Weisman v. Justice Admin. Comm'n

• Decision Date: 04 May 2022
• Docket Number: 1D19-4577
• Parties: Daniel A. WEISMAN, Appellant, v. JUSTICE ADMINISTRATIVE COMMISSION, Appellee.
• Court: Florida District Court of Appeals

338 So.3d 436

Daniel A. WEISMAN, Appellant,

v.JUSTICE ADMINISTRATIVE COMMISSION, Appellee.

No. 1D19-4577

District Court of Appeal of Florida, First District.

May 4, 2022

Daniel A. Weisman, pro se, Appellant.

Ana Cristina Martinez and Bradley R. Bischoff, Tallahassee, for the Appellee.

Tanenbaum, J.

This case came to us initially as a petition for a writ of certiorari, asking that we review the trial court's refusal to award excess fees to court-appointed counsel pursuant to section 27.5304, Florida Statutes (2018). We will explain our handling of this case after we give some background, but we treat the petition as a direct appeal of a final order and affirm.

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In March 2019, the trial court appointed private lawyer Daniel A. Weisman to serve as counsel for a defendant charged with attempted first-degree murder and tampering with the evidence. See generally § 27.40, Fla. Stat. (2018). The case eventually resolved with a plea agreement, whereby the defendant pleaded to a lesser included offense and was sentenced to five years in prison. Once the case was over, Weisman was entitled to compensation as set out in section 27.5304, Florida Statutes (2018). See §§ 27.40(7), 27.5304(3), Fla. Stat. (2018). Because "the most serious offense for which [Weisman] represented the defendant" was a first-degree felony, the General Appropriations Act fixed Weisman's fee at $1,875. § 27.5304(1), Fla. Stat.; ch. 2019-115, § 4, Laws of Fla.; ch. 2018-9, § 4, Laws of Fla.; see § 27.5304(1), Fla. Stat. (providing that the "specific flat fee" to be paid to appointed counsel as compensation "shall be established annually in the General Appropriations Act").

Weisman sought compensation in an amount that exceeded the flat fee fixed by the Legislature. Cf. § 27.5304(2), (11), (12), Fla. Stat. (providing for process by which counsel may seek excess compensation for the "rare occasions an attorney may receive a case that requires extraordinary and unusual effort"). He submitted his "intended billing" and supporting documentation to the Justice Administrative Commission ("JAC") for review, as statutorily required. See § 27.5304(12)(a) 1., Fla. Stat.

His original claim was for $6,397.50 in hourly billing, which reflected 85.3 hours of legal work. Cf. § 27.5304(12)(b) 1., Fla. Stat. (precluding "relief" from the fixed fee in a criminal case "if the number of work hours does not exceed 75"). The JAC submitted written objections to his claim. Cf. § 27.5304(12)(a) 2., Fla. Stat. (requiring that the JAC review counsel's billings and supporting documentation for completeness and compliance and that it state its objections and reasons in writing to counsel). Weisman then filed a motion that sought approval of a payment of fees in excess of the legislatively set limit. Cf. § 27.5304(12)(a), Fla. Stat. (requiring counsel to file a motion with the chief judge of the judicial circuit if he "seeks compensation that exceeds the limits prescribed by law," but only after he has submitted his billing and supporting documentation and the JAC has reviewed the request). The motion reduced the claim to $6,285.00, which reflected 83.8 hours of legal work. Attached to the motion was a single exhibit, a copy of the JAC's objections.

A hearing on the motion took place before the judge designated to handle such matters for the judicial circuit. See § 27.5304(12)(b), Fla. Stat. (requiring the judicial circuit's chief judge or his designee to "hold an evidentiary hearing" upon receipt of the motion). Counsel for the JAC appeared by telephone and opposed the motion. See § 27.5304(12)(c), Fla. Stat. (providing that the JAC "has standing to appear before the court" and participate in the evidentiary hearing, including telephonically, "to contest any motion for an order approving payment of attorney fees"). Weisman did not submit any evidence at the hearing; no testimony was taken, and no exhibit was admitted. Instead, Weisman merely described to the court the work he put into his handling of the case, arguing that the trial court should grant his request based on how subjectively demanding and burdensome the case was on him personally. But cf. H.K. Dev., LLC v. Greer , 32 So. 3d 178, 181 n.4 (Fla. 1st DCA 2010) (explaining that an unsworn statement by a lawyer does not establish facts, so a trial court cannot rely on such statements as support for its factual determinations). The trial court denied Weisman's motion, leaving him with compensation in the amount of $1,875.00, as fixed by law.

In the hope of flipping that outcome, Weisman seeks our review of the trial court's denial. He asks for that review, though, as certiorari relief. We opened this opinion by stating that this case is being treated as an appeal. Before we get to the merits of Weisman's argument, then, we should explain that handling.

