100 North Biscayne Boulevard, Suite 3070 Miami, Florida 33132-2306 Tel: 305-373-9911 Fax: 786-425-2380 www.floridacapitalresourcecenter.

org

May 20, 2012 Les Garringer Executive Director Florida Innocence Commission Re: Impact of Section 27.5304 on Capital Cases and the problematic amendments to Sections 27.5304 and 27.40 passed this last legislative session. Dear Mr. Garringer, I write to you on behalf of Florida Capital Resource Center to discuss the impact of section 27.5304, Florida Statutes (2010) on capital cases, as well as to discuss the problematic amendments to that statute, as well as those to section 27.40, Florida Statutes (2010), that have been passed and signed into law after this most recent legislative session. As the Innocence Commission addresses the issues surrounding conflict-counsel at its upcoming meeting, I hope the information provided here will inform your discussions and that the Commission will take into consideration the issues presented herein. Should the Commission require any more information or have any questions regarding the information or materials provided, please do not hesitate to contact us.

Very Truly Yours,

Terence Lenamon Chairman, Board of Directors Florida Capital Resource Center

Enclosures

I: THE EFFECT OF 27.5304 ON CAPITAL C ASES

Floridas capital defendants are facing a deficiency in effective representation, particularly in those areas of the State responsible for the highest number of death sentences. One of the primary reasons for this deficit in quality representation is Floridas statutory scheme for compensating private court-appointed counsel section 27.5304, Florida Statutes (2010). For several reasons, the current scheme works to discourage qualified private attorneys from registering for court-appointment. At the same time, the statute provides economic incentive for those who do register to spend as little time on a case as possible. Together, these unintended consequences have resulted in a significant decrease in the quality of representation available to capital defendants. Highly Qualified Attorneys Need Not Apply The compensation scheme codified in section 27.5304 was intended to save the State money by limiting attorneys fees and encouraging plea deals. Thus, section 27.5304(5) provides a schedule of flat fees for attorneys based on the class of offense, and as noted in subsection (11), the Legislature intended that the flat fees prescribed . . . comprise the full and complete compensation for private court-appointed counsel. However, for more serious or complex cases, these flat fees are set unreasonably low: 1. For misdemeanors and juveniles represented at the trial level: $1,000. 2. For noncapital, nonlife felonies represented at the trial level: $2,500. 3. For life felonies represented at the trial level: $3,000. 4. For capital cases represented at the trial level: $15,000. 5. For representation on appeal: $2,000. 27.5304(5)(a) (2010). The fees are especially unreasonable as they relate to capital cases. A properly managed capital case that reaches trial typically lasts several months, if not years, and will generally require hundreds of hours of attorney time to prepare. However, based on a recent survey in which 91% of responding Florida lawyers listed their hourly rate at $150 or higher, the statutory flat fee for capital cases amounts to 100 hours or less of attorney time an amount that 2 barely covers the in-court time of an attorney over the course of both phases of a trial. Thus, in the capital context, the prescribed flat fees immediately discourage qualified attorneys from registering for court-appointment and even more so for attorneys with greater experience who presumably charge a higher rate.

Florida Capital Resource Center is a nonprofit organization that provides extensive legal resources to facilitate the defense and mitigation of capital murder cases in the State of Florida. As FCRC focuses its efforts solely on cases involving the death penalty, the concerns presented here largely focus on section 27.5304 as it relates to capital litigation. However, in examining the overall fee structure as set forth in section 27.5304, the Commission will find that these same concerns apply to most other types of cases as well. 2 See Hagopian v. Justice Administrative Comn, 18 So. 3d 625, 629, n.3 (Fla. 2d DCA 2009) (citing Mark D. Killian, Lawyers Income is Flat as Firms Brace for Lean Times, Fla. B. News, Feb. 1, 2009, at 8). The survey found that 91% reported rates above $150/hour, 69% higher than $200/hour, and 18% at $300/hour or more. Id.

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Recognizing the possibility of a rare case that requires so much of an attorneys time as to render the prescribed flat fees confiscatory, subsection (12) provides that the flat fees may be exceeded if and when a case requires extraordinary and unusual effort (explained below). In such a case, the statute permits the attorneys fee to be calculated using prescribed hourly rates. However, those rates are limited to $100 per hour for capital cases and $75 per hour for noncapital cases rates that are still substantially below market rates for similar services. Hagopian, 18 So. 3d at 629; See also Justice Administrative Comn v. Lenamon, 19 So. 3d 1158 (Fla. 2d DCA 2009). Thus, while the statute does provide the possibility of exceeding the prescribed flat fees, the reduced hourly rates again discourage the more experienced and better qualified attorneys from joining the registry. As a result of these economic disincentives, many of the attorneys who do register for courtappointment are under-qualified or too inexperienced to provide effective, quality capital representation. Exceeding the Flat Fees: Extraordinary and Unusual Effort For those attorneys who do join the registry and find themselves on a case requiring extraordinary and unusual effort, they will quickly realize that if they want to be compensated for those efforts (albeit, poorly), they are going to have to fight for it. Section 27.5304(12) (2010) provides the procedure attorneys must follow to increase their fees beyond the flat rates. First, the attorney must submit a copy of the intended billing (along with supporting affidavits and other necessary documentation) to the Justice Administrative Commission (JAC) for review. JAC will then respond in writing with any objections it has to the proposed billing. The attorney must then attach JACs written objections to a motion for the fees and file it with the chief judge or a designee thereof for the respective judicial circuit. By administrative order, most chief judges have designated the presiding trial judges to hear these motions, but due to one of the amendments made to section 27.5304 (discussed below), this is no longer possible. The chief judge (or designee) will then hold an evidentiary hearing at which the attorney must prove by competent and substantial evidence that the case required extraordinary and unusual 3 efforts. 27.5304(12) (2010). JAC has standing to appear at the hearing in opposition, and generally will if it objects to any of the proposed billing. Only if the chief judge (or designee) finds that extraordinary and unusual efforts were required will the attorney be compensated beyond the flat fee, and if the motion is denied, the attorney will have to appeal the order to receive the excess compensation. As mentioned above, a properly prepared capital case that reaches trial generally requires hundreds of attorney hours, and thus, a capital attorney providing effective representation will almost always need to exceed the $15,000 flat fee. Therefore, not only are attorneys discouraged

The statute provides that the judge shall consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial in making its determination, but that relief may not be granted if the number of work hours does not exceed 75 or the number of the states witnesses deposed does not exceed 20. 27.5304(12)(b) (2010).

