Appendix — Martin County, Florida v. Robert Makemson and Robert G. Udell Okeechobee County, Florida v. Robert Lee Dennis

ROBERT MAKEMSON, et al., Petitioners, v. MARTIN

COUNTY, Respondent. Supreme Court of Florida. Case

No. 66,780. July 17, 1986. Application for Review of the

Decision of the District Court of Appeal—Certified

Great Public Importance. Robert Makemson, in proper

person, Stuart, Florida; and Robert G. Udell, in proper

person, Stuart, Florida, for Petitioners. Michael H. Ol-nick,

County Attorney, Stuart, Florida, for Respondent. Michael

Zelman, Miami, Florida, for Florida Criminal Defense

Attorneys Association and National Legal Aid and

Defender Association, Amicus Curiae. Robert A. Ginsburg,

Dade County Attorney, and Eric K. Gressman, Assistant

County Attorney, Miami, Florida, for Metropolitan Dade

County, Amicus Curiae.

(ADKINS, J.) In Martin County u Makemson, 464 So.2d

1281 (Fla. 4th DCA 1985), the Fourth District quashed

the trial court’s order declaring unconstitutional section

925.036, Florida Statutes (1981), and allowing petitioners

to be compensated for their representation of an indigent

criminal defendant in amounts exceeding the statutory

maximum fees. The district court, while upholding the

statute’s validity, noted that “an absolute fee cap works

an inequity in some cases,” 464 So.2d at 1283, and

certified to this Court four quest’ ns as being of great

public importance. We have jurisdicuon, article V section

3(bX4), Florida Constitution, and find the fee maximums

unconstitutional when applied to cases involving

extraordinary circumstances and unusual representation.

Prior to setting out the certified questions, we

turn to the factual predicate on which they were based.

Petitioner Robert Makemson, a resident of Martin County,

was appointed by the court pursuant to section 925.036

to represent one of four defendants. The representation

App. 1

spanned a nine-month period, as each defendant had

been charged with first-degree murder, kidnapping and

armed robbery. Because the victim of the crime was a

member of a prominent local family, the entire resources

of the prosecutor were brought to bear on the case.

Three prosecutors and two special investigators sat at

the counsel table, and over one hundred witnesses and

fifty depositions were involved in the trial.

After the four cases were severed, each defendant

sought and ultimately obtained a change of venue.

Petitioner therefore spent his sixty-four hours in court

on the case at the Lake County courthouse, some one

hundred and fifty miles from his home. Upon completion

of the representation, petitioner asked for compensation

for the total 248.3 hours spent on the case in an amount

based upon a calculation using an hourly rate established

by the chief judge of the circuit. While expert testimony

established the value of his services at a minimum of

$25,000, he asked for and obtained $9,500. Six thousand

dollars has been placed in escrow pending disposition

of this appeal, as the statute would allow only $3,500 as

compensation for the representation. §925.036(2Xd), Fla.

Stat. (1985).

The trial court additionally found it necessary to

accept petitioner Robert Udell’s low bid of $4,500 as

compensation for the representation of the defendant

upon appeal although the statute would allow only

$2,000. §925.036(2\e), Fla. Stat. (1985). The court also

set the funds aside prior to the representation, in spite

of the statute’s terms providing for payment “at the

conclusion of the representation.” §925.036(1), Fla. Stat.

(1985).

App. 2

The trial court expressed the dilemma it faced:

[TJhis court is confronted with conflicting laws,

one of which requires competent counsel for a

defendant who has been sentenced to death

and the other stating that defense counsel can

be paid only $2,000 for his services. The lowest

bid for these services was $4,500, which is

more than twice what the Legislature has

allowed. One of these laws must yield to the

other. There is no doubt in the court’s mind

that the Legislature, if confronted with the

problem, would admit that the law requiring

competent counsel was paramount and superior

to the law allowing a mere $2,000 fee for the

dreadful responsibility involved in trying to

save a man from electrocution. Therefore this

court finds that FS. 925.036 in setting rigid

maximum fees without regard to the

circumstances in each case is arbitary and

capricious and violates the due process clause

of the United States and Florida Constitutions.

See Aldana v. Holub, 381 So.2d 231 (Fla. 1980).

In simpler language, the Statute is impractical

and won't work.

The trial court additionally found the statute

unconstitutional as an impermissible legislative intrusion

upon an inherent judicial function. Art. V, §2; art. III,

§2, Fla. Const. The statute then in force, identical to

the present statute, provided as follows:

(1) An attorney appointed pursuant to s.

925.035 or s. 27.53 shall, at the conclusion of

the representation, be compensated at an

App. 3

hourly rate fixed by the chief judge or senior

judge of the cireuit in an amount not to exceed

the prevailing hourly rate for similar

representation rendered in the circuit; however,

such compensation shall not exceed the

maximum fee limits established by this section.

In addition, such attorney shall be reimbursed

for expenses reasonably incurred, including

the costs of transcripts authorized by the court.

If the attorney is representing a defendant

charged with more than one offense in the

same case, the attorney shall be compensated

at the rate provided for the most serious offense

for which he represented the defendant. This

section does not allow stacking of the fee limits

established by this section.

(2) The compensation for representation

shall not exceed the following:

(a) For misdemeanors and juveniles

represented at the trial level: $1,000.

(b) For noncapital, nonlife felonies,

represented at the trial level: $2,500.

(e) For life felonies represented at the

trial level: $3,000.

(d) For capital cases represented at the

trial level: $3,500.

(e) For representation on appeal: $2,000.

§ 925.036, Fla. Stat. (1981).

App. 4

§ 925.036, Fla. Stat. (1981).

The Fourth District quashed the trial court's

declaration of unconstitutionality and certified to this

Court the following four questions:

I. [Is the statute] unconstitutional on its

face as an interference with the inherent

authority of the court to enter such orders as

are necessary to carry out its constitutional

authority?

II. If the answer to the first question is

negative, could the statute be held

unconstitutional as applied to exceptional

circumstances or does the trial court have the

inherent authority, in the alternative, to award a

greater fee for trial and appeal than the statutory

maximum in the extraordinary case?

III. If the answer to the second question is

affirmative, should the trial court have awarded

an attorney’s fee above the statutory maximum

for proceedings at the trial level, given the

facts presented to it by trial counsel by his

petition and testimony?

IV. Ifthe answer to the second question is

affirmative, should the trial court have awarded

an attorney’s fee above the statutory maximum

for proceedings at the appellate level before

the services were rendered and with the facts

known to it at the time of the award?

App. 5

464 So.2d at 1283-86.

We answer the first question in the negative and

the remaining questions in the affirmative. While we

cannot find the statute facially unconstitutional, as it is

ordinarily well within the legislature’s province to

appropriate funds for public purposes and resolve

questions of compensation, article III, section 12, Florida

Constitution; State ex rel Caldwell v. Lee, 27 So.2d 84

(Fla. 1946); State v. Ruiz, 269 Ark. 331, 602 S.W. 2d 625

(1980), we find that the statutory maximum fees, as

inflexibly imposed in cases involving unusual or

extraordinary circumstances, interfere with the

defendant's sixth amendment right “to have the assistance

of counsel for his defence.” The statute, as applied to

many of today’s cases, provides for only token

compensation. The availability of effective counsel is

therefore called into question in those cases when it is

needed most.

