The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Appropriations Subcommittee on Criminal and Civil Justice
BILL: CS/SB 596
INTRODUCER: Judiciary Committee and Senator Baxley
SUBJECT: Criminal Conflict and Civil Regional Counsels
DATE: January 18, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. Dale Harkness ACJ Pre-meeting
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 596 brings the Offices of Criminal Conflict and Civil Regional Counsel into parity with
the offices of the public defenders and other governmental entities in the following areas:
Witness coordination.
Electronic filing of court documents.
Security access to courthouses.
Procedure for setting a classification and pay plan.
Access to confidential court and state records.
Limits of witness cost reimbursement.
Investigator death benefits.
Confidential motor vehicle registration.
Criminal justice history access.
Current law requires that an existing Regional Counsel plus between two and five additional
individuals be nominated for an open Regional Counsel position. The bill lowers the number of
nominees in addition to the existing Regional Counsel that are required to be presented to the
Governor for a position as Regional Counsel to between zero and three.
The bill also waives an 8-hour guardianship education requirement for attorneys employed by an
Office of Criminal Conflict and Civil Regional Counsel; and clarifies that the court must appoint
the Office of Criminal Conflict and Civil Regional Counsel if the Public Defender has a conflict
REVISED: BILL: CS/SB 596 Page 2
of interest in a case involving involuntary treatment of sexually violent predator or involuntary
mental health treatment of a prisoner.
The bill takes effect July 1, 2022.
II. Present Situation:
The Office of Criminal Conflict and Civil Regional Counsel
The state is divided into five regions, each of which has an Office of Criminal Conflict and Civil
Regional Counsel (regional counsel). The regions are defined by the boundaries of the five
district courts of appeal. A regional counsel provides legal representation to some indigent
persons who are entitled by law to taxpayer-funded legal representation.
1
These persons may be
involved in criminal or civil cases. Just as a public defender’s office has one public defender and
numerous assistant public defenders, each regional counsel’s office has a regional counsel and
subordinate assistant regional counsels with appropriate staff support.
2
Each regional counsel is
appointed by the Governor to a 4-year term, subject to Senate confirmation.
3
The initial appointment of an attorney to represent a criminal defendant is by reference to the
Office of the Public Defender for the judicial circuit. The court appoints the Office of the Public
Defender for that judicial circuit, and the Public Defender selects one or more attorneys in the
office to appear as attorney of record for the defendant. However, if the public defender’s office
determines that it cannot represent a defendant because of a conflict of interest, the public
defender must ask the court for permission to withdraw as counsel.
4
If the court grants the
motion, the court must appoint the Office of Criminal Conflict and Civil Regional Counsel to
represent the defendant.
5
Similarly, the Office of Criminal Conflict and Civil Regional Counsel
will select one or more staff attorneys to represent the defendant. If the office has a conflict, the
court appoints a private attorney to be paid by the state.
The process is similar in many civil actions where legal representation of an indigent person is
required to be furnished at state expense by the federal or state constitution or by state law. The
first appointment to represent an indigent individual in most civil actions is to appoint the office
of the regional counsel. Subsequent appointments where the office of the regional counsel has a
conflict are to appoint a willing private attorney, chosen on a rotating basis. The appointment of
a regional counsel in civil matters primarily occurs in mental health cases and dependency
proceedings.
6
1
Section 27.511, F.S.
2
Section 27.511(4), F.S.
3
Section 27.511(3)(a), F.S.
4
Just like a private law firm, the public defender’s representation of two or more individuals whose interests are in conflict is
unethical. Primarily, this occurs where two or more defendants are charged with jointly committing a criminal act.
5
Section 27.511(5), F.S.
6
Section 27.511(6)(a), F.S. BILL: CS/SB 596 Page 3
III. Effect of Proposed Changes:
Regional Counsel Parity with Public Defenders and Other Entities
The bill puts the Regional Counsels in parity with public defenders and other public agencies and
organizations in the following areas:
Witness Coordination (Section 1 amending s. 27.0065, F.S.)
Witness coordination describes the process for coordinating court appearance by witnesses,
contacting witnesses regarding on-call status, contacting witnesses when appearances are
cancelled, and contacting the employer of a subpoenaed person to confirm the existence of the
summons. A primary goal of witness coordination is to minimize witness time and wage losses.
