Saturday, April 15, 2000

Court voids death appeals law Justices will pass rules to speed process

By Randolph Pendleton Times-Union senior writer

TALLAHASSEE -- A law passed in January to speed up death penalty appeals was an unconstitutional invasion of the Florida Supreme Court's powers, justices unanimously ruled yesterday

The court struck down the law and proposed its own rules, which it said wouldto expedite the appeals but do not go as far as those adopted by the Legislature.

The decision has no effect on the switch to lethal injection, which was upheld earlier and has already been put into effect.

Although the court has often split on death penalty issues, the justices closed ranks and agreed that the Legislature had overreached.

In an opinion signed by Chief Justice Major B. Harding, the court said the Legislature's action violated the constitutional guarantees of separation of powers, due process and equal protection.

Like the Legislature's plan, the court's plan says post-conviction counsel must be appointed within 15 days after imposition of death sentence.

A major difference comes in the number of appeals that can be filed -- the Legislature ruled only one post-conviction appeal could be filed except for claims of actual innocence, while the court said successive appeals can be filed and are not limited in number.

The ruling added fuel to the power struggle between the court and the Legislature, which is considering a proposed constitutional amendment that would allow lawmakers to write procedural rules for the court such as those that were invalidated yesterday.

Rep. Victor Crist, a Temple Terrace Republican who heads the House Criminal Justice and Corrections Council and sponsored the proposed amendment, said the court's action showed the need for it.

"We drew our line in the sand and the court has drawn its line in the sand and neither of us has come to the center," Crist said.

Crist and House Speaker-designate Tom Feeney, R-Oviedo, said the Florida court was using a current provision in the state constitution to claim more power than the U.S. Supreme Court, whose rules can be changed by Congress.

"They're going far out there," Feeney said.

The ruling

Gov. Jeb Bush said the court's ruling would make it far more difficult to achieve the goal of carrying out executions within five years of the imposition of the death sentence.

"Unfortunately, the court's ruling struck down many of the common-sense reforms implemented by the Legislature," Bush said in a statement. "In addition, the court has now proposed alternative rules that are riddled with loopholes and exceptions that will most likely lead to more delay in death penalty cases."

But State Attorney Harry Shorstein of Jacksonville said the decision might help preserve the death penalty at a time when abuses in other states have led to doubts that could jeopardize its existence.

"We better go slowly or you're going to run into a situation where you're going to lose it," Shorstein said.

A. Russell Smith of Jacksonville, who heads the legislative committee of the Florida Association of Criminal Defense Lawyers, said he feared what the Legislature might do now.

"Now that the court has said its powers are protected by the constitution, we're afraid the politicians are going to go after the constitution," Smith said.

The appeals

The court, which has jealously guarded its prerogatives in past cases, said the state constitution gives it sole authority over procedure, such as deadlines for filing motions.

"We find that the DPRA [Death Penalty Reform Act] is an unconstitutional encroachment on this court's exclusive power to adopt rules for the practice and procedure in all courts," Harding wrote.

The court said it was also unconstitutional to limit the number of appeals that could be filed and to have stricter limits on death penalty appeals than on others.

In addition to striking down the law, The court also lectured the Legislature on the need to provide investigative records to defendants for appeals and to adequately fund the court system.

"There have been increasing demands on the courts of this state -- particularly in the criminal and juvenile divisions -- and the judicial branch needs the proper resources to meet these demands and manage these cases," Harding wrote.

That struck Feeney, the speaker-designate, as nervy.

"They're supposed to be dealing with constitutional issues, not lobbying us for money," Feeney said.

The court's proposed new rules call for the post-conviction appeals raising issues such as ineffective assistance of counsel to be filed within 180 days after the first, direct appeal is ruled on.

This is in contrast to the Legislature's rules, which required the post-conviction appeal to be filed while the direct appeal was still in progress.

Critics complained that this was wasteful, sincebecause many convictions and sentences are overturned on direct appeal, making the post-conviction action unnecessary.

The court said that for even its proposed new appeal deadline to work, the Legislature would have to require investigative records to be made available to defendants as soon as the death penalty is imposed.

The opinion said the Legislature, whose session ends May 5, has ample time to amend the public records law since the new rules will not take effect before June 1.

"Our proposed rules cannot take effect until the Legislature takes these steps," the court said.

The opinion said that the court shared the Legislature's frustration with unnecessary delays in capital cases and felt that its proposed rules were consistent with the Death Penalty Reform Act.

The court said it tried to strike a balance between the state's interest in prompt administration of justice and the defendant's interest in a fair and humane process.

The decision

Smith, the Jacksonville defense lawyer, said he thought the court had successfully come down in the middle.

"If you're a conservative, the courts may appear to be liberal and if you're a liberal, the courts may appear to be conservative," Smith said.

Smith said the decision vindicated the position of death penalty advocates like Rep. Doug Wiles, D-St. Augustine, who said he voted against the legislation because he thought it would result in court challenges that would slow the execution process down rather than speeding it up.

Wiles said yesterday he feared his prediction was coming true

"It may be a long time before Florida executes another prisoner," Wiles said

The response from Senate Republicans was much more muted than from those in the House.

Sen. Locke Burt, R-Ormond Beach, issued a statement complimenting the court for some of its proposed rules, while wishing it had gone further.

"While this is not the ruling we anticipated, we are committed to working with all branches of government and moving forward to ensure justice is carried out in timely fashion," Burt said.

House Democratic Leader Les Miller of Tampa said the court ruling was in line with the arguments of Democratic lawmakers.

"The ultimate victims of the Republicans' haste on this legislation are the families who are still waiting for justice and the taxpayers who had to foot the bill for action that the Legislature had no constitutional authority to take in the first place," Miller said.

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