Arbelaez v. Butterworth, No. 92288

• Decision Date: 17 June 1999
• Docket Number: No. 92288, No. 92595.
• Parties: Guillermo ARBELAEZ, et al., Petitioners, v. Robert A. BUTTERWORTH, etc., Respondent. Capital Collateral Representative-Northern Region, et al., Petitioners, v. Harry K. Singletary, Jr., etc., Respondent.
• Court: Florida Supreme Court

738 So.2d 326

Guillermo ARBELAEZ, et al., Petitioners, v. Robert A. BUTTERWORTH, etc., Respondent.

Capital Collateral Representative-Northern Region, et al., Petitioners, v. Harry K. Singletary, Jr., etc., Respondent.

Nos. 92288, 92595.

Supreme Court of Florida.

June 17, 1999.

ORDER

In February 1998, the Capital Collateral Regional Counsel for the Southern Region of Florida (CCRC-South) asked this Court to exercise its all writs jurisdiction to stay all applicable time limits, court proceedings, and executions until adequate funding was provided to CCRC or until July 1, 1998, the start of the next fiscal year. See Arbelaez v. Butterworth, No. 92,288 (Fla. petition filed Feb. 3, 1998). In its response, the State challenged the contention that there were not adequate funds, asserting that part of the funding crisis was being caused by the unauthorized use of part of those funds in civil litigation. The unauthorized civil litigation issue was resolved by this Court's opinion in State ex rel. Butterworth v. Kenny, 714 So.2d 404 (Fla.1998).

The Capital Collateral Regional Counsel for the Northern Region of Florida (CCRC-North) as well as CCRC-South each filed separate all writs petitions asking this Court to "impose a general moratorium on the imposition of the death penalty until the CCRCs are adequately funded pursuant to a caseload methodology." See Capital Collateral Representative-Northern Region v. Singletary, No. 92,595 (Fla. petition filed Mar. 18, 1998). We consolidated these cases and held oral argument on May 4, 1998.

Since these actions have been filed, the structure of the CCRC offices has been substantially modified, and the funding has significantly changed and increased through two legislative sessions. We acknowledge we have a constitutional responsibility to ensure the death penalty is administered in a fair, consistent and reliable manner, as well as having an administrative responsibility to work to minimize the delays inherent in the postconviction process. We find, however, that the facts and the circumstances that brought forth these actions have substantially changed. Accordingly, there is no present case in controversy, and these petitions are hereby denied.

We commend the law firm of Holland and Knight for its valuable and conscientious pro bono representation in this case.

It is so ordered.

HARDING, C.J., SHAW, WELLS and PARIENTE, JJ., and OVERTON, Senior Justice, concur.

ANSTEAD, J., specially concurs with an opinion, in which KOGAN, Senior Justice, concurs.

ANSTEAD, J., specially concurring.

The petitioners have asked this Court to "impose a general moratorium on the imposition of the death penalty until the CCRCs are adequately funded pursuant to a caseload methodology." They also ask that we mandate extensive action and funding for collateral counsel by the legislature, and that we hold that a right to effective capital postconviction counsel exists under numerous provisions of Florida's Constitution.¹ I agree that affirmative relief should be denied in view of the actions taken by the legislature in the two sessions during which these proceedings have been pending. However, I would go ahead and formally acknowledge that the right to postconviction relief in capital cases is meaningless without a right to counsel.

ADEQUATE FUNDING

The Florida Legislature has acted to provide funds and resources to assure representation in capital collateral proceedings since 1985.² Importantly, in the 1998 and 1999 legislative sessions, the legislature has made significant strides in appropriating funds and implementing legislation intended to assist in alleviating the problems the CCRCs are experiencing. In fact, for the first time the legislature has enacted a scheme for the provision of counsel in capital collateral proceedings that attempts to provide some form of legal services for all death-sentenced defendants. This, of course, has been our goal for some time.³ The legislature has enacted legislation to provide supplemental private counsel for capital collateral defendants and has specifically mandated that courts "shall monitor the performance of assigned counsel to ensure that the capital defendant is receiving quality representation. The court shall also receive and evaluate allegations that are made regarding the performance of assigned counsel." See Ch. 99-221, § 5, Laws of Fla., 1999 Fla. Sess. Law Serv. (West) (adding subsection (12) to section 27.711, Florida Statutes (1998 Supp.)). The staff analyses from both the Senate and the House specifically indicate that the legislature is concerned about compliance with this Court's decision in Makemson v. Martin County, 491 So.2d 1109 (Fla.1986). In Makemson, we recognized that courts have a constitutional obligation in capital cases to provide compensation for counsel in excess of statutory caps if necessary to assure adequate representation.

