for the purpose of paying for
805 investigative services.
806 (6) An attorney who represents a capital defendant is
807 entitled to a maximum of $15,000 for miscellaneous expenses,
808 such as the costs of preparing transcripts, compensating expert
809 witnesses, and copying documents. Upon approval by the trial
810 court, the attorney is entitled to payment by the Justice
811 Administrative Commission Chief Financial Officer of up to
812 $15,000 for miscellaneous expenses, except that, if the trial
813 court finds that extraordinary circumstances exist, the attorney
814 is entitled to payment in excess of $15,000.
815 (7) An attorney who is actively representing a capital
816 defendant is entitled to a maximum of $500 per fiscal year for
817 tuition and expenses for continuing legal education that
818 pertains to the representation of capital defendants. Upon
819 approval by the trial court, the attorney is entitled to payment
820 by the Justice Administrative Commission Chief Financial Officer
821 for expenses for such tuition and continuing legal education.
822 (9) An attorney may not represent more than ten five
823 defendants in capital postconviction litigation at any one time.
824 (12) The court shall monitor the performance of assigned
825 counsel to ensure that the capital defendant is receiving
826 quality representation. The court shall also receive and
827 evaluate allegations that are made regarding the performance of
828 assigned counsel. The Justice Administrative Commission Chief
829 Financial Officer, the Department of Legal Affairs, the
830 executive director, or any interested person may advise the
831 court of any circumstance that could affect the quality of
832 representation, including, but not limited to, false or
833 fraudulent billing, misconduct, failure to meet continuing legal
834 education requirements, solicitation to receive compensation
835 from the capital defendant, or failure to file appropriate
836 motions in a timely manner.
837 (13) Prior to the filing of a motion for order approving
838 payment of attorney’s fees, costs, or related expenses, the
839 assigned counsel shall deliver a copy of his intended billing,
840 together with supporting affidavits and all other necessary
841 documentation, to the Justice Administrative Commission Chief
842 Financial Officer’s named contract manager. The Justice
843 Administrative Commission shall review the intended billing
844 contract manager shall have 10 business days from receipt to
845 review the billings, affidavit, and documentation for
846 completeness and compliance with contractual and statutory
847 requirements. If the Justice Administrative Commission contract
848 manager objects to any portion of the proposed billing, the
849 objection and reasons therefor shall be communicated to the
850 assigned counsel. The assigned counsel may thereafter file his
851 or her motion for order approving payment of attorney’s fees,
852 costs, or related expenses together with supporting affidavits
853 and all other necessary documentation. The motion must specify
854 whether the Justice Administrative Commission Chief Financial
855 Officer’s contract manager objects to any portion of the billing
856 or the sufficiency of documentation and, if so, the reason
857 therefor. A copy of the motions and attachments shall be served
858 on the Justice Administrative Commission at least 5 business
859 days before the date of a hearing. The Justice Administrative
860 Commission has standing to appear before the court to contest
861 any motion for an order approving payment of attorney fees,
862 costs, or related expenses and may participate in a hearing on
863 the motion by use of telephonic or other communication
864 equipment. A copy of the motion and attachments shall be served
865 on the Chief Financial Officer’s contract manager, who shall
866 have standing to file pleadings and appear before the court to
867 contest any motion for order approving payment. The fact that
868 the Justice Administrative Commission Chief Financial Officer’s
869 contract manager has not objected to any portion of the billing
870 or to the sufficiency of the documentation is not binding on the
871 court, which retains primary authority and responsibility for
872 determining the reasonableness of all billings for fees, costs,
873 and related expenses, subject to statutory limitations.
874 (14) Each attorney participating in the pilot program in
875 the northern region pursuant to s. 27.701(2), as a condition of
876 payment pursuant to this section, shall report on the
877 performance measures adopted by the Legislature for the capital
878 collateral regional counsel.
879 Section 15. Section 922.052, Florida Statutes, is amended
880 to read:
881 922.052 Issuance of warrant of execution.—
882 (1) When a person is sentenced to death, the clerk of the
883 court shall prepare a certified copy of the record of the
884 conviction and sentence, and the sheriff shall send the record
885 to the Governor and the clerk of the Florida Supreme Court.
886 (2)(a) The clerk of the Florida Supreme Court shall inform
887 the Governor in writing certifying that a person convicted and
888 sentenced to death has:
889 1. Completed such person’s direct appeal and initial
890 postconviction proceeding in state court, and habeas corpus
891 proceeding and appeal therefrom in federal court; or
892 2. Allowed the time permitted for filing a habeas corpus
893 petition in federal court to expire.
894 (b) Within 30 days after receiving the letter of
895 certification from the clerk of the Florida Supreme Court, the
896 Governor shall issue a warrant for execution in all cases where
897 the executive clemency process has concluded, directing the
898 warden to execute the sentence within 180 days, at a time
899 designated in the warrant.
900 (c) If, in the Governor’s sole discretion, the clerk of the
901 Florida Supreme Court has not complied with the provisions of
902 paragraph (a) with respect to any person sentenced to death, the
903 Governor may sign a warrant of execution for such person where
904 the executive clemency process has concluded.