Although facially valid, we find the statute

unconstitutional when applied im such a manner as to

curtail the court’s inherent power to ensure the adequate

representation of the criminally accused. At that point,

the statute loses its usefulness as a guide to trial judges

in calculating compensation and becomes an oppressive

limitation. As so interpreted, therefore, the statute

impermissibly encroaches upon a sensitive area of judicial

concern, and therefore, violates article V, section 1, and

article II, section 3 of the Florida Constitution. As

eloquently expressed by Indiana’s Supreme Court in

Carlson u State ex rel. Stodola, 247 Ind. 631, 633-34,

220 N.E.2d 532, 533-34 (1966):

App. 6

The security of human rights and the safety

of free institutions require freedom of action

on the part of the court. . Our sense of

justice tells us that a court is not free if it is

under financial pressure, whether it be from a

city council or other legislative body . . . One

who controls the purse strings can control

how tightly those purse strings are drawn,

and the very existence of a dependent.

More fundamentally, however, the provision as so

construed interferes with the sixth amendment right

to counsel. In interpreting applicable precedent and

surveying the questions raised in the case, we must not

lose sight of the fact that it is the defendant’s right to

effective representation rather than the attorney’s right

to fair compensation which is our focus. We find the

two inextricably interlinked.

While in our decision of Metropolitan Dade County

v. Bridges, 402 So.2d 411 (Fla. 1981), the majority found

the statute mandatory rather than directory in its fee

limits and constitutional, each member of the Court

expressed the conviction that such an interpretation,

as applied in certain circumstances, would intrude upon

sixth amendment rights. Even the majority noted that:

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.

App. 7

402 So.2d at 414-45.

In Rose u Palm Beach County, 361 So.2d 135 (Fla.

1978), we invoked the doctrine of inherent judicial power

in order to declare statutory maximums on witness

compensation and travel expenses directory rather than

mandatory. While noting that the doctrine should be

invoked only in situations of clear necessity, we held

that “if the statute is deemed to establish an absolute

maximum in all situations, then it must be said to

improperly infringe the prerogative of the court in

effectuating the constitutional right to compulsory

process.” 361 So.2d at 135.

Having approached the instant question with due

caution, we must once again affirm the proposition that

“the courts have authority to do things that are absolutely

essential to the performance of their judicial functions,”

Id., for we must find that the sixth amendment’s guarantee

of effective assistance of counsel at least equals in

fundamentality and importance its sister provision setting

forth the right of the accused “to have compulsory

process for obtaining witnesses in his favor.” U.S. Const.

amend. VI. We can do no less than to zealously safeguard

each.

We find that the trial court has here met its burden

of showing that its action in exceeding the statutory

maximums was necessary in order to enable it to perform

ts essential judicial function of ensuring adequate

representation by competent counsel. Wakulla County

» Dewis, 395 So.2d 540 (Fla. 1981). Thus, we answer the

‘herd question certified affirmatively; the facts were

sufficiently “extraordinary” to warrant the action taken.

App. 8

A survey of the repeated attacks on the validity of

the statute highlights the strong tension between the

counties’ treasuries, as protected by the statutory

maximum fees, and the attorneys seeking compensation

more fair than that the legislature would grant. As

previously pointed out, we must focus upon the criminal

defendant whose rights are often forgotten in the heat

of this bitter dispute. In order to safeguard that

individual's rights, it is our duty to firmly and

resolve any conflicts between the treasury

and fundamental constitutional rights in favor of the

latter. As we noted in City of Tallahassee u Public

Employees Relations Commission, 410 So.2d 487, 490

(Fla. 1981), ſtſhe unconstitutionality of a statute may

not be overlooked or excused for reasons of inconvenience.”

This ruling may indeed require some financial adjustment

in the counties’ budgeting process, and the exploration

of some alternatives. We note, however, that the counties’

fears may be in part misplaced. Petitioners seek only

“reasonable,” and not “market value” compensation.

Token compensation is no longer to be an alternative.

We find that a significant pattern emerges upon

examining the case law involving the statute’s validity.

It has long been the trial courts, most intimately aware

of the complexity of the case and the effectiveness of

counsel, which have time after time found the statute

unconstitutional in order to exceed its guidelines and

award a fee more nearly approaching fairness. Until

this opinion, these courts have been continually reversed

upon appeal. See, e.g., Wakulla County u Davis, 395

So.2d 540 (Fla. 1981); Broward County u Wright, 420

So.2d 401 (Fla. 4th DCA 1982); Dade County u Strauss,

246 So.2d 137 (Fla. 3d DCA 1971), cert. denied, 253

So.2d 864 (Fla. 1971), cert. denied, 406 U.S. 924 (1972).

App. 9

We can no longer afford to ignore the message these

courts have been attempting to send.

Respondent Martin County refers us to precedent

emphasizing the lawyer’s common law duty to represent

the indigent for no compensation, Jn interest of D.B.

and D.S., 385 So.2d 83 (Fla. 1980); and referring to

service at the statutory fee rate as a form of pro bono

public service to the poor in criminal proceedings. Broward

County v. Wright. These cases, in our view, fail to

address the true concerns in issue. First, we may not

allow the guarantee of effective representation in today’s

courtrooms to be diluted by reference to the state of

affairs at the common law.

Second, even if the statute as presently implemented

may be viewed as a form of pro bono service, it is an

extremely haphazard and unfairly imposed system in

practice. When the United States Supreme Court, in

Gideon v. Wainwright, 372 U.S. 335 (1963), found

fundamental the right to effective counsel and established

the state’s duty to provide representation to the indigent, it

by no means intended to place the weight of this duty

upon the shoulders of a few individual practitioners

appointed by the court. The system as it presently

stands forces these individuals, in the most difficult

cases, to bear a burden which is properly the state's

with only token compensation for their efforts. As noted

in the dissent in McKenzie v. Hillsborough County, 288

So.2d 200, 202 (Fla. 1973):

No citizen can be expected to perform civilian

services for the government when to do so is

clearly confiscatory of his time, energy and

skills, his public service is inadequately

App. 10

compensated, and his industry is unrewarded

. I do not believe that good public conscience

approves such shoddy, tawdry treatment of an

attorney called upon by the courts to represent

an indigent defendant in a capital case.

We simply cannot on the one hand instruct the

bench and bar, as we did in Wilson v. Wainwright, 474

So.2d 1162, 1165 (Fla. 1985), that “[a] perfunctory

appointment of counsel without consideration of counsel's

ability to fully, fairly and zealously advocate the defendant’s

cause is a denial of meaningful representation which

will not be tolerated,” and at the same time deny the

courts the ability to exceed the fee limits when necessary

to do justice.

Certain pressing realities facing practitioners in

today’s courts can no longer be ignored. First, the

increasing complexity of some of today’s cases calls for

the investment of more time and effort in order to

effectively represent one’s client. These complexities

also raise the spectre of later claims of ineffective

assistance of counsel, which in certain types of cases

may be expected to be eventually raised regardless of

any factual basis for the claim. Practicing attorneys are

aware how such claims, even if found meritless, may

adversely impact upon one’s hard-bought professional

reputation.

Second, rising costs mut be figured into the

equation. While the statute allows for the reimbursement

of expenses reasonably incurred, section 925.036(1),

Florida Statutes (1985), the statutory fee will in many

instances be insufficient to cover even overhead expenses

during the proceeding. The legislature's amendments

App. 11

to the statute in chapter 81-273, Laws of Florida (1981)

make clear its compromise addressing the issue of

adequate compensation. This amendment deleted the

provision allowing reasonable compensation” in capital

cases, section 925.035(1), Florida Statutes (1979), and

raised the statutory fee limits. The fee limits presently

in force stand too far from fair compensation, as applied

to certain cases, to be allowed to stand. The link between

compensation and the quality of representation remains

too clear. See the dissent in Mackenzie, 288 So.2d at

202 (“The adage that ‘you get what you pay for’ applies

not infrequently. In our pecuniary culture the calibre of

personal services rendered usually has a corresponding

relationship to the compensation provided.”); Gideon v.