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from registering for capital appointment by the reduced hourly rates, they are further discouraged because they know they will have to fight to get them. Finally, section 27.5304(3) provides that [p]rivate court-appointed counsel is entitled to compensation upon final disposition of a case. However, as mentioned, a capital case that reaches trial typically takes months if not years to complete. Though interim billing is sometimes available by court-order, that means an attorney might have to wait that long to be compensated at all. Obviously, this can be problematic for any attorney taking on a long-lasting case, and only further serves to discourage attorneys from registering for appointment. For all of these reasons, section 27.5304 provides tremendous disincentive to register for capital defense appointment, creating a shortage of qualified private capital attorneys available for indigent representation. The net result of that shortage is the representation of capital defendants by under-qualified attorneys. Many of these attorneys are well-meaning but lack the experience and resources they need to provide better representation. Others, however, register for courtappointment out of financial motive. While the $15,000 statutory flat rate is a limitation, it is also guaranteed upon completion of the case no matter the amount of work actually performed. Thus, rather than deal with the above-described bureaucracy to increase fees as necessary to prepare a proper defense, these attorneys are economically motivated to do the absolute minimum necessary to complete each case, collect their fee, and move on as quickly as possible. This means that attorneys cut corners and do not educate themselves on important techniques both unique and necessary for effective capital defense litigation, unfairly providing clients an underprepared defense. In other cases, attorneys convince their clients to take plea deals that are not in the clients best interest (e.g., when the client has a strong defense, but it is one that would require a significant time commitment from counsel to develop and present). II: THE RECENT A MENDMENTS TO 27.5304: SENATE BILL 1960 4 During the 2012 legislative session, the Florida Legislature passed Senate Bill 1960, amending section 27.5304 and raising significant constitutional concerns. 5 The relevant portions (section 4) of Senate Bill 1960 are attached. First, Senate Bill 1960 amends section 27.5304(12)(b) to prevent presiding trial judges from hearing motions for attorneys fees in excess of the statutory flat fees. As mentioned, most chief judges assigned the presiding trial judges as their designee by administrative order. Such a designation is appropriate because the presiding trial judges are most familiar with the facts and circumstances of the particular case and are thus in the best position to determine whether it required an attorneys extraordinary and unusual efforts and whether the fees requested are reasonable. However, under the newly amended section 27.5304(12)(b), [t]he chief judge may select only one judge per circuit to hear and determine motions pursuant to this subsection,
4

Act of Apr. 20, 2012, 2012 Fla. Sess. Law Serv. Ch. 2012-123 (S.B. 1960) (WEST) (hereinafter Senate Bill 1960) (amending Fla. Stat. 27.40, 27.511, 27.52, 27.5304, 39.8296, 39.8297, 318.19) (effective July 1, 2012). 5 The language found in Senate Bill 1960 (2012) that is addressed here was actually passed by the Florida Legislature during the 2011 Legislative Session as part of a larger bill, Senate Bill 2116 (2011), but was subsequently vetoed by Governor Rick Scott for unrelated reasons. Nonetheless, the related special category appropriation referenced therein was still made in the 2011 General Appropriations Act, and included an explanatory paragraph that contained the vetoed language. See S.B. 2000 (2011) Line Item 771A.

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except multicounty circuits and the eleventh circuit may have up to two designees. 27.5304(12)(b) (effective July 1, 2012). This is problematic because the hearing and subsequent determination will now be in the hands of a judge who is completely unfamiliar with the case. Likely designed to reduce the amount of excess fees awarded, this is just one of the amendments to section 27.5304(12) that forces judges to consider the States economic shortcomings when determining whether to award excess fees, a determination that should be based solely on the needs of each particular case. For example, in his Administrative Order No. 2011-07 (Jul. 19, 2011) (attached), Chief Judge Donald R. Moran, Jr. of the Fourth Circuit cites economic concerns and the need for uniformity as he reclaims from presiding trial judges sole authority to hear motions for attorneys fees in excess of the statutory flat fees. Senate Bill 1960 also amends section 27.5304(12)(f) (2010) to provide direction about which appropriations set forth in the General Appropriations Act are to be used to pay attorneys fees that exceed the prescribed flat rates. Pursuant to the new amendments, effective July 1, 2012, the amount of attorney fees ordered in excess of the flat fee shall be paid by the Justice Administrative Commission in a special category designated for that purpose in the General Appropriations Act. 27.5304(12)(f)(2) (effective July 1, 2012). This special category was allocated $3,000,000 in the 2012 General Appropriations Act.6 See SB 5001, Line Item 828 (attached). However, the newly amended 27.5304(12)(f) then goes on to say: If, during the fiscal year, all funds designated for payment of the amount ordered by the court in excess of the flat fee are spent, the amount of payments in excess of the flat fee shall be made from the due process funds, or other funds as necessary, appropriated to the state courts system in the General Appropriations Act. 27.5304(12)(f)(3) (effective July 1, 2012). While several of the legal arguments concerning the constitutionality of these amendments can be seen in the attached Motion Declaring Florida Statute 27.5304 Unconstitutional7, suffice it to say that this new language is problematic because it creates a direct conflict of interest between the judiciary and indigent defendants. Specifically, the statute now places judges in the position of having to weigh a defendants due process rights against the courts own financial interests; that is, whether to award attorneys fees knowing it may mean a reduction in the courts own budget. And the judges concerns would not be unjustified. According to the Bill Analysis and Fiscal Impact Statement on SB 1960 (attached), the Florida Senate Budget Committee estimates that the total costs for payments exceeding the flat fees for fiscal year 2011-12 will be $6,798,189 an amount far exceeding the $3,000,000 appropriation made in SB 5001 and the balance of which is now required to be paid from the State courts budget.8
6 7

General Appropriations Act, 2012 Fla. Sess. Law Serv. Ch. 2012 -118 (S.B. 5001) (WEST) (hereinafter SB 5001). Motion Declaring Florida Statute 27.5304 Unconstitutional, State v. Cooper , Case No. F04-15209, F04-16827 (Fla. 11th Cir. Ct. May 25, 2011) (withdrawn). When this statutory amendment was passed last year, Terence Lenamon filed the attached motion on behalf of his client, Demetrius Cooper. However, because the statutory amendment was subsequently vetoed by Gov. Scott, the motion was withdrawn and never litigated. Mr. Lenamon is now drafting a revised and updated version of the motion and intends to litigate the issue in his current cases. 8 Profl Staff of Fla. S. Budget Comm., Bill Analysis and Fiscal Impact Statement of SB 1960, at 2 (Feb. 8, 2012).

