F.S. 1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch.27

CHAPTER 27

STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES

PART I DEFINITIONS; COURT REPORTERS (ss. 27.005-27.0061)

PART II STATE ATTORNEYS (ss. 27.01-27.38)

PART Ill PUBLIC DEFENDERS (ss. 27 .50-27 .60)

PART IV CAPITAL COLLATERAL REPRESENTATIVE (ss. 27.7001-27.708)

27.005 27.0055 27.006 27.0061

PARTI

DEFINITIONS; COURT REPORTERS

Definitions. Official court reporters. Court reporting services. Transcripts in criminal cases.

27.005 Definitions.-As used in parts II and Ill of this chapter, the following definitions include, but are not lim­ited to:

(1) "Communication services" includes postage, required printed documents, all data processing equip­ment, including terminals, modems, software, printers, wiring, and data lines, radio, courier, messenger and subpoena services, fax equipment and supplies, sup­port services, and telegraph, including maintenance, supplies and line charges.

(2) "Expert witnesses" includes any individual, firm, or service used by the prosecution or defense to provide information and consultation on specialized areas of art, science, profession, business, or other calling.

(3) "Library services" includes books, periodicals, automated legal research services and line charges, legal documents, and reference books and materials, including maintenance and supplies.

(4) "Postindictment and postinformation deposition costs" includes any costs incurred through a deposition, including the use of expert witnesses.

(5) "Pretrial" includes any case investigation cost incurred at any time prior to the disposition of a case, including preindictment costs.

(6) "Pretrial consultation fees" includes any costs related to the testing, evaluation, investigation, or other case-related services and materials necessary to prose­cute, defend, or dispose of a criminal case.

(7) "Telephone services" includes any equipment, including fax, cellular telephones, pagers, computer lines, telephone switching equipment, and the mainte­nance, supplies, software, and line charges necessary for operation.

(8) "Transportation services" includes the cost of operating any vehicle, aircraft, or watercraft, including gasoline, oil, and maintenance costs, any witness travel expenses, and any witness services.

(9) "Travel expenses" includes costs incurred under s. 112.061 by the state attorney or public defender, or their designated employees, while on travel prior to the final disposition of a case.

Hlstory.-s. 1, ch. 91-303.

27 .0055 Official court reporters.-(1) The term ."official court reporter" means any indi­

vidual appointed as an official court reporter pursuant to 1chapter 29 prior to the effective date of this act.

(2) It shall not constitute a violation of chapter 112 for an official court reporter to either directly or indirectly purchase, rent, or utilize any goods or services for any court reporting firm in which the official court reporter is an officer, partner, director, or proprietor, or in which the official court reporter has a material interest.

(3) It shall not constitute a violation of chapter 112 for an official court reporter to have or hold any employ­ment or contractual relationship with any business entity or agency which is subject to the regulation of, or is doing business with, any agency of which the court reporter is an officer or employee.

(4) The provisions of this section shall take effect upon becoming a law and shall apply to any individual appointed as an official court reporter prior to the effec­tive date of this section for those actions listed in sub­sections (2) and (3) above.

History.-s. 1, ch. 95-286. •Note.-Repealed by s. 6, ch. 95-286.

27 .006 Court reporting services.-(1) State general revenue funds appropriated for

purposes of court reporting shall be paid to the counties in accordance with the provisions of the General Appro­priations Act.

(2) The funds necessary to pay the cost of reporting in criminal proceedings shall be supplemented by the respective counties as necessary to provide competent reporters in such proceedings.

History.-s. 3, ch. 95-286.

27 .0061 Transcripts in criminal cases.-Upon the demand of the state attorney, or the presiding judge in any criminal case, or the defendant within the time allowed for taking an appeal and for the purpose of tak­ing an appeal in a criminal case, the court reporter shall furnish with reasonable diligence a transcript of the tes­timony and proceedings; and the costs for same shall be taxed as costs in the case.

History.-s. 4, ch. 95-286.

27.01 27.015

PART II

STATE ATTORNEYS

State attorneys; number, election, terms. Private practice prohibited.

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27.02 27.03 27.04

27.05 27.06 27.08

27.10 27.11

27.12 27.13 27.14 27.15 27.151

27.16 27.18 27.181

27.182

27.25

27.251 27.255

27.271

27.33 27.34

27.345

27.3451

27.3455

27.35 27.36 27.37 27.38

Duties before court. Duties before grand jury. Summoning and examining witnesses for

state. Assisting Attorney General. Habeas corpus and preliminary trials. State claims; surrender of papers to succes­

sor. Obligation as to claims; how discharged. Report upon claims committed to state attor-

ney. Power to compromise. Completion of compromise. Assigning state attorneys to other circuits. State attorneys to assist in other circuits. Confidentiality of specified executive orders;

criteria. Appointment of acting state attorney. Assistant to state attorney. Assistant state attorneys; appointment, term;

powers and duties; compensation. Salary discrimination based on gender or

race; review within the office of state attor­ney.

State attorney authorized to employ person­nel; funding formula.

Special organized crime investigators. Investigators; authority to arrest, qualifica­

tions, rights, immunities, bond, and oath. Per diem and mileage for state attorneys and

assistant state attorneys. Submission of annual budget. Salaries and other related costs of state attor­

neys' offices; limitations. State Attorney RICO Trust Fund; authorized

use of funds; reporting. State Attorney's Forfeiture and Investigative

Support Trust Fund. Additional court costs; collection, use, and

distribution of funds. Salaries of state attorneys. Office of Prosecution Coordination. Council on Organized Crime. Budget transfer authority.

27.01 State attorneys; number, election, terms.­There shall be a state attorney for each of the judicial cir­cuits, who shall be elected at the general election by the qualified electors of their respective judicial circuits as other state officials are elected, and who shall serve for a term of 4 years.

History.-s.1, ch. 5120, 1903; GS 1796; ss.1, chs. 6197, 6198, 1911; RGS 3026; CGL 4769; SS. 1, 5-A, ch. 17085, 1935; s. 1, ch. 26761, 1951.

27.015 Private practice prohibited.-All state attor­neys elected to said office after November 1, 1970, shall be so elected on a full-time basis and shall be prohibited from the private practice of law while holding said office.

History.-s. 1, ch. 70-79.

27 .02 Duties before court.-The state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal,

in which the state is a party, except as provided in chap­ter 39. The intake procedures of chapter 39 shall apply as provided therein.

History.-s. 3, ch. 1661, 1868; RS 1344; GS 1779; RGS 3005; CGL 4739; s. 5, ch. 72-404; s. 7, ch. 90-208; s. 116, ch. 95-147.

27.03 Duties before grand jury.-Whenever required by the grand jury, the state attorney shall attend them for the purpose of examining witnesses in their presence, or of giving legal advice in any matter before them; and he or she shall prepare bills of indict­ment.

History.-s. 4, ch. 1661, 1868; RS 1345; GS 1780; RGS 3006; CGL 4740; s. 117, ch. 95-147.

27 .04 Summoning and examining witnesses for state.-The state attorney shall have summoned all wit­nesses required on behalf of the state; and he or she is allowed the process of his or her court to summon wit­nesses from throughout the state to appear before the state attorney in or out of term time at such convenient places in the state attorney's judicial circuit and at such convenient times as may be designated in the sum­mons, to testify before him or her as to any violation of the criminal law upon which they may be interrogated, and he or she is empowered to administer oaths to all witnesses summoned to testify by the process of his or her court or who may voluntarily appear before the state attorney to testify as to any violation or violations of the criminal law.

History.-s. 2, ch. 2094, 1877; RS 1346; GS 1781; s. 10, ch. 7838, 1919; RGS3007; CGL 4741; s. 1, ch. 22634, 1945; s. 1, ch. 57-290; s. 118, ch. 95-147.

27.05 Assisting Attorney General.-ln addition to the duties now imposed upon the several state attor­neys of this state, by statute, they shall assist the Attor­ney General in the preparation and presentation of all appeals to the Supreme Court, from the circuit court of their respective circuits, of all cases, civil or criminal, in which the state is a party.

History.-s. 1, ch. 5399, 1905; RGS 3008; CGL 4742.

27.06 Habeas corpus and preliminary trials.-The several state attorneys of this state shall represent the state in all cases of habeas corpus arising in their respective circuits, and shall also represent the state, either in person or by assistant, in cases of preliminary trials of persons charged with capital offenses in all cases where the committing magistrate shall have given due and timely notice of the time and place of such trial. Notice of the application for the writ of habeas corpus shall be given to the prosecuting officer of the court wherein the statute under attack is being applied, the criminal law proceeding is being maintained, or the con­viction has occurred.

History.-s. 3, ch. 5399, 1905; RGS 3010; CGL 4746; s. 4, ch. 29737, 1955; s. 4, ch. 73-334.

27 .08 State claims; surrender of papers to succes­sor.-Upon the qualification of the successor of any state attorney, the state attorney going out of office shall deliver to his or her successor a statement of all cases for the collection of money in favor of the state under his or her control and the papers connected with the same, and take his or her receipt for the same, which receipt, when filed with the Department of Banking and Finance,

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shall release such state attorney from any further liability to the state upon the claims receipted for; and the state attorney receiving the claims shall be liable in all respects for the same, as provided against state attor­neys in s. 17.20.

History.-s. 4, ch. 1413, 1863; RS 1353: GS 1782: RGS 3018; CGL 4754; s. 11. ch. 25035, 1949: ss. 12, 35, ch. 69-106; s. 119, ch. 95-147.

27.10 Obligation as to claims; how discharged.­The charges mentioned ins. 17.20 shall be evidence of indebtedness on the part of any state attorney against whom any charge is made for the full amount of such claim to the state until the same shall be collected and paid into the treasury or sued to insolvency, which fact of insolvency shall be certified by the circuit judge of his or her circuit, unless said state attorney shall make it fully appear to the Department of Banking and Finance that the failure to collect the same did not result from his or her neglect.