Current law requires the state attorney and public defender to work together on witness
coordination programs.
7
The bill adds that the appropriate Regional Counsel must act together
with the state attorney and public defender to administer witness coordination.
Electronic Filing and Receipt (Section 2 amending s. 27.341, F.S.)
The state attorney and public defender of each circuit are required to consult with the local clerks
of court, the Florida Court Technology Commission, and the operator of the legal filing portal,
regarding the electronic filing and receipt of court documents. The bill adds that the appropriate
Regional Counsel must join the state attorney and public defender in consultations regarding the
electronic filing and receipt of court documents.
Court Appointments (part of Section 3 amending s. 27.571, F.S.)
A court is prohibited from appointing the public defender to represent any person who is not
indigent or who is already represented by a private attorney. The bill adds that a Regional
Counsel, similarly, may not be appointed to represent any person who is already represented by a
private attorney.
Courthouse Security and Access (part of Section 3 amending s. 27.571, F.S.)
County sheriffs, judges, and the county commission are jointly responsible for courthouse
security. Together, they develop plans and procedures for securing the courthouse, which vary
throughout the state. Some counties screen all persons entering the courthouse, others allow
certain trusted persons easier access through minimal or no screening. Assistant state attorneys
and assistant public defenders are commonly part of the trusted persons groups. The bill adds a
requirement that a Regional Counsel and assistant regional counsels be treated the same as the
Public Defender and assistant public defenders are treated regarding courthouse security
requirements.
7
Section 27.0065, F.S. BILL: CS/SB 596 Page 4
Classification and Pay Plans (Sections 3 amending s. 27.571, F.S., and section 4 amending
s. 27.53, F.S.)
The 20 state attorneys of all judicial circuits must jointly develop a coordinated classification and
pay plan that must 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.
8
Similarly, the 20 public defenders must jointly develop a coordinated
classification and pay plan.
9
However, the five regional counsel offices are subject to the
classification and pay plan of the Justice Administration Commission,
10
and may only
recommend changes to the classification and pay plan.
11
The bill changes the classification and
pay plan procedure to have the five regional counsels jointly develop a coordinated classification
and pay plan for their offices, mirroring the current state attorneys and public defenders policies.
Dependency Court Records (Section 5 amending s. 39.0132, F.S.)
A regional counsel may be appointed to represent an indigent parent in a dependency
proceeding. Current law generally limits access to the records of dependency court proceedings
to the child, the parents of the child, an attorney representing the child or a parent, the guardian
ad litem, law enforcement, representatives of the Department of Children and Families, and any
other person by court order.
12
Not included in this list are Regional Counsels, but these Regional
Counsels may be appointed to represent parents involved in the proceedings. The bill adds
Regional Counsels to the list of persons who are expressly authorized to access the dependency
court file.
Witness Cost Reimbursement (Section 6 amending s. 92.153, F.S.)
In any court proceeding, a disinterested witness is entitled to reimbursement for any reasonable
costs incurred in producing, searching for, reproducing, and transporting documents produced
under subpoena or pursuant to a records request. However, such costs are limited to 15 cents per
page and $10 per hour when the subpoena or records request is from a state attorney or public
defender.
13
The bill adds that reimbursement related to a subpoena or records request from a
regional counsel is also limited to 15 cents per page and $10 per hour.
Investigator Death Benefits (Section 7 amending s. 112.19, F.S.)
The lawful beneficiary of a state or local law enforcement officer, correctional officer,
correctional probation officer, state attorney investigator, or public defender investigator is
entitled to a death benefit for a line-of-duty death ranging between $75,000 and $375,000,
depending upon the circumstances of the death. In addition, funeral expense reimbursements,
health benefits, and educational benefits for dependents are authorized.
14
The bill adds regional
counsel investigators to the list of persons entitled to the line-of-duty death benefits.
8
Section 27.25(1), F.S.
9
Section 27.53(1), F.S.
10
Section 27.511(2), F.S.
11
Section 27.53(4), F.S.
12
Section 39.0132(3), F.S.
13
Section 92.153(2), F.S.
14
Section 112.19, F.S. BILL: CS/SB 596 Page 5
Confidential Motor Vehicle and Vessel Registration (Section 8 amending s. 320.025, F.S.)