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However valid the Legislatures concerns over the budget may be, the compensation scheme prescribed in the newly amended section 27.5304(12) clearly compromises an indigent defendants right to effective representation by compromising the impartiality of judges in determining the attorneys compensation. Rather than basing their determination solely on the needs and circumstances of a particular case (as the statute requires), judges will now factor in concerns about the States limited budget, causing them to be much more conservative in awarding attorneys fees for fear of harming their own financial interests no matter how extraordinary and unusual an attorneys efforts are found to be. Indeed, an example of this can already be seen in the attached Order Denying Motion For Attorneys Fees In Excess Of Statutory Cap, 2, 9 State v. Rashad Stewart Martinez, Case No. 2010-CF-3429 (May 8, 2012) (The Court has no doubt that counsel worked tirelessly and diligently on this case. Nevertheless, the Court must balance the States budgetary constraints against the interest of compensating counsel as fairly as possible for his time and effort.).9 As more courts begin to deny and reduce attorneys fees based on concern over the budget, it is likely that more attorneys will begin to refuse acceptance of court-appointed cases due to the genuine concern that they will not be compensated by the State after rendering their services, resulting in a dramatic decrease in available indigent representation. III: THE RECENT A MENDMENTS TO 27.40 Perhaps to reduce the frequency with which judges will have to determine whether to award excess fees pursuant to section 27.5304(12) (or in effort to eliminate from the registries those attorneys willing to seek them), Senate Bill 1960 also amends section 27.40, Florida Statutes (2010), raising more constitutional concerns. Again, the relevant portions (section 1) of Senate Bill 1960 are attached. Limited Registries: The End of Excess Fees Section 27.40 is the statutory provision requiring each judicial circuit to maintain a registry of private attorneys available for appointment as conflict-counsel. Fla. Stat. 27.40 (2010). It also provides that such attorneys shall be compensated in accordance with section 27.5304. Id. During the 2012 Legislative Session, however, the Legislature amended section 27.40 in several significant ways: First, the chief judge of each circuit may [now] restrict the number of attorneys on the general registry list. Fla. Stat. 27.40(3)(a) (effective July 1, 2012). Second, in order to be included on a registry, attorneys must certify whether they are willing to accept as full payment the flat fees prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12), except for cases brought under the Racketeer Influenced

It is worth noting that Chief Judge Moran signed this order less than two months after the Fourth District Court of Appeals decided Still v. Justice Administrative Comn, 82 So.3d 1168, 1170 (Fla. 4th DCA 2012) (While the trial courts concerns as to the States financial condition were obviously well intended, it must be recognized that matters of appropriation and adequacy of state funds are legislative functions and not judicial. It would be a violation of the separation of powers doctrine for trial courts to address whether adequate state funding is available to discharge a statutory provision authorizing payment of attorneys fees . . . .).

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and Corrupt Organizations Act and capital cases as defined in s. 27.5304(5)(a)(4). Fla. Stat. 27.40(3)(a)(4) (effective July 1, 2012) (emphasis added). Third, chief judges may establish limited registries that include only those attorneys willing to waive compensation in excess of the flat fee prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12). Fla. Stat. 27.40(3)(a) (effective July 1, 2012) (emphasis added). Finally, the amendment provides that [i]f a chief judge establishes a limited registry of attorneys willing to waive compensation in excess of the flat fee, the court shall appoint attorneys from that limited registry unless there are no attorneys available to accept the appointment on the limited registry. Fla. Stat. 27.40(b) (effective July 1, 2012). Clearly, this is an attempt by the Legislature to prevent attorneys from collecting fees beyond the flat rates in all but RICO and capital cases, and it is certain to have a detrimental effect on the quality of representation available to indigent defendants. While the limited registries arguably do not apply to capital cases,10 the statutory flat fees are still unreasonably low for life felonies and other serious offenses or complex cases. Thus, agreeing to waive excess fees assures attorneys that they will be grossly underpaid if they are appointed to a serious or complex case. Further, because the new amendment requires that chief judges appoint attorneys from the limited registries first, as long as there are a few attorneys willing to waive excess fees (presumably because they are either under-qualified or intentionally providing ineffective representation for quick financial gain), other attorneys will be forced to do the same or effectively abandon appointment. This model incentivizes poor representation increasingly so the more serious or complex the case is and all but guarantees indigent defendants will receive inferior (if not ineffective) representation because they will only be appointed attorneys who have foreclosed the possibility of being fairly compensated. Nevertheless, due to the amendments made to section 27.5304(12) discussed above, chief judges will be motivated to create limited registries as a way of protecting their budget.

CONCLUSION The compensation scheme for private court-appointed counsel as set forth in section 27.5304 (2010) discourages effective, high quality representation. This is particularly true in the capital context, though can be felt throughout most levels of offenses. The recent amendments to sections 27.5304 and 27.40 found in Senate Bill 1960 greatly exacerbate this problem. It is both ironic and troublesome that the statutory scheme is written such that the quality of representation decreases as the seriousness of the crime increases. We hope that the information provided here will assist the Innocence Commission in its efforts to improve representation and protect the constitutional rights of indigent defendants.
10

The way the amendment was written, attorneys registering for capital cases are not required to certify whether they are willing to waive compensation in excess of the flat fee in order to join the general registry. However, there is nothing in the statutory amendment prohibiting an attorney from doing so. Thus, it appears entirely possible that a limited registry could include capital defense attorneys who have agreed to waive excess fees. This is especially disconcerting in those circuits where the capital case registry already includes financially-motivated attorneys who regularly choose to inadequately prepare their cases for the $15,000 flat rate rather than providing quality representation and appropriately seeking excess fees.