Hlstory.-s. 2, ch. 1413, 1863; RS 1348; GS 1783; RGS 3013; CGL 4749; s. 11, ch. 25035, 1949; ss. 12, 35, ch. 69-106; s. 120, ch. 95-147.

27 .11 Report upon claims committed to state attor­ney. - The state attorney shall make a report to the Comptroller on the first Monday in January and July in each and every year of the condition of all claims placed in his or her hands or which the state attorney may have been required to prosecute and collect, whether the same is in suit or in judgment, or collected, and the prob­able solvency or insolvency of claims not collected, and shall at the same time pay over all moneys which he or she may have collected belonging to the state; and the Comptroller shall not audit or allow any claim which any state attorney may have against the state for services until he or she makes the report herein required.

Hlstory.-s. 3, ch. 1413, 1863; RS 1349: GS 1784; RGS 3014; CGL 4750; s. 121, ch. 95-147.

27.12 Power to compromise.-( 1) The state attorney may, with the approval of the

Department of Banking and Finance, compromise and settle all judgments, claims, and demands in favor of the state in his or her circuit against defaulting collectors of revenue, sheriffs and other officers, and the sureties on their bonds, on such terms as the state attorney may deem equitable and proper.

(2) Any such compromise or settlement may be made with any of the sureties of such defaulting officer as to his or her individual liability, and a receipt to such surety shall be a discharge of his or her obligation; but the discharge of one or more of the sureties so compro­mised and settled with shall not operate as a discharge of the principal or other sureties from the judgment, claim, or demand in favor of the state.

History.-s. 1. ch. 3236, 1881; RS 1351: GS 1786; RGS 3016; CGL4752; SS. 12, 35, ch. 69-106: s. 122, ch. 95-147.

27.13 Completion of compromise.-The state attor· ney shall, on agreeing to any compromise or settlement, report the same to the Department of Banking and Finance for its approval; and, on its approving such com­promise or settlement, the said state attorney. on a com­pliance with the terms of such compromise or settle· ment shall give a receipt to the collector of revenue, sheriff or other officer, or the sureties on their bonds, or to the legal representatives, which receipt shall be a dis-

charge from all judgments, claims or demands of the state against such collector of revenue or other officer, or the sureties on their bonds.

History.-s. 2, ch. 3236, 1881; RS 1352; GS 1787; RGS 3017; CGL 4753; ss. 12, 35, ch. 69-106.

27.14 Assigning state attorneys to other circuits.­( 1) If any state attorney shall be disqualified to repre­

sent the state in any investigation, case, or matter pend­ing in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor of the state determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of cir­cuits or of courts between such state attorney and any other state attorney of the state or order an assignment of any state attorney of the state to discharge the duties of the state attorney with respect to one or more speci­fied investigations, cases, or matters, which investiga­tions, cases, or matters shall be specified in general in the executive order of the Governor. Any exchange or assignment of any state attorney hereunder to a particu­lar circuit shall expire 6 months from the date of issu­ance, unless an extension is approved by order of the Supreme Court upon application of the Governor show­ing good and sufficient cause to extend such exchange or assignment.

(2) If the statewide prosecutor in charge of the Office of Statewide Prosecution determines that he or she is not qualified to represent the state in any investi­gation, case, or matter pending in the courts of the state or if a court of competent jurisdiction disqualifies him or her from representing the state, the Governor may, by executive order filed with the Department of State, order an assignment of any state attorney to discharge the duties of such prosecutor with respect to one or more specified investigations, cases, or matters, which inves­tigations, cases. or matters shall be generally described in the order. The assignment of any state attorney here­under shall expire 6 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor show­ing good and sufficient cause to extend such assign­ment.

(3) Whenever a state attorney is exchanged or assigned, he or she may designate one or more of his or her assistant state attorneys and state attorney inves­tigators to perform the duties assigned under the execu­tive order.

Hlstory.-s. 2, ch. 5399. 1905; 73-334; s. 1. ch. 74-627; s. 1, ch. ch. 87-224: s. 123, ch. 95-147.

CGL 4743; s. 1. ch. 69-1736; s. 4, ch, s. 1, ch. 83-111: s. 2, ch. 85-179; s. 3,

27.15 State attorneys to assist in other circuits.­(1) The Governor of the state may for good and suffi­

cient reasons require any state attorney in the state to proceed to any place in the state and assist the state attorney holding office in the circuit where such place is located in the discharge of any of the duties of such state attorney. Any state attorney in this state who shall be so directed by the Governor to go and assist any other state attorney in the discharge of his or her duties shall immediately proceed to the place designated and assist the state attorney of the circuit in which such place is located in the performance of duties.

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(2) When any state attorney is required to go beyond the limits of the circuit in which he or she holds office to comply with this section or on other official busi­ness performed at the direction of the Governor, the expenses incurred shall be borne by the state and shall be paid from the appropriation provided by the state for circuit courts.

History.-ss. 1, 2, ch. 8571, 1921; CGL 4744, 4745; s. 24, ch. 57-1; s. 1, ch. 67-324; s. 2, ch. 69-1736; s. 124, ch 95-147.

127 .151 Confidentiality of specified executive orders; criteria.-

(1) If the Governor provides in an executive order issued pursuant to s. 27.14 ors. 27.15 that the order or a portion thereof is confidential, the order or portion so designated, the application of the Governor to the Supreme Court and all proceedings thereon, and the order of the Supreme Court shall be confidential and exempt from the provisions of s. 119.07(1 ).

(2) The Governor shall base his or her decision to make an executive order confidential on the criteria set forth in 2s. 119.14.

(3) To maintain the confidentiality of the executive order, the state attorney, upon entering the circuit of assignment, shall immediately have the executive order sealed by the court prior to filing it with the clerk of the circuit court. The Governor may make public any execu­tive order issued pursuant to s. 27 .14 or s. 27 .15 by a subsequent executive order, and at the expiration of a confidential executive order or any extensions thereof, the executive order and all associated orders and reports shall be open to the public pursuant to chapter 119 unless the information contained in the executive order is confidential pursuant to the provisions of chap­ter 39 or chapter 415.

(4) The exemptions contained in this section are subject to the Open Government Sunset Review Act in accordance with 3s. 119. 14.

History.-s. 2, ch. 75-193; s. 1, ch. 86-76; s. 7, ch. 90-360; s. 12, ch. 91-57; s. 125, ch. 95-147; s. 5, ch. 95-196.

1Note.-Section 55, ch. 95-196, provides that '[n]othing in this act shall be con· strued to authorize a state agency to disconti_nue the collection and matntenance of information contained in any required report repealed or modified by this act, unless the state agency is specifically authorized to discontinue such collection and maintenance pursuant to this act or another section of law,~

"Note.-Repealed bys. 1, ch. 95-217. •Note.-A Repealed by s. 1. ch. 95-217. B. Section 4, ch. 95-217, provides that "[n]otwithstanding any provision of law

to the contrary, exemptions from chapter 119, Florida Statutes, or chapter 286, Flor­ida Statutes, which are prescribed by law and are specifically made subject to the Open Government Sunset Review Act in accordance with section 119.14, Florida Statutes, are not subject to review under that act, and are not abrogated by the oper­ation of that act, after October 1, 1995."

27 .16 Appointment of acting state attorney.­Whenever there shall be a vacancy in the office of the state attorney in any of the judicial circuits of this state, either by nonappointment or otherwise, or if a state attorney shall not be present at any regular or special term of the courts of his or her circuit or, being present, shall from any cause be unable to perform the duties of office or shall be disqualified to act in any particular case, the circuit judge of his or her judicial circuit shall have full power to appoint a prosecuting officer from among the members of the bar, with the consent of the member so appointed, to whom shall be administered an oath to faithfully discharge the duties of state attor-

ney, and who shall have as full and complete authority, and whose acts shall be in all respects as valid as a reg­ularly appointed state attorney. He or she shall sign all indictments and other documents as "acting state attor­ney." The power of the appointee shall cease upon the cessation of the inability or disqualification of the state attorney or the completion of the appointee's duties in any particular case.

Hlstory.-s. 1,ch.1726, 1B69;s.2,ch.1996, 1874;RS 1354;s.1,ch.4899, 1901; GS 1789; RGS3019; CGL4755; s. 1,ch. 69-212: s. 4, ch. 73-334; s. 126, ch. 95-147.

27.18 Assistant to state attorney.-The state attor­ney, by and with the consent of court, may procure the assistance of any member of the bar when the amount of the state business renders it necessary, either in the grand jury room to advise them upon legal points and framing indictments, or in court to prosecute criminals; but, such assistant shall not be authorized to sign any indictments or administer any oaths, or to perform any other duty except the giving of legal advice, drawing up of indictments, and the prosecuting of criminals in open court. His or her compensation shall be paid by the state attorney and not by the state.

History.-s. 1, ch. 2099, 1877; RS 1355; GS 1791; RGS 3021; CGL4757; s. 127, ch. 95-147.

27 .181 Assistant state attorneys; appointment, term; powers and duties; compensation.-

(1) Upon the expiration of the term of office being served by each assistant state attorney who holds such office on the date this act becomes effective, such office shall stand abolished. Also, each office of assistant state attorney not held by an incumbent on the date this act becomes effective shall stand abolished on the effective date hereof. Upon the abolition of any office of assistant state attorney under the provisions of this act, there shall thereupon be a position of assistant state attorney in lieu of such office. The state attorney of the judicial circuit in which any such position is created shall appoint an assistant state attorney to hold such position and shall thereafter fill by appointment such vacancies in such position as may from time to time occur. For the purposes of this act, the term of office being served by an assistant state attorney on the effective date of this act shall be deemed to have expired if it expires by rea­son of the passage of time or if he or she should die or resign or be removed from office during such term. In the event that any position of assistant state attorney, with a salary to be paid from state funds, shall hereafter be created by law in addition to the positions provided for by this act, the state attorney of the judicial circuit for which such additional position is created shall fill the same, and all vacancies therein, by appointment.

