Dade County v. Goldstein

• Citation: 384 So.2d 183
• Decision Date: 13 May 1980
• Docket Number: No. 79-1733,79-1733
• Parties: DADE COUNTY, Florida, Petitioner, v. Stanley M. GOLDSTEIN, Thomas G. Sherman and the Honorable Lenore C. Nesbitt, Respondents.
• Court: Court of Appeal of Florida (US)

Page 183

384 So.2d 183

DADE COUNTY, Florida, Petitioner, v. Stanley M. GOLDSTEIN, Thomas G. Sherman and the Honorable Lenore C. Nesbitt, Respondents.

No. 79-1733.

District Court of Appeal of Florida, Third District.

May 13, 1980.

Rehearing Denied June 27, 1980.

Robert A. Ginsburg, County Atty. and Mark A. Dresnick and Ralph C. Rocheteau, III, Asst. County Attys., for petitioner.

Stanley M. Goldstein, Thomas G. Sherman, Miami, for respondents.

Lawrence E. Besser, Miami, for Florida Criminal Defense Attorneys Association, as amicus curiae.

Before HENDRY and HUBBART, JJ., and VANN, HAROLD (Ret.), Associate Judge.

HUBBART, Judge.

This is a petition for a writ of certiorari to review an order of the trial court awarding counsel fees to two court-appointed attorneys in a criminal case which the petitioner Dade County is required to pay. We have jurisdiction to entertain this petition. Dade County v. Grossman, 354 So.2d 131 (Fla.3d DCA 1978); Dade County v. McCrary, 260 So.2d 543 (Fla.3d DCA 1972); Dade County v. Strauss, 246 So.2d 137 (Fla.3d DCA 1971), cert. denied 253 So.2d 864 (Fla.1971), cert. denied 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1972).

The central issue presented for review centers around the authority of a trial court to appoint and compensate a private attorney to represent an insolvent adult criminal defendant at the trial level where the public defender has been permitted by the court to withdraw from representing such defendant because of a conflict of interest. For the reasons developed below, we conclude that under Sections 27.53(2), (3), 925.036, Florida Statutes (1979): (a) the trial court may appoint for compensation purposes one, but no more than one, member of the Florida Bar to represent such an insolvent criminal defendant, (b) the trial court may, in its discretion, award such court-appointed counsel a fee to be computed entirely on an hourly basis (based on a determination of the reasonable number of hours expended by counsel in the defense of said defendant) according to an hourly rate to be set by the chief judge or senior judge of the circuit, which rate shall not exceed the prevailing hourly rate for similar representation rendered in the circuit, and (c) the fee awarded to court-appointed counsel shall in no event exceed the following maximum amounts at the trial level per defendant per case (in this context, a case is a count in an indictment or information charging an alleged crime under Florida law): $2,500 for a capital case, $2,000 for a life felony case, $1,500 for a noncapital, nonlife felony case, and $500 for a misdemeanor case. As the trial court herein did not fully comply with the above statutory requirements in awarding counsel fees in this cause, we are compelled to quash the order under review and remand for further proceedings. ¹

I

The facts pertaining to the above issue are undisputed. On May 3, 1979, the Dade County Grand Jury returned a four-count indictment against the defendant Roy Alan Stewart. The defendant Stewart was charged by this indictment with (1) first degree murder, a capital felony (§ 782.04(1)(a), Fla.Stat. (1979)); (2) robbery with a deadly weapon, a first degree felony (§ 812.13(2)(a), Fla.Stat. (1979)); (3) sexual battery on a person over the age of eleven using actual physical force likely to cause serious personal injury, a life felony (§ 794.011(3), Fla.Stat. (1979)), and (4) burglary using a dangerous weapon, a first degree felony (§ 810.02(2), Fla.Stat. (1979)). ² On April 11, 1979, the Circuit Court for the Eleventh Judicial Circuit of Florida appointed the Dade County Public Defender to represent the defendant Stewart on this indictment.

