IN RE AMEND. TO FLA. RULES OF CRIM. PROC.

• Decision Date: 21 February 2002
• Docket Number: No. SC906 35.,SC906 35.
• Citation: 820 So.2d 185
• Parties: IN RE AMENDMENT TO FLORIDA RULES OF CRIMINAL PROCEDURE—RULE 3.112 MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES.
• Court: Florida Supreme Court

820 So.2d 185

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

No. SC906 35.

Supreme Court of Florida.

February 21, 2002.

Rehearing Denied June 18, 2002.

Philip J. Padovano, Judge, First District Court of Appeal, Tallahassee, FL, Chair, Committee on Minimum Standards for Attorneys in Capital Cases; Oscar H. Eaton, Jr., Chair, The Florida Bar Criminal Procedure Rules Committee, Sanford, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL; Robert Trammell, General Counsel, Florida Public Defender Association, Inc., Tallahassee, FL; and James T. Miller, Jacksonville, FL, Chair, Amicus Curiae Committee, Florida Association of Criminal Defense Lawyers, on behalf of David Rothman, President, FACDL, for Petitioner.

Nancy A. Daniels, Public Defender, and Chet Kaufman and W.C. McLain, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, FL, William P. White, Chief Assistant Public Defender and Alan Chipperfield, Assistant Public Defender, Fourth Judicial Circuit, Jacksonville, FL, and James Slater, Chief Assistant Public Defender, Twelfth Judicial Circuit, Bradenton, FL, attorneys for The Florida Public Defender Association, Inc.; Robert Fraser, Brandon, FL; William D. Matthewman of Seiden, Alder, Rothman, Petosa & Matthewman, P.A., Boca Raton, FL; Christopher J. Anderson, Capital Collateral Registry Counsel, Jacksonville, FL; Lawrence J. Fox, Chair, Elisabeth Semel, Director, and Judy A. Gallant, Staff Attorney, American Bar Association, Washington, D.C.; Gregory C. Smith, Office of the Capital Collateral Counsel Northern Region of Florida, Tallahassee, FL, John W. Moser, CCRC, Middle Region, Tampa, FL, Michael P. Reiter, Chief Assistant, CCRC, Middle Region, Tampa, FL, and Neal A. Dupree, CCRC, Southern Region, Fort Lauderdale, FL, Responding.

ANSTEAD, J.

At the Court's request, the Committee on Minimum Standards for Attorneys in Capital Cases (Minimum Standards Committee or Committee) has filed proposed amendments to Florida Rule of Criminal Procedure 3.112 (Minimum Standards for Attorneys in Capital Cases). We have jurisdiction. See art. V, § 2(a), Fla. Const. By this opinion we accept most of the Committee's proposals in our continuing efforts to improve the capital litigation process in Florida.

BACKGROUND

This Court, in 1997, established the Committee on Minimum Standards for Attorneys in Capital Cases to study and recommend for the Court's review minimum standards to ensure the competency of court-appointed counsel in death penalty cases. See In re Proposed Amendment to Fla. Rules of Judicial Admin., 22 Fla. L. Weekly S407 (Fla. July 3, 1997). The Committee proposed such standards, the standards were published in The Florida Bar News, and a number of comments were filed and forwarded to the Committee. Based on the comments, the Committee submitted revised proposed standards and oral argument was held on the proposals.

In 1998, the Court deferred consideration of the proposed standards pending legislative study of the issue. See In re Amendment to Fla. Rules of Judicial Admin.—Minimum Standards for Appointed Counsel in Capital Cases, 711 So.2d 1148 (Fla.1998). After unanimous recommendation by a legislative study commission that this Court, rather than the Legislature, adopt standards for lawyers in capital cases, the Court resumed consideration of the matter. See In re Amendment to Fla. Rules of Criminal Procedure—Rule 3.112 Minimum Standards for Attorneys in Capital Cases, 759 So.2d 610, 611 (Fla.1999). In 1999, this Court adopted the Committee's proposed revised standards, with some modification, as rule of criminal procedure 3.112, which went into effect July 1, 2000. See id.