Wainwright, 327 U.S. at 344 (“[TJhere are few defendants

charged with crime, few indeed, who fail to hire the

best lawyers they can get to prepare and present their

defense.”).

Finally, we answer the fourth question certified.

Because the trial judge found it necessary to accept a

bid. exceeding the statutory limit in order to ensure

representation upon appeal, he acted within his

authority in doing so. Because the statute does, however,

provide for compensation “at the conclusion of the

representation,” we note that in light of this opinion

trial courts should not in the future need to determine

the compensation to be paid prior to the representation

~ in order to obtain competent counsel.

In summary, we hold that it is within the inherent

power of Florida’s trial courts to allow, in extraordinary

and unusual cases, departure from the state’s fee

guidelines when necessary in order to ensure that an

attorney who has served the public by defending the

App. 12

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.

Trial and apellate judges, well aware of the complexity

of a given case and the attorney’s effectiveness therein,

know best those instances in which justice requires

departure from the statutory guidelines. We recede

from that portion of Bridges which is inconsistent with

this opinion, and, in sum, find the statute directory

rather than mandatory in nature.

We therefore quash the Fourth District’s quashal

of the trial court’s order granting just compensation

for petitioners’ services in this case.

It is so ordered. (BOYD, OVERTON, EHRLICH,

SHAW and BARKETT, JJ., Concur. McDONALD, C. J.,

Concurs in result only.)

App. 13

MARTIN COUNTY, Petitioner,

v.

Robert MAKEMSON, Esquire, and

Robert G. Udell, Esquire,

Respondents.

No. 83-1138.

Distriet Court of Appeal of Florida,

Fourth Distriet.

March 6, 1985.

Court- appointed attorneys sought fees for trial and

appeal of a criminal case. The Circuit Court, Martin

County, Philip G. Nourse, J., awarded them fees, and

county petitioned for writ of common-law certiorari.

The District Court of Appeal, Glickstein, J., held that:

(1) trial court incorrectly awarded excess fee to court-

appointed trial counsel by determining statute which

limited attorney’s fees to be unconstitutional, and (2)

trial court’s award of attorney fee to court-appointed

appellate counsel had to be quashed, since statute

governing attorney's fees provided for award of

compensation at the conclusion of the representation”

and the award to appellate counsel was made at the

beginning of appeal, not at the conclusion.

Writ granted; award quashed.

Anstead, C.J., filed dissenting opinion.

App. 14

1. Attorney and Client — 132

Trial court incorrectly awarded excess fee to court-

appointed trial counsel in criminal case by determining

statute which limited attorney's fees to be

unconstitutional. West’s FS. A. § 925.036.

2. Attorney and Client — 132

Trial court’s award of attorney fee to court-

appointed appellate counsel in criminal case had to be

quashed, since statute governing attorney's fees provided

for award of compensation “at the conclusion of the

representation” and the award to appellate counsel was

made at the beginning of appeal, not at the conclusion.

West's FS. A. § 925.036.

Michael H. Olenick, Stuart, for petitioner.

Robert Makemson of Summers & Makemson, PA.,

Stuart, pro se respondent.

Robert G. Udell, Stuart, pro se respondent.

GLICKSTEIN, Judge.

This is a petition for certiorari brought by a county

which originally named as respondents the trial judge’

We have dismissed the trial judge from this appeal after

issuing an order to petitioner to show cause why the trial judge

should not be dismissed as a respondent. See our opinion upon the

inappropriateness of naming trial judges as respondents in petitions

for certiorari directed to the orders they enter, in Arvida Corporation

v. Hewitt, 416 So.2d 1264 (Fla. 4th DCA 1982).

App. 15

who awarded attorney's fees to court-appointed

attorneys for the trial and appeal, respectively, of a

criminal case, and the two attorneys to whom they

were awarded. The trial judge, in awarding the fees,

declared section 925.036, Florida Statutes (1981),? which

authorized but limited them, to be a legislative

usurpation of an exclusive judicial power, contravening

Article V, Section 1 of the Florida Constitution.

*Section 925.036, Florida Statdtes (1981) provides:

(1) An attorney appointed pursuant to s. 925.035 or s.

27.53 shall, at the conclusion of the representation, be

compensated at an hourly rate fixed by the chief judge or

senior judge of the circuit in an amount not to exceed the

prevailing hourly rate for similar representation rendered in

the circuit; however, such compensation shall not exceed the

maximum fee limits established by this section. In addition,

such attorney shall be reimbursed for expenses reasonably

incurred, including the costs of transcripts authorized by the

court. If the attorney is representing a defendant charged

with more than one offense in the same case, the attorney

shall be compensated at the rate provided for the most serious

offense for which he represented the defendant. This section

does not allow stacking of the fee limits established by this

section.

(2) The compensation for representation shail not exceed

the following:

(a) For misdemeanors and juveniles represented at the

trial level: $1,000. —

(b) For noncapital nonlife felonies represented at trial level:

$2,500.

(e) For life felonies represented at the trial level: $3,000.

(d) For capital cases represented at the trial level: $3,500.

(e) For representation on appeal: $2,000.

App. 1

——— ——ę—*———ꝛ̃S —

The highest court of this state considered attacks

upon the pre- 1981 version of this statute based upon

other Florida constitutional provisions, as well as the

United States Constitution, and has repelled them. In

Metropolitan Dade County u Bridges, 402 So. 2d 411,

414 Fla. 1981), it said:

Neither the due process nor equal proteetion

clauses are implicated by section 925.036. In

MacKenzie v. Hillsborough County, 288 So.2d 200

(Fla.1973), we upheld the constitutional validity of

section 925.035 which established a maximum of

$750 as reasonable compensation to counsel appointed

to represent an indigent in a criminal case. This

statute was challenged on the basis that it contravened

the equal protection and due process clauses of the

Constitutions of the United States and of the State

of Florida. Initially, we reiterated that the right to

recover attorney s fees as a part of the costs in an

action did not exist at common law and that it

therefore was provided for by the legislature's

enactment of section 925.035. [emphasis added].

The trial court here disregarded a major caution

sign which expressly appears in Metropolitan Dade

County v. Bridges. Notwithstanding that it was only a

plurality decision, three of the justices agreed upon the

following:

We also hold that this section [925.036] is

mandatory and not directory and that the trial

court erred in construing it by adding the language

which would permit the trial court to award fees

higher than those specified by statute where the

court determined exceptional circumstances to exist.

App. 17

Id. at 413. Two of the justices dissented in part, expressing

their conclusion that the trial court had the power to

award a fee in excess of the statutory maximum in

extraordinary circumstances. A third justice agreed in

essence with these latter two justices by ruling the

statute to be directory, not mandatory. The remaining

justice concluded that the statute was sufficiently

constitutional on its face to repel the specific attacks

being made upon it; however, he rejected the exceptional

circumstance test being applied to individual cases and

concluded it should be determined by a showing relating

to lawyers or types of cases as a class.