On April 27, 1979, the public defender filed a pleading which certified that there was a conflict of interest between the defendant Stewart and other defendants represented by the public defender. Accordingly, the public defender moved the trial court to withdraw from representing the defendant Stewart and to appoint private counsel to represent said defendant under Section 27.53(3), Florida Statutes (1979). On April 27, 1979, the trial court heard and granted the public defender's motion, permitted the public defender to withdraw from representing the defendant Stewart, and appointed a private attorney (the respondent Stanley M. Goldstein) to represent the defendant Stewart on the pending four-count indictment. On May 8, 1979, the trial court, upon Mr. Goldstein's request and the defendant Stewart's approval, also appointed the respondent Thomas G. Sherman to serve as co-counsel for the defendant Stewart on the pending four-count indictment because of the apparent complexity of the case. ³

Upon the defendant Stewart's plea of not guilty, the cause was tried in the trial court on June 25-July 5, 1979. The jury returned a verdict of guilty as charged save for count II where a guilty verdict on a lesser offense was rendered. The defendant Stewart was sentenced to death on the first count of the indictment and to varying terms of imprisonment to be served concurrently on the remaining three counts of the indictment. An appropriate notice of appeal was subsequently filed and the appeal is presently pending before the Florida Supreme Court.

On or about July 26, 1979, the respondents Mr. Goldstein and Mr. Sherman filed sworn motions with the trial court for counsel fees to compensate them for representing the defendant Stewart at the trial level on the four-count indictment herein. Both motions allege that certain hours, both in court and out of court, were spent in the defense of this cause. Also affidavits as to reasonable attorneys fees were filed by Mr. Goldstein and Mr. Sherman in support of their motions. The trial court heard the motions at a full hearing in which the petitioner Dade County was permitted to participate.

On August 3, 1979, the trial court entered an order, from which this petition for certiorari is taken, awarding a fee of $8,500 to the respondent Stanley M. Goldstein and a fee of $8,500 for the respondent Thomas G. Sherman to be paid by Dade County. ⁴ This fee was based upon Section 925.036, Florida Statutes (1979), although the trial court concluded that it also had inherent power aside from the statute to compensate counsel in this cause. No determination was made in this order as to the reasonable number of hours which either counsel spent in the defense of this cause. There is further no mention made in the order as to any hourly rate set by the chief judge of the circuit or the senior judge thereof, as required by the above statute. Moreover, our review of the record reflects no such order by the chief judge or senior judge of the circuit. This petition for a writ of certiorari follows.

II

The statute (§ 27.53(3), Fla.Stat. (1979)), under which the respondents Mr. Goldstein and Mr. Sherman were appointed by the court as counsel for the defendant Stewart after the public defender was permitted to withdraw, ⁵ provides as follows:

"(3) If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to move the court to appoint one or more members of The Florida Bar who are in no way affiliated with the public defender in his capacity as such, or in his private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict, and said attorney may, in the discretion of the court, be paid a fee and costs and expenses as is provided in subsection (2)." § 27.53(3), Fla.Stat. (1979).

By its plain language, the above statute authorizes the public defender to move the trial court to appoint one or more members of the Florida Bar who are in no way affiliated with the public defender to represent public defender indigent defendants upon a determination that the interests of these defendants are so adverse and hostile that they cannot all be represented by the public defender or his staff without conflict of interest. The statute, by implication, contemplates that the trial court may grant the defendant's motion, if well founded, and appoint one member of the Florida Bar to represent each indigent defendant. Such counsel who are so appointed may, in the court's discretion, be awarded a fee, costs and expenses as provided by subsection (2) of the statute. This subsection, in turn, provides that "(s) uch fee and costs and expenses shall be fixed by the trial judge and shall be paid in the same manner and amount as counsel fees are paid in capital cases or as otherwise provided by law." § 27.53(2), Fla.Stat. (1979).

Section 925.036, Florida Statutes (1979), provides the method by which the court may compensate an attorney who is appointed, as here, under Section 27.53, Florida Statutes (1979). The subject statute reads as follows:

"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. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:

(1) For misdemeanors and juveniles represented at the trial level: $500.

(2) For noncapital, nonlife felonies represented at the trial level: $1,500.

(3) For life felonies represented at the trial level: $2,000.

(4) For capital cases represented at the trial...