Sheppard & White, PA v. City of Jacksonville

• Decision Date: 12 September 2002
• Docket Number: No. SC00-331, No. SC00-352, No. SC00-353.
• Citation: 827 So.2d 925
• Parties: SHEPPARD & WHITE, P.A., Petitioner, v. CITY OF JACKSONVILLE, Respondent. Kevin C. Shirley, Petitioner, v. Charlotte County, Respondent. Charlotte County, Petitioner, v. Kevin C. Shirley, Respondent.
• Court: Florida Supreme Court

827 So.2d 925

SHEPPARD & WHITE, P.A., Petitioner, v. CITY OF JACKSONVILLE, Respondent.

Kevin C. Shirley, Petitioner, v. Charlotte County, Respondent.

Charlotte County, Petitioner, v. Kevin C. Shirley, Respondent.

Nos. SC00-331, SC00-352, SC00-353.

Supreme Court of Florida.

September 12, 2002.

Wm. J. Sheppard and D. Gray Thomas of Sheppard, White and Thomas, P.A., Jacksonville, FL, on behalf of Sheppard & White, P.A.; and Kevin C. Shirley, pro se, Punta Gorda, FL, Petitioners.

Richard A. Mullaney, General Counsel, and Howard M. Maltz, Assistant General Counsel, Office of General Counsel, Jacksonville, FL, on behalf of the City of Jacksonville; and Renee Francis Lee, County Attorney, Port Charlotte, FL, and John J. Copelan, Co-Counsel, of Shutts & Bowen, Fort Lauderdale, FL, on behalf of Charlotte County, FL, Respondents.

George L. Dorsett, Assistant County Attorney, Orlando, FL; and Gregory T. Stewart and Heather J. Melom, Co-Counsel, of Nabors, Giblin & Nickerson, P.A., Tallahassee, FL, for Orange County and Florida Association of County Attorneys, Amicus Curiae, in Case No. SC00-331.

LEWIS, J.

We have for review Sheppard & White, P.A. v. City of Jacksonville, 751 So.2d 731 (Fla. 1st DCA 2000), and Charlotte County v. Shirley, 750 So.2d 706 (Fla. 2d DCA 2000), which were consolidated for oral argument.¹ Each case involves the appointment of conflict counsel for an indigent accused, pursuant to section 925.035, Florida Statutes (1997). In each case the district court certified a question of great public importance regarding the appropriate hourly rate of compensation for services of appointed counsel for the trial level proceedings or direct appeal in a capital case. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we approve the decision in Sheppard & White, but quash the decision in Shirley.

Sheppard & White, P.A. v. City of Jacksonville

FACTS & PROCEDURAL HISTORY

In Sheppard & White, an attorney with the Jacksonville law firm of Sheppard & White, P.A. was appointed by the trial court as conflict counsel to represent an indigent defendant in his direct appeal of a sentence of death. Counsel obtained a reversal of the death sentence and secured a new trial for the defendant. See Murray v. State, 692 So.2d 157 (Fla.1997)

. Petitioner asserted below that 545 hours of attorney's time had been expended and 105.25 hours of law clerk time invested in the case, which extended over a two-year period. Petitioner filed a motion for payment of appellate fees and requested compensation at a rate of $140 per hour for attorney's time, that being the rate the petitioner believed to be the prevailing community standard for comparable representation in the Fourth Judicial Circuit. The City of Jacksonville was ordered to pay the $29,864.05 in legal fees and costs by the trial court, with compensation for attorney and law clerk time being based on a rate of $40 per hour pursuant to a local administrative order.² Petitioner contended that the $40 per hour rate was "confiscatory of an attorney's time, energy and talents, and denie[d][the] criminal defendant his right to the effective assistance of counsel" guaranteed by both the United States and Florida constitutions. Attached to the request for fees, petitioner presented forty-six affidavits from attorneys practicing in the Fourth Judicial Circuit. Thirteen of the affiants simply stated that compensation at the rate of $40 per hour was inadequate. Twenty-eight stated that the $40 per hour rate would prevent them from undertaking appointed capital representation. The other five affiants stated that they would not accept appointments for capital representation for reasons not pertinent here.