After Metropolitan Dade County, Marion County

v. DeBoisblanc, 410 So.2d 951 (Fla. 5th DCA), pet. for

rev. denied, 419 So.2d 1196 (Fla.1982), expressly rejected

the contention upon which the trial court made its

judgment in this case. In DeBoisblanc, the facts of

which were strikingly similar to those of the present

case, the fifth district said:

The issue in this case is whether or not the

trial court has an inherent power to award an attorney

fee irrespective of any attempted limitation by the

state legislature. Section 925.036, Florida Statutes,

became effective October 1, 1978. The Florida

Supreme Court previously has upheld the

constitutionality of a statutory fee limit, which

was the predecessor of the 1978 enactment.

MacKenzie v. Hillsborough County, 288 So.2d 200

(Fla.1973). Recently, the Florida Supreme Court

again has upheld the constitutionality of the fee

limitation statute against an attack that it violates

the equal protection and due process clauses of the

Constitutions of the United States and of the State

App. 18

of Florida. Metropolitan Dade County v. Bridges,

402 So.2d 411 (Fla.1981). This court, applying the

MacKenzie precedent, has upheld the constitutionality

of the specific statutory limitation challenged by

this appeal. County of Seminole v. Waddell, 382

So.2d 357 (Fla. 5th DCA 1980).

In Waddell the trial court had not directly

passed upon the validity of the statutory limitation,

but had held it to be directory rather than mandatory.

We reversed on authority of MacKenzie and the

clear wording of the statute. See also Pinellas County

u Maas, 400 So.2d 1028 (Fla. 2d DCA 1981); Dade

County u Goldstein, 384 So.2d 183 (Fla. 3d DCA

1980). In the instant situation, the trial court, despite

the precedents of MacKenzie and Waddell purported

to invalidate section 925.036 on the ground that it

was “a mandatory usurpation by the legislature of

constitutional power vested solely in the judiciary

under Article V, Section 1 of the Florida Constitution

(1968), which power is removed from the legislature

by Article II, Section 3, Florida Constitution

(1968) . . . . This holding by the trial court is in

direct conflict with Bridges and MacKenzie and,

therefore, must be reversed.

Id. at 952-53.

Later, this court relied upon Metropolitan Dade

‘County to uphold the constitutionality of the 1981 version

of the statute and its mandatory nature in Broward

County v. Wright, 420 So.2d 401 (Fla. 4th DCA 1982).

[1] With such plethora of authority, the trial court

was incorrect in awarding an excess fee to trial counsel

App. 19

by determining the statute to be unconstitutional.

Moreover, it ignored another well-known caution sign

spotlighted by the Metropolitan Dade County Court:

A legislative enactment is presumed valid and

will not be declared unconstitutional unless it is

demonstrated beyond a reasonable doubt that the

statute conflicts with some designated provision of

the constitution. Whenever reasonably possible and

consistent with the protection of constitutional rights,

courts will construe statutes in such a manner as

to avoid conflict with the constitution.

402 So.2d at 413-14. Accordingly, we grant the writ and

quash the award to trial counsel.

[2] We do likewise as to the award to appellate

counsel, not only because of all of the foregoing decisions

but also because of the express language of the statute

which provides for the award of compensation “at the

conclusion of the representation.” Here, the award to

appellate counsel was made at the beginning of the

appeal, not at the conclusion.

Notwithstanding everything we have said, we feel

that an absolute fee cap works an inequity in some

cases. We therefore request that the Florida Supreme

Court visit the difficult questions which the present

case poses, as being of great public importance.

Accordingly, we certify the following with the additional

thoughts recited herein:

I

We first ask whether section 925.036, Florida Statutes

(1983) is unconstitutional on its face as an interference

App. 20

with the inherent authority of the court to enter such

orders as are necessary to carry out its constitutional

authority.

Although this is a question of our state constitution,

and other states’ holdings on this question are not

dispositive, we have nevertheless considered the decisions

of other states on the subject. In Smith u State, 118

N.H. 764, 394 A.2d 834 (1978), the New Hampshire

Supreme Court ruled as did the present trial judge,

Justice Grimes speaking for the court:

We hold that RSA 604-A:5 and Laws 1975 ch. 505,

§ 1.01(04), (05) are unconstitutional insofar as they

shift much of the State’s obligation to the legal

profession and intrude impermissibly upon an

exclusive judicial function.

We are convinced that the profession must be

relieved of this burden and that the burden must

pass to the citizens of New Hampshire, whose duty

it has been since 1966. The members of the bar,

being taxpayers, will of course share in it. We also

believe, however, that the bar should continue to

contribute something more. To accomplish the ends

of this decision, court-appointed attorneys should

be paid a reasonable fee, but one somewhat less

than that which an ordinary fee-paying client would

pay.

It remains to be determined just what

“reasonable compensation” means and who is to

decide the matter in this and future cases. The

obligations and responsibilities of the bar are matters

of judicial concern alone. See Schware v. Bd. of Bar

App. 21

Examiners, 353 U.S. 232, 248, 77 S.Ct. 752 [761], 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 Pad 935, 936

(1938). Since the obligation to represent indigent

defendants is 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. The legislature recognized

this authority in enacting RSA 604-A:4; which

provides that ſelach court before which the counsel

represented the defendant shall fix the compensation

and reimbursement to be paid the counsel.” Thus,

we hold that it is for the trial courts of New

Hampshire to fix the amount of compensation due

in each case hereinafter provided. The rate awarded

. by the court should neither unjustly enrich nor, as

the present fee schedule does, unduly impoverish

the court-appointed attorney.

Id. at 838-39.

We have found no agreement by other states that

such statute is facially unconstitutional as a usurpation

of the judicial role. In fact, the entire current of the law

has been flowing in a direction opposite to that of New

Hampshire's highest court. See Bias u State, 568 P2d

1269, 1271 (Okla. 1977) and cases cited therein.

Finding no guidance there, we look to federal practice.

Lawyers were first required for indigent defendants at

App. 22

trial as a matter of federal constitutional law in Gideon

u Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.

2006, 32 L.Ed.2d 530 (1972), and in appeals as of right,

Douglas u California, 372 U.S. 353, 83 S.Ct. 814, 9

L.Ed.2d 811 (1963). Gideon pronounced the sixth

amendment right to counsel a fundamental right made

obligatory upon the states by the fourteenth amendment.

Justice Douglas, concurring, said:

rights protected against state invasion by the Due

Process clause of the Fourteenth Amendment are

not watered down versions of what the Bill of Rights

guarantees.

372 U.S. at 347, 83 S.Ct. at 798, 9 L.Ed.2d at 807.

Congress responded to Gideon by the enactment

in the following year of the Criminal Justice Act of

1964, Pub.L. No. 88-455, 78 Stat. 552, 553 (1964) as

amended 18 US. L. § 3006 Ad) (1976). The appealability,

or non-appealability, of attorney fee awards under the

federal statute is discussed in In re Baker, 693 F.2d 925

(9th Cir.1982), which held it was not appealable and

reviewed decisions of other circuits. We note, however,

that Congress has recognized the need for a fee increase

for attorneys representing indigents in federal courts.

Because the fees allowed to these attorneys have failed

to cover even their overhead in recent years, attorneys

were finding it economically infeasible to accept

»The statute is discussed generally in 9 A.L.R. Fed. 569. Its

history can be reviewed in United States u Bailey, 581 F.2d 984

(D.C.Cir.1978); United States u Johnson, 549 FSupp. 78 (D.C.D.C.1982)

and United States v. Tutino, 419 F.Supp. 246 (D.C.N.Y. 1976).

