Dade County v. McCrary
| Citation | 260 So.2d 543 |
| Decision Date | 28 March 1972 |
| Docket Number | No. 71--1236,71--1236 |
| Parties | DADE COUNTY, etc., Petitioner, v. Jesse J. McCRARY, Jr., et al., Respondents. |
| Court | Florida District Court of Appeals |
Stuart L. Simon, County Atty., and Murray A. Greenberg, Asst. County Atty., for petitioner.
Richard E. Gerstein, State's Atty., Jesse J. McCrary, Jr., Tobias Simon, Miami, for respondents.
Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.
By petition for certiorari Dade County seeks review of an order of the criminal court of record which ordered payment by the county of a fee awarded by the court to an attorney for his services in representing the judge of that court as respondent in a prohibition action.
The defendant in a criminal prosecution for robbery in the criminal court of record filed a suggestion in prohibition in the Supreme Court, to restrain the court from trying him on the charge, having become entitled to discharge for failure of the state to bring him to trial within the time required, after appropriate demand, under § 915.01 Fla.Stat., F.S.A., the speedy trial law effective in that case. His motion for discharge was denied by the trial court on the ground that the statute invoked was unconstitutional, with the result that jurisdiction of the prohibition action was in the Supreme Court. See State ex rel. Owens v. Pearson, Fla.1963, 156 So.2d 4.
A rule nisi in prohibition was issued. On final hearing the Supreme Court held the response asserting invalidity of the statute was insufficient as a defense to the prima facie case made by the suggestion, and the rule nisi in prohibition was made absolute. See State ex rel. Williams v. Baker, Fla.1971, 247 So.2d 316. Thereafter the Supreme Court entered an order discharging Williams from the crime. See State ex rel. Williams v. Baker, Fla.1971, 248 So.2d 650.
Pending the prohibition action, the respondent trial judge entered an order in which, after reciting he had appeared and argued in proper person at one hearing thereon in the Supreme Court and had filed a brief, and that a further hearing had been scheduled by the Supreme Court, the respondent here, Jesse J. McCrary, Jr., a practicing attorney of Dade County, was appointed 'Acting State Attorney', to represent the respondent judge. The attorney thus appointed so proceeded in that cause, the outcome of which, as noted above, was adverse to the respondent judge.
Following the judgment of the Supreme Court in the prohibition action, the trial court made the order here under review, allowing the attorney a fee and ordering it paid by the county.
The contention of the respondent McCrary that Dade County does not have standing to seek review of the challenged order by certiorari, is without merit. See Dade County v. Carr, Fla.App.1970, 231 So.2d 844; Dade County v. Baker, Fla.App.1970, 237 So.2d 545; Dade County v. Strauss, Fla.App.1971, 246 So.2d 137; Dade County v. Baker, Fla.App.1972, 257 So.2d 583.
The petitioner Dade County contends the trial court was without authority in law to award the attorney's fee and require its payment by the county. The respondent argues that his appointment by the trial court as Acting State Attorney was authorized by § 32.17 Fla.Stat., F.S.A., and that the fee allowed for his services was properly the obligation of the county, as provided for in the order of the trial court. Upon weighing those contentions we hold the position asserted by the county is correct.
The first question to be decided here is whether the appointment of an acting state attorney was authorized by law in the situation involved. If it was, then the amount fixed by the trial court as a fee to be paid to such 'official' would not be controlling, and it would be the prerogative of the county to determine the amount of a reasonable fee to be paid for the services performed by the official (with the figure suggested by the trial court being considered along with all other appropriate facts), as provided for in §§ 142.10--142.12 Fla.Stat., F.S.A., with right of the fee applicant, under § 142.13, to test the propriety of rejection by the county of any part of the fee so claimed and submitted. See Carr v. Dade County, Fla.1971, 250...
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