Okeechobee County v. Jennings

• Decision Date: 06 March 1985
• Docket Number: No. 83-1179,83-1179
• Citation: 10 Fla. L. Weekly 572,473 So.2d 1314
• Parties: 10 Fla. L. Weekly 572 OKEECHOBEE COUNTY, Florida, Appellant, v. J. Blayne JENNINGS, Robert Lee Dennis, John R. Cook, Michael D. Gelety, Appellees.
• Court: Florida District Court of Appeals

Page 1314

473 So.2d 1314

10 Fla. L. Weekly 572

OKEECHOBEE COUNTY, Florida, Appellant, v. J. Blayne JENNINGS, Robert Lee Dennis, John R. Cook, Michael D. Gelety, Appellees.

No. 83-1179.

District Court of Appeal of Florida Fourth District.

March 6, 1985.

Mandate Withheld April 4, 1985.

Appeal from the Circuit Court for Okeechobee County; Dwight L. geiger, judge.

Kyle S. Van Landingham, Okeechobee, for appellant.

Robert Lee Dennis, Okeechobee, pro se appellee.

J. Blayne Jennings, Grifford, pro se appellee.

John R. Cook, Okeechobee, pro se appellee.

No appearances for appellees Gelety, Kibbey, and Udell.

PER CURIAM.

We treat the appeal as a petition for certiorari, grant the writ and quash the order herein on the authority of Martin County v. Makemson, 464 So.2d 1281 (Fla. 4th DCA 1985); and we certify to the Supreme Court of Florida the same question as we did in that case as being of great public importance.

LETTS and GLICKSTEIN, JJ., concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge, concurring specially.

This is an appeal from an order of the trial court holding that section 925.036 Florida Statutes (1981), which limits the fees payable to private attorneys specially appointed to represent indigents in criminal cases, is unconstitutional as applied to the facts of this case. I recognize that this decision is controlled by our opinion in Makemson. However, were I free to do so I would approve the trial court's action.

In the court below the lawyers who originally accepted appointment as special public defenders came to the court in the midst of the proceedings and asked that the statutory cap on fees be relaxed. In essence, the lawyers contended that because of the complexity of the cases and the necessity to devote inordinate amounts of time to prepare and try the cases, to continue with representation would result in financial ruination to them. They asserted that they were trapped between the choices of continuing and suffering the disastrous financial consequences or withdrawing and leaving the defendants without counsel. After taking evidence, including expert testimony that lawyers were not generally available in the area to take such complex cases for the statutory fees allowed, the trial court entered an order voiding the statutory cap for the purpose of assessing fees in these cases. The court set out its reasons in a written order:

This Court bases its decision upon the following findings:

Cases of this type, that is trafficking controlled substance and conspiracy to trafficking controlled substance are characterized as some of the most complex criminal defense cases. This particular case has over one hundred and thirty state's witnesses listed to testify or may possibly testify. There are some four thousand pages of the State's evidence that may be introduced. There are eight defendants currently in the case. Most of the witnesses should be deposed by each defense counsel or at least interviewed by them. The case involves the use of interception of oral communication by use of body bugs, informers, some investigation by Federal, both Federal and State agencies. The defense of entrapment has been asserted. Currently it is estimated that over six weeks at approximately four days a week and four hours per day will be required to select a jury in the case. To this point, there have been four weeks of evening motion sessions at three hours per day, two to three times a week. (As of February 25, 1983). It is estimated that the trial will take between four to eight weeks, once the evidence starts. That would be approximately four days a week six hours in court time per day. Discovery and pre-trial time has taken between forty and one hundred sixty five hours per lawyer. As per defense lawyer. It is extremely unlikely that any competent lawyer would accept representing a defendant in this case as special public defender for a fee of twenty five hundred dollars or less. If a lawyer knows that the fee in the case would be limited to twenty five hundred dollars or less, and that lawyer is not independently wealthy, that competent counsel could not be found who would accept representation as special public defender in this case either from the outset of the case or from jury selection forward. A reasonable expected fee in this case, for a private lawyer, would be an amount between thirty and forty thousand dollars, exclusive of out of court costs or out of pocket costs.

In Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981), the facial validity of section 925.036 was upheld by a plurality opinion in which three justices rejected attacks of unconstitutionality predicated on due process, equal protection and right to counsel concerns. ¹ The Bridges plurality opinion stated:

We further hold that Ross has failed to demonstrate that an indigent defendant's right to counsel has been impinged upon in any way by this statute. Indigent defendants are not denied counsel by section 925.036. At common law, it was the professional obligation of the lawyer to accept an assignment to represent an indigent party when directed to do so by the court, but there was no right to compensation from the government or any other source for representation of the poor. In the Interest of D.B., 385 So.2d 83 (Fla.1980). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which established a fundamental constitutional right to counsel in various classes of cases, questions have arisen as to whether lawyers should be relieved of their historical duty to represent the poor. Questions have even arisen as to whether requiring a member of the Bar to represent an indigent with no compensation or minimum compensation amounts to a taking of property without due process of law. We have held that lawyers should not be completely relieved of their responsibility to represent the poor although we have recognized the concomitant obligation of the government to provide legal representation when such is constitutionally required, and we have held that requiring a lawyer to perform his historical professional responsibility to represent the poor does not constitute an unfair "taking" of private property in violation of due process. In the Interest of D.B.

Unless it is demonstrated that the maximum amounts designated for representation in criminal cases by section 925.036 are so unreasonably insufficient as to make it impossible for the courts to appoint competent counsel to represent indigent defendants, we cannot say that section 925.036 violates the sixth amendment right to counsel. In the present case, the defendant represented by Ross was not denied his sixth amendment right to representation by section 925.036, nor is it contended that he was denied such right.

402 So.2d at 414-15. A fourth justice concurred in the result but reserved the right to reconsider the right to counsel issue "should it be demonstrated that the monetary limitation placed by the legislature on the compensation paid to court appointed attorneys representing indigent criminal defendants be so unreasonable as to make it impossible to secure effective counsel to those individuals." Id. at 415 (Sundberg, Chief Justice, concurring specially). Three justices dissented and would have approved a result permitting the assessment of fees above the statutory limits in cases involving such extraordinary circumstances that the amount of time required to be spent by the appointed lawyer on the case would render the fee allowed under the statute a meaningless token. ²

There is a division of authority in other jurisdictions as to the validity of similar statutory limitations on fees. Some states, under circumstances similar to those involved herein, have struck down statutory caps on attorneys' fees. In People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337 (1966), the court held that fee limits could be unconstitutional in extraordinary circumstances. In such cases, the courts have the inherent power to abrogate such limits. "[T]he statute cannot constitutionally be applied where it appears, as here, that appointed counsel cannot continue to serve because they are suffering an extreme, if not ruinous, loss of practice and income and must expend large out-of-pocket sums in the course of trial." Id. at 341. Randolph was adopted in Bias v. State, 568 P.2d 1269 (Okla.1977); Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976); and Application of Armani, 83 Misc.2d 252, 371 N.Y.S.2d 563 (1975).

In Smith v. State, 118 N.H. 764, 394 A.2d 834 (1978), the New Hampshire Supreme Court held that the Legislature violated the separation of powers doctrine by establishing a fee limit because the determination of fees is solely a judicial responsibility.

The obligations and responsibilities of the bar are matters of judicial concern alone. See Schware v. Bd. of Bar Examiners, 353 U.S. 232, 248, 77 S.Ct. 752 , 1 L.Ed.2d 796 (1957) (Frankfurter J., concurring); N.H. Judicial Council 5th Report 20-21 (1954); State v. Rush, 46 N.J. 399, 411, 217 A.2d 441, 447 (1966); In re Lacey, 11 Cal.2d 699, 701, 81 P.2d 935, 936 (1938). Since the obligation to represent indigent defendants is an an obligation springing from judicial authority, so too is the determination of reasonable compensation for court-appointed attorneys a matter for judicial determination. The power to regulate officers of the court is a power inherent in the judicial branch. Implicit in that power is the authority to fix reasonable compensation rates for court-appointed attorneys.

Id. at 838-39. Subsequently, in State v. Robinson, 123 N.H. 665, 465 A.2d 1214 (1983), the court amended a supreme court rule, formulated in response to Smith, to include an exception for unusual circumstances. The Federal statute also provides for an abrogation of fee limits for extraordinary circumstances. 18 U.S.C. § 3006 A(d)(3). Georgia provides for such a waiver in ...