App. 23

representation. This declining participation might have

precipitated a representational crisis, but legislators

have hopefully forestalled it by doubling the hourly

rate permitted to such lawyers.‘

II

If the answer to the first question is negative,

could the statute be held unconstitutional as applied to

exceptional circumstances or does the trial court have

the inherent authority, in the alternative, to award a

greater fee for trial and appeal than the statutory

maximum in the extraordinary case?

In Bridges, as we have stated earlier in this opinion,

the Supreme Court of Florida as it was constituted in

1981 could not agree how to handle the “exceptional

circumstance.” We have also recognized the admonition

that trial and intermediate appellate judges should not

have an itchy trigger finger anxious to shoot down

statutes by aiming at their constitutionality. Some states

have held such statutes to be unconstitutional, however,

when applied to “exceptional circumstances”; so this

state’s highest court would not be alone in so doing.

See Bias u State, 568 Pad 1269 (Okla.1977), which was

guided by the reasoning in People ex rel Conn u

35 Ill.2d 24, 219 N.E.2d 337 (1986), which held that in a

case wherein counsel were appointed to defend indigent

prisoners charged with murder at trial 150 miles from

their home county and were forced to expend personal

funds for defense expenses and forego their law practices,

‘Strasser, Congress Doubles Fees for Lawyers, Nat’! L.J., Oct.

22, 1984, at 3.

App. 24

the statute which limited reimbursement to $500 for

each defendant in a capital case could not be

constitutionally applied. The court said counsel “are

suffering an extreme, if not ruinous, loss of practice

and income.” Id. at 341.

However, the underlying basis for the Illinois decision

was a determination by the state’s highest court of a

court’s inherent power:

At this time it is necessary to hold only that

in the extraordinary circumstances presented in

this case, the court’s inherent power to appoint

counsel also necessarily includes the power to enter

an appropriate order ensuring that counsel do not

suffer an intolerable sacrifice and burden and that

the indigent defendant’s right to counsel is protected.

If such judicial power did not exist, the courts

probably could not proceed, and certainly could

not conclude the trial of indigent defendants in

cases such as this. To permit the petitioners to

withdraw after nine weeks of trial would be a

prodigious waste of resources already spent, and

would provide no assurance that a dilemma similar

to the one existing now would not likewise result

after the appointment of new counsel. We hold that

upon the record presented here the petitioners are

clearly entitled to payment of their costs and fees

forthwith, as ordered by the trial court. A permanent

solution to the problem presented is an appropriate

subject for the legislature. The problem having

now been exposed we trust that the General

Assembly will respond. See State u Rush, 46 N.J.

399, 217 A.2d 441.

App. 25

—

Id. at 340. A discussion of other state cases ing upon

a court’s inherent power, or lack of it, as the basis for an

award of attorneys’ fees to counsel representing indigents

is found at 59 A.L.R.3d 569, 617.

In Hall v. Cole, 412 US. 1, 4-5, 93 S.Ct. 1943, 1945,

1946, 36 L.Ed.2d 702, 707 (1973), the United States

Supreme Court said:

Although the traditional American rule

ordinarily disfavors the allowance of attorneys’ fees

in the absence of statutory or contractual

authorization, federal courts, in the exercise of

their equitable powers, may award attorneys’ fees

when the interests of justice so require. Indeed,

the power to award such fees “is part of the original

authority of the chancellor to do equity in a

particular situation,” Sprague v. Ticonic National

Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 780, 83 L.Ed.

1184 (1939), and federal courts do not hesitate to

exercise this inherent equitable power whenever

“overriding considerations indicate the need for

such a recovery.” Mills u Electric Auto- Lite Co.,

396 U.S. 375, 391-392, 90 S.Ct. 616, 625, 24 L.Ed.2d

593 (1970); see Fleischmann Distilling Corp. u Maier

Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407,

18 L.Ed.2d 475 (1967). (footnotes omitted)

See also Sierra Club u Lynn, 502 Fd 43, 65 (5th

Cir. 1974), citing Hall, and the lengthy dissent by

Associate Justice Hooper, in County of Fresno v.

Superior Court of Fresno County, 82 Cal.App.3d 191,

198, 146 Cal.Rptr. 880, 884 (1978). Randolph was

discussed in Brown v. Board of County Commissioners

of Washoe County, 85 Nev. 149, 451 Pad 708 (1969); then

App. 26

in Daines u Markoff, 92 Nev. 582, 555 P.2d 490 (1976),

the court discussed both Randolph and its earlier

decision, saying as to the latter:

We also indicated that in extraordinary

circumstances a court possessed the inherent power

to award fees in excess of the statutory

Id. at 493. The opposite view is voiced in State v. Ruiz,

269 Ark. 331, 602 S.W.2d 625 (1980).

III

If the answer to the second question is affirmative,

should the trial court have awarded an attorney’s fee

above the statutory maximum for proceedings at the

trial level, given the facts presented to it by trial counsel

by his petition and testin. ony?

The statute expressly provides for the

determination of the fee at the conclusion of the services,

which occurred here. It is interesting to compare,

however, the testimony in this case and that in People u

Sanders, 58 Ill.2d 196, 317 N.E.2d 552 (1974). Bearing in

mind it was Illinois which initiated the “inherent power”

notion in this area, that state’s highest court held that

“extraordinary circumstances” did not exist in Sanders.

This was notwithstanding that both counsel had

represented the indigent defendant for two years in

defending him for the armed robbery and murder of a

Chicago policeman; had conducted a three week trial;

had successfully obtained a lengthy sentence rather

than the death penalty; and had devoted 463 hours to

App. 27

the preparation and trial of the case. The trial court

awarded a fee of $250 and $50 for expenses. Both

appellate courts affirmed. The Nevada decisions earlier

cited herein also concluded extraordinary

circumstances” did not exist.

. IV

*

If the answer to the second question is affirmative,

should the trial court have awarded an attorney's fee

above the statutory maximum for proceedings at the

appellate level before the services were rendered and

with the facts known to it at the time of the award?

We have located no authority for the premature

award of an appellate fee in this state. Randolph was

awarded prior to trial, however, not at the conclusion of

representation.

LETTS, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge, dissenting.

This is a case in which the defendant's life was not

only at risk, but in which the death penalty was actually

imposed. I believe that it has been sufficiently

demonstrated in the record below that the maximum

amounts designated by statute for representation in

this case for trial and appellate counsel are so

unreasonably insufficient as to make it impossible for

the trial court to appoint competent counsel for the

indigent involved. Hence, I would approve the decision

App. 28

of the trial court under the narrow facts presented for

the same reasons I expressed in Okeechobee County v.

Jennings, No. 83-1179 (Fla. 4th DCA Mar. 6, 1985), an

opinion issued simultaneously herewith. The trial judge

himself best expressed the dilemma he faced:

That this court is confronted with conflicting

laws, one of which requires competent counsel for

a defendant who has been sentenced to death and

the other stating that defense counsel can be paid

only $2,000 for his services. The lowest bid for

these services was $4,500, which is more than twice

what the Legislature has allowed. One of these

laws must yield to the other. There is no doubt in

the court’s mind that the Legislature, if confronted

with the problem, would admit that the law

requiring competent counsel was paramount and

superior to the law allowing a mere $2,000 fee for

the dreadful responsibility involved in trying to

save a man from electrocution. Therefore this court

finds that FS. 925.036 in setting rigid maximum

fees without regard to the circumstances in each

case is arbitrary and capricious and violates the

due process clause of the United States and Florida

Constitutions. See Aldana v. Holub, 381 So.2d 231

(Fla. 1980). In simpler language, the Statute is

impractical and won't work.