(2) Each assistant state attorney appointed by a state attorney under the authorization of this act shall serve during the pleasure of the state attorney appoint­ing him or her. Each such appointment shall be in writing and shall be recorded in the office of the clerk of the cir­cuit court of the county in which the appointing state attorney resides. No such appointee shall perform any of the duties of assistant state attorney until he or she shall have taken and subscribed to a written oath that he or she will faithfully perform the duties of assistant state attorney and shall have caused the same to be rec-

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F.S. 1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch.27

orded in the office of the clerk of the circuit court of the county in which the appointing state attorney resides. Upon the recordation of such appointment and oath, the appointing state attorney shall promptly cause certified copies thereof to be transmitted to the Secretary of State. When any such appointment shall be revoked, the revocation thereof shall be made in writing and shall be recorded in the office of the clerk of the circuit court of the county in which the appointment is recorded, and the state attorney executing the same shall forthwith cause a certified copy thereof to be transmitted to the Secretary of State. If any such appointee dies or resigns, the appointing state attorney shall promptly give written notice of such death or resignation to the Secretary of State.

(3) Each assistant state attorney appointed by a state attorney under the authorization of this act shall have all of the powers and discharge all of the duties of the state attorney appointing him or her, under the direc­tion of said state attorney. No such assistant state attor­ney may sign informations unless specifically desig­nated to do so by the state attorney. He or she shall sign indictments, informations, and other official documents, as assistant state attorney, and, when so signed, the same shall have the same force and effect as if signed by the state attorney.

(4) Until otherwise provided by law, each assistant state attorney appointed by a state attorney under the authorization of this section shall receive the allowances for expenses provided by law at the time of appoint­ment, to be paid in accordance with such law. The salary for each assistant state attorney shall be set by the state attorney of the same judicial circuit in an amount not to exceed 100 percent of that state attorney's salary and shall be paid from funds appropriated for that purpose. However, the assistant state attorneys who serve in less than a full-time capacity shall be compensated for ser­vices performed in an amount in proportion to the salary allowed for full-time services.

History.-ss. 1, 2, 3, 4, 6, ch. 67-188; s. 1, ch. 72-326; s. 14, ch. 73-299; s. 1, ch. 80-244; s. 3, ch. 81-230; s. 128, ch. 95-147; s. 9, ch. 95-312.

27.182 Salary discrimination based on gender or race; review within the office of state attorney.-Each state attorney shall undertake an annual review of com­pensation policies for the position of assistant state attorney. Within the context of comparable skills, experi­ence, and responsibility, any inequities found to exist on the basis of gender or race shall be eliminated.

History.-s. 7, ch. 91-74.

27.25 State attorney authorized to employ person­nel; funding formula.-

( 1) The state attorney of each judicial circuit is authorized to employ and establish, in such number as he or she shall determine, assistant state attorneys, investigators, and clerical, secretarial, and other person­nel, who shall be paid from funds appropriated for that purpose. The state attorneys of all judicial circuits shall jointly develop a coordinated classification and pay plan which shall be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan

shall be developed in accordance with policies and pro­cedures of the Executive Office of the Governor estab­lished pursuant to s. 216.181.

(2) The state attorney of each judicial circuit is authorized to employ an executive director. The salary of the executive director shall be set by the state attor­ney in accordance with the policies and procedures of the Executive Office of the Governor established pursu­ant to s. 216.181 and shall not exceed 90 percent of the state attorney's salary. The duties of the executive director shall be as prescribed by the state attorney.

(3) In any judicial circuit where a court reporter is not available, any stenographer employed by a state attor­ney is authorized and may be required to perform the services of a court reporter and shall be entitled to receive the per diem and fees provided by law for such services.

(4) All payments for the salary of the state attorney and the necessary expenses of office, including salaries of deputies, assistants, and staff, shall be considered as being for a valid public purpose.

(5) The appropriations for the offices of state attor­neys shall be determined by a funding formula based on population and such other factors as may be deemed appropriate in a manner to be determined by this sub­section and any subsequent appropriations act.

History.-ss. 1, 2, ch. 17261, 1935; CGL 1936 Supp. 4759(9); s. 1, ch. 18147, 1937; s. 1, ch. 18148, 1937; s. 1, ch. 22188, 1943; s. 1, ch. 22905, 1945; ss. 2, 3, ch. 25243, 1949; s. 1, ch. 29952, 1955; s. 1, ch. 57-301; s. 5, ch. 67-324; s. 4, ch. 69-212; s. 1, ch. 69-257; s. 2, ch. 72-326; s. 1, ch. 73-215; s. 2, ch. 79-344; s. 1, ch. 81-230; s. 1. ch. 87-85; s. 129, ch. 95-147.

121.251 Special organized crime investigators.­The state attorney of each judicial circuit is authorized to employ any municipal or county police officer or sher­iff's deputy on a full-time basis as an investigator for the state attorney's office with full powers of arrest through­out the judicial circuit provided such investigator serves on a special task force to investigate matters involving organized crime, and, provided further, that the salary of such municipal or county police officer or sheriff's deputy shall be paid by the city, county, or sheriff by which the investigator is principally employed, and with the consent of the county, sheriff, or municipality. The arrest powers granted herein shall be exercised only in the furtherance of the conduct of the business of the special task force to which such municipal or county police officer or sheriff's deputy is assigned by the said state attorney.

History.-ss. 1, 4, ch. 78-227; s. 130, ch. 95-147; s. 6, ch. 95-196. 'Note.-Section 55, ch. 95-196, provides that "[n]othing in this act shall be con­

strued to authorize a state agency to discontinue the collection and maintenance of information contained in any required report repealed or modified by this act, unless the state agency is specifically authorized to discontinue such collection and maintenance pursuant to this act or another section of law."

27 .255 Investigators; authority to arrest, qualifica­tions, rights, immunities, bond, and oath.-

(1) Each investigator employed on a full-time basis by a state attorney and each special investigator appointed by the state attorney pursuant to the provi­sions of s. 27.251 is hereby declared to be a law enforce­ment officer of the state and a conservator of the peace, under the direction and control of the state attorney who employs him or her, with full powers of arrest, in accord­ance with the laws of this state. Such investigator may

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Ch. 27 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES F.S.1995

arrest any person for violation of state law or applicable county or city ordinances when such violation occurs within the boundaries of the judicial circuit served by the state attorney employing the investigator, except that arrests may be made out of said judicial circuit when hot pursuit originates within said judicial circuit. Such inves­tigator shall, within the boundaries of the judicial circuit served by such state attorney, have full authority to serve any arrest warrant, search warrant, witness sub­poena, capias, or court order issued by any court or judge within such judicial circuit in a criminal case, or in connection with a criminal investigation, when the same is directed to him or her. The investigator may carry weapons on or about his or her person in the same man­ner as other law enforcement officers.

(2) All investigators employed by a state attorney or appointed pursuant to the provisions of s. 27.251 shall meet the minimum standards established by the Crimi­nal Justice Standards and Training Commission of the Department of Law Enforcement for the employment and training of law enforcement officers under chapter 943, except that investigators employed by a state attor­ney on July 1, 197 4, shall not be required to meet such standards.

(3) In the performance of any of the powers, duties, and functions authorized by law or this section, investi­gators employed by a state attorney or appointed pursu­ant to the provisions of s. 27.251 shall have the same rights, protections, and immunities afforded other peace or law enforcement officers.

(4) Any full-time investigator employed by the state attorney and any special investigator appointed by the state attorney pursuant to the provisions of s. 27.251 shall, before entering into the performance of duties, take and file the oath as prescribed in s. 5, Art. II of the State Constitution and enter into a good and sufficient bond with a surety company authorized to do business in this state as surety thereon, conditioned on the faith­ful performance of duties and payable to the Governor and his or her successors in the penal sum of $5,000.

History.-s. 1, ch. 70-275; s. 1. ch. 74-260; s. 2, ch. 78-227; s. 5. ch. 79-8; s. 2. ch. 83-167: s. 131, ch. 95-147.

27 .271 Per diem and mileage for state attorneys and assistant state attorneys.-

(1) Each state attorney and assistant state attorney shall be entitled to receive per diem and mileage as pro­vided in s. 112.061, for travel on official business within or outside the state.

(2) This section shall not be construed to allow mile­age or per diem for travel by any state attorney or assis­tant state attorney between home and the courthouse designated as the travel headquarters of said state attorney or assistant state attorney or for time spent at the county seat of the county in which he or she resides.

History.-ss. 1. 4, ch. 29951, 1955; s. 19, ch. 63-400; ss. 6, 7, ch. 67-324; s. 3, ch. 73-215; s. ch. 95-147.

27.33 Submission of annual budget.-(1) On or before November 15, annually, prior to the

meeting of the Legislature, each state attorney shall submit to the Executive Office of the Governor a written report containing an estimate in itemized form showing the amount needed for operational expenses for the

year beginning July 1, thereafter. Each such estimate shall itemize the expenditures required for the state attorney submitting it and for his or her assistants, as fol­lows:

(a) Salary of state attorney. (b) Salaries of assistant state attorneys. (c) Salaries of stenographers. (d) Salaries and travel expenses of investigators. (e) Travel expenses of state attorney and assistant

state attorneys. (f) Office equipment. (g) Stationery, stamps, telephone and telegraph ser­

vice, and the printing of necessary legal forms. (h) Other necessary expenses of state attorney and

assistants. (i) Reserve for contingencies. (2) The form of such reports shall be prescribed by

the Executive Office of the Governor and shall be as nearly uniform as may be.

(3) No such report shall include any amount for any expense which is required by statute to be paid from county funds.

(4) After this act takes effect as law, all of the provi­sions of chapter 216, which relate to the budgets and expenses of state officers shall be applicable to state attorneys and their budgets and expenses.

History.-ss. 1. 2. 3, ch. 63-440; ss. 2, 3, ch. 67-371; ss. 31. 35, ch. 69-106; s. 1, ch. 73-305; s. 14, ch. 73-333; s, 83, ch. 79-190: s. 133, ch. 95-147.