As adopted, new rule 3.112 applies to "conflict" counsel-attorneys appointed to represent defendants in capital cases where the services of the public defender are not available due to a conflict of interest. See Fla. R.Crim. P. 3.112(a). When adopting the new rule, the Court announced its "preliminary" determination that the minimum standards "should be extended to lawyers practicing law within the offices of the public defenders in order to ensure that competent counsel is provided to all indigent capital defendants." 759 So.2d at 614. However, recognizing that it had not previously announced its intention to extend the rule to assistant public defenders, the Court sought comments on extending the rule. The Court also noted agreement with the views expressed by Justice Lewis in his specially concurring opinion that "we have an obligation to investigate and consider establishing standards for all counsel, including public defenders, privately retained counsel, and others who represent capital defendants during any phase of the proceedings." 759 So.2d at 614 n. 9. The Court, therefore, asked the Minimum Standards Committee "to reconvene, and after appropriate investigation and study, to make recommendations to this Court as to whether we should adopt additional standards as suggested by Justice Lewis." Id.

In response to the Court's request, the Committee submitted two sets of proposed amendments: the first proposal extends rule 3.112 to all attorneys who handle capital cases; the second proposal amends the rule to cover all attorneys except privately retained counsel. The Court in turn published the two proposals for comment in the June 15, 2000, edition of The Florida Bar News. A number of comments were filed and oral argument was held in December 2000. At oral argument, much of the discussion focused on whether and how to extend the standards to privately retained counsel. In response to this Court's request, the Florida Association of Criminal Defense Lawyers (FACDL) subsequently filed a supplemental comment addressing "the practical problems discussed at oral argument regarding extension of the subject standards to privately-retained counsel."

DISCUSSION

With this long history and wealth of input at hand, we adhere to our initial decision to extend the rule 3.112 minimum standards to public defenders who represent defendants in capital cases and further extend the standards to private counsel retained to represent capital defendants at trial or on direct appeal. However, for the reasons expressed below, we decline to extend the standards to capital postconviction counsel. When originally adopting rule 3.112, we took "an important step in ensuring the integrity of the judicial process in capital cases by adopting [minimum standards for conflict attorneys appointed in capital cases] to help ensure that competent representation will be provided to indigent capital defendants in all cases." 759 So.2d at 611. Today, with the adoption of these amendments, we broaden that goal by requiring all attorneys who represent capital defendants at trial or on direct appeal to meet the minimum standards of the rule. Accordingly, we adopt the Minimum Standards Committee's first proposal, with the modifications discussed below. We also address below, by general topic, a number of suggestions and concerns raised by the comments or at oral argument.

REACH OF STANDARDS

As noted above, rule 3.112 currently applies only to conflict counsel who handle capital trials and appeals. When adopting the rule 3.112 standards, the Court announced its intent to extend the standards to attorneys within the offices of the public defenders who handle capital cases and sought input on that decision. 759 So.2d at 614. The majority of those who commented, including The Florida Public Defender Association (Association), supports this extension; and we believe that adopting minimum standards for public defenders who handle capital cases is a logical extension of rule 3.112 which will ensure that all indigent defendants facing a death sentence receive competent representation.

Further extending the standards to privately retained counsel is overwhelmingly supported by virtually all who addressed the issue in comments and at oral argument, including the Florida Association of Criminal Defense Lawyers (FACDL), which represents private lawyers throughout Florida. The sole opponent to this extension is the Criminal Procedure Rules Committee (Rules Committee), which is concerned that requiring private attorneys to comply with rule 3.112 before they can represent a capital defendant could limit the constitutional right of an accused, facing the death penalty, to retain counsel of his or her choice. Those who favor extending the standards to privately retained counsel counter this concern by citing such cases as Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (recognizing that "while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers"); and Vagner v. Wainwright, 398 So.2d 448, 452 (Fla.1981) (stating that the same standards for evaluating claims of inadequacy and incompetency of appointed counsel apply to such claims involving retained counsel). The proponents of the extension further argue that this Court's inherent authority to set standards for Bar admission and practice and to mandate qualifications for certification in specified practice areas, see art. V, § 15, Fla. Const., would extend to the adoption of minimum standards for private attorneys who wish to handle capital cases.

We are sensitive to the Rules Committee's concern; however, we believe that the uniform application of these standards to all attorneys who handle capital trials and direct appeals should have little impact on a nonindigent defendant's right to choose counsel. According to the supplemental comment filed by the FACDL, retaining private counsel in a capital case is relatively rare and...