Surely something is wrong with a system that prevents

a reasonable fee from being assessed in a capital case

but authorizes the state to provide counsel for private

landowners in eminent domain proceedings where the

fees have been as high as $800,000. State Dept. of Natural

Resources u Gables-By-The Sea, Inc., 374 So.2d 582

(Fla. 3d DCA 1979).

App. 29

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT

IN AND FOR

MARTIN COUNTY,

STATE OF FLORIDA

CASE NO. 82-854-CF-A-01

IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT

IN AND FOR

LAKE COUNTIES,

STATE OF FLORIDA

CASE NO. 82-912-CF-A-01

STATE OF FLORIDA,

Plaintiff

vs.

J. B. PARKER,

Defendant.

ORDER

THIS CAUSE having come before the court upon

various motions and the court having before it ROBERT

MAKEMSON, Trial Counsel for the Defendant, J. B.

PARKER. MICHAEL OELNICK, County Attorney for

Martin County, Florida; ROBERT G. UDELL, Esquire;

JAMES MIDELIS, Assistant State Attorney for the

Nineteenth Judicial Circuit; and HOWARD H. BABB,

App. 30

JR., Public Defender for the Fifth Circuit; the court

finds as follows, to-wit:

(1) That Robert Makemson did an excellent job

as trial counsel for the Defendant, J. B. Parker, under

exceptional circumstances and conditions, in a courthouse

about one hundred and fifty miles away from his place

of business.

(2) That subsequent to the trial, this court appointed

the Public Defender of the Fifth Judicial Circuit to

represent the Defendant, J. B. Parker in the Florida

Supreme Court.

(3) That the Supreme Court of the State of Florida

has entered its order forbidding and precluding the

Office of the Public Defender of those counties within

the jurisdiction of the Fifth District Court of Appeal

from further representing indigent defendants in

prosecuting their appeals from sentences of death to

the Supreme Court of the State of Florida.

(4) That the Defendant, Mr. Parker, is entitled to

the appointment of counsel as he is not permitted to

represent himself on appeal from a sentence of death to

the Supreme Court of the State of Florida.

(5) That it is the obligation of this court to appoint

and find competent counsel for Mr. Parker. That this

court, through the Court Administrator for the Nineteenth

Judicial Circuit, circulated to all of the lawyers in the

four counties of the Nineteenth Judicial Circuit, including

St. Lucie, Martin, Indian River and Okeechobee Counties, a

request for “bids” to any lawyer to undertake the

representation of Mr. Parker as is evidenced by the bid

App. 31

attached hereto, marked Exhibit “A” and by reference

made a part hereof.

(6) That this court received three bids to represent

Mr. Parker. One of the bids did not state a minimum fee

as required and this court considered that a non-bid. A

second bid received by this court was not in the form

requested in the “Notice to Bid.” The only other bid

received by this court was the bid of Robert G. Udell,

Esquire in the amount of $4,500.

(7) That, Florida law requires the Supreme Court

of Florida to hear appeals in cases involving the imposition

of the sentence of death and since the Defendant cannot

represent himself and argue his case before the Supreme

Court, a lawyer must be provided at public expense.

(8) That the court further finds if no compensation

or too low compensation be allowed, there will be no

available attorney to represent the Defendant.

(9) That the low bid within this Circuit for the

appellate representation was the sum of $4,500, which

is $2,500 more than what the Florida Legislature has

allowed. (See FS. 925.036.) It is therefore

ORDERED AND ADJUDGED as follows, to-wit:

(1) That the Public Defender of the Fifth Judicial

Circuit in and for Lake County, Florida, be and he is

hereby relieved of the responsibility of representing

the Defendant, J. B. Parker.

App. 32

(2) That all post judgment pleadings having been

completed in this case with this order and this court

having previously ordered that the Clerk of the Circuit

Court in and for Martin County, Florida retain all pleadings

and evidence in this case and prepare and certify the

record on appeal. This court hereby relieves the Clerk

of Circuit Court in and for Lake County, Florida from

any further responsibility in this matter.

(3) That this court is confronted with conflicting

laws, one of which requires competent counsel for a

defendant who has been sentenced to death and the

other stating that defense counsel can be paid only

$2,000 for his services. The lowest bid for these services

was $4,500, which is more than twice what the Legislature

has allowed. One of these laws must yield to the other.

There is no doubt in the court’s mind that the Legislature,

if confronted with the problem, would admit that the

law requiring competent counsel was paramount and

superior to the law allowing a mere $2,000 fee for the

dreadful responsibilty involved in trying to save a man

from electrocution. Therefore this court finds that FS.

925.036 in setting rigid maximum fees without regard

to the circumstances in each case is arbitrary and

capricious and violates the due process clause of the

United States and Florida Constitutions. See Aldana u

Holub, 381 So.2d 231 (Fla. 1980). In simpler language,

the Statute is impractical and won't work.

(4) This court further finds that the Statute is

unconstitutional in that the Florida Supreme Court has

inherent and constitutional jurisdiction of practice and

procedure in all courts under Article 5, Section 2, Florida

Constitution, and the Legislature’s attempt to set

App. 33

attorney's fees in court-appointed cases unconstitutionally

encroaches upon that authority.

(5) Last, but not least, the court would like to

point out that under the Separation of Powers doctrine,

any interference by the Legislature or executive branch

of government in the operation of the courts in carrying

out their constitutionally mandated duties is

unconstitutional.

THEREFORE, this court (having declared FS.

925.036 (1981) unconstitutional) hereby orders Martin

County to pay the court-appointed trial attorney, ROBERT

MAKEMSON, the sum of NINE THOUSAND FIVE

HUNDRED AND 00/100 ($9,500.00) DOLLARS for his

representation of the Defendant at trial of which $3,500

shall be paid at this time. The balance of this fee,

($6,000.00) shall be placed in escrow pending the result

of any appeal of this order by Martin ty. This

court further finds that the said i attorney

has expended SIXTY-THREE and 34/100 ($63.34

DOLLARS for costs in representing the Defendant,

and Martin County is hereby ordered to pay SIXTY-

THREE and 34/100 ($63.34) DOLLARS to ROBERT

MAKEMSON as reimbursement for his costs.

FURTHER, the court (having declared FS. 925.036

(1981) unconstitutional) accepts Mr. Robert G. Udell's

lowest bid of $4,500 and herey appoints him to represent

4Mr. J. B. Parker in said appeal to the Supreme Court of

the State of Florida, and subsequent proceedings, and

orders Martin County to set aside in an escrow account

the sum of $4,500 pending the outcome of any appeal of

this award by Martin County.

App. 34

DONE AND ORDERED in Chambers, at Fort Pierce,

St. Lucie County, Florida, this 4th day of May, 1983.

s / Philip G.Nourse

PHILIP G. NOURSE, CIRCUIT —

JUDGE

Copies furnished to:

Michael Oelnick, County Attorney for Martin County

Robert Makemson, Esquire

Robert G. Udell, Esquire

James Midelis, Assistant State Attorney

Howard H. Babb, Jr., Public Defender, 5th Circuit

—

App. 35

ROBERT LEE DENNIS, et al., Petitioners, v.

OKEECHOBEE COUNTY, Respondent. Supreme Court

of Florida. Case No. 66,829. Opinion filed July 17, 1986.

Application for Review of the Decision of the District

Court of Appeal—Certified Great Public Importance.