27.34 Salaries and other related costs of state attorneys' offices; limitations.-

(1) No county or municipality shall appropriate or contribute funds to the operation of the various state attorneys, except that a county or municipality may appropriate or contribute funds to pay the salary of one assistant state attorney whose sole function shall be to prosecute violations of special laws or ordinances of the county or municipality and may provide persons employed by the county or municipality to the state attorney to serve as special investigators pursuant to the provisions of s. 27.251. However, any county or municipality may contract with the state attorney of the judicial circuit in which such county or municipality is located for the prosecution of violations of county or municipal ordinances. In addition, a county or municipal­ity may appropriate or contribute funds to pay the salary of one or more assistant state attorneys who are trained in the use of the civil and criminal provisions of the Flor­ida RICO Act, chapter 895, and whose sole function is to investigate and prosecute civil and criminal RICO actions when one or more offenses identified in s. 895.02(1 )(a) occur within the boundaries of the munici­pality or county.

(2) The state attorneys shall be provided by the counties within their judicial circuits with such office space, utilities, telephone service, custodial services, library services, transportation services, and communi­cation services as may be necessary for the proper and efficient functioning of these offices, except as other­wise provided in the General Appropriations Act. The state attorney's office shall also be provided with pretrial consultation fees for expert or other potential witnesses consulted before trial by the state attorney; travel

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F.S. 1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch. 27

expenses incurred in criminal cases by a state attorney in connection with out-of-jurisdiction depositions; out­of-state travel expenses incurred by assistant state attorneys or by investigators of state attorneys while attempting to locate and interrogate witnesses for the state attorney in the prosecution of a criminal case; court reporter costs incurred by the state attorney dur­ing the course of an investigation and criminal prosecu­tion which costs are certified by the state attorney as being useful and necessary in the prosecution, provided that nothing herein shalt be ccnstrued to prohibit the county from contesting the reasonableness of the expenditure in the court wherein the criminal case is brought; postindictment and postinformation deposition costs incurred by the state attorney during the course of a criminal prosecution of an insolvent defendant when such costs are certified by the state attorney as being useful and necessary in the prosecution, provided that nothing herein shall be construed to prohibit the county from contesting the reasonableness of the expenditure in the court wherein the criminal case is brought; and the cost of copying depositions of state witnesses taken by the public defender, court-appointed counsel, or private retained counsel, when such costs are certified by the state attorney as being useful and necessary in the pros­ecution, provided that nothing herein shall be construed to prohibit the county from contesting the reasonable­ness of the expenditure in the court wherein the criminal case is brought. The office space to be provided by the counties shall not be less than the standards for space allotment adopted by the Department of Management Services, nor shall these services and office space be less than were provided in fiscal year 1984-1985.

(3) It is hereby prohibited for any state attorney to receive from any county or municipality any supplemen­tal salary. However in judicial circuits with a population of 1 million or more, state attorneys presently holding office and now receiving a county supplement may con­tinue to receive a county salary supplement at the dis­cretion of the counties for the remainder of their term of office.

(4) Notwithstanding s. 27.25, the Insurance Commis­sioner may contract with the state attorney of any judi­cial circuit of the state or the Justice 1Administrative Commission for the prosecution of criminal violations of the Workers' Compensation Law and related crimes and may contribute funds for such purposes. Such contracts may provide for the training, salary, and expenses of one or more assistant state attorneys used in the prosecu­tion of such crimes.

Hlstory.-s. 3, ch. 72-326; s. 1. ch. 72-734: s. 2, ch. 73--215; s. 1. ch. 77-164; s. 3, ch. 7S-227; s. 3, ch. 79-344; s. 1, ch. 85-213; s. 2, ch. 87-139; s. 1, ch. 88-280; s. 139, ch. 92-279; s. 55, ch. 92-326; s. 105, ch. 93-415; s. 79, ch. 94-209.

'Note.-Subslltuted by the editors for the word 'Administration' to conform to the commission's name in s. 43.16, which created the commission,

127.345 State Attorney RICO Trust Fund; authorized use of funds; reporting.-

(1) Subject to the provisions of s. 895.09, when a state attorney files an action pursuant to s. 895.05, funds provided to the state attorney pursuant to s. 895.09(2)(a) or, alternatively, attorneys' fees and costs, whichever is greater, shall be deposited in the State Attorney RICO Trust Fund.

311

(2) There is created for each of the several state attorneys a trust fund to be known as the State Attorney RICO Trust Fund. The amounts awarded to a state attor­ney pursuant to this section shall be deposited in the trust fund for that state attorney. Funds deposited in such trust fund shall be used, when authorized by appropriation or action of the Executive Office of the Governor pursuant to s. 216.181(10), for investigation, prosecution, and enforcement by that state attorney of civil or criminal causes of action arising under the provi­sions of the Florida RICO (Racketeer Influenced and Cor­rupt Organization) Act.

(3) Each state attorney shall report to the Executive Office of the Governor annually by November 15, com­mencing in 1985, the amounts recovered pursuant to this section for the previous fiscal year.

History.-s. 3, ch. 84-249; s. 2. ch. 86-277; s. 3. ch. 89-102; s. 7, ch. 95-196; s. 3, ch, 95-280.

•Note.-Section 55. ch. 95-196, provides that "[n)othing in this act shall be con­strued to authorize a state agency to discontinue the collection and maintenance of information contained in any required report repealed or modrtied by this act, unless the state agency is specifically authorized to discontinue such collection and maintenance pursuant to this act or another section of Jaw.~

27.3451 State Attorney's Forfeiture and Investiga­tive Support Trust Fund.-There is created for each of the several state attorneys a trust fund to be known as the State Attorney's Forfeiture and Investigative Sup­port Trust Fund. Revenues received by a state attorney as a result of forfeiture proceedings, as provided under s. 932.704, shall be deposited in such trust fund and shall be used, when authorized by appropriation or action of the Executive Office of the Governor pursuant to s. 216.181(10), for the investigation of crime, prosecu­tion of criminals, or other law enforcement purposes.

Hlstory.-s. 1, ch. 89-307; s. 4, ch. 95-280.

27 .3455 Additional court costs; collection, use, and distribution of funds.-

(1) When any person pleads nolo contendere to a misdemeanor or criminal traffic offense under s. 318.14(10)(a) or pleads guilty or nolo contendere to, or is found guilty of, any felony, misdemeanor, or criminal traffic offense under the laws of this state or the violation of any municipal or county ordinance which adopts by reference any misdemeanor under state law, there shall be imposed as a cost in the case, in addition to any other cost required to be imposed by law, a sum in accord­ance with the following schedule:

(a) Felonies .......................................................... $200 (b) Misdemeanors ................................................. $50 (c) Criminal traffic offenses .................................. $50 (2) Payment of the additional court costs provided

for in subsection (1) shall be made part of any plea agreement reached by the prosecuting attorney and defense counsel or the criminal defendant where the plea agreement provides for the defendant to plead guilty or nolo contendere to any felony, misdemeanor, or criminal traffic offense under the laws of this state or any municipal or county ordinance which adopts by refer­ence any misdemeanor under state law.

(3) The clerk of the court shall collect such additional costs and shall notify the agency supervising a person upon whom costs have been imposed upon full payment of fees. The clerk shall deposit all but $3 for each misde-

Ch. 27 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES F.S. 1995

meaner or criminal traffic case and all but $5 for each fel­ony case in a special trust fund of the county. Such funds shall be used exclusively for those purposes set forth in subsection (6). The clerk shall retain $3 for each misdemeanor or criminal traffic case and $5 for each fel­ony case of each scheduled amount collected as a ser­vice charge of the clerk's office. A political subdivision shall not be held liable for the payment of the additional costs imposed by this section.

(4) Each county shall submit annually to the Comp­troller and the Auditor General a statement of revenues and expenditures as set forth in this section in the form and manner prescribed by the Comptroller in consulta­tion with the Advisory Council on Intergovernmental Relations, provided that such statement identify total county expenditures on:

(a) Medical examiner services. (b) County victim witness programs. (c) Each of the services outlined in ss. 27.34(2) and

27.54(3). (d) Appellate filing fees in criminal cases in which an

indigent defendant appeals a judgment of a county or circuit court to a district court of appeal or the Florida Supreme Court.

(e) Other court-related costs of the state attorney and public defender that were paid by the county where such costs were included in a judgment or order ren­dered by the trial court against the county.

Such statement also shall identify the revenues pro­vided by subsection (1) that were used to meet or reim­burse the county for such expenditures.

(5)(a) Within 6 months of the close of the local gov­ernment fiscal year, each county shall submit to the Comptroller a statement of compliance from its independent certified public accountant, engaged pur­suant to chapter 11, that the certified statement of expenditures was in accordance with ss. 27 .34(2). 27.54(3), and this section. All discrepancies noted by the independent certified public accountant shall be included in the statement furnished by the county to the Comptroller.

(b) Should the Comptroller determine that additional auditing procedures are appropriate because:

1. The county failed to submit timely its annual statement;

2. Discrepancies were noted by the independent certified public accountant; or

3. The county failed to file before March 31 of each year the certified public accountant statement of compli­ance, the Comptroller is hereby authorized to send his or her personnel or to contract for services to bring the county into compliance. The costs incurred by the Comptroller shall be paid promptly by the county upon certification by the Comptroller.

(c) Where the Comptroller elects to utilize the ser­vices of an independent contractor, such certification by the Comptroller may require the county to make direct payment to a contractor. Any funds owed by a county in such matters shall be recovered pursuant to s. 17.04 ors. 17.041.

(6) The priority for the allocation of funds collected pursuant to subsection (1) shall be as follows:

(a) Reimbursement to the county for actual county expenditures incurred in providing the state attorney and public defender the services outlined in ss. 27 .34(2) and 27 .54(3), with the exception of office space, utilities, and custodial services.

