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Supreme Court adopts rules to shorten death penalty appeals Senior Editor Saying it could cut the time needed for postconviction death penalty appeals to two years, the Supreme Court has approved amendments to Rules of Criminal Procedure 3.851. But the justices cautioned vigilance will be required to make the system work, including a review by the legislature of public records law. In the July 12 ruling, the court abandoned the “dual track” system it adopted last year that had direct and postconviction appeals proceeding concurrently. Justices noted the legislature did not enact laws, including public records statutes, to enable that system to work. The new rules set out times for appointing collateral counsel and other matters. It also involves circuit judges more directly in postconviction appeals, including requiring status conferences at least every 90 days. August 1, 2001 Gary Blankenship Senior Editor Regular News Justice Major Harding wrote the majority opinion, and the justices also produced three concurring opinions that highlighted their concerns. “We are hopeful that the new rule will allow future capital postconviction proceedings to be resolved within two years from the time the case becomes final [on direct appeal], thereby eliminating the months and years of needless delay that we have seen in the past,” Harding wrote. He added that while many improvements have been made, more needs to be done and “the court is confident that we can obtain the goal of achieving a prompt, fair, and efficient resolution of capital postconviction proceedings.” The court, the opinion said, has four goals for postconviction appeals: The defendant must be promptly provided with competent postconviction counsel who can research and investigate the case; the counsel must be given reasonable time and resources; the counsel must have timely access to all case information, “especially public records from investigating and prosecuting agencies;” and there must be “active and reasonable judicial oversight.” Harding wrote that the failure of the legislature to change public records laws was the reason the dual track system would not work. The new amendment to Rule 3.851 provides: • The Supreme Court will appoint postconviction counsel when it issues the mandate on direct appeal. • A trial judge will be appointed to preside over the postconviction process within 30 days of the direct appeal mandate. (The court amended Florida Rule of Judicial Administration 2.040(b)(4) to reflect that change.) • The assigned judge must hold a status hearing no more than 90 days after being assigned to the case, and at least every 90 days afterwards until the evidentiary hearing has been held or the motion ruled on without a hearing. • Initial motions from collateral counsel must contain specific information, as recommended by the independent Morris Commission, which studied death penalty appeals, and included by the legislature in its Death Penalty Reform Act of 2000. The court overturned that law last year for other reasons. • After the state replies to that initial motion, a case management conference must be held within 90 days, and both sides must share their witnesses, evidence, expert witnesses, and other information. Although an evidentiary hearing is required on the initial motion, it is within the trial court’s discretion to hold one on subsequent motions. “[W]e encourage trial courts to liberally allow them on timely raised newly discovered evidence claims, and Brady or Giglio claims,” the opinion said. “This will avoid possible delays caused by the need to remand successive motions for factual development of such claims.” Aside from those collateral matters, the court asked the Morris Commission to work with the Criminal Procedure Rules Committee to draft recommendations for handling cases after a death warrant is signed typically a time of frantic appeals. The opinion said those rules should follow guidelines recommended by the Morris Commission, including proceedings after a death warrant take priority over all other cases, time limits in the rules do not apply, trial court proceedings shall be handled as expeditiously as possible, trial court orders must be electronically transmitted to the Supreme Court, and the case record must be immediately delivered to the Clerk of the Supreme Court. Aside from the rule matters, Harding noted the court has engaged in several other activities, including setting standards for judges and lawyers who handle capital cases and requiring chief circuit judges to adopt plans for preparing transcripts of all capital trials and postconviction proceedings. “We believe these changes together with amendments we adopt today will eliminate much of the delay in our capital postconviction process while at the same time promoting quality and fairness in the system,” Harding wrote. The court did reject two proposals. One was that Rule 3.851 appeals be filed directly with the Supreme Court. The court said that would take up too much of the court’s time and also conflict with long-standing practices in Florida, requiring a much more drastic rewrite of the rules. Such changes would also likely be subject to legal challenges, which could delay the handling of cases by years, the opinion said. The second suggestion, from Solicitor General Tom Warner, was that the court should hold that its discovery rules override exemptions in the state’s public records law that have caused delays in getting police and investigatory records needed in postconviction appeals. Harding said the court understood the need for the records, but, “we decline to adopt a rule of discovery that could be seen as an attempt to override these legislatively created exemptions. Rather, we defer to the legislature to make the policy decision as to whether to retain the exemptions as they apply to capital defendants or remove them in order to allow for the adoption of a dual track system as originally proposed.” Justices Leander Shaw, Fred Lewis and Peggy Quince concurred with the opinion. Chief Justice Charles Wells concurred with a separate opinion, Justice Harry Lee Anstead concurred with an opinion with which Shaw and Justice Barbara Pariente concurred, and Pariente concurred with an opinion joined by Anstead. Wells said he wrote to encourage the legislature to address the public records issue. “Public records production continues to be a significant problem in the processing of these capital postconviction cases,” Wells noted. “Substantial time continues to be consumed in the circuit courts while decisions are made regarding what records must be produced and the boundaries of that production.” He said changes are needed to F.S. §119, and “I would respectfully suggest that the legislature study this problem area and consider changes.. . . ” Anstead said he had both caution and praise in his concurrence. The caution was that “with today’s revisions we appear to have reached the outer limits of our authority to restrict the constitutional process under habeas corpus for catching serious mistakes in capital cases. In other words, we must be mindful that there are limits to how far we can go in restricting a capital defendant’s access to the courts to present a claim that a serious mistake was made in his conviction or capital sentence.” He added that few if any of the numerous errors discovered in postconviction appeals would have occurred if a one-year limitation had been set on appeals. The accelerated capital process can only work if all parties are vigilant, Anstead said. Positive signs, he said, are systems in place for appointing collateral counsel, improvements in handling records discovery have been made, and the legislature has enacted a DNA testing law to help ensure innocent people are not executed. In her concurrence, Pariente said the evidentiary and case management rules will cut years off postconviction appeals. “My major concern is whether we have provided realistic time limits for the trial court to hold an evidentiary hearing after the postconviction motion has been filed,” she wrote, noting the new rule requires the hearing within nine months of the state filing its answer, and it could come as soon as seven months. That can only happen, Pariente wrote, if the public records issue is resolved “and the state cooperates in making sure that all requests are timely complied with.” The court said it would accept comment on the new rules for 30 days from its issuance on July 12. The ruling came in case no. SC96646, Amendments to Florida Rules of Criminal Procedure 3.851, 3.852, and 3,.993 and Florida Rule of Judicial Administration 2.050. Justice Harding Supreme Court adopts rules to shorten death penalty appeals The full text of the opinion, plus the amended rule, are on the court’s website at www.flcourts.org.