White v. Board of County Com'rs For Pinellas County

• Decision Date: 15 January 1988
• Docket Number: No. 87-1136,87-1136
• Citation: 13 Fla. L. Weekly 220,524 So.2d 428
• Parties: 13 Fla. L. Weekly 220 John Thor WHITE, Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 428

524 So.2d 428

13 Fla. L. Weekly 220

John Thor WHITE, Appellant, v. BOARD OF COUNTY COMMISSIONERS FOR PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.

No. 87-1136.

District Court of Appeal of Florida,

Second District.

Jan. 15, 1988.

Rehearing Denied Feb. 17, 1988.

John Thor White, pro se.

John E. Schaefer, Asst. Co. Atty., Clearwater, for appellee.

RYDER, Acting Chief Judge.

Appellant was court-appointed counsel in a first degree murder case. After conclusion of the case, appellant petitioned for attorney's fees. At a hearing on the matter, at which all interested parties were heard, there was no dispute that appellant performed 134 reasonable and necessary hours of high quality representation. The statutory maximum for this type of case is $3,500.00. § 925.036(2)(d), Fla.Stat. (1985). The trial court, in a lengthy, thoughtful order, discussed certain policy considerations in determining compensation for court-appointed counsel, then reluctantly limited the award of attorney's fees to the statutory maximum based upon what it perceived as the restrictions of the statutory provisions and the case of Makemson v. Martin County, 491 So.2d 1109 (Fla.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987). Appellant filed a notice of appeal.

"The proper procedure for challenging an order awarding attorney's fees to court appointed counsel is by petition for certiorari, not appeal." Schommer v. Bentley, 489 So.2d 40, 41 (Fla. 2d DCA), reversed on other grounds, 500 So.2d 118 (Fla.1986). Accordingly, we treat this appeal as a petition for certiorari. We hold that the trial court did not depart from the essential requirements of law in either substance or procedure.

Certiorari denied.

SCHOONOVER, J., concurs.

LEHAN, J., dissents with opinion.

LEHAN, Judge, dissenting.

I respectfully dissent. I would hold that the trial court departed from the essential requirements of law.

Makemson permits attorneys fees to court-appointed counsel for indigent defendants in capital cases to exceed the $3,500 statutory maximum fixed by section 925.036(2)(d) in "extraordinary and unusual cases...." 491 So.2d at 1115. In this case the trial court, with which the majority of this appellate panel apparently agrees, interpreted Makemson as defining the term "extraordinary and unusual" as being restricted to cases which are like Makemson and are, in the words of the trial court, "high profile, heavily prosecuted." In purporting to distinguish Makemson, the trial court noted that in that case defense counsel spent "sixty-four hours of ... time at a Courthouse some 150 miles from his home" and "[h]is representation of the Defendant spanned a nine month period." The trial court concluded that this case was not extraordinary and unusual within that definition.

I do not disagree that this was not a "high profile, heavily prosecuted case." At least I do not disagree that the trial court did not abuse its discretion in reaching that conclusion. ¹ There is no record of the capital case before us to indicate one way or the other. But I conclude that the supreme court in Makemson did not mean to restrict the definition of the term "extraordinary and unusual" in the foregoing manner. I conclude that the supreme court meant that term to include a case like that involved here which, as the trial court's findings show, was a capital case requiring an extraordinary and unusual amount of time on the part of competent defense counsel relative to the time for which the statutory maximum fee would provide reasonable compensation.

Accordingly, I would conclude that the trial court erred in ruling that the $3,500 statutory maximum fee for petitioner's court-appointed representation of an indigent defendant in a capital case through trial could not properly be exceeded. While I understand the basis on which the majority interpreted Makemson as requiring a denial of the petition for certiorari, I conclude that the petition should have been granted and that the order should have been reversed. I conclude that the majority opinion is in conflict with Makemson and that it should be certified to the Florida Supreme Court as passing upon a question of great public importance.

The reasons why the maximum fee fixed by section 925.036(2)(d) should, in my view, not be adhered to in this case involve not only an interpretation of Makemson which is different from that of the trial court and the majority of this appellate panel but also involve very fundamental legal issues. Those legal issues involve, in turn, fundamental philosophies of government. This dissenting opinion undertakes to explain that different interpretation of Makemson and also deals with those legal issues and philosophies.