(b) At the close of the local government fiscal year, funds remaining on deposit in the special trust fund of the county after reimbursements have been made pur­suant to paragraph (a) shall be reimbursed to the county for actual county expenditures made in support of the operations and services of medical examiners, including the costs associated with the investigation of state prison inmate deaths. Special county trust fund reve­nues used to reimburse the county for medical examiner expenditures in any year shall not exceed $1 per county resident.

(c) At the close of the local government fiscal year, counties establishing or having in existence a compre­hensive victim-witness program which meets the stand­ards set by the Crime Victims' Services Office shall be eligible to receive 50 percent matching moneys from the balance remaining in the special trust fund after reim­bursements have been made pursuant to paragraphs (a) and (b). Special trust fund moneys used in any year to supplement such programs shall not exceed 25 cents per county resident.

(d) At the close of the local government fiscal year, funds remaining in the special trust fund after reim­bursements have been made pursuant to paragraphs (a), (b), and (c) shall be used to reimburse the county for county costs incurred in the provision of office space, utilities, and custodial services to the state attorney and public defender, for county expenditures on appellate fil­ing fees in criminal cases in which an indigent defendant appeals a judgment of a county or circuit court to a dis­trict court of appeal or the Florida Supreme Court, and for county expenditures on court-related costs of the state attorney and public defender that were paid by the county, provided that such court-related costs were included in a judgment or order rendered by the trial court against the county. Where a state attorney or a public defender is provided space in a county-owned facility, responsibility for calculating county costs asso­ciated with the provision of such office space, utilities, and custodial services is hereby vested in the Comptrol­ler in consultation with the Advisory Council on Intergovernmental Relations.

(7) At the end of the local government fiscal year, all funds remaining on deposit in the special trust fund after all reimbursements have been made as provided for in subsection (6) shall be forwarded to the Treasurer for deposit in the General Revenue Fund of the state.

(8) The Comptroller shall adopt any rules necessary to implement his or her responsibilities pursuant to this section.

Hlstory.-ss. 2. 3, ch. 85-213; s. 1, ch. 86-154; s. 4. ch. 87-224; ss. 2. 3, ch. 88-280; s. 3, ch. 89-129: s. 1, ch. 90-&l; s. 17. ch. 91-23; s. 3, ch. 91-303; s. 1, ch. 92-295; s. 4, ch. 92-300; s. 134, ch. 95-147.

27.35 Salaries of state attomeys.-(1) Each state attorney shall receive as salary the

amount provided in subsection (2) and subsequent appropriations acts.

(2) The annual salaries for state attorneys shall be as follows:

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F.S. 1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch. 27

(a) In those circuits having a population of 100,000 or less .................................................... $28,000.

(b) In those circuits having a population of more than 100,000 but less than 200,000 ..................... 30,000.

(c) In those circuits having a population of more than 200,000 .......................................................... 32,000.

History.-ss. 3, 6. ch. 72-326.

27.36 Office of Prosecution Coordination.-(1) There is created in the office of the Governor the

Office of Prosecution Coordination. (2) The office shall coordinate and provide informa­

tion, assistance, and staff support to the Council on Organized Crime and the various state attorneys.

(3) There shall be an executive director of the Office of Prosecution Coordination who shall be appointed and serve at the pleasure of the Governor.

(4) The executive director shall employ such other personnel as may be necessary in the performance of office functions.

(5) The operation of the Office of Prosecution Coor­dination shall be funded from the General Revenue Fund. The office may, with the approval of the Governor, seek and accept grants, funds, or gifts from any source, public or private, federal, state, or local, to supplement its operation and defray the expenses incurred in the operation and implementation of this act.

History.-s. 1, ch. 77-403; s. 8, ch. 79-400: s. 2, ch. 81-135: s. 3. ch. 85-179.

27.37 Council on Organized Crime.-(1) There is created in the office of the Governor a

council to be known as the Council on Organized Crime. The council shall be composed of seven members, of whom four shall be state attorneys appointed by and serving at the pleasure of the Governor; one shall be the statewide prosecutor in charge of the Office of State­wide Prosecution; one shall be a member of the Senate appointed by the President of the Senate; and one shall be a member of the House of Representatives appointed by the Speaker of the House of Representa­tives. The Governor shall designate one state attorney member to serve as chair.

(2) Members of the council are entitled to reimburse­ment for per diem and travel expenses as provided in s. 112.061.

(3) The statewide prosecutor shall act as legal adviser and direct the operation of the statewide grand jury as provided in s. 905.36. The state attorney mem­bers of the council may assist the legal adviser and attend sessions of the statewide grand jury; however, nothing herein shall be construed to authorize a person other than one designated by the legal adviser to attend sessions of the statewide grand jury.

(4) The duties of the council include, but need not be limited to, the following:

(a) Determining the scope and extent of organized crime in this state through public or private hearings or other appropriate investigation. To the extent necessary to conduct such hearings or investigations, the council's hearings or investigations are exempt from the provi­sions of s. 286.011. This exemption is subject to the Open Government Sunset Review Act in accordance with 1s.119.14;

(b) Establishing policy and priorities for the prosecu­tion of organized crime cases throughout the state; and

(c) Advising the Governor, the Attorney General, the President of the Senate, and the Speaker of the House of Representatives, in a report published on or before March 1 of each year, of its recommendations for legisla­tion and for funding of the various aspects of the criminal justice system and of appropriate state regulatory agen­cies.

(5) The council shall meet as often as necessary, at the call of the chair or upon majority vote of its members.

(6)(a) All documents pertaining to criminal intelli­gence or investigations in the possession or control of the Council on Organized Crime are confidential and exempt from the provisions of s. 119.07(1 ). This exemp­tion is subject to the Open Government Sunset Review Act in accordance with 1s. 119.14.

(b)1. The Council on Organized Crime shall not be considered an "agency" within the definition of s. 120.52.

2. The Council on Organized Crime shall be consid­ered a "criminal justice agency" within the definition of s. 119.011(4).

(c) If the council meets solely for the purpose of fur­thering a criminal investigation, that meeting shall be exempt from the requirements of s. 286.011, and only those members of the council and staff specifically des­ignated by the chair shall be authorized to attend.

(7) The chair of the council or the legal adviser to the statewide grand jury may issue subpoenas and other necessary process to compel attendance of witnesses and take testimony before the council. The chair or any member of the council may administer oaths or affirma­tions to witnesses who appear before the council to tes­tify on any matter on which the council may desire evi­dence.

(8) The public meetings and public records exemp­tions in this section are subject to the Open Government Sunset Review Act in accordance with ss. 1119.14 and 286.0111.

History.-s. 2, ch. 77-403: s. 9, ch. 79-400: s. 1, ch. s. 1, ch. 82-46: s. 8, ch. 83-217: s. 2, ch. 83-265; s. 3, ch. 84-254: s. 4, ch. s. 1, ch. 86-9; ss. 1, 2. 3, ch. 87362: s. 8. ch. 90-360: s. 5, ch. 91-429; s. 135, 95-147. 'Note.-A. Repealed bys. 1. ch. 95-217. B. Section 4, ch. 95-217, provides that "[n]otwithstanding any provision of law

to the contrary, exemptions from chapter 119, Florida Statutes. or chapter 286, Flor­ida Statutes, which are prescribed by law and are specifically made sub1ect to the Open Government Sunset Review Act in accordance with section 119.14. Florida Statutes, are not subject to review under that act, and are not abrogated by the oper­ation of that act. after October 1, 1995."

27.38 Budget transfer authority.-(1) Notwithstanding the provisions of s. 216.292,

each state attorney, whenever he or she deems it neces­sary by reason of changed conditions, may transfer appropriations funded from identical funds as pre­scribed ins. 215.32, except appropriations for fixed cap­ital outlay, and transfer the amounts included within the total original approved budget and releases as furnished pursuant toss. 216.181 and 216.192, as follows:

(a) Between categories of appropriations within a budget entity, if no category of appropriation is increased or decreased by more than $25,000 plus 5 percent of the original approved budget by all action taken under this subsection.

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Ch. 27 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES F.S.1995

(b) Additionally, between budget entities within identical categories of appropriations, if no category of appropriation is increased or decreased by more than $25,000 plus 5 percent of the original approved budget by all action taken under this subsection.

Such authorized revisions, together with related changes, if any, in the plan for release of appropriations, shall be transmitted by the state attorney to the Comp­troller for entry in his or her records in the manner and format prescribed by the Executive Office of the Gover­nor in consultation with the Comptroller. A copy of such revision shall be furnished the Executive Office of the Governor, the chairs of the legislative appropriations committees, and the Auditor General.

(2) Notwithstanding provisions to the contrary in s. 27.34(2), a state attorney may expend appropriated state funds for items which are enumerated in that sub­section.

(3) Each state attorney shall, no later than October 1 of each fiscal year, submit a report to the legislative appropriations committees showing the amount of state funds expended during the previous fiscal year ending in June for the items enumerated ins. 27.34(2). The Jus­tice 1Administrative Commission shall prescribe the for­mat.

History.-s. 1, ch. 88-355; s. 5, ch. 92-300; s. 136, ch. 95-147; s. 10, ch. 95-312. 'Note.-Substituted by the editors for the word "Administration· to conform to the

commission's name in s, 43.16. which created the commission.

27.50 27.51 27.52 27.53

27.5301

27.5302

27.54 27.55

27.56

27.561 27.562 27.58 27.59 27.60

PART Ill

PUBLIC DEFENDERS

Public defender; qualifications; election. Duties of public defender. Determination of indigency. Appointment of assistants and other staff;

method of payment. Salaries of public defenders and assistant

public defenders. Salary discrimination based on gender or

race; review within the office of public defender.

Expenditures for public defender's office. Compensation of public defender and

expenditures for office in newly created cir­cuit.

Assistance; lien for payment of attorney's fees or costs.

Effect of nonpayment. Disposition of funds. Existing laws. Access to prisoners. Budget transfer authority.