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20121960er 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 the results of the review in a file with the application and provide the file to the court if the applicant seeks review under subsection (4) of the clerks determination of indigent status. Section 4. Section 27.5304, Florida Statutes, is amended to read: 27.5304 Private court-appointed counsel; compensation; notice. (1) Private court-appointed counsel shall be compensated by the Justice Administrative Commission as provided in this section and the General Appropriations Act. The flat fees prescribed in this section are limitations on compensation. The specific flat fee amounts for compensation shall be established annually in the General Appropriations Act. The attorney also shall be reimbursed for reasonable and necessary expenses in accordance with s. 29.007. If the attorney is representing a defendant charged with more than one offense in the same case, the attorney shall be compensated at the rate provided for the most serious offense for which he or she represented the defendant. This section does not allow stacking of the fee limits established by this section. (2) The Justice Administrative Commission shall review an intended billing by private court-appointed counsel for attorney attorneys fees based on a flat fee per case for completeness and compliance with contractual and statutory requirements. The commission may approve the intended bill for a flat fee per case for payment without approval by the court if the intended billing is correct. An intended billing that seeks compensation for any amount exceeding the flat fee established for a Page 8 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 particular type of representation, as prescribed in the General Appropriations Act, shall comply with subsections (11) and (12). (3) The court retains primary authority and responsibility for determining the reasonableness of all billings for attorney attorneys fees, costs, and related expenses, subject to statutory limitations. Private court-appointed counsel is entitled to compensation upon final disposition of a case. (4)(a) The attorney shall submit a bill for attorney attorneys fees, costs, and related expenses within 90 days after the disposition of the case at the lower court level, notwithstanding any appeals. The Justice Administrative Commission shall provide by contract with the attorney for imposition of a penalty of: 1. Fifteen percent of the allowable attorney attorneys fees, costs, and related expenses for a bill that is submitted more than 90 days after the disposition of the case at the lower court level, notwithstanding any appeals; 2. For cases for which disposition occurs on or after July 1, 2010, 50 percent of the allowable attorney attorneys fees, costs, and related expenses for a bill that is submitted more than 1 year after the disposition of the case at the lower court level, notwithstanding any appeals; or 3. For cases for which disposition occurs on or after July 1, 2010, 75 percent of the allowable attorney attorneys fees, costs, and related expenses for a bill that is submitted more than 2 years after the disposition of the case at the lower court level, notwithstanding any appeals. (b) For purposes of this subsection, the term disposition means: Page 9 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 1. At the trial court level, that the court has entered a final appealable judgment, unless rendition of judgment is stayed by the filing of a timely motion for rehearing. The filing of a notice of appeal does not stay the time for submission of an intended billing; and 2. At the appellate court level, that the court has issued its mandate. (5) The compensation for representation in a criminal proceeding shall not exceed the following: (a)1. For misdemeanors and juveniles represented at the trial level: $1,000. 2. For noncapital, nonlife felonies represented at the trial level: $2,500. 3. For life felonies represented at the trial level: $3,000. 4. For capital cases represented at the trial level: $15,000. For purposes of this subparagraph, a capital case is any offense for which the potential sentence is death and the state has not waived seeking the death penalty. 5. For representation on appeal: $2,000. (b) If a death sentence is imposed and affirmed on appeal to the Supreme Court, the appointed attorney shall be allowed compensation, not to exceed $1,000, for attorney attorneys fees and costs incurred in representing the defendant as to an application for executive clemency, with compensation to be paid out of general revenue from funds budgeted to the Department of Corrections. (6) For compensation for representation pursuant to a court appointment in a proceeding under chapter 39: Page 10 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 (a) At the trial level, compensation for representation for dependency proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an adjudication of dependency, shall be completed by the trial attorney and is considered compensated by the flat fee for dependency proceedings. 1. Counsel may bill the flat fee not exceeding $1,000 following disposition or upon dismissal of the petition. 2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year following the date of appointment and each year thereafter as long as the case remains under protective supervision. 3. If the court grants a motion to reactivate protective supervision, the attorney shall receive the annual flat fee not exceeding $200 following the first judicial review and up to an additional $200 each year thereafter. 4. If, during the course of dependency proceedings, a proceeding to terminate parental rights is initiated, compensation shall be as set forth in paragraph (b). If counsel handling the dependency proceeding is not authorized to handle proceedings to terminate parental rights, the counsel must withdraw and new counsel must be appointed. (b) At the trial level, compensation for representation in termination of parental rights proceedings shall not exceed Page 11 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an order granting or denying termination of parental rights, shall be completed by trial counsel and is considered compensated by the flat fee for termination of parental rights proceedings. If the individual has dependency proceedings ongoing as to other children, those proceedings are considered part of the termination of parental rights proceedings as long as that termination of parental rights proceeding is ongoing. 1. Counsel may bill the flat fee not exceeding $1,000 30 days after rendition of the final order. Each request for payment submitted to the Justice Administrative Commission must include the trial counsels certification that: a. Counsel discussed grounds for appeal with the parent or that counsel attempted and was unable to contact the parent; and b. No appeal will be filed or that a notice of appeal and a motion for appointment of appellate counsel, containing the signature of the parent, have been filed. 2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year after the date of appointment and each year thereafter as long as the termination of parental rights proceedings are still ongoing. (c) For appeals from an adjudication of dependency, compensation may not exceed $1,000. 1. Counsel may bill a flat fee not exceeding $750 upon Page 12 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 filing the initial brief or the granting of a motion to withdraw. 2. If a brief is filed, counsel may bill an additional flat fee not exceeding $250 upon rendition of the mandate. (d) For an appeal from an adjudication of termination of parental rights, compensation may not exceed $2,000. 1. Counsel may bill a flat fee not exceeding $1,000 upon filing the initial brief or the granting of a motion to withdraw. 2. If a brief is filed, counsel may bill an additional flat fee not exceeding $1,000 upon rendition of the mandate. (7) Counsel entitled to receive compensation from the state for representation pursuant to court appointment in a proceeding under chapter 384, chapter 390, chapter 392, chapter 393, chapter 394, chapter 397, chapter 415, chapter 743, chapter 744, or chapter 984 shall receive compensation not to exceed the limits prescribed in the General Appropriations Act. (8) A private attorney appointed in lieu of the public defender or the criminal conflict and civil regional counsel to represent an indigent defendant may not reassign or subcontract the case to another attorney or allow another attorney to appear at a critical stage of a case who is not on the registry developed under s. 27.40. (9) Private court-appointed counsel representing an individual in an appeal to a district court of appeal or the Supreme Court may submit a request for payment to the Justice Administrative Commission at the following intervals: (a) Upon the filing of an appellate brief, including, but not limited to, a reply brief. Page 13 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 This subsection constitutes notice to any subsequently appointed attorney that he or she will not be compensated the full flat fee. (12) The Legislature recognizes that on rare occasions an attorney may receive a case that requires extraordinary and unusual effort. Page 14 of 23 CODING: Words stricken are deletions; words underlined are additions. (b) When the opinion of the appellate court is finalized. (10) Private court-appointed counsel may not bill for preparation of invoices. (11) It is the intent of the Legislature that the flat fees prescribed under this section and the General Appropriations Act comprise the full and complete compensation for private courtappointed counsel. It is further the intent of the Legislature that the fees in this section are prescribed for the purpose of providing counsel with notice of the limit on the amount of compensation for representation in particular proceedings. (a) If court-appointed counsel moves to withdraw prior to the full performance of his or her duties through the completion of the case, the court shall presume that the attorney is not entitled to the payment of the full flat fee established under this section and the General Appropriations Act. (b) If court-appointed counsel is allowed to withdraw from representation prior to the full performance of his or her duties through the completion of the case and the court appoints a subsequent attorney, the total compensation for the initial and any and all subsequent attorneys may not exceed the flat fee established under this section and the General Appropriations Act, except as provided in subsection (12).

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20121960er 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 (a) If counsel seeks compensation that exceeds the limits prescribed by law under this section and the General Appropriations Act, he or she must file a motion with the chief judge for an order approving payment of attorney attorneys fees in excess of these limits. 1. Before Prior to filing the motion, the counsel shall deliver a copy of the intended billing, together with supporting affidavits and all other necessary documentation, to the Justice Administrative Commission. 2. The Justice Administrative Commission shall review the billings, affidavit, and documentation for completeness and compliance with contractual and statutory requirements. If the Justice Administrative Commission objects to any portion of the proposed billing, the objection and supporting reasons must therefor shall be communicated in writing to the private courtappointed counsel. The counsel may thereafter file his or her motion, which must specify whether the commission objects to any portion of the billing or the sufficiency of documentation, and shall attach the commissions letter stating its objection. (b) Following receipt of the motion to exceed the fee limits, the chief judge or a single designee shall hold an evidentiary hearing. The chief judge may select only one judge per circuit to hear and determine motions pursuant to this subsection, except multicounty circuits and the eleventh circuit may have up to two designees. 1. At the hearing, the attorney seeking compensation must prove by competent and substantial evidence that the case required extraordinary and unusual efforts. The chief judge or single designee shall consider criteria such as the number of Page 15 of 23 CODING: Words stricken are deletions; words underlined are additions.

