RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN
CAPITAL CASES

(a) Statement of Purpose. The purpose of these rules is to
set minimum standards for attorneys in capital cases to help
ensure that competent representation will be provided to capital
defendants in all cases. Minimum standards that have been
promulgated concerning representation for defendants in criminal
cases generally and the level of adherence to such standards
required for noncapital cases should not be adopted as sufficient for
death penalty cases. Counsel in death penalty cases should be
required to perform at the level of an attorney reasonably skilled in
the specialized practice of capital representation, zealously
committed to the capital case, who has had adequate time and
resources for preparation. These minimum standards for capital
cases are not intended to preclude any circuit from adopting or
maintaining standards having greater requirements.

(b) Definitions. A capital trial is defined as any first-degree
murder case in which the State has not formally waived the death
penalty on the record. A capital appeal is any appeal in which the
death penalty has been imposed. A capital postconviction
proceeding is any postconviction proceeding where the defendant is
still under a sentence of death.
(c) Applicability. This rule applies to all defense counsel
handling capital trials and capital appeals, who are appointed or
retained on or after July 1, 2002. Subdivision (k) of this rule applies
to all lead counsel handling capital postconviction cases, who are
appointed or retained on or after April 1, 2015.

(d) Lists of Qualified and Disqualified Conflict Counsel.

(1) Every circuit shall maintain a list of conflict counsel
qualified for appointment in capital cases in each of three
categories:

(A) lead trial counsel;

(B) trial co-counsel; and

(C) appellate counsel.

(2) The chief judge for each circuit shall maintain a list
of qualified counsel pursuant to section 27.40(3)(a), Florida
Statutes.

(3) The chief judge for each circuit shall maintain a list
of counsel who are disqualified to provide capital case
representation pursuant to section 27.7045, Florida Statutes, and
such list and any amendments thereto shall be forwarded to the
chief judge of every other circuit.

(e) Appointment of Counsel. A court must appoint lead
counsel and, upon written application and a showing of need by
lead counsel, should appoint co-counsel to handle every capital trial
in which the defendant is not represented by retained counsel. Lead
counsel shall have the right to select co-counsel from attorneys on
the lead counsel or co-counsel list. Both attorneys shall be
reasonably compensated for the trial and sentencing phase. Except
under extraordinary circumstances, only one attorney may be
compensated for other proceedings. In capital cases in which the
Public Defender or Criminal Conflict and Civil Regional Counsel is
appointed, the Public Defender or Criminal Conflict and Civil
Regional Counsel shall designate lead and co-counsel.
(f) Lead Trial Counsel. Lead trial counsel assignments
should be given to attorneys who:

(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and

(2) are experienced and active trial practitioners with at
least five years of litigation experience in the field of criminal law;
and

(3) have prior experience as lead counsel in no fewer
than nine state or federal jury trials of serious and complex cases
which were tried to completion, as well as prior experience as lead
defense counsel or co-counsel in at least two state or federal cases
tried to completion in which the death penalty was sought. In
addition, of the nine jury trials which were tried to completion, the
attorney should have been lead counsel in at least three cases in
which the charge was murder; or alternatively, of the nine jury
trials, at least one was a murder trial and an additional five were
felony jury trials; and

(4) are familiar with the practice and procedure of the
criminal courts of the jurisdiction; and

(5) are familiar with and experienced in the utilization
of expert witnesses and evidence, including but not limited to
psychiatric and forensic evidence; and

(6) have demonstrated the necessary proficiency and
commitment which exemplify the quality of representation
appropriate to capital cases, including but not limited to the
investigation and presentation of evidence in mitigation of the death
penalty; and

(7) have attended within the last two years a continuing
legal education program of at least twelve hours’ duration devoted
specifically to the defense of capital cases.

(g) Co-counsel. Trial co-counsel assignments should be
given to attorneys who:
(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and

(2) qualify as lead counsel under paragraph (f) of these
standards or meet the following requirements:

(A) are experienced and active trial practitioners
with at least three years of litigation experience in the field of
criminal law; and

(B) have prior experience as lead counsel or
cocounsel in no fewer than three state or federal jury trials of
serious and complex cases which were tried to completion, at least
two of which were trials in which the charge was murder; or
alternatively, of the three jury trials, at least one was a murder trial
and one was a felony jury trial; and

(C) are familiar with the practice and procedure of
the criminal courts of the jurisdiction; and

(D) have demonstrated the necessary proficiency
and commitment which exemplify the quality of representation
appropriate to capital cases, and

(E) have attended within the last two years a
continuing legal education program of at least twelve hours’
duration devoted specifically to the defense of capital cases.

(h) Appellate Counsel. Appellate counsel assignments
should be given to attorneys who:

(1) are members of the bar admitted to practice in the
jurisdiction or admitted to practice pro hac vice; and

(2) are experienced and active trial or appellate
practitioners with at least five years of experience in the field of
criminal law; and

(3) have prior experience in the appeal of at least one
case where a sentence of death was imposed, as well as prior
experience as lead counsel in the appeal of no fewer than three
felony convictions in federal or state court, at least one of which
was an appeal of a murder conviction; or alternatively, have prior
experience as lead counsel in the appeal of no fewer than six felony
convictions in federal or state court, at least two of which were
appeals of a murder conviction; and

(4) are familiar with the practice and procedure of the
appellate courts of the jurisdiction; and

(5) have demonstrated the necessary proficiency and
commitment which exemplify the quality of representation
appropriate to capital cases; and

(6) have attended within the last two years a continuing
legal education program of at least twelve hours’ duration devoted
specifically to the defense of capital cases.