Robert Lee Dennis, in proper person, Okeechobee, Florida;

John R. Cook, in proper person, Okeechobee, Florida;

and J. Blayne Jennings, in proper person, Gifford, Florida,

for Petitioners. Kyle S. VanLandingham, Okeechobee,

Florida, for Respondent. Michael Zelman, Miami, Florida,

for Florida Criminal Defense Attorneys Association

and National Legal Aid and Defender Association, Amicus

Curiae. Robert A. Ginsburg, Dade County Attorney,

and Eric K. Gressman, Assistant County Attorney, Miami,

Florida, for Metropolitan Dade County, Amicus Curiae.

(ADKINS, J.) We have for review Okeechobee County

v. Jennings, 473 So.2d 1314 (Fla. 4th DCA 1985), in

which the Fourth District quashed the trial court’s

finding of the unconstitutionality of the statutory fee

limits imposed by section 925.036, Florida Statutes (1981)

upon compensation for the representation of indigent

criminal defendants.,Citing as authority its opinion of

Martin County v. Makemson, 464 So.2d 1281 (Fla. 4th

DCA 1985), it re-certified to this Court the four questions

presented in that case. We have jurisdiction. Art. V.

§3(b\4). Fla. Const.

We recently answered the certified questions in

Makemson u Martin County, No. 66,780 (Fla. July 17,

1986) [11 FL. W. 337], and quashed the district court’s

decision, upholding the trial court’s finding of the statute's

unconstitutionality as applied to representation in

extraordinary or unusual circumstances. We find that

the trial court’s findings as expressed in its order,

App. 36

quoted in Jennings, 473 So.2d at 1315, amply established

the need to grant fees in excess of the statutory guidelines

in order to ensure adequate representation in the cause.

It is so ordered. (McDONALD, C.J., and BOYD,

OVERTON, EHRLICH, SHAW and BARKETT, JJ.,

Concur.)

— * *

App. 37

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, 1986.

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

App. 38

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 withcut counsel. After taking evidence,

including expert testimony that lawyers were not generally

available in the area to take such complex cases for the

App. 39

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

App. 40

—

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

‘is ease 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.' 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. Jn the

This court has, of course, followed Bridges and limited fees to

the statutory maximums. Broward County v. Wright, 420 So.2d

401 (Fla. 4th DCA 1982); Soven v. Palm Beach County, 422 So.2d 91

(Fla. 4th DCA 1982).

App. 41

Interest of D.B., 385 So.2d 83 (Fla. 1980). Since

Gideon u 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

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. Jn 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.

App. 42

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 limitations 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.” Jd. 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.’

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

IIl. 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.” Jd. at 341.

Two of the justices, Sundberg and England, who concurred

in the majority decision in Bridges are no longer on the Supreme

Court.

App. 43

Randolph was adopted in Bias u State, 568 P2d 1269

(Okla. 1977); Daines v. Markoff, 92 Nev. 582, 555 P2d

490 (1976); and Application of Armani, 83 Misc. 2d 252,

371 N.Y.S.2d 563 (1975).

In Smith u 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 [761], 1 L.Ed.2d 796 (1957) (Frankfurter, J.,

concurring); N.H. Judicial Council 5th Report 20-21

(1954); State u Rush, 46 N.J. 399, 411, 217 A.2d 441,

447 (1966); In re Lacey, 11 Cal.2d 699, 701, 81 P2d

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 u 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

App. 44

A(dX3). Georgia provides for such a waiver in these

circumstances by statute and court rule. Dickens v.

State, 147 Ga.App. 25, 248 S.E.2d 36 (1978).

Massachusetts and Montana have similar court rules.

Edgerly v. Commonwealth, 379 Mass. 183, 396 N.E.2d

453 (1979); State u Allies, 182 Mont. 323, 597 Pad 64

(1979). Michigan, Iowa, and South Dakota statutes allow

the trial judge to award a reasonable fee without limit.

Matter of Burgess, 69 Mich. App. 689, 245 N.W.2d 348

(1976); Hulse u Wifvat, 306 N. Wad 707 (Iowa 1981);

Johnson v. City Commission of the City of Aberdeen,

272 N.W.2d 97 (S.D. 1978).

In states that have no statute or court rule, the

traditional rule has been that attorneys must represent

indigent criminal defendants without compensation.

Sparks v. Parker, 368 So.2d 528 (Ala. 1979). In State v.

Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), the court held

that a $350 statutory maximum fee for appointed counsel

was constitutional because each attorney had a duty to

provide his services without compensation. This result

was reached by similar reasoning in Keene v. Jackson

County, 3 Or. App. 551, 474 Pad 777 (1970). Some state

courts however, have refused to follow this rule. See

State ex rel Partain v. Oakley, 159 W.Va. 805, 227

S.E.2d 314 (1976); and State u Rush, 46 N.J. 399, 217

A.2d 441 (1966). Thus it appears that the states are in

disagreement on whether attorneys need be paid at all

for their representation of indigent defendants, and, if

so, whether a fee limit may be abrogated under any

circumstances.

I believe that it has been sufficiently demonstrated

in the record below that the maximum amounts

designated by statute for representation in these cases

App. 45

are so unreasonably insufficicnt as to make it impossible

for the trial court to appoint competent counsel for the

indigents involved. See Bridges. Hence, I believe this

case meets the criteria for the exception set out in

Bridges for avoiding the statutory cap and I would

approve the decision of the trial court under the narrow

facts presented. While I am in complete concurrence

with the supreme court's observations in Pridges as to

the obligation of lawyers to represent the indigent, I

am also cognizant of the great variations in complexity,

and attendant time demands, involved in criminal cases

to which lawyers may be assigned. In my view the

present statute's failure to recognize these distinctions

and to deal with them in a realistic and reasonable

manner, as exemplified in the case at hand, constitutes

a major flaw in the overall scheme.

The stakes, of course, in the form of fines,

imprisonment, and, in some cases even death, are at

their highest in criminal proceedings and the lawyer's

responsibility correspondingly greater. Under our

adversary system of justice the role of the defendant’s

advocate is critical in assuring a just result in each case

to the maximum extent possible under the law. Under

the adversary system, with the exception of certain

fundamental responsibilities placed on the prosecutor

App. 46

and the court, we rely on the defendant, acting through

his counsel, to discover and present all relevant defensive

and mitigating circumstances to the adjudicators.’

That we are no less committed to providing an indigent

defendant these fundamental safeguards was recently, and forcefully,

reaffirmed by the United States Supreme Court in a decision

upholding an indigent defendant's right to the services of a state-

provided psychiatrist where insanity is in issue:

This Court has long recognized that when a state brings its

judicial power to bear on an indigent defendant in a

criminal proceeding, it must take steps to assure that the

defendant has a fair opportunity to present his defense. This

elementary principle, grounded in significant part on the 14th

Amendment’s due process guarantee of fundamental fairness,

derives from the belief that justice cannot be equal where,

simply as a result of his poverty, a defendant is denied the

opportum y to participate meaningfully in a judicial proceeding

in which his liberty is at stake.

We recognized long ago that mere access to the courthouse

doors does not by itself assure a proper functioning of the

adversary process, and that a criminal trial is fundamentally

unfair if the state proceeds against an indigent defendant

without making certain that he has access to the raw materials

integral to the building of an effective defense. To implement

this principle, we have focused on identifying the “basic tools

of an adequate defense or appeal,” and we have required that

such tools be provided to those defendants who cannot afford

to pay for them.