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20121960er 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 witnesses, the complexity of the factual and legal issues, and the length of trial. The fact that a trial was conducted in a case does not, by itself, constitute competent substantial evidence of an extraordinary and unusual effort. In a criminal case, relief under this section may not be granted if the number of work hours does not exceed 75 or the number of the states witnesses deposed does not exceed 20. 2. The chief judge or single designee shall enter a written order detailing his or her findings and identifying the extraordinary nature of the time and efforts of the attorney in the case which warrant exceeding the flat fee established by this section and the General Appropriations Act. (c) A copy of the motion and attachments shall be served on the Justice Administrative Commission at least 5 business days before prior to the date of a hearing. The Justice Administrative Commission has shall have standing to appear before the court, including at the hearing under paragraph (b), to contest any motion for an order approving payment of attorney attorneys fees, costs, or related expenses and may participate in a hearing on the motion by use of telephonic or other communication equipment unless ordered otherwise. The Justice Administrative Commission may contract with other public or private entities or individuals to appear before the court for the purpose of contesting any motion for an order approving payment of attorney attorneys fees, costs, or related expenses. The fact that the Justice Administrative Commission has not objected to any portion of the billing or to the sufficiency of the documentation is not binding on the court. (d) If the chief judge or a single designee finds that Page 16 of 23 CODING: Words stricken are deletions; words underlined are additions.

ENROLLED 2012 Legislature

SB 1960, 1st Engrossed

20121960er 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or single designee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage must shall be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the flat fee in the case would be confiscatory. If the chief judge or single designee determines that 200 percent of the flat fee would be confiscatory, he or she shall order the amount of compensation using an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory. (e) Any order granting relief under this subsection must be attached to the final request for a payment submitted to the Justice Administrative Commission. (f) For criminal cases only, if the court orders payment in excess of the flat fee established by law, fees shall be paid as follows: 1. The flat fee shall be paid from funds appropriated to the Justice Administrative Commission in the General Appropriations Act. 2. The amount ordered by the court in excess of the flat fee shall be paid by the Justice Administrative Commission in a special category designated for that purpose in the General Page 17 of 23 CODING: Words stricken are deletions; words underlined are additions.

ENROLLED 2012 Legislature

SB 1960, 1st Engrossed

20121960er 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 Appropriations Act. 3. If, during the fiscal year, all funds designated for payment of the amount ordered by the court in excess of the flat fee are spent, the amount of payments in excess of the flat fee shall be made from the due process funds, or other funds as necessary, appropriated to the state courts system in the General Appropriations Act. Funds from the state courts system must be used in a manner approved by the Chief Justice and administered by the Trial Court Budget Commission. (g) The Justice Administrative Commission shall provide to the Office of the State Courts Administrator monthly data by statewide uniform case number, attorney, and defendant name concerning: 1. Private court-appointed cases opened; 2. Cases paid and the amount of payment, including any amount in excess of the flat fee; and 3. Cases for which compensation was waived. (h)(f) The Justice Administrative Commission shall provide monthly to the Office of the State Courts Administrator data concerning the number of cases approved for compensation in excess of the flat fee limitation and the amount of these awards by circuit and by judge. The Justice Administrative Commission Office of the State Courts Administrator shall report the data quarterly in an electronic format to the chairs of the legislative appropriations committees and the Office of the State Courts Administrator President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the chief judge of each circuit. Section 5. Paragraph (b) of subsection (2) of section Page 18 of 23 CODING: Words stricken are deletions; words underlined are additions.

ENROLLED HB 5001, ENGROSSED 2 ______________________________________________________________________________ SECTION 4 - CRIMINAL JUSTICE AND CORRECTIONS The maximum flat fee to be paid by the Justice Administrative Commission for attorney fees for the following dependency and civil cases is set as follows: ADMISSION OF INMATE TO MENTAL HEALTH FACILITY............... ADULT PROTECTIVE SERVICES ACT - Ch. 415, F.S................ BAKER ACT/MENTAL HEALTH - Ch. 394, F.S...................... CINS/FINS - Ch. 984, F.S.................................... CIVIL APPEALS............................................... DEPENDENCY - Up to 1 Year................................... DEPENDENCY - Each Year after 1st Year....................... DEPENDENCY - No Petition Filed or Dismissed at Shelter...... DEPENDENCY APPEALS.......................................... DEVELOPMENTALLY DISABLED ADULT - Ch. 393, F.S............... EMANCIPATION - Section 743.015, F.S......................... GUARDIANSHIP - EMERGENCY - Ch. 744, F.S..................... GUARDIANSHIP - Ch. 744, F.S................................. MARCHMAN ACT/SUBSTANCE ABUSE - Ch. 397, F.S................. MEDICAL PROCEDURES - Section 394.459(3), F.S................ PARENTAL NOTIFICATION OF ABORTION ACT....................... TERMINATION OF PARENTAL RIGHTS - Ch. 39, F.S. - Up to 1 Year...................................................... TERMINATION OF PARENTAL RIGHTS - Ch. 39, F.S. - Each Year after 1st Year............................................ TERMINATION OF PARENTAL RIGHTS - Ch. 63, F.S. - Up to 1 year TERMINATION OF PARENTAL RIGHTS - Ch. 63, F.S. - Each Year after 1st Year............................................ TERMINATION OF PARENTAL RIGHTS APPEALS...................... TUBERCULOSIS - Ch. 392, F.S................................. 827 SPECIAL CATEGORIES RISK MANAGEMENT INSURANCE FROM GENERAL REVENUE FUND 300 500 400 750 400 800 200 200 1,000 400 400 400 400 300 400 400 1,000 200 1,000 200 2,000 300

. . . . .

29,926

828

SPECIAL CATEGORIES ATTORNEY PAYMENTS OVER FLAT FEE FROM GENERAL REVENUE FUND . . . . .

3,000,000

Funds in Specific Appropriation 828 are provided for court ordered payments for attorney fees in criminal conflict cases in excess of the flat fee established in law. Pursuant to section 27.5304 (12), Florida Statutes, if funds in this category are insufficient to pay the amounts ordered by the court above the flat fees, the amounts ordered above the flat fees shall be paid from the due process funds or other funds, as necessary, appropriated to the state court system in the General Appropriations Act. The Office of the State Courts Administrator (OSCA) shall conduct a study of the adequacy and reasonableness of the current statutory flat fee limits and the statutory hourly rates listed in section 27.5304 (12) for criminal cases in which conflict counsel is appointed. The Justice Administrative Commission shall assist the Office by providing all data, documents, and information in its possession requested by OSCA to complete the study. OSCA shall submit a report of the study to the chair of the Senate Budget Committee and the chair of the House Appropriations Committee by January 15, 2013. 829 SPECIAL CATEGORIES CRIMINAL CONFLICT CASE COSTS FROM GENERAL REVENUE FUND . . . . .

