IN RE AMEND. TO FLA. CRIM. RULE 3.112, 90,635.

• Decision Date: 28 October 1999
• Docket Number: No. 90,635.,90,635.
• Citation: 759 So.2d 610
• Parties: In re AMENDMENT TO FLORIDA RULES OF CRIMINAL PROCEDURE —RULE 3.112 MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES.
• Court: Florida Supreme Court

759 So.2d 610

In re AMENDMENT TO FLORIDA RULES OF CRIMINAL PROCEDURE —RULE 3.112 MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES.¹

No. 90,635.

Supreme Court of Florida.

October 28, 1999.

Philip J. Padovano, Judge, First District Court of Appeal, Tallahassee, Florida; Robert H. Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, Florida, James Russo, President, Viera, Florida, and Robert D. Trammell, General Counsel, Marianna, Florida, on behalf of the Florida Public Defender Association; James T. Miller, Jacksonville, Florida, and James Reich, Chairman, Ocala, Florida, on behalf of the Florida Association of Criminal Defense Lawyers, and J. Chaney Mason, President; and Diana M. Tennis, Winter Park, Florida, for Petitioners.

The Honorable Marguerite H. Davis, Former Chair, Rules of Judicial Administration Committee, Judge, First District Court of Appeal, Tallahassee, Florida; Robert A. Butterworth, Attorney General, and Richard B. Martell, Chief, Capital Appeals, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, Florida; Sheryl G. Wood, Chair, West Palm Beach, Florida, on behalf of The Florida Bar Government Lawyer Section; John J. Copelan, Jr., County Attorney for Broward County, Anthony C. Musto, Chief Appellate Counsel, Robert E. Hone and Edward G. Labrador, Assistant County Attorneys, Fort Lauderdale, Florida; George L. Dorsett, Assistant County Attorney, Orange County, Orlando, Florida; Linda W. Chapin, Orange County Chairman, Orange County Board of County Commissioners, Orlando, Florida; Daniel P. Hyndman, Assistant County Attorney, Palm Beach County, West Palm Beach, Florida; David De La Paz, House Justice Council Attorney, Tallahassee, Florida; The Honorable Victor D. Crist, Representative District 60, Temple Terrace, Florida; Peter Warren Kenny, Capital Collateral Regional Counsel and Martin J. McClain, Litigation Director, Capital Collateral Regional Counsel-South, Miami, Florida; J. Michael Shea, Tampa, Florida; Ira D. Karmelin, West Palm Beach, Florida; The Honorable Randy Ball, State Representative, District 29, Tallahassee, Florida; Herbert W.A. Thiele, County Attorney and Patrick T. Kinni, Assistant County Attorney, Leon County, Tallahassee, Florida; The Honorable Judy M. Pittman, Chief Judge, The Honorable Don T. Sirmons, Administrative Judge of Criminal Division, and The Honorable Dedee S. Costello, Circuit Judge, Fourteenth Circuit, Panama City, Florida; Philip J. Massa, West Palm Beach, Florida; Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, Eleventh Judicial Circuit, Miami, Florida; Claire K. Luten, Chair, Criminal Law Section of The Florida Bar, Clearwater, Florida; Robert A. Ginsberg and Jason Bloch, Assistant County Attorneys, Dade County, Miami, Florida; Steven M. Potolsky, Past President of the Florida Association of Criminal Defense Lawyers/Miami, Miami, Florida; Eddie J. Lewis, Chairman, Bradford County Board of County Commissioners, Starke, Florida; James L. Ley, County Administrator, Sarasota Board of County Commissioners, Sarasota, Florida; Lonnie N. Groot, Deputy County Attorney, Board of County Commissioners of Seminole County, Sanford, Florida; Betty Strifler, Clerk of the Circuit Court, Citrus County Board of County Commissioners, Inverness, Florida; Ira Mae Hewatt, Chairman, Board of County Commissioners, Santa Rosa County, Milton, Florida; The Honorable Alfred Lawson, Jr., Florida House of Representatives, Tallahassee, Florida; Eddy Hillhouse, Chairman, Suwannee County Board of County Commissioners, Live Oak, Florida; Rick Crews, Chairman, Holmes County Board of County Commissioners, Bonifay, Florida; Patricia M. Glass, Manatee County Board of County Commissioners, Bradenton, Florida; Barry R. Evans, County Administrator, Board of County Commissioners, Escambia County, Pensacola, Florida; The Honorable Pat Thomas, 3rd District, The Florida Senate, Tallahassee, Florida; Raymond Williams, Board of County Commissioners, Franklin County, Apalachicola, Florida; John L. Driggers, Chairman, Board of County Commissioners, Dixie County, Cross City, Florida; Walter B. Olliff, Jr., Chairman, Board of County Commissioners, Hardee County, Wauchula, Florida; Richard Swartz, Jr., Vice Chair, Board of County Commissioners, Lake County, Tavares, Florida; Gary D. Charles, Sr., Chairman, Board of County Commissioners, St. Lucie County, Fort Pierce, Florida; Gary K. Oldehoff, County Attorney, Board of County Commissioner, Martin County, Stuart, Florida; and James S. Benjamin, President, Broward Association of Criminal Defense Lawyers, Fort Lauderdale, Florida, Responding.

