State v. Sidney
| Decision Date | 04 February 1975 |
| Docket Number | No. S,S |
| Court | Wisconsin Supreme Court |
| Parties | STATE of Wisconsin, Plaintiff, v. Brenda SIDNEY, Defendant. Joseph J. ATTWELL, Appellant, v. MILWAUKEE COUNTY, Respondent. tate 108. |
Joseph J. Attwell, pro se.
Robert P. Russell, Corp. Counsel and Gerald G. Pagel, Asst. Corp. Counsel, Milwaukee, for respondent.
This appeal involves compensation to be paid to appointed counsel for services performed while representing indigent criminal defendants in trial court.
On September 7, 1972, Brenda Sidney plead guilty to disorderly conduct in violation of sec. 947.01, Stats., following an initial charge of prostitution in violation of sec. 944.30(1). She was placed on probation for one year and subsequently was charged with violation of the terms of probation in failing to report to probation authorities. She was arrested and imprisoned on May 18, 1973, for the probation violation. On June 8, 1973, appellant Joseph J. Attwell was appointed to represent her in probation revocation proceedings. (His petition to the trial court for his fees states he was not notified of the appointment until June 27, 1973.) On June 28th Attwell moved the county court of Milwaukee county, Judge Kessler presiding, for an order releasing Sidney from custody. The motion was denied. Subsequently, Attwell filed a writ of habeas corpus in Milwaukee county circuit court, Judge Seraphim presiding. The writ alleged a number of violations of Sidney's constitutional rights and in particular challenged the procedure whereby she had been placed in jail for the alleged probation violation without any court hearing on the matter. The writ was granted and Sidney was released from custody on July 6, 1973, but not from probation. Following a motion for release from probation and a further county court hearing on July 31st before Judge Kessler, the court refused to release her from probation. However, she remained free from incarceration and apparently no probation revocation hearing was held thereafter.
On August 9, 1973, Attwell presented the county court with an eight-page sworn petition for fees. The petition contained an itemized list of noncourt hours, court appearances, and expenses, accompanied by a detailed description of the type of services performed as to each item. A summary of this request is as follows:
Item Time Rate Total
------------------------ ------------ ------- --------
Research, investigation
drafting of pleadings
client interviews
miscellaneous: 22 hrs. $35/hr. $ 770.00
Court appearances (5): 2 1/2 k days varied 800.00
Expenses: 7.94
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Total: $1577.94
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In an order entered August 28, 1973, the trial court allowed Attwell $310. This order may be summarized as follows:
Item Time Rate Total
------------ ----------- ----------- --------
Preparation: 5 half days $20 1/2 day $ 100.00
Trial: 6 half days $35 1/2 day 210.00
Expenses:
--------
Total: $ 310.00
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The county court held that Attwell waived any claim to expenses, although the court did not spell out any reason for that waiver. However, on appeal Attwell only asks for $1570, apparently abandoning any claim to expenses.
The only question on this appeal is whether the trial court erred in allowing Attwell's fee request only to the extent of $310. It did. We therefore remand for further consideration by the trial court because it is apparent to us that a full consideration was not given to a determination of the number of hours put in by counsel or of the fees on the basis of the proper rate of compensation.
The payment of attorneys' fees for counsel appointed to represent an indigent criminal defendant is controlled, in part, by the provisions of sec. 967.06, Stats., and partially by the prior decisions of this court.
Section 967.06, Stats., provides in part:
'(1) Counsel appointed to represent indigent defendants shall be compensated for services commencing with the time of their appointment.
(Emphasis supplied.) 1
In the 1965 case of State v. DeKeyser 2 this court held this emphasized language did not require remuneration entirely comparable to what the attorney might receive from a private client:
The court also said in DeKeyser that the trial judge has the responsibility of determining what services were reasonably necessary as well as fixing the rate of compensation. In making these determinations, the trial court should consider a number of factors. As stated in Touchett v. E. Z. Paintr Corp., 3 a case involving a fees dispute between an attorney and a private client:
"'The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and character of the services rendered, the labor, the time, and trouble involved, the character and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession; to which may be added the general ability of the client to pay and the pecuniary benefit derived from the services."'
However, the trial court's findings and award of compensation are not necessarily given substantial weight by this court on appeal. As part of the exercise of its supervisory control of the practice of law, and because the members of the court have expert knowledge as to the reasonable value of legal services, the court will independently review questions raised on appeal concerning attorneys' fees. 4 Nevertheless, despite this independent review the court indicated in DeKeyser that the matter should be fully considered in the trial court:
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Estate of Trotalli, Matter of
...have borne as part of their obligation to serve the public and the courts in the administration of justice. State v. Sidney, 66 Wis.2d 602, 610, 225 N.W.2d 438 (1975); State v. Kenney, 24 Wis.2d 172, 180-81, 128 N.W.2d 450 The guardian ad litem also asserts that he is entitled to compensati......
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Bye v. District Court In and For Larimer County
...445 (1969); Tappe v. Circuit Court, 326 N.W.2d 892 (S.D.1982); State v. Mempa, 78 Wash.2d 530, 477 P.2d 178 (1970); State v. Sidney, 66 Wis.2d 602, 225 N.W.2d 438 (1975). Similarly, jurisdictions have adjudicated on appeal the denial or refusal to pay attorney's fees to the court-appointed ......
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First Wisconsin Nat. Bank v. Nicolaou
...award may be given some weight on review. However, this court need not defer to the trial court's determination. State v. Sidney, 66 Wis.2d 602, 607, 225 N.W.2d 438 (1975). As part of its inherent supervisory power over the practice of law, this court may independently review the reasonable......
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People v. Johnson
...(Del.1974), 325 A.2d 84, 92). At least two courts have adopted a definite rule for determining compensation. (State v. Sidney (1975), 66 Wis.2d 602, 610, 225 N.W.2d 438, 442 (two-thirds of the prevailing rate charged private clients for comparable services) and State v. Rush (1966), 46 N.J.......