22,669,350

Funds in Specific Appropriation 829 are provided for case fees as specified in section 27.5304, Florida Statutes, and expenses as specified in section 29.007, Florida Statutes, of court-appointed counsel for indigent criminal defendants and for due process costs for those individuals the court finds indigent for costs. The Justice Administrative Commission shall submit quarterly reports, in an electronic format, of criminal conflict case payments and performance measures for court-appointed counsel including: average time to complete cases by case type, number of bar complaints for state paid cases, percent of initial invoices to the Justice Administrative Commission that are rejected; percent of initial invoices filed with the Justice Administrative Commission within 90 days after closure of the case; number of cases by type; and total cost per case by type to the chair of the Senate Budget Committee and the chair of the House Appropriations Committee by judicial circuit. From the shall be funds in Specific Appropriation 829, a total of $216,934 transferred in quarterly increments within 10 days after the

129

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. DEMETRIUS COOPER, Defendant. / MOTION DECLARING FLORIDA STATUTE 27.5304 UNCONSTITUTIONAL Defendant, by and through undersigned counsel, respectfully requests this honorable court to declare Florida Statute 27.5304 effective July 1, 2011 unconstitutional and as grounds in support states: 1. The recently amended Florida Statute 27.5304 restructures the payment scheme for private court-appointed counsel. 2. Previously, criminal court-appointed counsel fees, including those above the flat fees established by the Justice Administrative Commission, were paid by the Justice Administrative Commission from the Criminal Conflict Appropriation Category. Over the last several years the costs of criminal conflict counsel have exceeded the original appropriations and the legislature has had to transfer funds from other due process categories in the JAC and make supplemental appropriations from unallocated general revenue to resolve projected deficits. See STATE OF FLA., 7120 BILL
ANALYSIS

CRIMINAL DIVISION CASE NO.: F04-15209, F04-16827 JUDGE: SAYFIE

A ND FISCAL IMPACT STATEMENT, Senate Budget Committee, Reg.

Sess., at 3 (2011). 3. Now, fees in excess of the established flat fees incurred by criminal conflict counsel, shall be paid first by the JAC in a special category in the General Appropriations Act designated

for attorney payments over the flat fee, and if the $3,000,000 appropriated to that special category is expended then the rest of the payments shall be made from the due process funds, or other funds as necessary, appropriated to the state court system in the General Appropriations Act. See Fla. Stat. 27.5304(12) (effective July 1, 2011) (emphasis added). 4. The problem with this recent amendment to the Florida Statute is three-fold; it creates a conflict of interest between the judiciary and the indigent defendant, it violates the separation of powers doctrine; and it violates Article 5 Section 14 of the Florida Constitution. I. Florida Statute 27.5304 Violates an Indigent Defendants Right to Due Process 5. Florida Statute 27.5304 puts the circuit court judge in the unconstitutional position of deciding whether to grant an indigent defendants due process costs in the form of criminal court-appointed counsel excess fees, with the knowledge that the courts budget will be affected once the special appropriations of $3,000,000 for attorneys fees in excess of the flat rate for indigent cases is exhausted. 6. It is the right of every litigant to appear before an impartial tribunal is a fundamental tenet of the constitutional guarantee of due process. U.S. CONST. amend. XXIV. The law intends that no judge will preside in a case in which he or she is not wholly free, disinterested, impartial, and independent. See State v. Steele, 348 So. 2d 378 (Fla. 3d DCA 1977). 7. The question whether disqualification of a judge is required focuses on those matters from which a litigant may reasonably question a judges impartiality rather than the judges perception of his ability to act fairly and impartially. See Fla. Code of Jud. Conduct, Canon 3(E)(1). 8. The amended portion of Fla. Stat. 27.5304 creates a reasonable question of a judges impartiality, where the judge must decide between granting an indigent defendants due process

costs or protecting the appropriations granted to the state court system that affects the courts administration that personally affect the judge. 9. Furthermore, when looking at the legislative intent behind this recent amendment to Florida Statute 27.5304, inarguably a financial interest for the judge was intended to be created by the legislature. 10. In the Florida Senates Bill Analysis and Fiscal Impact Statement, there was originally language creating a Judicial Caseload Incentive Plan where judges that preside over civil cases could earn a $12,000 reward if they timely and efficiently handled their cases. See STATE O F FLA., 7120 BILL
ANALYSIS

A ND FISCAL IMPACT STATEMENT, Senate Budget Committee, Reg.

Sess., at 3 (2011). 11. This language runs afoul of the third judicial canon which states that a judge must recuse him or herself in instances where the judge knows that he or she individually . Has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding. Fla. Code of Jud. Conduct, Canon 3(E)(1)(c). 12. Essentially, the affect the amended language to Florida Statute 27.5304, creates an impartiality amongst all criminal circuit court judges, and infringes on an indigent defendants constitutional right to an impartial tribunal because it puts the circuit court judge in a position where a defendants right to due process costs in the form of attorneys fees affects the court budget. II. Florida Statute 27.5304 Violates the Separation of Powers Doctrine 13. Article II, Section 3, of the Florida Constitution provides that: No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless

expressly provided herein. 14. Neither the State Attorney, nor the public defenders are considered to be part of the judiciary, although they are founded in Article V of the Florida Constitution. See Office of the State Attorney, Fourth Jud. Cir. V. Parrotino, 628 So. 2d 1097 (Fla. 1993); Schrieber v. Rowe, 814 So. 2d 396 (Fla. 2002). 15. Since court-appointed counsel has been held to be more analogous to public defenders, court-appointed counsel should not be considered part of the judiciary branch. See Schreiber at 398. 16. The Florida Supreme Court has held that the judicial branch cannot be subject in any manner to budget oversight by the executive branch and held that a statutory scheme establishing budget reduction of the judiciary through the executive was unconstitutional. See Chiles v. Children A, B, C, D, E, AND F, 589 So. 2d 260 (Fla. 1991). 17. By using the budget for the court system to cover some of the fees for court-appointed counsel, Florida Statute 27.5304 gives the judicial branch budget oversight for court-appointed counsel, which should not be considered part of the judiciary. Thus, it is in violation of the separation of powers doctrine. III. Florida Statute 27.5304 Violates Article V Section 14 of the Florida Constitution 18. Article V Section 14 of the Florida Constitution states all justices and judges shall be compensated only by state salaries fixed by general law. Funding for the state courts system, state attorneys offices, public defenders offices, and court-appointed counsel shall be provided from state revenues appropriated by general law. 19. The Florida Legislature has historically granted separate appropriations to deal with judges salaries, the state courts system, the state attorneys offices, public defenders offices,

and court appointed counsel because part of the intent of Section 14 of Article V was that these categories should be funded separately and independently of each other. 20. The state attorneys budget is apportioned separately from the public defenders budget, the budget for judges salaries is apportioned separately from the court systems budget, and up until now the appropriation for court-appointed counsel has been funded through its own appropriations bill. 21. By now including court-appointed counsel funding as part of the state court system budget, Florida Statute 27.5304 runs contrary to Article V Section 14 of the Florida Constitution, where the state court system and court-appointed counsel are listed separately and should be funded as two entirely separate entities. WHEREFORE, Defendant prays this Honorable Court to grant his Motion to Declare Florida Statute 27.5304 Unconstitutional.

