FL Stat § 27.7081 (2021)
2021 Florida Statutes|Title V - Judicial Branch|Chapter 27 - State Attorneys; Public Defenders; Related Offices|Part IV - Capital Collateral Representation (Ss. 27.7001-27.715)|27.7081 - Capital postconviction public records production.

27.7081 Capital postconviction public records production.—(1) DEFINITIONS.—As used in this section, the term:(a) “Agency” has the same meaning as provided in s. 119.011.(b) “Collateral counsel” means a capital collateral regional counsel from one of the three regions in Florida, a private attorney who has been appointed to represent a capital defendant for postconviction litigation, or a private attorney who has been hired by the capital defendant or who has agreed to work pro bono for a capital defendant for postconviction litigation.(c) “Public records” has the same meaning as provided in s. 119.011.(d) “Trial court” means:1. The judge who entered the judgment and imposed the sentence of death; or2. If a motion for postconviction relief in a capital case has been filed and a different judge has already been assigned to that motion, the judge who is assigned to rule on that motion.(2) APPLICABILITY AND SCOPE.—This section only applies to the production of public records for capital postconviction defendants and does not change or alter the time periods specified in Rule 3.851, Florida Rules of Criminal Procedure. Furthermore, this section does not affect, expand, or limit the production of public records for any purpose other than use in a proceeding held pursuant to Rule 3.850 or Rule 3.851, Florida Rules of Criminal Procedure. This section shall not be a basis for renewing public records requests that have been initiated previously or for relitigating issues pertaining to production of public records upon which a court has ruled before July 1, 2013. Public records requests made in postconviction proceedings in capital cases in which the conviction and sentence of death have been affirmed on direct appeal before July 1, 2013, shall be governed by the rules and laws in effect immediately before July 1, 2013.(3) RECORDS REPOSITORY.—The Secretary of State shall establish and maintain a records repository to archive capital postconviction public records as provided for in this section.(4) FILING AND SERVICE.—(a) The original of all notices, requests, or objections filed under this section must be filed with the clerk of the trial court. Copies must be served on the trial court, the Attorney General, the state attorney, collateral counsel, and any affected person or agency, unless otherwise required by this section.(b) Service shall be made pursuant to Rule 3.030, Florida Rules of Criminal Procedure.(c) In all instances requiring written notification or request, the party who has the obligation of providing a notification or request shall provide proof of receipt.(d) Persons and agencies receiving postconviction public records notifications or requests pursuant to this section are not required to furnish records filed in a trial court before the receipt of the notice.(5) ACTION UPON ISSUANCE OF THE MANDATE ON DIRECT APPEAL.—(a) Within 15 days after receiving written notification of the Florida Supreme Court’s mandate affirming the sentence of death, the Attorney General shall file with the trial court a written notice of the mandate and serve a copy of the notice upon the state attorney who prosecuted the case, the Department of Corrections, and the defendant’s trial counsel. The notice to the state attorney shall direct the state attorney to submit public records to the records repository within 90 days after receipt of written notification and to notify each law enforcement agency involved in the investigation of the capital offense to submit public records to the records repository within 90 days after receipt of written notification. The notice to the Department of Corrections shall direct the department to submit public records to the records repository within 90 days after receipt of written notification.(b) Within 90 days after receiving written notification of issuance of the Florida Supreme Court’s mandate affirming a death sentence, the state attorney shall provide written notification to the Attorney General of the name and address of an additional person or agency that has public records pertinent to the case.(c) Within 90 days after receiving written notification of issuance of the Florida Supreme Court’s mandate affirming a death sentence, the defendant’s trial counsel shall provide written notification to the Attorney General of the name and address of a person or agency with information pertinent to the case which has not previously been provided to collateral counsel.(d) Within 15 days after receiving written notification of any additional person or agency pursuant to paragraph (b) or paragraph (c), the Attorney General shall notify all persons or agencies identified pursuant to paragraph (b) or paragraph (c) that these persons or agencies are required by law to copy, index, and deliver to the records repository all public records pertaining to the case that are in their possession. The person or agency shall bear the costs related to copying, indexing, and delivering the records.(6) ACTION UPON RECEIPT OF NOTICE OF MANDATE.—(a) Within 15 days after receipt of a written notice of the mandate from the Attorney General, the state attorney shall provide written notification to each law enforcement agency involved in the specific case to submit public records to the records repository within 90 days after receipt of written notification. A copy of the notice shall be served upon the defendant’s trial counsel.(b) Within 90 days after receipt of a written notice of the mandate from the Attorney General, the state attorney shall copy, index, and deliver to the records repository all public records that were produced in the state attorney’s investigation or prosecution of the case. The state attorney shall bear the costs. The state attorney shall also provide written notification to the Attorney General of compliance with this section, including certifying that, to the best of the state attorney’s knowledge or belief, all public records in the state attorney’s possession have been copied, indexed, and delivered to the records repository as required by this section.(c) Within 90 days after receipt of written notification of the mandate from the Attorney General, the Department of Corrections shall, at its own expense, copy, index, and deliver to the records repository all public records determined by the department to be relevant to the subject matter of a proceeding under Rule 3.851, Florida Rules of Criminal Procedure, unless such copying, indexing, and delivering would be unduly burdensome. The Secretary of Corrections shall provide written notification to the Attorney General of compliance with this paragraph certifying that, to the best of the Secretary of Corrections’ knowledge or belief, all such public records in the possession of the Secretary of Corrections have been copied, indexed, and delivered to the records repository.(d) Within 90 days after receipt of written notification of the mandate from the state attorney, a law enforcement agency shall, at its own expense, copy, index, and deliver to the records repository all public records that were produced in the investigation or prosecution of the case. The chief law enforcement officer of each law enforcement agency shall provide written notification to the Attorney General of compliance with this paragraph including certifying that, to the best of the chief law enforcement officer’s knowledge or belief, all such public records in possession of the agency or in possession of an employee of the agency have been copied, indexed, and delivered to the records repository.