Current law provides for confidential registration and issuance of a license plate or registration
certificate of a motor vehicle or vessel owned by a local, state, or federal law enforcement
agency, by the Attorney General Medicaid Fraud Unit, or by a public defender. If searched, the
registration will show a fictitious name as the registered owner.
15
The bill adds regional counsels
to the list of government entities eligible for registration of a motor vehicle or vessel under a
fictitious name.
Criminal History Fees and Access (Section 12 amending s. 943.053, F.S.)
The Florida Department of Law Enforcement is the state’s central repository of criminal justice
information. The department is authorized to charge a fee for furnishing the criminal history
information of an individual, which fee varies based on the entity requesting the information.
Fees are waived for an office of a public defender,
16
and the department is required to provide
public defenders the criminal history records by online access.
17
The bill waives the fee and
requires online access for the regional counsels.
Access to Certain Records of the Department of Corrections (Section 13 amending s. 945.10,
F.S.)
Certain records of the Department of Corrections are confidential and exempt from public
records laws, and may be released only to authorized persons or entities. Among other
exceptions, public defenders are authorized to access preplea, pretrial intervention, and
presentence or postsentence investigative records, except for portions of those records related to
the victim.
18
The bill adds that a regional counsel may also access preplea, pretrial intervention,
and presentence or postsentence investigative records of the Department of Corrections, except
for portions of those records related to the victim.
Access to Delinquency Court Records (Section 15 amending s. 985.045, F.S.)
Delinquency court records held by a clerk of court are confidential and exempt from public
records laws, and may be released only to authorized persons or entities. Among other
exceptions, public defenders are authorized to access the official records of a juvenile on whose
behalf that the public defender is expected to appear in detention or other hearing before formal
appointment of an attorney.
19
The bill adds that a regional counsel is also authorized to access
the official records of a juvenile on whose behalf that the regional counsel is expected to appear
in detention or other hearing before formal appointment of an attorney.
15
Section 320.025, F.S.
16
Section 943.053(3)(e), F.S.
17
Section 943.053(7), F.S.
18
Section 945.10(2)(d), F.S.
19
Section 985.045(2), F.S. BILL: CS/SB 596 Page 6
Other Provisions regarding Regional Counsels
Appointment Process for the Regional Counsel (part of Section 3 amending s. 27.511, F.S.)
Each regional counsel is appointed by the Governor to a 4-year term, subject to Senate
confirmation.
20
The terms of office of the current five Regional Counsel are from October 1,
2019, to September 30, 2023. The Governor must make an appointment from the nominees given
to him or her by the Supreme Court Judicial Nominating Commission.
21
For each position, the
Supreme Court Judicial Nominating Commission must nominate the current regional counsel for
reappointment, and must also recommend to the Governor not fewer than two or more than five
additional qualified candidates for appointment to the position. If it is in the best interest of the
fair administration of justice, the Governor may reject the nominations and request that the
Supreme Court Judicial Nominating Commission submit three new nominees.
If for any reason a regional counsel is unable to complete a full term in office, the Governor may
immediately appoint an interim regional counsel. This appointee must meet the qualifications to
be a regional counsel and will be appointed to serve as regional counsel until a new regional
counsel is appointed by the same process to serve the remainder of the term of office.
The bill changes the appointment process to require nomination of the current regional counsel
only if he or she seeks reappointment. The bill also reduces the number of persons nominated (in
addition to the current regional counsel) to between zero and three. This change applies to the
current five positions should one of them become vacant in this current term.
Guardian Advocacy Education Requirement (Section 9 amending s. 393.12, F.S.)
Guardian advocacy is a process for a family member, caregiver, or friend of an individual having
a developmental disability
22
to obtain the legal authority to act on their behalf if the individual
lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary
to care for his or her person or property. Guardian advocacy does not require a finding of
incapacity and it is less intrusive and simpler than formal guardianship. An individual who is
found to have a developmental disability loses certain legal rights but is also entitled to certain
services, levels of which are based on the individual’s disability.
23
A petition to determine whether an individual has a developmental disability starts a contested
proceeding at which the alleged disabled person has a right to have an attorney appointed. If the
person is deemed to be indigent, the attorney will be provided at no cost from a regional counsel
office or, in the case of a conflict, from a registry of qualified attorneys. If the person is not
20
Section 27.511(3)(a), F.S.