I HEREBY CERTIFY that a copy of this Motion has been sent to the Office of The State Attorney, 1350 N.W. 12th Avenue Miami, Florida 33136 and the Justice Administrative Commission , P.O. Box 1654, Tallahassee, Florida and 32302 and the State Attorney Office this 25 day of May, 2011. Respectfully Submitted, _____________________ Terence Lenamon FL Bar No.: 970476 100 N. Biscayne Blvd. Suite 3070 Miami, Florida 33132 (305) 373-9911 Fax: (786) 425-2380 terry@lenamonlaw.com
th

The Florida Senate

BILL ANALYSIS AND FISCAL IMPACT STATEMENT

(This document is based on the provisions contained in the legislation as of the latest date listed below.)

Prepared By: The Professional Staff of the Budget Committee

BILL: INTRODUCER: SUBJECT: DATE:

SB 1960 (SPB 7064) Budget Committee State Judicial System February 8, 2012
ANALYST REVISED:

STAFF DIRECTOR

REFERENCE

ACTION

1. Harkness 2. 3. 4. 5. 6.

Rhodes

BC

SPB 7064 Favorable

I.

Summary: The bill makes conforming changes to the Florida Statutes necessary to implement the budget in the criminal and civil justice area. The bill refines the qualifications of the Regional Conflict Counsel. When the clerk is determining the indigency, the bill makes the review of property records optional. The bill also provides that the state court system will pay court appointed counsel attorney fees when the court orders payments above the rate set in law once a specific appropriation in the Justice Administrative Commission is spent. The bill permits guardian ad litem volunteers to transport clients and provides statutory language governing the county funding of guardian ad litem employees. The bill requires the Clerks of Court Operations Corporation to collect existing clerk of court reports on county use of fees to support court facilities and submit them to the chief judge, the Governor, the President of the Senate, and the Speaker of the House of Representatives. The bill has an effective date of July 1, 2011. The bill is expected to have a positive fiscal impact to the state. This bill amends the following sections of the Florida Statutes: 27.511, 27.52, 27.5304, 39.8296, and 318.18. The bill and creates s. 39.8297 of the Florida Statutes.

II.

Present Situation: Criminal and Civil Conflict Regional Counsels (Regional Conflict Counsels) The 2007 Legislature created five regional conflict counsels to take criminal cases that the public defender could not take due to ethical conflicts and certain other civil cases for persons entitled to representation by law. Civil cases include providing legal representation to indigent parents in dependency and termination of parental rights.

BILL:

SB 1960 (SPB 7064)

Page 2

Regional conflict counsels are required to be, for the preceding 5 years, members in good standing of the Florida Bar or a similar organization of another state. Each regional conflict counsel is appointed by the Governor and confirmed by the Senate. The Judicial Nominating Commission recommends three qualified candidates for appointment to each of the five regional counsel positions. The regional counsels serve 4-year terms beginning on July 1. Vacancies are filled in the same manner as appointments. Indigency Determination Section 27.52, Florida Statutes, requires the clerk of courts to review real property records and motor vehicle records for persons applying for indigency status. Indigents involved in certain criminal and civil proceedings can receive legal services from the public defender or the regional conflict counsel. Such searches were authorized in 2008 and have been inefficient in determining indigency. Significant clerk of court time is used for these searches and the instances where this information results in a person being denied indigency status have been few. Payment of Court Appointed Counsel Prior to July 1, 2007, all criminal conflict cases and certain civil cases were handled exclusively by private, court appointed counsel. While the legislature created the regional conflict counsels to take most of these cases, if the regional conflict counsels have an ethical conflict, the case must be handled by private, court appointed attorneys. The chief judge in each circuit maintains a registry of qualified attorneys and these attorneys sign a contract with the Justice Administrative Commission (JAC) to receive payment based on a flat fee. If a court finds that the case warrants a fee in excess of the flat fee, the court may double the amount. If that is still not sufficient, the court may order the JAC to pay the attorney an hourly amount. As shown in the table below, the number of times the court orders payments above the cap has increased over time. Fiscal Year 2007-08 2008-09 2009-10 2010-11 2011-12 (est.) Cases with Payments over Cap 54 192 312 354 622 Additional Costs for Payments over the Cap $76,985 $1,067,590 $2,742,140 $3,807,711 $6,798,189

Source: Justice Administrative Commission

The costs of criminal conflict counsel, including court-ordered payments above the flat fee, have exceeded original appropriations in the last several years. For example, for Fiscal Year 2011-12, the Legislature appropriated $3 million to cover payments above the flat fee; estimated expenditures are expected to be more than twice that figure. To resolve these projected deficits, the legislature has had to transfer funds from other due process categories in the Justice Administrative Commission and make supplemental appropriations from unallocated general revenue.

BILL:

SB 1960 (SPB 7064) Guardian Ad Litem

Page 3

The Guardian Ad Litem Program operates in all 20 circuits. County governments provide office space to support the offices. In some counties, county-funded staff are provided to the Guardian ad Litem Program. In those cases, the county staff are supervised by the Guardian ad Litem Program. In 1997, the Florida Supreme Court issued an administrative order prohibiting guardian ad litem volunteers from transporting children in fulfillment of their duties. The court opined that the role of the guardians ad litem was not direct service delivery, including transportation, but rather to serve as an investigator, monitor, and protector for the childs best interests before the court. Violation of the administrative order constituted a violation of the Guardian ad Litem Code of Conduct and subjected that person to decertification and discharge from the program. III. Effect of Proposed Changes: Section 1 amends s. 27.511, F.S., to refine statutory provisions related to the criminal conflict and civil regional counsel (regional conflict counsel). The bill: Eliminates a current statutory provision permitting a nominee to be a member of a bar association from another state. This change recognizes that it is not practical to have a regional counsel who is not a Florida Bar member supervising attorneys and working with judges, state attorneys and public defenders all of whom must be Florida Bar members. Requires the Supreme Courts Judicial Nominating Commission to name not less than three nor more than six qualified candidates for consideration for a vacant regional counsel position, including the current regional conflict counsel, unless the current counsel has been removed from office or is no longer qualified. This change ensures that the current regional conflict counsel is among the names submitted to the Governor for consideration, which provides for a smoother transition between the time the commission submits its list and the time the Governor selects the regional counsel. Shifts the term of the regional conflict counsel from July to October. This change shifts the appointment later in the year, away from the end of the fiscal year, and provides more time for the Governor to make an appointment decision. Designates a chief assistant to fulfill the regional conflict counsels duties in the event the counsel is unable to legally carry out those duties. This change provides for a process if the current regional counsel leaves office or is unable to carry out the duties of regional conflict counsel. Section 2 amends s. 27.52, F.S., to make the review of real property records and motor vehicle records optional in the clerk of court indigency determinations. As previously stated, clerks of the court report that significant time is used for these searches and the instances where this information results in a person being denied indigency status have been few. Section 3 amends s. 27.5304, F.S., to require the state court system to pay court appointed counsel fees ordered by the court above the flat fees set in the Florida Statutes and the General Appropriations Act once the funds appropriated for that purpose have been spent. This change is aimed at encouraging the courts to take a stronger role in governing the ordering of fees. If the