(i) Notice of Appearance. An attorney who is retained or
appointed in place of the Public Defender or Criminal Conflict and
Civil Regional Counsel to represent a defendant in a capital case
shall immediately file a notice of appearance certifying that he or
she meets the qualifications of this rule. If the office of the Public
Defender or Criminal Conflict and Civil Regional Counsel is
appointed to represent the defendant, the Public Defender or
Criminal Conflict and Civil Regional Counsel shall certify that the
individuals or assistants assigned as lead and co-counsel meet the
requirements of this rule. A notice of appearance filed under this
rule shall be served on the defendant.

(j) Limitation on Caseloads.

(1) Generally. As soon as practicable, the trial court
should conduct an inquiry relating to counsel’s availability to
provide effective assistance of counsel to the defendant. In
assessing the availability of prospective counsel, the court should
consider the number of capital or other cases then being handled
by the attorney and any other circumstances bearing on the
attorney’s readiness to provide effective assistance of counsel to the
defendant in a timely fashion. No appointment should be made to
an attorney who may be unable to provide effective legal
representation as a result of an unrealistically high caseload.
Likewise, a private attorney should not undertake the
representation of a defendant in a capital case if the attorney’s
caseload is high enough that it might impair the quality of legal
representation provided to the defendant.

(2) Public Defender. If a Public Defender or Criminal
Conflict and Civil Regional Counsel seeks to refuse appointment to
a new capital case based on a claim of excessive caseload, the
matter should be referred to the Chief Judge of the circuit or to the
administrative judge as so designated by the Chief Judge. The Chief
Judge or his or her designate should coordinate with the Public
Defender or Criminal Conflict and Civil Regional Counsel to assess
the number of attorneys involved in capital cases, evaluate the
availability of prospective attorneys, and resolve any representation
issues.

(k) Qualifications of Lead Counsel in Capital
Postconviction Proceedings. In order to serve as lead counsel, as
set forth in rule 3.851, for the defendant in a capital postconviction
proceeding, an attorney shall have:

(1) been a member of any bar for at least 5 years; and

(2) at least 3 years of experience in the field of
postconviction litigation; and

(3) prior participation in a combined total of 5
proceedings in any of the following areas, at least 2 of which shall
be from subdivision (k)(3)(C), (k)(3)(D), or (k)(3)(E) below:

(A) capital trials;

(B) capital sentencings;

(C) capital postconviction evidentiary hearings;

(D) capital collateral postconviction appeals;
(E) capital federal habeas proceedings.

(l) Exceptional Circumstances. In the event that the trial
court determines that exceptional circumstances require counsel
not meeting the requirements of this rule, the trial court shall enter
an order specifying, in writing, the exceptional circumstances
requiring deviation from the rule and the court’s explicit
determination that counsel chosen will provide competent
representation in accord with the policy concerns of the rule.

Committee Comments

These standards are based on the general premise that the
defense of a capital case requires specialized skill and expertise.
The Supreme Court has not only the authority, but the
constitutional responsibility to ensure that indigent defendants are
provided with competent counsel, especially in capital cases where
the State seeks to take the life of the indigent defendant. The
Supreme Court also has exclusive jurisdiction under Article V
section 15 of the Florida Constitution to “[r]egulate the admission of
persons to the practice of law and the discipline of persons
admitted.” Implied in this grant of authority is the power to set the
minimum requirements for the admission to practice law, see In re
Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well
as the minimum requirements for certain kinds of specialized legal
work. The Supreme Court has adopted minimum educational and
experience requirements for board certification in other specialized
fields of the law.

The experience and continuing educational requirements in
these standards are based on existing local standards in effect
throughout the state as well as comparable standards in effect in
other states. Specifically, the committee considered the standards
for the appointment of counsel in capital cases in the Second, Sixth,
Eleventh, Fifteenth, and Seventeenth Circuits, the statewide
standards for appointing counsel in capital cases in California,
Indiana, Louisiana, Ohio, and New York, and the American Bar
Association standards for appointment of counsel in capital cases.
These standards are not intended to establish any
independent legal rights. For example, the failure to appoint
cocounsel, standing alone, has not been recognized as a ground for
relief from a conviction or sentence. See Ferrell v. State, 653 So. 2d
367 (Fla. 1995); Lowe v. State, 650 So. 2d 969 (Fla. 1994);
Armstrong v. State, 642 So. 2d 730 (Fla. 1994). Rather, these cases
stand for the proposition that a showing of inadequacy of
representation in the particular case is required. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
These rulings are not affected by the adoption of these standards.
Any claims of ineffective assistance of counsel will be controlled by
Strickland.

The American Bar Association Standards and many other
state standards require the appointment of two lawyers at the trial
level in every prosecution that could result in the imposition of the
death penalty. The committee has modified this requirement by
allowing the trial court some discretion as to the number of
attorneys, and by eliminating certain provisions that may be
unnecessary or economically unfeasible. Paragraph (e) minimizes
the potential duplication of expenses by limiting the compensable
participation of cocounsel. In addition, the standard adopted herein
requires an initial showing by lead counsel of the need for
cocounsel and, while the standard suggests that cocounsel should
ordinarily be appointed, the ultimate decision is left to the
discretion of the trial court.

The committee emphasizes that the right to appointed counsel
is not enlarged by the application of these standards. The court
should appoint conflict counsel only if there is a conflict and the
defendant otherwise qualifies for representation by the Public
Defender. A defendant who is represented by retained counsel is not
entitled to the appointment of a second lawyer at public expense
merely because that defendant is unable to bear the cost of
retaining two lawyers.

Criminal Court Steering Committee Note
2014 Amendment. The Steering Committee added minimum
requirements for lead counsel in capital postconviction proceedings
to ensure a requisite level of expertise in capital postconviction
cases and to permit the State the opportunity to seek opt-in
treatment pursuant to 28 U.S.C. §§ 2261-2266.