Despite this recent legislative action, the petitioners contend that this Court must command the legislature to provide additional funding and personnel to the CCRCs. According to the supporting study commissioned by Holland and Knight and attached to the petition, the funding of the CCRCs is still "woefully inadequate" and it will take 137 additional attorneys and 25 million additional dollars to properly represent the approximately 208 capital defendants assigned to the CCRCs.⁴ This Court has previously acknowledged its responsibility to ensure that CCRC receive adequate funding. See Fla. R.Crim. P. 3.851 Court Commentary (1993) ("In the event the capital collateral representative is not fully funded and available to provide proper representation for all death penalty defendants, the reduction in the time period [for seeking relief under this rule] would not be justified and would necessarily have to be repealed, and this Court will forthwith entertain a petition for the repeal of the rule."). However, while I acknowledge that additional funding may still be necessary, I disagree that we must suspend all collateral proceedings and compel the legislature to apply a particular funding formula for representation in capital collateral proceedings.⁵ Fortunately, the legislature has recognized the critical importance of counsel in postconviction proceedings in capital cases and has attempted to provide counsel, whether private or institutional, at an early date in the proceedings. Further, as noted above, the legislature has provided additional funding and enacted legislation to assist in providing additional representation to capital collateral defendants. Clearly, the allocation of resources to fund postconviction relief counsel to capital defendants should ordinarily be a matter of legislative choice and policy. We are obligated to give considerable deference to the legislature's response to this obligation.

STATE DUE PROCESS

Notwithstanding our conclusion that we should not interfere with the legislature's good faith attempts to deal with this difficult and complex issue, I also recognize that we have been less than clear in the message we have sent out concerning the essential requirement for counsel in capital postconviction proceedings. On the one hand, we have in fact consistently refused to permit a death-sentenced defendant to be executed without attorney-assisted collateral review of the original trial proceedings.⁶ On the other hand, some two decades ago we sent out an ambiguous, if not implicitly contradictory signal, when we declined to recognize a specific constitutional obligation of the State for provision of postconviction counsel in capital cases, while at the same time recognizing a limited constitutional due process right to counsel in all postconviction proceedings. See Graham v. State, 372 So.2d 1363 (Fla. 1979)

.⁷

The past twenty years have seen a hodge-podge of approaches, ranging from no counsel, to volunteer counsel, to federally funded counsel, and more recently to state-provided institutional counsel and state-funded private counsel. In many instances counsel has come and gone in a haphazard fashion or, more often than not, has only participated in a crisis situation, as when a death warrant was issued. It is apparent that our prior failure to recognize a clear-cut right to counsel has only contributed to the confusion and delay in capital proceedings because of the uncertainty and unevenness of representation and the consequent doubt and lack of confidence in an outcome untested by a meaningful collateral review.

While we have been less than clear in our response to the need for counsel, other courts have not.⁸ For example, the Mississippi Supreme Court has recently held that provision for counsel is constitutionally mandated in postconviction proceedings in capital cases. Jackson v. State, 1999 WL 33904, 732 So.2d 187 (Miss.1999). The Mississippi Supreme Court in Jackson succinctly explained the absolute necessity of collateral proceedings in capital cases since those proceedings provide the only opportunity for important constitutional issues such as the adequacy of trial counsel's performance to be considered. The court further pointed out the reality that individual death-sentenced defendants could hardly represent themselves in the uniquely difficult and complicated area of capital postconviction litigation.

Like the Mississippi Supreme Court, I believe we should go ahead and formally acknowledge today what we in fact have implied by our prior actions in insisting that death-sentenced defendants not be executed without provision for counsel-assisted collateral review of the proceedings resulting in a sentence of death. As noted above, we have consistently refused to permit an execution to be carried out absent a record demonstrating that a death-sentenced defendant has received the assistance of counsel in a meaningful postconviction proceeding. By doing so, we have in effect enforced a state constitutional right to counsel without formally...