BILL:

SB 1960 (SPB 7064)

Page 4

court system is answerable for some of the costs associated with payments above the flat fee, judges may be less willing to order these fees. Section 4 amends s. 39.8296(2)(b), F.S., to permit guardian ad litem volunteers to transport children served by the program. According to the guardian ad litem, allowing volunteers to transport youth will enhance the bonding relationship between the two and will encourage improved communication. Also, allowing volunteers to transport youth to everyday events, such as a school dance, will promote a sense of normalcy for the youth. Section 5 creates s. 39.8297, F.S., to allow for the supervision and oversight of county funded employees by the guardian ad litem program. The changes provide a statutory framework for the employment of guardian ad litem employees at the county level. Section 6 amends s. 318.18, F.S., to require the clerks of court to submit a quarterly report to Clerk of Court Operations Corporation on a local surcharge on traffic infractions. This surcharge helps counties fund their responsibility to provide court facilities. The corporation will collect and submit the reports in an electronic format to the chief judge, the Governor, the President of the Senate, and the Speaker of the House of Representatives. Section 7 provides an effective date of July 1, 2012. IV. Constitutional Issues: A. Municipality/County Mandates Restrictions: None. B. Public Records/Open Meetings Issues: None. C. Trust Funds Restrictions: None. V. Fiscal Impact Statement: A. Tax/Fee Issues: None. B. Private Sector Impact: The bill may reduce the amount paid to court appointed counsel in certain circumstances. C. Government Sector Impact: None.

BILL:

SB 1960 (SPB 7064) Technical Deficiencies: None.

Page 5

VI.

VII.

Related Issues: None.

VIII.

Additional Information: A. Committee Substitute Statement of Substantial Changes:

(Summarizing differences between the Committee Substitute and the prior version of the bill.)

None. B. Amendments: None.

This Senate Bill Analysis does not reflect the intent or official position of the bills introducer or the Florida Senate.

ENROLLED 2012 Legislature

SB 1960, 1st Engrossed

20121960er 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Section 1. Subsections (3) and (4) of section 27.40, Florida Statutes, are amended to read: 27.40 Court-appointed counsel; circuit registries; minimum requirements; appointment by court. (3) In utilizing a registry: (a) The chief judge of the circuit shall compile a list of attorneys in private practice, by county and by category of cases, and provide the list to the clerk of court in each county. The chief judge of the circuit may restrict the number of attorneys on the general registry list. From October 1, 2005, through September 30, 2007, the list of attorneys compiled by the Eleventh Judicial Circuit shall provide the race, gender, and national origin of assigned attorneys. To be included on a registry, attorneys shall certify: 1. That they meet any minimum requirements established by the chief judge and by established in general law for court appointment;, 2. That they are available to represent indigent defendants in cases requiring court appointment of private counsel;, and 3. That they are willing to abide by the terms of the contract for services; and 4. Whether they are willing to accept as full payment the flat fees prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12), except for cases brought under the Page 3 of 23 CODING: Words stricken are deletions; words underlined are additions. Be It Enacted by the Legislature of the State of Florida: reports on local traffic assessments in an electronic format; providing an effective date.

ENROLLED 2012 Legislature

SB 1960, 1st Engrossed

20121960er 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 To be included on a registry, an attorney also must enter into a contract for services with the Justice Administrative Commission. Failure to comply with the terms of the contract for services may result in termination of the contract and removal from the registry. Each attorney on the registry shall be responsible for notifying the clerk of the court and the Justice Administrative Commission of any change in his or her status. Failure to comply with this requirement shall be cause for termination of the contract for services and removal from the registry until the requirement is fulfilled. In addition to general registries, the chief judge may establish limited registries that include only those attorneys willing to waive compensation in excess of the flat fee prescribed in s. 27.5304, notwithstanding the provisions of s. 27.5304(12). (b) The court shall appoint attorneys in rotating order in the order in which names appear on the applicable registry, unless the court makes a finding of good cause on the record for appointing an attorney out of order. If a chief judge establishes a limited registry of attorneys willing to waive compensation in excess of the flat fee, the court shall appoint attorneys from that limited registry unless there are no attorneys available to accept the appointment on the limited registry. The clerk of court shall maintain the registry and provide to the court the name of the attorney for appointment. An attorney not appointed in the order in which his or her name appears on the list shall remain next in order. Page 4 of 23 CODING: Words stricken are deletions; words underlined are additions. Racketeer Influenced and Corrupt Organizations Act and capital cases as defined in s. 27.5304(5)(a)4.

ENROLLED 2012 Legislature

SB 1960, 1st Engrossed

20121960er 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 (c) If the number of attorneys on the registry in a county or circuit for a particular category of cases is inadequate, the chief judge of the particular circuit shall provide to the clerk of court the names of at least three private attorneys who have relevant experience. The clerk of court shall send an application to each of these attorneys to register for appointment. (d) Quarterly, each chief judge shall provide a current copy of each registry to the Chief Justice of the Supreme Court, the state attorney and public defender in each judicial circuit, the office of criminal conflict and civil regional counsel, the clerk of court in each county, and the Justice Administrative Commission. From October 1, 2005, through September 30, 2007, Circuits utilizing a limited registry list as allowed by paragraph (a) the report submitted by the Eleventh Judicial Circuit shall include the race, gender, and national origin of all attorneys listed in and appointed under the limited registry. (4) To be eligible for court appointment, an attorney must be a member in good standing of The Florida Bar in addition to any other qualifications specified by general law and any requirements set by the chief judge of the circuit. Section 2. Subsection (3) of section 27.511, Florida Statutes, is amended to read: 27.511 Offices of criminal conflict and civil regional counsel; legislative intent; qualifications; appointment; duties. (3)(a) Each regional counsel must be, and must have been for the preceding 5 years, a member in good standing of The Page 5 of 23 CODING: Words stricken are deletions; words underlined are additions.