21
The Supreme Court Judicial Nominating Commission is required by FLA. CONST art. V, s. 11(d),.and its membership is
specified by s. 43.291, F.S. The Supreme Court JNC consists of four members of The Florida Bar, selected by the Governor
from a list of nominees recommended by The Florida Bar, and five individuals selected by the Governor. Members of the
commission must be residents of the state, and all of the Bar nominees and two of the five Governor nominees must be
actively practicing law. Members serve staggered 4-year terms.
22
“Developmental disability” means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy,
autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age
of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
Section 393.063(12), F.S.
23
See generally, ch. 393, F.S. BILL: CS/SB 596 Page 7
deemed to be indigent, a private attorney will be appointed from a rotating list of qualified
attorneys. Before appointment, the attorney must have completed a minimum of 8 hours of
education in guardianship, except that the court may waive the educational requirement for an
attorney experienced in guardian advocate proceedings or who has 3 years or more experience as
an attorney for guardian advocates.
24
The bill adds that the requirement for the education in
guardianship does not apply to an attorney employed by a regional counsel office.
Appointment in Cases Involving Sexually Violent Predators (Section 10 amending s. 394.916,
F.S.)
There is a civil commitment procedure for the involuntary long-term care and treatment of
sexually violent predators.
25
An individual subject to involuntary care and treatment is entitled to
legal representation. If the individual is indigent, the public defender is appointed to represent the
individual. If the public defender has a conflict, the statute requires appointment of “other
counsel.”
26
The statute on regional counsels provides that the regional counsel is to be appointed
if a public defender has a conflict,
27
this bill amends the law on sexually violent predators to
reaffirm that a regional counsel may be appointed if the public defender has a conflict.
Guardianship Education Requirement (Section 11 amending s. 744.331, F.S.)
Guardianship is a process for an interested person to petition for appointment of a guardian to
represent an individual lacking capacity. An individual who is found to be legally incapacitated
loses certain legal rights based on the individual’s incapacity.
28
An individual subject to
guardianship proceedings who is indigent is entitled to appointment of an attorney. Before
appointment of any attorney, the attorney must have completed a minimum of 8 hours of
education in guardianship, except that the court may waive the educational requirement for an
attorney who has 3 years or more experience as an attorney in guardianship proceedings.
29
The
bill adds that the requirement for the education in guardianship does not apply to an attorney
employed by a regional counsel office.
Appointment in Cases Involving Mental Health Treatment of a Prisoner (Section 14 amending
s. 945.48, F.S.)
There is a court procedure for the involuntary mental health treatment of state prisoners.
30
A
prisoner subject to involuntary treatment is entitled to legal representation. If the prisoner is
indigent, the public defender is appointed to represent the prisoner. If the public defender has a
conflict, the statute requires appointment of “private counsel.”
31
The statute on regional counsels
provides that the regional counsel is to be appointed if a public defender has a conflict.
32
This bill
amends the law on prisoners subject to involuntary mental health treatment to reaffirm that a
regional counsel may be appointed if the public defender has a conflict.
24
Section 393.12(5)(a), F.S.
25
See generally, part V of ch. 394, F.S.
26
Section 394.916(3), F.S.
27
Section 27.40, F.S.
28
See generally, ch. 744, F.S.
29
Section 744.331(2)(d), F.S.
30
See generally, s. 945.48, F.S.
31
Section 945.28(3), F.S.
32
Section 27.40, F.S. BILL: CS/SB 596 Page 8
Effective Date
The bill takes effect July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
CS/SB 596 may have a minimal fiscal impact on state government. For example, section
12 of the bill waives the fee charged by FDLE to furnish criminal history information to
the regional counsels. This may result in an insignificant cost savings to the regional
counsels and a corresponding insignificant revenue loss to FDLE.. This bill does not
appear to have a fiscal impact on local governments. BILL: CS/SB 596 Page 9
VI. Technical Deficiencies:
Section 8 of the bill should be contingent on passage of CS/SB 598, a companion public records
bill.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 27.0065, 27.341,
27.511, 27.53, 39.0132, 92.153, 112.19, 320.025, 393.12, 394.916, 744.331, 943.053, 945.10,
945.48, and 985.045.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on January 10, 2022:
The committee substitute rewords several provisions without making substantive
changes, makes technical changes, and corrects a date related to the terms of a Criminal
Conflict and Civil Regional Counsel.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.