905 (3) The sentence shall not be executed until the Governor
906 issues a warrant, attaches it to the copy of the record, and
907 transmits it to the warden, directing the warden to execute the
908 sentence at a time designated in the warrant.
909 (4)(2) If, for any reason, the sentence is not executed
910 during the week designated, the warrant shall remain in full
911 force and effect and the sentence shall be carried out as
912 provided in s. 922.06.
913 Section 16. Section 924.055, Florida Statutes, is amended
914 to read:
915 924.055 Postconviction review in capital cases; legislative
916 findings and intent.—
917 (1) It is the intent of the Legislature to reduce delays in
918 capital cases and to ensure that all appeals and postconviction
919 actions in capital cases are resolved as soon as possible within
920 5 years after the date a sentence of death is imposed in the
921 circuit court. All capital postconviction actions must be filed
922 as early as possible after the imposition of a sentence of death
923 which may be during a direct appeal of the conviction and
924 sentence. A person sentenced to death or that person’s capital
925 postconviction counsel must file any postconviction legal action
926 in compliance with the Florida Rules of Criminal Procedure
927 statutes of limitation established in s. 924.056 and elsewhere
928 in this chapter. Except as expressly allowed by s. 924.056(5), a
929 person sentenced to death or that person’s capital
930 postconviction counsel may not file more than one postconviction
931 action in a sentencing court and one appeal therefrom to the
932 Florida Supreme Court, unless authorized by law.
933 (2) It is the further intent of the Legislature that no
934 state resources be expended in violation of this act. In the
935 event that any state employee or party contracting with the
936 state violates the provisions of this act, the Attorney General
937 shall deliver to the Speaker of the House of Representatives and
938 the President of the Senate a copy of any court pleading or
939 order that describes or adjudicates a violation.
940 Section 17. Section 924.056, Florida Statutes, is amended
941 to read:
942 (Substantial rewording of section. See
943 s. 924.056, F.S., for present text.)
944 924.056 Capital postconviction proceedings; reporting
945 requirements.—
946 (1) The Florida Supreme Court shall annually report to the
947 Speaker of the House of Representatives and the President of the
948 Senate the status of each capital case in which a postconviction
949 action has been filed that has been continuously pending for
950 more than 3 years. The report must include the name of the state
951 court judge involved in the case.
952 (2) In a capital postconviction proceeding in which it has
953 been determined that an attorney of record provided
954 constitutionally deficient representation and relief has been
955 granted as a result of such determination, after the highest
956 court having jurisdiction to review such determination has
957 issued its final order affirming the determination, the court
958 making such determination shall furnish a copy of the findings
959 to The Florida Bar for appropriate disciplinary action.
960 Section 18. Section 924.057, Florida Statutes, is amended
961 to read:
962 (Substantial rewording of section. See
963 s. 924.057, F.S., for present text.)
964 924.057 Capital postconviction proceedings; legislative
965 intent.—The legislature acknowledges the past efforts made by
966 the judicial branch in establishing rules of criminal procedure
967 that make the capital postconviction process fair and more
968 efficient. The legislature also recognizes and commends the
969 judicial branch for continuing these efforts by issuing
970 Administrative Order AOSC13-11, which creates a Capital
971 Postconviction Proceedings Subcommittee of the Criminal Court
972 Steering Committee, and directs the Subcommittee to undertake a
973 comprehensive review of capital postconviction proceedings, and
974 to make recommendations to the Florida Supreme Court whether
975 court rules should be amended to improve the overall efficiency
976 of the capital postconviction process. In support of these
977 efforts, the legislature expresses its intent that capital
978 postconviction proceedings be conducted in accordance with court
979 rules, and that courts strictly adhere to the timeframes and
980 postconviction motion content requirements established therein.
981 Section 19. Section 940.031, Florida Statutes, is created
982 to read:
983 940.031 Clemency counsel when sentence of death has been
984 imposed.—When a person has been sentenced to death, the Governor
985 and Cabinet, acting as the Board of Executive Clemency, shall
986 appoint counsel to represent the person for relief by executive
987 clemency. The Board may not appoint a public defender, an office
988 of criminal conflict and civil regional counsel, or any capital
989 collateral regional counsel under this section. The appointed
990 attorney shall be compensated, not to exceed $10,000, for
991 attorney fees and costs incurred in representing the person for
992 relief by executive clemency, with compensation to be paid out
993 of the General Revenue Fund from funds budgeted to the Parole
994 Commission. The Board shall maintain a list of counsel available
995 for appointment under this section.
996 Section 20. Sections 924.058, 924.059, and 924.395, Florida
997 Statutes, are repealed.
998 Section 21. If any provision of this act or the application
999 thereof to any person or circumstance is held invalid, the
1000 invalidity does not affect other provisions or applications of
1001 the act which can be given effect without the invalid provision
1002 or application, and to this end the provisions of this act are
1003 declared severable.
1004 Section 22. This act shall take effect July 1, 2013.