To begin, Weisman can be forgiven for pursuing certiorari instead of direct appellate review regarding his request for fees as appointed counsel. This appears to have been the review "vehicle" utilized by the district courts, repeatedly and without much analysis or reflection, for decades. It is an approach acknowledged by the supreme court as late as 2002. See Sheppard & White, P.A. v. City of Jacksonville , 827 So. 2d 925, 928 n.3 (Fla. 2002) ("A writ of certiorari is the proper vehicle for challenging an award of attorney's fees to court-appointed counsel."). There nevertheless is a problem with our continuing this practice: The Legislature enacted significant amendments to section 27.5304 in 2007 that obviated the need for this mode of review. See ch. 2007-62, § 11, at 452–53, Laws of Fla. (among other revisions, adding subsection twelve, which established a process in the trial court by which counsel and the JAC could have an excess-fee dispute adjudicated); cf. Regan v. ITT Indus. Credit Co. , 469 So. 2d 1387, 1390 & n.3 (Fla. 1st DCA 1984) (granting a second motion for rehearing as extraordinary relief in order to comply with a "previously unnoticed" legislative disapproval of a supreme court statutory interpretation that the court had relied on, because we are "bound to interpret and apply the law as pronounced by the legislature").

This obviation becomes readily apparent with an understanding of the historical purpose of common-law certiorari and how the writ came to be used in this context in the first place. As far as relief goes, common-law certiorari is known to be narrow in purpose and scope. After all, it is extraordinary relief. The writ enables a superior court to inspect the record of the proceeding in the lower court and "determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law." Seaboard Air Line Ry. v. Ray , 52 Fla. 634, 42 So. 714, 715 (1906). On certiorari the superior court's inquiry is limited to whether the trial court "exceeded [its] jurisdiction in hearing the case at all, or adopted any method unknown to the law or essentially irregular in [its] proceeding under the statute." Basnet v. City of Jacksonville , 18 Fla. 523, 526 (1882) ; see also Goodkind v. Wolkowsky , 151 Fla. 62, 9 So. 2d 553, 562 (1942) (explaining that certiorari is available to provide relief "[w]here the judgment of the Circuit Court is rendered without or in excess of its jurisdiction; where the judgment of the Circuit Court is a palpable miscarriage of justice; or where the result of such judgment would constitute a substantial injury to the legal rights of the petitioner; or where the judgment sought to be reviewed is illegal or essentially irregular and violative of established principles of law").

This writ has been available, however, only where the law fails to provide for adequate relief by direct appeal. See Seaboard Air Line Ry. , 42 So. at 715 ; cf. Robinson v. State , 132 So. 2d 3, 5 (Fla. 1961) (explaining how common-law certiorari authority, once possessed by the supreme court, is now vested in the district courts to look for "a deviation from the essential requirements of the law," but only in "situations in which review of a judgment or decree of a lower court is not otherwise provided for"); Goodkind , 9 So. 2d at 562 (explaining that common-law certiorari is available to address an order of an inferior court that threatens "substantial injury to the legal rights of the petitioner, and for which no other adequate remedy is afforded by law").

Along these lines, then, certiorari is available for a non-party to seek review of an "alleged illegal or improper judgment" that "vitally affect[s]" the substantial rights of that petitioner, who has no entry point to obtain direct appellate review. State v. Crawford , 104 Fla. 440, 140 So. 333, 335 (1932) ; cf. Deans v. Wilcoxon , 18 Fla. 531, 547 (1882) ; see also State ex rel. Boyles v. Fla. Parole & Prob. Comm'n , 436 So. 2d 207, 210 (Fla. 1st DCA 1983) ("A person need not necessarily be a party to a proceeding in order to obtain certiorari review if he has sufficient interest in the subject matter of the order."). It is this principle that indubitably gave rise to the use of certiorari as the "proper vehicle" for considering challenges to grants and denials of excess fee awards requested by court-appointed counsel.

Consider, though, that use in context. It came about at a time when there was no statutory point of entry at the trial or appellate level for counsel to appear on his own behalf and argue for an excess cost or attorney fee claim, or for a county to contest the claim that by law it would have to pay if awarded. See Dade County v. Strauss , 246 So. 2d 137, 140 (Fla. 3d DCA 1971) (relying on Dade County v. Carr to approve county's petition for certiorari review regarding an order for fees that it would be required to pay, rendered in case to which the county was not a party); Dade County v. Carr , 231 So. 2d 844, 846 (Fla. 3d DCA 1970), modified , 250 So. 2d 865 (Fla. 1971) (approving same use of...