The trial court's order contains the following findings: that over a period of "approximately 3 1/2 months" the attorney "expended 134 hours on this case and that all hours were reasonable and necessary"; that "counsel did an excellent job of representation"; that "[e]xpert witness testimony ... indicated that a reasonable fee would be $12,135"; that the attorney "indicated that, as it was a court-appointed case, he would find $50/hour for 134 hours or a fee of $6,700 to be reasonable"; that "[i]t has been the task of this Court to locate and appoint attorneys to capital cases and hence this Court is more than well aware of the difficulty in a) obtaining competent counsel to handle such cases, who b) are willing to accept these cases at the current statutory levels"; that "attorneys will barely make their overhead when they take such cases"; that "[i]t is patently clear that the statutory limitations are, in this day and age, unrealistic"; that "[w]hen this Court had initially reviewed the fee petition, it had indicated to Petitioner that it would grant a fee of $5,000, knowing full well that this exceeded the statutory maximum, but also knowing the various financial and professional problems associated with court-appointed representation in capital cases"; that "often times such Orders in no way establish the true value of the services performed by dedicated members of the criminal defense bar"; and that "the Court is familiar with the problems experienced by counsel when they accept court-appointed capital cases and is more than sympathetic with their plight." In addition, the record reflects that 63 of petitioner's 134 hours on the case were in court (approximately the same amount of court time as that of the attorney in Makemson ) and that petitioner had had substantial prior experience in capital cases at both the trial and appellate levels. ² Notwithstanding those aspects, the trial court denied petitioner's request for a fee above the statutory maximum.

A ruling like the one before us, aside from being patently unfair to the attorney involved, virtually invites underrepresentation of indigent criminal defendants in future cases. The Florida Supreme Court in Makemson, having recognized that the legislature would not correct the unrealistically low statutory maximum, or at least had not done so, construed the statute to be "directory rather than mandatory in nature," 491 So.2d at 1115, and provided the route for trial courts to take in future cases to exceed the maximum when it would grossly undercompensate defense counsel. I conclude that the trial court in this case erred in failing to follow that route and in following instead a narrow interpretation of Makemson. Yet the trial court, having appellate review in mind as the order also shows, most commendably and helpfully set out in its order the above-quoted findings which serve to epitomize the substantial unfairness of the situation to both attorneys and indigent criminal defendants.

While Makemson was a high profile, heavily prosecuted case, the supreme court did not precisely define the term "unusual or extraordinary" which it said is the type of case in which the statutory maximum may be exceeded. ³ Yet it did provide a definition of the term which should be applied in this case. After referring to that term, the supreme court said that the statutory maximum may be exceeded "when necessary in order to ensure that an attorney who has served the public by defending the accused is not compensated in an amount which is confiscatory of his or her time, energy and talents. More precise delineation, we believe, is not necessary." 491 So.2d at 1115. The assistant county attorney in this case, while taking the position at the fee hearing that this was not an "extraordinary" case, argued that "[u]nfortunately, they [the supreme court] don't really tell us what that is...." I conclude that the supreme court did tell us what that is and that it is what this case is.

Another way of saying the same thing is that a case should be considered unusual and extraordinary within the import of Makemson so as to call for exceeding the statutory maximum under the following circumstances: when, due to the time necessarily expended by competent defense counsel, the statutory maximum fee is so substantially out of balance with a reasonable fee that the imbalance, anticipated to occur again in the future in similar cases, would constitute such a penalty that competent counsel would not offer, or would rarely offer, their services, thereby materially impairing the rights of indigent defendants to competent counsel. To borrow from a quotation of the trial court in Makemson which the supreme court set forth in that case, that point for exceeding the statutory maximum is reached when the imbalance between a reasonable fee and the statutory maximum is such as to show that the statute, if construed to be mandatory, is "impractical and won't work." 491 So.2d at 1111. As the supreme court also said,

[T]he statute [is] unconstitutional when applied in such a manner as to curtail the court's inherent power to ensure the adequate representation of the criminally accused. At that point, ...