Amendment to Florida Rules of Judicial Administration-Minimum Standards for Appointed Counsel in Capital Cases, ADMINISTRATION--MINIMUM

• Citation: 711 So.2d 1148
• Decision Date: 12 June 1998
• Docket Number: No. 90635,ADMINISTRATION--MINIMUM,90635
• Parties: 23 Fla. L. Weekly S318 In re AMENDMENT TO FLORIDA RULES OF JUDICIALSTANDARDS FOR APPOINTED COUNSEL IN CAPITAL CASES.
• Court: United States State Supreme Court of Florida

Page 1148

711 So.2d 1148

23 Fla. L. Weekly S318

In re AMENDMENT TO FLORIDA RULES OF JUDICIAL ADMINISTRATION--MINIMUM STANDARDS FOR APPOINTED COUNSEL IN CAPITAL CASES.

No. 90635.

Supreme Court of Florida.

June 12, 1998.

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

Marguerite H. Davis, Chair, Rules of Judicial Administration Committee, Tallahassee, Robert A. Butterworth, Attorney General, and Richard B. Martell, Chief, Capital Appeals, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, Sheryl G.

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

PER CURIAM.

This matter is before the Court on a proposed rule concerning the competency and qualifications of counsel appointed to represent indigent defendants in capital cases where the services of the public defender are not available because of a conflict of interest. We have jurisdiction pursuant to article V, section 2(a) of the Florida Constitution. For the reasons expressed below, we decline to rule on this matter at this time.

We recognize that other states have adopted minimum standards for counsel in capital cases. See, e.g., Ind. R.Crim. P. 24; Ohio Sup. R. 20; Va.Code Ann. § 19.2-163.8(E) (Michie 1997). In Florida, the legislature has recently enacted a bill which addresses the need for minimum standards for capital counsel. See Fla. SB 1328 (1998) (Second Engrossed). The bill takes effect July 1, 1998. See id. at § 7. One of the provisions of this act provides for the formation of the Commission on Legislative Reform of Judicial Administration (Commission). See id. at § 5(2). The Commission is charged with the duty to study the feasibility of judicial administration reforms, including Therefore, based on these recent developments, we defer this matter until the legislature has had a chance to address this issue.

                minimum standards for counsel in capital cases.  See id.   The Commission is to submit a report to the legislature no later than January 1, 1999.  See id
                

It is so ordered.

OVERTON, WELLS and HARDING, JJ., and GRIMES, Senior Justice, concur.

KOGAN, C.J., dissents with an opinion, in which SHAW and ANSTEAD, JJ., concur.

KOGAN, Chief Justice, dissenting.

The recommendation before this Court was produced by a panel consisting of the brightest and the best experts in Florida death penalty law. We appointed them to study a problem of the most pressing nature, which greatly impacts the administration of justice in Florida. See In re Proposed Amendment to Florida Rules of Judicial Administration, 22 Fla. L. Weekly S407 (Fla. July 3, 1997). They produced a product that reflects a growing consensus among similar experts throughout the United States--one designed to address growing public frustration with the way death-penalty law is administered. ¹

In my eleven years on this bench, I have reviewed hundreds of death penalty cases. From this experience I can voice my own frustration with the disproportionately large number of errors caused by inexperienced attorneys appointed when public defenders are unable to take the case. These avoidable errors impede justice and cost taxpayers substantial amounts of money. At the recent National Capital Case Conference sponsored by the State Justice Institute and the Administrative Office of the U.S. Courts, many examples were aired of the additional costs that must be paid--not to mention delays--when these errors require a retrial or other proceeding. Although there certainly are other causes of reversible error, those created by inexperienced conflict counsel are not negligible.

Because this Court has exclusive jurisdiction to regulate the practice of law in Florida, art. V, §§ 2(a), 15, Fla. Const., ours also is the exclusive responsibility to remedy the problem now before us, as best we are able. To my mind, the time for delay is past. I would adopt the proposal with minor revisions to accommodate the legitimate concerns addressed by some of the public comments solicited in this case.

SHAW and ANSTEAD, JJ., concur.

APPENDIX

MINIMUM STANDARDS FOR CONFLICT ATTORNEYS IN CAPITAL CASES

A. Minimum standards that have been promulgated concerning representation for defendants in criminal cases generally and the level of adherence to such standards required for non-capital cases should not be adopted as sufficient for death penalty cases.

B. These minimum standards for capital cases are not intended to preclude any circuit from adopting or maintaining standards having greater requirements.

C. Counsel in death penalty cases should be required to perform at the level of an attorney reasonably skilled in the specialized practice of capital representation, zealously committed to the capital case, who has had adequate time and resources for preparation.

D. Every circuit shall maintain a list of counsel qualified for appointment in capital cases in each of three categories (1) lead trial counsel; (2) trial co-counsel; and (3) appellate counsel. No attorney may be appointed to handle a capital trial or appeal unless duly qualified on the appropriate list.

E. The conflict committee for each circuit is responsible for approving and removing attorneys from the list. See § 925.037, Florida Statutes (Supp.1996). Each circuit committee is encouraged to obtain additional input from experienced capital defense counsel.

F. A capital trial case is defined as any first degree murder case in which the State has not formally waived the death penalty on the record. A capital appeal case is any appeal in which the death penalty has been imposed. A capital post-conviction case is any case where the defendant is still under a sentence of death.

G. A court must appoint lead counsel, and upon written application of lead counsel, co-counsel, to handle every capital trial in which the defendant is not represented by retained counsel or the Public Defender. Lead counsel shall have the right to select co-counsel from attorneys on the lead counsel or co-counsel list. Both attorneys shall be reasonably compensated for the trial and sentencing phase. Except under extraordinary circumstances, only one attorney may be compensated for other proceedings.

H. No attorney may be qualified on any of the capital lists unless he or she has attended within the last year a continuing legal education program of at least ten hours duration devoted specifically to the defense of capital cases. The failure to comply with this requirement shall...