(e) Within 90 days after receipt of written notification of the mandate from the Attorney General, each additional person or agency identified pursuant to paragraph (5)(b) or paragraph (5)(c) shall copy, index, and deliver to the records repository all public records which were produced during the prosecution of the case. The person or agency shall bear the costs. The person or agency shall provide written notification to the Attorney General of compliance with this paragraph and shall certify, to the best of the person or agency’s knowledge and belief, all such public records in the possession of the person or agency have been copied, indexed, and delivered to the records repository.(7) EXEMPT OR CONFIDENTIAL PUBLIC RECORDS.—(a) Public records delivered to the records repository pursuant to this section that are confidential or exempt from the requirements of s. 119.07(1) or s. 24(a), Art. I of the State Constitution, must be separately contained, without being redacted, and sealed. The outside of the container must clearly identify that the public record is confidential or exempt and that the seal may not be broken without an order of the trial court. The outside of the container must identify the nature of the public records and the legal basis for the exemption.(b) Upon the entry of an appropriate court order, sealed containers subject to an inspection by the trial court shall be shipped to the clerk of court. The containers may be opened only for inspection by the trial court. The moving party shall bear all costs associated with the transportation and inspection of such records by the trial court.(8) DEMAND FOR ADDITIONAL PUBLIC RECORDS.—(a) Within 240 days after collateral counsel is appointed, retained, or appears pro bono, such counsel shall send a written demand for additional public records to each person or agency submitting public records or identified as having information pertinent to the case under subsection (5).(b) Within 90 days after receipt of the written demand, each person or agency notified under this subsection shall deliver to the records repository additional public records in the possession of the person or agency that pertain to the case and shall certify to the best of the person or agency’s knowledge and belief that all additional public records have been delivered to the records repository or, if no additional public records are found, shall recertify that the public records previously delivered are complete.(c) Within 60 days after receipt of the written demand, a person or agency may file with the trial court an objection to the written demand described in paragraph (a). The trial court may order a person or agency to produce additional public records if the court determines that:1. Collateral counsel has made a timely and diligent search as provided in this section.2. Collateral counsel’s written demand identifies, with specificity, those additional public records that are not at the records repository.3. The additional public records sought are relevant to the subject matter of a postconviction proceeding under Rule 3.851, Florida Rules of Criminal Procedure, or appear reasonably calculated to lead to the discovery of admissible evidence.4. The additional public records request is not overly broad or unduly burdensome.(9) LIMITATION ON POSTPRODUCTION REQUEST FOR ADDITIONAL RECORDS.—(a) In order to obtain public records in addition to those provided under subsections (6), (7), and (8), collateral counsel must file an affidavit in the trial court which:1. Attests that collateral counsel has made a timely and diligent search of the records repository.2. Identifies with specificity those public records not at the records repository.3. Establishes that the additional public records are either relevant to the subject matter of the postconviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence.4. Must be served in accordance with subsection (4).(b) The trial court may order a person or agency to produce additional public records only upon finding that:1. Collateral counsel has made a timely and diligent search of the records repository.2. Collateral counsel’s affidavit identifies with specificity those additional public records that are not at the records repository.3. The additional public records sought are either relevant to the subject matter of a capital postconviction proceeding or appear reasonably calculated to lead to the discovery of admissible evidence.4. The additional records request is not overly broad or unduly burdensome.(10) COPYING RECORDS.—The Secretary of State shall provide the personnel, supplies, and any necessary equipment to copy records held at the records repository.(11) AUTHORITY OF THE COURT.—In proceedings under this section the trial court may:(a) Compel or deny disclosure of records.(b) Conduct an inspection in camera.(c) Extend the time periods in this section upon a showing of good cause.(d) Impose sanctions upon a party, person, or agency affected by this section, including initiating contempt proceedings, taxing expenses, extending time periods, ordering facts to be established, and granting other relief.(e) Resolve a dispute arising under this section unless jurisdiction is in an appellate court.(12) SCOPE OF PRODUCTION AND RESOLUTION OF PRODUCTION ISSUES.—(a) Unless otherwise limited, the scope of production under any part of this section shall be that the public records sought are not privileged or immune from production and are either relevant to the subject matter of a postconviction proceeding under Rule 3.851, Florida Rules of Criminal Procedure, or are reasonably calculated to lead to the discovery of admissible evidence.(b) Counsel for a party objecting or moving to compel production of public records pursuant to this section must file a copy of the objection or motion directly with the trial court.(c) The trial court may order mediation for a controversy as to public records production pursuant to this section in accord with Rules 1.700, 1.710, 1.720, and 1.730, Florida Rules of Civil Procedure, or the trial court may refer such controversy to a magistrate in accord with Rule 1.490, Florida Rules of Civil Procedure.(13) DESTRUCTION OF RECORDS.—Sixty days after a capital sentence is carried out, after a defendant is released from incarceration after the granting of a pardon or reversal of the sentence, or after a defendant has been resentenced to a term of years, the Attorney General shall provide written notification of this occurrence to the Secretary of State. After the expiration of the 60 days, the Secretary of State may destroy the copies of the records held by the records repository that pertain to that case, unless an objection to the destruction is filed in the trial court and served upon the Secretary of State. If no objection is served within the 60-day period, the records may then be destroyed. If an objection is served, the records shall not be destroyed until a final disposition of the objection.History.—s. 1, ch. 98-198; s. 3, ch. 2000-3; s. 39, ch. 2005-251; s. 8, ch. 2013-216; s. 5, ch. 2014-17.Note.—Former s. 119.19.