127.51 Duties of public defender.-(1) The public defender shall represent, without

additional compensation, any person who is determined by the court to be indigent as provided in s. 27 .52 and who is:

(a) Under arrest for, or is charged with, a felony; (b) Under arrest for, or is charged with, a misde­

meanor, a violation of chapter 316 which is punishable by imprisonment, criminal contempt, or a violation of a municipal or county ordinance in the county court, unless the court, prior to trial, files in the cause a state­ment in writing that the defendant will not be imprisoned if he or she is convicted;

(c) Alleged to be a delinquent child pursuant to a petition filed before a circuit court; or

(d) Sought by petition filed in such court to be invol­untarily placed as a mentally ill person or involuntarily admitted to residential services as a person with devel­opmental disabilities.

(2) The court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent. The court, however, may appoint pri­vate counsel in capital cases as provided in s. 925.035.

(3) Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office. Assistant public defenders shall give priority and preference to their duties as assistant public defenders and shall not other­wise engage in the practice of criminal law.

(4) The public defender for a judicial circuit enumer­ated in this subsection shall, after the record on appeal is transmitted to the appellate court by the office of the public defender which handled the trial and if requested by any public defender within the indicated appellate district, handle all felony appeals to the state and federal courts required of the official making such request:

(a) Public defender of the second judicial circuit, on behalf of any public defender within the district compris­ing the First District Court of Appeal.

(b) Public defender of the tenth judicial circuit, on behalf of any public defender within the district compris­ing the Second District Court of Appeal.

(c) Public defender of the eleventh judicial circuit, on behalf of any public defender within the district compris­ing the Third District Court of Appeal.

(d) Public defender of the fifteenth judicial circuit, on behalf of any public defender within the district compris­ing the Fourth District Court of Appeal.

(e) Public defender of the seventh judicial circuit, on behalf of any public defender within the district compris­ing the Fifth District Court of Appeal.

(5)(a) When direct appellate proceedings prose­cuted by a public defender on behalf of an accused and

27.50 Public defender; qualifications; election.- challenging a judgment of conviction and sentence of For each judicial circuit, there shall be a public defender death terminate in an affirmance of such conviction and who shall be, and shall have been for the preceding 5 sentence, whether by the Florida Supreme Court or by years, a member in good standing of The Florida Bar. the United States Supreme Court or by expiration of any The public defender shall be elected at the general elec- deadline for fifing such appeal in a state or federal court, tion, for a term of 4 years, by the qualified electors of the the public defender shall notify the accused of his or her judicial circuit. The public defender shall be an elector rights pursuant to Rule 3.850, Florida Rules of Criminal of the state and shall reside within the territorial jurisdic- Procedure, including any time limits pertinent thereto, tion of the judicial circuit in which he or she serves. and shall advise such person that representation in any

History.-s. 1, ch. 63-409; s. 15, ch. 73-333; s. 1, ch. 80--376; s. 137, ch. 95-147. COiiaterai proceedings is the responsibility Of the Capital

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F.S.1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch.27

collateral representative. The public defender shall then forward all original files on the matter to the capital col­lateral representative, retaining such copies for his or her files as may be desired. However, the trial court shall retain the power to appoint the public defender or other attorney not employed by the capital collateral repre­sentative to represent such person in proceedings for relief by executive clemency pursuant to s. 925.035.

(b) It is the intent of the Legislature that any public defender representing an inmate in any collateral pro­ceedings in any court on June 24, 1985, shall continue representation of that inmate in all postconviction pro­ceedings unless relieved of responsibility from further representation by the court.

(6) A sum shall be appropriated to the public defender of each judicial circuit enumerated in subsec­tion ( 4) for the employment of assistant public defenders and clerical employees and the payment of expenses incurred in cases on appeal.

Hlstmy.-s. 2. ch. 63-409; s. 1. ch. 67-539; ss. 19, 35, ch. 69-106; s. 1, ch. 71-28: s. 1, ch. 72-327; s. 1, ch. 72-722; s. 1. ch. 73-216; s. 4, ch. 73-334; s. 3, ch. 77-147; s. 1, ch. 79-588; s. 2, ch. 80-376; ss. 2, 6, ch. 65-332; s. 11, ch. 87-133; s. 1, ch. 89-308; s. 8, ch. 91-45; s. 138, ch. 95-147: s. 15, ch. 95-195.

•Note.-Section 23, ch. 95-195, provides for applicability to offenses committed on or after July 1, 1995.

27.52 Determination of indigency.-(1) The determination of indigency of any accused

person shall be made by the court at any stage of the proceedings. Any accused person claiming indigency shall file with the court an affidavit which shall contain the factual information required in subsection (2).

(2)(a) A person is indigent for the purposes of this part if he or she is unable to pay tor the services of an attorney, including costs of investigation, without sub­stantial hardship to the person or his or her family.

(b) In determining whether a defendant is indigent, the court shall determine whether any of the following facts exist, and the existence of any such fact shall create a presumption that the defendant is not indigent:

1. The defendant has been released on bail in the amount of $5,000 or more.

2. The defendant has no dependents and his or her gross income exceeds $100 per week; or, if the defend­ant has dependents, his or her gross income exceeds $100 per week plus $20 per week tor each of the first two dependents of the defendant and $10 per week for each additional dependent.

3. The defendant owns cash in excess of $500. (c) The court shall also consider the following addi­

tional circumstances in determining whether a defend­ant is indigent:

1. The probable expense and burden of defending the case;

2. The ownership of, or equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property by the defendant; and

3. The amount of debts owed by defendant or debts that might be incurred by the defendant because of illness or other misfortunes within the family.

(d) A nonindigent parent or legal guardian of a dependent person under the age of 18 years shall fur­nish such person with the necessary legal services and costs incident to a delinquency proceeding in which the

person has a right to legal counsel under the Constitu­tion of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to fur­nish legal services and costs under this section shall not bar the appointment of legal counsel pursuant to s. 27.53. When the public defender, a special assistant public defender appointed pursuant to s. 27.53(2), or appointed private legal counsel is appointed to repre­sent a minor in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian of the minor shall be liable for the costs of such representation in an amount not to exceed $1,250. Liability for the costs of such representation may be imposed in the form of a lien against the property of the parents or the legal guardian of the minor, which lien shall be enforceable as provided in s. 27 .56 ors. 27 .561. The court shall determine the amount of the obligation; and, in determining the amount of the obligation, the court shall follow the procedure outlined by this section.

(3) If the trial court shall determine and adjudge, within 1 year after the determination of indigency, that any accused was erroneously or improperly determined to be indigent, the state attorney may, in the name of the state, proceed against such accused for the reasonable value of the services rendered to the accused and including all costs paid by the state or county in his or her behalf. Any amount recovered shall be remitted to the board of county commissioners of the county wherein the accused was tried. The funds shall be deposited in the tine and forfeiture fund of that county and be used to defray the expenses incurred by the county with respect to the defense of defendants in criminal prosecutions.

History.-s. 3, ch. 63-409; 1, ch. 70-57; s.4, ch. 73-334: s.1, ch. 77-99: s.1, ch. 77-378; s. 8, ch. 79--164: s. ch. 80-376; s. 1, ch. 81-273; s. 139, ch. 95-147.

27.53 Appointment of assistants and other staff; method of payment.-

(1) The public defender of each judicial circuit is authorized to employ and establish, in such numbers as he or she shall determine, assistant public defenders, investigators, and other personnel who shall be paid from funds appropriated for that purpose. Notwithstand· ing the provisions of s. 790.01, s. 790.02, or s. 790.25(2)(a), an investigator employed by a public defender, while actually carrying out official duties, is authorized to carry concealed weapons if the investiga­tor complies with s. 790.25(3)(0). However, such investi­gators are not eligible tor membership in the Special Risk Class of the Florida Retirement System. The public defenders of all judicial circuits shall jointly develop a coordinated classification and pay plan which shall be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Executive Office of the Governor established in s. 216.181. Each assistant public defender appointed by a public defender under this section shall serve at the pleasure of the public defender. Each investigator employed by a public defender shall have full authority to serve any witness subpoena or court order issued, by

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any court or judge within the judicial circuit served by such public defender, in a criminal case in which such public defender has been appointed to represent the accused.

(2) Any member of The Florida Bar, in good stand­ing, may register his or her availability to the public defender of any judicial circuit for acceptance of special assignments without salary to represent indigent defendants. Such persons shall be listed and referred to as special assistant public defenders and be paid a fee and costs and expenses as provided in s. 925.036.

(3) If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of conflict of interest, it shall be the public defender's duty to move the court to appoint other coun­sel. The court may appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender, in his or her capacity as such, or in his or her private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict. The court shall advise the appropriate public defender and clerk of court, in writing, when making such appoint­ment and state the conflict prompting the appointment. The appointed attorney shall be compensated as pro­vided in s. 925.036.

(4) The appropriations for the offices of public defender shall be determined by a funding formula and such other factors as may be deemed appropriate in a manner to be determined by this subsection and any subsequent appropriations act.

History.-s. 4. ch. 63-409: s. 1. ch. s. 1, ch. 67-192; s. 2, ch. 67-539: s. 2, ch. 72-327; s. 2, ch. 73-216; s. 1, ch. s. 1, ch. 78-344: s. 4, ch. 80-376; s. 2, ch. 81-230: s. 2, co. 81-273; s. 2, ch. s. 1, ch. 90-159: s. 1, ch. 90-311; s. 140, ch. 95-147.

27 .5301 Salaries of public defenders and assistant public defenders.-

(1) The salaries of public defenders, to be paid by the state, shall be as provided in the General Appropria­tions Act and shall be paid in equal monthly install­ments.

(2) The salary for each assistant public defender shall be set by the public defender of the same judicial circuit in an amount not to exceed 100 percent of that public defender's salary and shall be paid from funds appropriated for that purpose. Assistant public defend­ers who serve in less than a full-time capacity shall be compensated for services performed in an amount to be in proportion to the salary allowed for full-time services.