On review, the district court below determined that the $40 hourly rate was not confiscatory.³ Due to the procedural posture of the case, the determination was based, at least in part, on evidence in the record that "at least one board-certified [criminal trial] attorney was accepting representation at the $40 hourly rate set by the administrative order" and that "despite the hourly rate, counsel accepted [the duty of] representation in [the instant] case." Sheppard & White, 751 So.2d at 736. The district court concluded that "the [$40] hourly rate did not materially impair the ability of lawyers to fulfill their roles" and that it did not "curtail[] the power of [the trial] court to appoint attorneys" for indigent defendants in capital cases. Id. The district court also certified a question of great public importance:

IS THE FIXED RATE OF $50 PER HOUR⁴ FOR APPELLATE ATTORNEY'S

FEE CONFISCATORY WHEN APPLIED IN A CAPITAL CASE REQUIRING 550 HOURS OF ATTORNEY'S TIME.

For the reasons set forth below, we approve the decision of the district court and answer the certified question in the negative.

ANALYSIS

In examining the relationship between an indigent defendant's right to effective assistance of counsel in capital cases and the amount of compensation his counsel receives, we have previously stated:

It must be remembered that an indigent defendant's right to competent and effective representation, not the attorney's right to reasonable compensation, gives rise to the necessity of exceeding the statutory maximum fee cap [on remuneration for counsel representing indigent appellants in capital cases].

White v. Board of County Comm'rs of Pinellas County, 537 So.2d 1376, 1379 (Fla.1989). In White, we considered the issue of whether the statutory cap on fees⁵ for counsel who represented an indigent appellant in a capital case could be exceeded when proof was presented that the cap impinged on the appellant's fundamental right to effective assistance of counsel. We determined that the cap could be exceeded because the fees fixed by the Legislature had "become so out of line with reality that they materially impair[ed] the abilities of officers of the courts to fulfill their roles of defending the indigent and curtail[ed] the inherent powers of the courts to appoint attorneys to those roles." Id. at 1378. We also stated that the statutory fee cap could be exceeded in virtually all capital cases, because of their "extraordinary and unusual" circumstances. Id. The petitioner asserts that the logic in White should apply in the instant case, because there is no appreciable difference between the level of compensation in White, which was set by the Legislature, and the hourly rate at issue here. Therefore, the petitioner contends, the $40 hourly rate established by the chief judge of the Fourth Judicial Circuit must be ruled unconstitutional because it is confiscatory. We cannot agree because here, unlike the circumstances presented in White, we are concerned not with an amount of compensation set by the Legislature in "a one size fits all" manner but, rather, with a rate that has been determined by the chief judge of the circuit after consideration of the compensation rates prevailing in the judicial circuit. Of additional import, although we allowed the statutory cap to be exceeded in White, the fee ultimately awarded to the petitioner there "conformed with the hourly rate set by the chief judge of the circuit pursuant to section 925.036(1), Florida Statutes (1985)." Id. at 1377-78.

Section 925.036, Florida Statutes (1997), states in pertinent part:

(1) An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit; however, such compensation shall not exceed the maximum fee limits established by this section.

As noted by the district court below, "[t]he importance of the administrative order setting the hourly rate cannot be ignored, because the chief judge, in setting the hourly rate, is charged [by section 925.036] with being advised of the community rates for similar representation and the ability of the county budget to accommodate the expenditure of public funds for such representation." Sheppard & White,751 So.2d at 735.⁶ Moreover, we stated in White:

[I]f the statutory cap is exceeded and fees awarded based upon the local prevailing hourly rate for indigent cases, the compensation would be "reasonable" and would then balance the state's constitutional obligation and the attorney's ethical obligation [of providing adequate representation].

White, 537 So.2d at 1379.

The trial court properly determined that the issue before it was whether the hourly rate as established in Administrative Order No. 86-33 negatively impacted the right of the petitioner's client to the effective assistance of counsel. Evidence presented to the trial court by the respondent, City of Jacksonville, demonstrated that there were attorneys, and at least one of whom was a board-certified criminal trial attorney, in the Fourth Judicial Circuit who accepted appointments to represent indigents in capital cases at the $40 hourly rate.⁷ The respondent also submitted evidence that, of the attorney-affiants who had stated that they would not undertake representation at the $40 hourly rate, the majority were not experienced criminal trial practitioners. Therefore, there was a basis for the district court to conclude that "there was competent, substantial evidence on which the trial court could find that the hourly rate did not materially impair the ability of lawyers to fulfill their roles." Sheppard & White, 751 So.2d at 736.

The petitioner also asserts that the hourly rate in the instant case is no more than "token compensation" of the type we disapproved in Makemson v. Martin County, 491 So.2d 1109 (Fla.1986), on the basis that it hindered the ability of the trial court to secure attorneys who could provide adequate representation to indigent defendants. Again, we cannot agree. In Makemson, the trial court, in fulfilling its...