Ex parte Bush

• Decision Date: 14 May 1998
• Citation: 796 So.2d 383
• Parties: Ex parte Peter Austin BUSH. (In re State of Alabama v. Carlos Balams; State of Alabama v. Kevin Cappell; State of Alabama v. Carol Dimarzio; State of Alabama v. Lissette A. Henderson; and State of Alabama v. Terry Rawls).
• Court: Alabama Court of Criminal Appeals

796 So.2d 383

Ex parte Peter Austin BUSH.

(In re State of Alabama v. Carlos Balams; State of Alabama v. Kevin Cappell; State of Alabama v. Carol Dimarzio; State of Alabama v. Lissette A. Henderson; and State of Alabama v. Terry Rawls).

CR-97-1094.

Court of Criminal Appeals of Alabama.

May 14, 1998.

Peter Austin Bush, petitioner, pro se.

Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for respondent.

LONG, Presiding Judge.

The petitioner, Peter Austin Bush, an attorney practicing in Mobile County, filed this petition for a writ of mandamus requesting us to direct the Honorable Chris N. Galanos, circuit judge for the Thirteenth Judicial Circuit, to approve the attorney fee declarations Bush submitted for 11 indigent cases. Bush was appointed to represent Carlos Balams (CC-96-4705), Kevin Cappell (CC-96-226), Carol Dimarzio (CC-97-470), Lissette A. Henderson (CC-97-537 through 97-543), and Terry Rawls, (CC-97-659), who were indigent. After Bush's work for the clients in circuit court was completed, he submitted a bill for services ("attorney fee declarations") in accordance with § 15-12-21(e), Code of Alabama 1975, requesting payment from the State Comptroller's Office. The Comptroller's Office notified Bush that the fees approved by Judge Galanos were less than the amounts he had submitted. In the case State v. Carlos Balams, Bush submitted a fee of $818 and Judge Galanos approved $302; in the case State v. Kevin Cappell, Bush submitted a fee of $274 and Judge Galanos approved $258; in the case State v. Carol Dimarzio, Bush submitted a fee of $652 and Judge Galanos approved $242; in the case State v. Lissette A Henderson, Bush submitted a fee of $614 and Judge Galanos approved $202; in the case State v. Terry Rawls, Bush submitted a fee of $466 and Judge Galanos approved $232. Bush contacted Judge Galanos's office and was told Judge Galanos would not authorize the payment of certain expenses. Judge Galanos had not requested an explanation for any amount or any expense on the submitted fee claims. Bush then filed this petition for a writ of mandamus, asking us to direct payment for all moneys he submitted on the attorney fee declarations. He also requests that we find Mobile County's indigent defense system unlawful and in violation of § 15-12-21.

Initially, we must determine if mandamus relief is the appropriate method by which to review Judge Galanos's actions. The Alabama Supreme Court in Sparks v. Parker, 368 So.2d 528 (Ala.1979), reviewed Calhoun County's indigent defense system by way of a petition for a writ of mandamus. This Court has reviewed a trial court's failure to pre-approve an attorney's request for office overhead according to § 15-12-21, pursuant to a mandamus petition. Ex parte Barksdale, 680 So.2d 1029 (Ala.Cr.App.1996). "Mandamus is a drastic and extraordinary writ, to be issued only where there is a clear legal right to the relief sought by the petitioner." Ex parte Clark, 643 So.2d 977, 978 (Ala.1994). See also Ex parte Spears, 621 So.2d 1255 (Ala.1993). "[M]andamus lies only when there is no other adequate remedy." Cuz, Inc. v. Walden, 288 Ala. 362, 261 So.2d 37 (Ala. 1972). Bush has no other adequate means of protecting his interest.

We are compelled to grant the relief Bush seeks. This matter is one of jurisdiction. Judge Galanos is without jurisdiction to consider the fee claims for those cases not tried in his court. "[J]urisdictional matters are of such magnitude that [appellate courts] take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987).

The Sixth Amendment to the Constitution of the United States provides that an accused is entitled to counsel. This amendment states:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

(Emphasis added.) See also Art. I, § 6, Alabama Constitution of 1901, and Rule 6.1, Ala.R.Crim.P.

In Gideon v. Wainwright, 372 U.S. 335, 346, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that the Sixth Amendment right to counsel applied to the individual states through the Fourteenth Amendment.¹ In reaching this conclusion, the Court reasoned that there is no right more basic or fundamental than the right to the assistance of counsel. The Gideon Court stated the following reasons for this conclusion:

"From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama, [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ]:

"`The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.' 287 U.S., at 68-69,53 S.Ct., at 64,77 L.Ed. 158."

372 U.S. at 344-45, 83 S.Ct. 792.

In accordance with the United States Constitution and the Constitution of Alabama, Alabama enacted an indigent defense system to ensure that an indigent is afforded the right to counsel. See § 15-12-1, et seq., Code of Alabama 1975. Section 15-12-3 provides that the "presiding circuit judge shall administer the indigent defense system" for each circuit. Each presiding circuit judge is also empowered to appoint an indigent defense commission. See § 15-12-4, which shall have the power to "advise the presiding circuit judge on the indigent defense system" and to advise the presiding circuit judge on the "administration of indigent defense systems within the circuit." § 15-12-4(e).

Section 15-12-21 governs the appointment and compensation of trial counsel. This section states:

"(a) If it appears to the trial court that such defendant is entitled to counsel, that such defendant does not expressly waive the right to assistance of counsel and that such defendant is not able financially or otherwise to obtain the assistance of counsel, the court shall appoint counsel to represent and assist the defendant; and it shall be the duty of such appointed counsel, as an officer of the court and as a member of the bar, to represent and assist said defendant.

"(b) If it appears to the trial court in a delinquency case, need of supervision case or other judicial proceeding in which a juvenile is a party, that said juvenile is entitled to counsel and that such juvenile is not able financially or otherwise to obtain the assistance of counsel or that appointed counsel is otherwise required by law, the court shall appoint counsel to represent and assist the juvenile or act in the capacity of guardian ad litem for such juvenile; and it shall be the duty of such appointed counsel, as an officer of the court and as a member of the bar, to represent and assist said juvenile.

"(c) If it appears to the trial court that the parents, guardian or custodian of a juvenile who is a party in a judicial proceeding, are entitled to counsel and such parties are unable to afford counsel, upon request the court shall appoint counsel to represent and assist such parents, guardian or custodian; and it shall be the duty of such appointed counsel, as an officer of the court and as a member of the bar, to represent and assist said parties.

"(d) Counsel appointed in cases described in subsections (a), (b) and (c) above, including such cases tried de novo in circuit court on appeal from a juvenile proceeding, shall be entitled to receive for their services a fee to be approved by the trial court. The amount of such fee shall be based on the number of hours spent by the attorney in working on such case and shall be computed at the rate of $40.00 per hour for time expended in court and $20.00 per hour for time reasonably expended out of court in the preparation of such case. The total fees to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not, however, exceed $1,000.00, except as follows: In cases where the original case involves a capital offense or a charge which carries a possible sentence of life without parole, the limits shall be $1,000.00 for out-of-court work, plus payment for all in-court work, said work to be billed at the aforementioned rates. Counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court. Retrials of a case shall be considered a new case.

"(e) Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment

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