History.-ss. 3, 7. ch. 72-327: s. 5, ch. 80-376; s. 4, ch. 81-230.

27.5302 Salary discrimination based on gender or race; review within the office of public defender.­Each public defender shall undertake an annual review of compensation policies for the position of assistant public defender. Within the context of comparable skills, experience, and responsibility, any inequities found to exist on the basis of gender or race shall be eliminated.

History.-s. 8. ch. 91-74.

27.54 Expenditures for public defender's office.­(1) All payments for the salary of the public defender

and the necessary expenses of office, including salaries of assistants and staff, shall be considered as being for a valid public purpose. Travel expenses shall be paid in accordance with the provisions of s. 112.061.

(2) No county or municipality shall appropriate or contribute funds to the operation of the offices of the various public defenders, except that a county or munic­ipality may appropriate or contribute funds to:

(a) Pay the salary of one assistant public defender whose sole function shall be to defend indigents charged with violations of special laws or with violations of ordinances of the county or municipality.

(b) Employ legal and support staff to be supervised by the public defender upon certification by the public defender that inadequate resources will result in with­drawal from current cases or inability to accept addi­tional appointments.

(3) The public defenders shall be provided by the counties within their judicial circuits with such office space, utilities, telephone services, custodial services, library services, transportation services, and communi­cation services as may be necessary for the proper and efficient functioning of these offices, except as other­wise provided in the General Appropriations Act. The public defender's offices shall also be provided with pretrial consultation fees for expert or other potential witnesses consulted before trial by the public defender; travel expenses incurred in criminal cases by a public defender in connection with out-of-jurisdiction deposi­tions; out-of-state and out-of-jurisdiction travel expenses incurred by public defenders or by investiga­tors of public defenders while attempting to locate and interrogate witnesses for the public defender in the defense of a criminal case; court reporter costs incurred by the public defender during the course of an investiga­tion and criminal prosecution, which costs are certified by the public defender as being useful and necessary in the preparation of a criminal defense, provided that nothing herein shall be construed to prohibit the county from contesting the reasonableness of the expenditure in the court wherein the criminal case is brought; postindictment and postinformation deposition costs incurred by the public defender during the course of a criminal prosecution of an indigent defendant when such costs are certified by the public defender as being useful and necessary in the preparation of a criminal defense, provided that nothing herein shall be con­strued to prohibit the county from contesting the reason­ableness of the expenditure in the court wherein the criminal case is brought; and the cost of copying deposi­tions of defense witnesses taken by the state attorney when such costs are certified by the public defender as being useful and necessary in the preparation of a crimi­nal defense, provided that nothing herein shall be con­strued to prohibit the county from contesting the reason­ableness of the expenditure in the court wherein the criminal case is brought. The office space and utilities to be provided by the counties shall not be less than the standards for space allotment adopted by the Depart­ment of Management Services. The counties shall not provide less of these services than were provided in the previous fiscal year.

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F.S.1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch.27

(4) No public defender or assistant public defender shall receive from any county or municipality any supple­mental salary, except as provided in this section.

History.-s. 5, ch. 63-409; s. 3, ch. 67-539; s. 4, ch. s. 2. ch. 72-722; s. 3. ch. 73-216; s. 6. ch. 80-376; s. 4, ch. 85-213; s. 4, ch. s. 1, ch. 89-118; s. 2, ch. 91-303; s. 140, ch. 92-279; s. 55. ch. 92-326; s. 141, 95-147.

27.55 Compensation of public defender and expenditures for office in newly created circuit.-

(1) In the event a new judicial circuit is created, the Executive Office of the Governor is authorized to release the necessary moneys for the payment of the salary of the public defender in such newly created circuit in accordance with the provisions of s. 27 .5301.

(2) In the event a new judicial circuit is created, the Executive Office of the Governor is authorized to release necessary moneys to operate the public defender's office in the newly created judicial circuit in accordance with the formula provided in the General Appropriations Act in effect at the time such new judicial circuit is cre­ated.

History.-s. 2, ch. 63-410; s. 1, ch. ss. 2. 3, ch. 67-371; s. 4, ch. 67-539; ss. 31, 35, ch. 69-106; s. 84, ch. 79-190; s. ch. 80-376.

27.56 Assistance; lien for payment of attomey's fees or costs.-

(1 )(a) The court having jurisdiction over any defend­ant who has been determined to be guilty of a criminal act by a court or jury or through a plea of guilty or nolo contendere and who has received the assistance of the public defender's office or a special assistant public defender, or the services of a private attorney appointed pursuant to the Florida Statutes or the Florida Rules of Criminal Procedure, may assess attorney's fees and costs against the defendant. At the sentencing hearing or at such stage in the proceedings as the court may deem appropriate, the public defender, the special assistant public defender, or the private attorney repre­senting such defendant shall move the court to assess attorney's fees and costs against the defendant. Such costs may include the cost of depositions; cost of tran­scripts of depositions, including the cost of defendant's copy, which transcripts are certified by the defendant's attorney as having served a useful purpose in the dispo­sition of the case; investigative costs; witness fees; the cost of psychiatric examinations; or other reasonable costs specially incurred by the county for the defense of the defendant in criminal prosecutions within the county. Costs shall not include expenses inherent in pro­viding a constitutionally guaranteed jury trial or expendi­tures in connection with the maintenance and operation of government agencies that must be made by the pub­lic irrespective of specific violations of law. Any cost assessed pursuant to this paragraph shall be reduced by any amount assessed against a defendant pursuant to S, 27.3455.

(b) Upon entering a judgment of conviction, the trial court may order the defendant to pay the costs assessed by the court in full, or within a time certain as set by the court, after the judgment of conviction becomes final.

(c) After assessment of the attorney's fees and costs, the court may order the defendant to pay the attorney's fees in full or in installments, at the time or

times specified. The court may order payment of the assessed attorney's fees as a condition of probation, of suspension of sentence, or of withholding the imposition of sentence.

(2)(a) When payment of attorney's fees or costs has been ordered by the court, there is hereby created in the name of the county in which such assistance was ren­dered a lien, enforceable as hereinafter provided, upon all the property, both real and personal, of any person who:

1. Has received any assistance from any public defender of the state, from any special assistant public defender, or from any appointed private legal counsel; or

2. Is a parent of a minor who is being, or has been, represented by any public defender of the state, by any special assistant public defender, or by any appointed private legal counsel.

Such lien shall constitute a claim against the defendant­recipient or parent and his or her estate, enforceable according to law, in an amount to be determined by the court in which such assistance was rendered.

(b) Immediately after the issuance of an order for the payment of attorney's fees or costs, a judgment show­ing the name and residence of the defendant-recipient or parent shall be filed for record in the office of the clerk of the circuit court in the county where the defendant­recipient or parent resides and in each county in which such defendant-recipient or parent then owns or later acquires any property. Such judgments shall be enforced on behalf of the county by the board of county commissioners of the county in which assistance was rendered.

(3) In lieu of the procedure above described, the court is authorized to require that the defendant­recipient of the services of the public defender, special assistant public defender, or appointed private legal counsel, or that the parent of a minor who has received such services, execute a lien upon his or her real or per­sonal property, presently owned or after-acquired, as security for the debt created hereby. Such lien shall be recorded in the public records of the county at no charge by the clerk of the circuit court and shall be enforceable in the same manner as a mortgage.

(4) The board of county commissioners of the county wherein the defendant-recipient was tried or received the services of a public defender. special assis­tant public defender, or appointed private legal counsel is authorized to enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debt or lien hereby imposed. A defendant-recipient or parent, who has been ordered to pay attorney's fees or costs and who is not in willful default in the payment thereof, may, at any time, petition the court which entered the order for remission of the payment of attorney's fees or costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on such person or his or her immediate family, the court may remit all or part of the amount due in attorney's fees or costs or may modify the method of payment.

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(5) The board of county commissioners of the county claiming such lien is authorized to contract with a collection agency for collection of such debts or liens, provided the fee for such collection shall be on a contin­gent basis not to exceed 50 percent of the recovery. However, no fee shall be paid to any collection agency by reason of foreclosure proceedings against real prop­erty or from the proceeds from the sale or other disposi­tion of real property.

(6) No lien thus created shall be foreclosed upon the homestead of such defendant-recipient or parent, nor shall any defendant-recipient or parent who is ordered to pay attorney's fees or costs be denied any of the pro­tections afforded any other civil judgment debtor.

(7) The court having jurisdiction of the defendant­recipient may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender, special assistant public defender, or appointed private legal counsel and costs, at which time the defendant-recipient or parent, after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exer­cise and be accorded the procedures and rights pro­vided in the laws and court rules pertaining to civil cases at law.

History.-s. 3, ch. 6~10; s. 7, ch. 67-539; s. 1, ch. 72-41; s. 1, ch. 77-264; s. 2, ch. 77-378; s. 10, ch. 79-400; s. 8, ch. 80-376; s. 1, ch. 83-256: s. 2, ch. 89-129; s. 142, ch. 95-147.

27.561 Effect of nonpayment.-(1) Whenever a defendant-recipient or parent is

ordered to pay attorney's fees or costs, default in the payment thereof shall be cause for finding the defend­ant-recipient or parent in contempt of court, and the court may issue a show cause citation or a warrant of arrest for the defendant-recipient's or parent's appear­ance.

(2) Unless the defendant-recipient or parent shows that default was not attributable to an intentional refusal to obey the order of the court or to a failure on his or her part to make a good faith effort to make the payment, the court may find that the default constitutes contempt and order him or her committed until the attorney's fees or costs, or a specified part thereof, are paid or may take any other action appropriate under the circumstances, including revocation of probation.

(3) If it appears to the satisfaction of the court that the default in the payment of the attorney's fees or costs is not contempt, the court may enter an order allowing the defendant-recipient or parent additional time for, or reducing the amount of, payment or revoking the assessed attorney's fees or costs, or the unpaid portion thereof, in whole or in part.