ANSTEAD, J.

This matter originally came before the Court for consideration of a proposed rule concerning the competency and qualifications of lawyers appointed to represent indigent defendants in capital cases where the services of the public defender are not available. In 1998 we deferred consideration of this issue pending legislative study. See In re Amendment to Fla. Rules of Judicial Admin., 711 So.2d 1148, 1149-50 (Fla.1998). We now address the issue after receipt of a unanimous recommendation by a legislative study commission that this Court, rather than the legislature, adopt standards for lawyers in capital cases.² Today we take an important step in ensuring the integrity of the judicial process in capital cases by adopting a rule of criminal procedure to help ensure that competent representation will be provided to indigent capital defendants in all cases.

In its formal report, the Commission on Legislative Reform of Judicial Administration declared:

Competent counsel to represent defendants in cases where the death penalty may be imposed is essential to assure that the death penalty is imposed fairly and without undue delay. In 1989 the American Bar Association promulgated minimum standards for counsel in death penalty cases, urging states to adopt similar rules or standards. To date, of the 40 states with death penalty statutes, 19 have instituted some form of minimum guidelines or standards or have created an agency to promulgate standards of the appointment and representation of counsel at either the trial or appellate level or both in capital cases. Florida is the largest state without any rule or legislation imposing minimum standards on counsel appointed to represent defendants in death penalty cases.

Commission Report at 4. This Court has a continuing obligation to ensure the integrity of the judicial process in all cases. Our overview is especially important in death penalty cases. Hopefully, few would disagree that capital cases are among the most intricate and complex cases in the legal system today. As one commentator notes: "They involve a unique separate sentencing phase, a complex body of law that is specific to death cases, and complicated and convoluted doctrines that limit appellate review for errors committed at trial." Michael D. Moore, Note, Tinkering with the Machinery of Death: An Examination and Analysis of State Indigent Defense Systems and Their Application to Death-Eligible Defendants, 37 Wm. & Mary L.Rev. 1617, 1639 (1996). Recently, in recognition of our responsibility, we addressed a concern over the qualifications of judges handling death penalty cases. See In re Amendment to Fla. Rules of Judicial Admin., Rule 2.050(b)(10), 688 So.2d 320 (Fla.1997). There, we added a new rule to the Florida Rules of Judicial Administration to ensure that judges presiding over capital cases would possess "the experience and training necessary to handle the unique demands of such proceedings." Id. at 320. Today, we act on the same concerns that prompted our earlier action.

Based on our ongoing concerns as to the quality of the judicial process in capital cases, this Court in 1997 appointed a select committee of highly qualified and experienced judges and lawyers to study and recommend for our review minimum standards to ensure the competency of court-appointed lawyers in capital cases.³ The committee provided us with an initial set of proposed standards which we identified in an opinion, In re Proposed Amendment to Florida Rules of Judicial Administration —Minimum Standards for Appointed Counsel in Capital Cases, 22 Fla. L. Weekly S407 (Fla. July 3, 1997), wherein we directed that the proposed standards be published in The Florida Bar News. Numerous constructive comments and concerns were subsequently received and were duly forwarded to the committee. The committee then redrafted the proposed minimum standards in a constructive effort to address the comments. After exhaustive work, and based largely upon standards already in place around the country and within the various judicial circuits in this State, the committee produced a rule which responds to the competing concerns of high standards and practicality in application. This Court then heard oral arguments in which interested persons were again provided an opportunity to address the proposed standards.

Today we accept the committee's recommendations, with two minor exceptions. The majority of comments focused on standard (d), which, as initially proposed by the committee, mandated the appointment of two lawyers during the trial proceedings.⁴ Although we are in agreement with the committee's legitimate concerns in recommending this provision to ensure adequate and competent representation for capital defendants, we also agree with the views expressed by others that the trial court should retain some supervisory authority over the decision to appoint co-counsel.⁵ Therefore, while the standards we adopt today provide that two lawyers should ordinarily be appointed, we leave the ultimate decision to the discretion of the trial court.⁶

We also recognize that it is possible that some counties in the state may not have enough lawyers available who meet the technical requirements of the standards. Therefore, we are adding to the proposed standards a provision which...