History.-s. 2, ch. 77-264; s. 9, ch. 80-376; s. 143, ch. 95-147.

27.562 Disposition of funds.-All funds collected pursuant to s. 27.56 shall be remitted to the board of county commissioners of the county wherein the defendant-recipient was tried. Such funds shall be placed in the fine and forfeiture fund of that county to be used to defray the expenses incurred by the county in defense of criminal prosecutions. All judgments entered pursuant to the provisions of this act shall be in

the name of the county in which the judgment was ren­dered.

History.-s. 3, ch. 77-264: s. 11. ch. 79-400.

27.58 Existing laws.-This act shall not repeal but shall be supplementary to any local law or ordinance heretofore providing for a public defender or assigned defense counsel in any county or counties of the state, and the public defender in such county or counties may continue to operate under such prior act or ordinance to the extent determined by the board of county commis­sioners thereof; provided, however, that the public defender of each judicial circuit of the state shall be the chief administrator of all public defender services within the circuit whether such services are rendered by the state or county public defenders.

Hiatory.-s. 7, ch. 63-409.

27.59 Access to prisoners.-The public defenders and assistant public defenders shall be empowered to inquire of all persons who are incarcerated in lieu of bond and to tender them advice and counsel at any time, but the provisions of this section shall not apply with respect to persons who have engaged private counsel.

History.-s. 6, ch. 67-539; s. 10, ch. 80-376.

27.60 Budget transfer authority.-(1) Notwithstanding the provisions of s. 216.292,

each public defender, whenever he or she deems it nec­essary by reason of changed conditions, may transfer appropriations funded from identical funds as pre­scribed ins. 215.32, except appropriations for fixed cap­ital outlay, and transfer the amounts included within the total original approved budget and releases as furnished pursuant toss. 216.181 and 216.192, as follows:

(a) Between categories of appropriations within a budget entity, if no category of appropriation is increased or decreased by more than $25,000 plus 5 percent of the original approved budget by all action taken under this subsection.

(b) Additionally, between budget entities within identical categories of appropriations, if no category of appropriation is increased or decreased by more than $25,000 plus 5 percent of the original approved budget by all action taken under this subsection.

Such authorized revisions, together with related changes, if any, in the plan for release of appropriations, shall be transmitted by the public defender to the Comp­troller for entry in his or her records in the manner and format prescribed by the Executive Office of the Gover­nor in consultation with the Comptroller. A copy of such revision shall be furnished the Executive Office of the Governor, the chairs of the legislative appropriations committees, and the Auditor General.

(2) Notwithstanding provisions to the contrary in s. 27 .54(3), a public defender may expend appropriated state funds for items which are enumerated in that sub­section.

(3) Each public defender shall, no later than October 1 of each fiscal year, submit a report to the legislative appropriations committees showing the amount of state funds expended during the previous fiscal year ending

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F.S. 1995 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES Ch. 27

in June for the items enumerated ins. 27.54(3). The Jus­tice 1Administrative Commission shall prescribe the for­mat.

History.-s. 2, ch. 88-355; s. 6, ch. 92-300; s. 144, ch. 95-147; s. 11, ch. 95-312. 'Nota.-Substituted by the editors for the word "Administration" to conform to the

commission's name ins. 43.16, which created the commission.

PART IV

CAPITAL COLLATERAL REPRESENTATIVE

27.7001 27.701 27.702 27.703 27.704

27.705

27.706 27.707 27.708

Legislative intent. Capital collateral representative. Duties of the capital collateral representative. Conflict of interest and substitute counsel. Appointment of assistants and other staff;

method of payments. Salaries of the capital collateral representative

and assistant capital collateral representa­tives.

Private practice of law prohibited. Investigators; service of process. Access to prisoners.

27.7001 Legislative intent.-lt is the intent of the Legislature to create part IV of this chapter, consisting of ss. 27.7001-27 .708, inclusive, to provide for the repre­sentation of any person convicted and sentenced to death in this state who is unable to secure counsel due to indigency, so that collateral legal proceedings to chal­lenge such conviction and sentence may be com­menced in a timely manner and so as to assure the peo­ple of this state that the judgments of its courts may be regarded with the finality to which they are entitled in the interests of justice.

History.-s. 1, ch. 85-332; s. 5, ch. 95-280.

27.701 Capital collateral representative.-There is hereby created in the judicial branch of state govern­ment the office of capital collateral representative, the head of which shall be the capital collateral representa­tive for the state. The capital collateral representative shall be, and shall have been for the preceding 5 years, a member in good standing of The Florida Bar. The capi­tal collateral representative shall be appointed by the Governor, subject to confirmation by the Senate, from three or more nominations submitted by any or all elected public defenders and shall serve a term of 4 years. Six months prior to the end of any such term, the Governor shall accept nominations from any or all elected public defenders for the office of capital collat­eral representative for the next succeeding term and may appoint the incumbent or any other nominated per­son for the next succeeding term. Vacancies in the office of capital collateral representative shall be filled in the same manner as appointments. A person appointed capital collateral representative is prohibited from run­ning for or accepting appointment to any state office for a period of 2 years following vacation of office. The prin­cipal office of the capital collateral representative shall be located in Tallahassee. The capital collateral repre­sentative may establish such branch offices as may, in his or her discretion, be warranted to fulfill statutory duties herein.

History.-s. 3. ch. 85···332: s. 145. ch. 95-147.

27.702 Duties of the capital collateral representa­tive.-

(1) The capital collateral representative shall repre­sent, without additional compensation, any person con­victed and sentenced to death in this state who is with­out counsel and who is unable to secure counsel due to indigency or determined by a state court of competent jurisdiction to be indigent for the purpose of instituting and prosecuting collateral actions challenging the legal­ity of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Cir­cuit, and the United States Supreme Court. A determi­nation of indigency by any trial court of this state for pur­poses of representation by the public defender shall be prima facie evidence of indigency for purposes of repre­sentation by the capital collateral representative. Repre­sentation by the capital collateral representative shall commence upon termination of direct appellate pro­ceedings in state or federal courts, notice of which shall be effected as provided bys. 27 .51. Upon receipt of files from the public defender, the capital collateral repre­sentative shall assign each such case to personnel in his or her office for investigation, client contact, and such further action as the circumstances may warrant.

(2) The capital collateral representative shall file motions seeking compensation for representation and reimbursement for expenses pursuant to 18 U.S.C. s. 3006A when providing representation to indigent per­sons in the federal courts, and shall deposit all such pay­ments received into the Capital Collateral Trust Fund, which is hereby established for such purpose.

Hiatory.-s. 3, ch. 65-332; s. 3, ch. 92-300: s. 146, ch. 95-147.

27.703 Conflict of interest and substitute counsel. If at any time during the representation of two or more indigent persons, the capital collateral representative shall determine that the interests of those persons are so adverse or hostile that they cannot all be counseled by the capital collateral representative or his or her staff without conflict of interest, the sentencing court shall upon application therefor by the capital collateral repre­sentative appoint one or more members of The Florida Bar to represent one or more of such persons. Appointed counsel shall be paid from dollars appropri­ated to the Office of the Capital Collateral Representa­tive.

History.-s. 3, ch. 85-332: s 147, ch. 95-147.

27.704 Appointment of assistants and other staff; method of payments.-

(1) The capital collateral representative is author­ized to appoint, employ, and establish, in such numbers as he or she shall determine, full-time assistant capital collateral representatives, investigators, and other cleri­cal and support personnel who shall be paid from funds appropriated for that purpose. Full-time assistant capi­tal collateral representatives shall be members in good standing of The Florida Bar with not less than 2 years' experience in the practice of criminal law.

(2) The capital collateral representative is author­ized to appoint part-time assistant capital collateral rep­resentatives, who shall be members in good standing of

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Ch.27 STATE ATTORNEYS; PUBLIC DEFENDERS; RELATED OFFICES F.S.1995

The Florida Bar and who shall serve without compensa­tion at the discretion of the capital collateral representa­tive.

History.-s. 3, ch. 85-332; s. 148, ch. 95-147.

27.705 Salaries of the capital collateral represent­ative and assistant capital collateral representa­tives.-

(1) The capital collateral representative shall be paid a salary by the state, which shall be as provided in the General Appropriations Act and shall be paid in equal monthly installments.

(2) Full-time assistant capital collateral representa­tives shall be compensated in an amount set by the cap­ital collateral representative not to exceed 100 percent of the salary of the capital collateral representative and shall be paid from funds appropriated for that purpose.

(3) All payments of the salary of the capital collateral representative and employees of his or her office and payments for other necessary expenses of office from state funds appropriated therefor shall be considered as being for a valid public purpose. Travel expenses for offi­cial business within and outside the state shall be paid in accordance with the provisions of s. 112.061. For pur­poses of s. 112.061 only, part-time assistant capital col­lateral representatives shall be considered employees of the office of capital collateral representative.

(4) The capital collateral representative shall develop a classification and pay plan to be submitted on

or before January 1 of each year to the Justice Adminis­trative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Execu­tive Office of the Governor established pursuant to s. 216.181.

History.-s. 3, ch. 85-332; s. 4, ch. 87-85; s. 149, ch. 95-147.

27.706 Private practice of law prohibited.-The capital collateral representative and all full-time assis­tants appointed by him or her shall serve on a full-time basis and are prohibited from engaging in the private practice of law.

History.-s. 3, ch. 85-332; s. 150, ch. 95-147.

27.707 Investigators; service of process.-Each investigator employed by the capital collateral repre­sentative shall have full authority to serve any witness subpoenaed or court order issued by any court or judge in any case for which the office has responsibility for pro­viding representation.

History.-s. 3, ch. 85-332.

27.708 Access to prisoners.-The capital collateral representative and his or her assistants shall be empow­ered to inquire of all persons sentenced to death who are incarcerated and to tender them advice and counsel at any reasonable time, but the provisions of this section shall not apply with respect to persons who are repre­sented by other counsel.

History.-s. 3, ch. 85-332; s. 151, ch. 95-147.

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