Ake u Oklahoma. U.S. 105 S.Ct. 1087, 84 L.Ed.2d 53,

opinion issued February 26, 1985.

App. 47

The rights of the lawyer, too, must be figured in

the equation at some point. It would be unrealistic not

to recognize that there must be limits to the amount of

time a lawyer can be forced to devote to a case with

little or no compensation. This creates a problem that

is almost impossible to detect because of the variety of

ways a lawyer may defend a case. In most cases lawyers

do not serve involuntarily but rather volunteer either

by consenting to an “appointment” in a particular case

or by making it known that they will accept appointments

in certain types of cases if offered. We have not yet

faced the situation in Florida where the lawyer is forced

to serve over his objection and the client is thus faced

with being represented by a lawyer who doesn’t want

to serve him. It is also important to keep in mind that

there is an entitlement to competent counsel, not just

anyone on the bar rolls. In the legal profession, as in all

others, the “more” competent a lawyer is the greater

the remuneration he usually receives for his services.

Unlike medicine or engineering or plumbing, the

art or science of lawyering relies a great deal more on

individual personality and motivation for success. A

lawyer who “doesn’t have his heart in it” can lose a jury

trial in a hurry. In most instances, a lawyer's professional

ethics and personal concern for justice may motivate

him to devote whatever time and effort is necessary in

the individual case. Indeed, that is what keeps the

present system afloat. But it would be foolish to ignore

the very real possibility that a lawyer may not be

capable of properly balancing the obligation to expend

the proper amount of time in an appointed criminal

matter where the fees involved are nominal, with his

personal concerns to earn a decent living by devoting

his time to matters wherein he will be reasonably

App. 48

~

—

compensated. The indigent client, of course, will be the

one to suffer the consequences if the balancing job is

not tilted in his favor. In this case the trial court has

concluded that just such a dilemma existed and it acted

to relieve the dilemma by allowing a greater fee.

Government p public defenders, of course,

ordinarily represent indigents. The problem arises, only

when, as here, conflicts between codefendants require

other counsel to be inted. One solution to this

problem would be to appoint public defenders from

neighboring circuits, as opposed to private lawyers,

and have those public defenders serve on special

assignment for the time necessary. This is already the

practice when local prosecutors are unable to act in a

particular case because of conflict or other reasons,

and another prosecutor, usually one from another circuit,

is appointed. Of course, budgetary limitations and travel

expense may limit the efficacy of this solution. Another

possible solution may be to base the statutory fees on

an hourly rate rather than a cap for the total fee. Such

a scheme could keep the hourly rate modest but permit

lawyers to receive a fee based on the necessarily varying

amounts of time needed to defend cases of varying

degrees of difficulty; the major flaw not covered under

the present scheme.

I recognize that there are no easy answers. But |

think we can do better, and certainly should try.

BY ORDER OF THE COURT:

ORDERED that the Motion filed March 13, 1985

by Appellee, Richard Lee Dennis, to withhold the issuance

of the Mandate pending Supreme Court review is granted,

App. 49

conditioned upon said appellee, or any other party,

initiating proceedings in the Supreme Court of Florida.

ORDERED ‘that the March 18, 1985 Stipulated

Motion to remove Richard D. Kibbey, Esquire, as a

party apellee to these proceedings is granted.

ORDERED that the March 28, 1985 Motion to

remove Robert G. Udell, Esquire, as a party appellee to

these proceedings is hereby granted.

App. 50

[FILED 1983 MAY 9

IN THE CIRCUIT COURT OF THE

NINETEENTH JUDICIAL CIRCUIT

IN AND FOR

OKEECHOBEE COUNTY, FLORIDA.

CASE NO. 82-196-CF

STATE OF FLORIDA,

Plaintiff,

US-

VL. UNDERHILL, JOHN CLYDE SPEARS, GUSS

ROSS, JR., EDWARD ALBERT WOMBLE, JEAN

PIERRE CHASSAGNE, DOYLE DEWAINE

HAZELLIEF, ROY JEFFREY UNDERHILL, JODY

CLINTON UNDERHILL, LOWRY WARNER

DAVIS, ALAN BAKER PARROTT, GLENN GARY

CARDEN JAMES LAMAR MIDDLETON,

Defendants.

ORDER

THIS CAUSE came on to be heard upon motion of

the court appointed spes al public defenders in this

case regarding the applicability of Florida- Statutes

925.036; upon argument of court appointed counsel, the

county attorney of Okeechobee County, Florida, and

the State Attorney; and the Court being fully advised

in the premises, it 1s

App. 51

ORDERED AND ADJUDGED that Florida Statute

925.036 which provides a $2500.00 fee limitation for

appointed counsel in non capital, nonlife felonies is

unconstitutional as applied to this particular case. This

case is ripe for a decision at this time.

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 or

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

App. 52

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, tiiat 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 foward. 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.

DONE AND ORDERED in chambers in Okeechobee,

Florida, this 9th day of May, 1983. (Bench ruling—

February 25, 1983).

/s/ [illegible]

CIRCUIT JUDGE

. Copies furnished to: ~

All Counsel and

Kyle S. Van Landingham, County Attorney

App. 53

CIRCUIT COURT MINUTE BOOK 46 PAGE 07

ORDER RE: ATTORNEY FEES FEBRUARY 25, 1983

BY THE JUDGE:

To supplement the record as far as finding of fact,

to those read into the record February 21, 1983, I find

the following additional facts: that cases of that type,

that is trafficking controlled substance and conspiracy

to trafficking controlled substance are characterized to

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. And a defense asserted by a certain defendants

of entrapment. Currently it is estimated that over six

weeks at approximately four days a week and four days

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. It is estimated that the trial will take between

four and eight weeks, once the evidence starts that

would be approximately four days a week, six hours in

— time per day. Discovery and pre-trial time has

n between forty and one hundred sixty five hours

per lawyer. As per defense lawyer. It is extremely unlikely

that any competant lawyer would accept representing a

defendant in this case as special public defender for a

App. 54

fee of twenty five hundred dollars or less. I do find that

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 competant

counsel could not be found who would accept

representation as special public defender in this case.

That 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. Thirty thousand dollars

and forty thousand dollars exclusive of out of court

costs. Or out of pocket costs. Based on these findings

and going back and reviewing the conclusions of law,

first concerning whether the court is limited to a fee of

twenty five hundred dollars per defendant. On Monday,

I did find specifically as a matter of law, that the court

is limited to a fee of twenty five hundred dollars per

defendant unless the application of that twenty five

hundred dollar limit which is set forth in Florida Statute

925.036 is unconstitutional as applied in a given case.

Secondly, concerning whether this particular case is

right for a decision as to whether there should be an

awarded excess of that maximum, I do find, as I did on

Monday, because of the nature of the case and the

actual amount of time that the case has taken to this

point, that the decision is right at this time, that the

case of right for decision at this time as an interim

measure. Third, then concerning whether the application

of Florida Statute 925.036, as limiting a fee, in a case of

this type to twenty five hundred dollars is unconstitutional

as applied to this particular case. That is, is avowed of

the sixth and fourteenth amendments of the Constitution

of the United States. I do find based upon the additional

findings of fact made today, that the application then is

unconstitutional as applied to the defendants in this

App. 55

particular case. Who have been, or who are being

representec by cpecial public defenders and I do find

then under the existing law as set forth in Broward

County vs Wright and in Rose vs Palm Beach County,

that this is the type of case which has demonstrated an

extreme case such as to mandate the exceeding of the

statutory limit for special public defender fees for indigent

or partially indigent defendants therefore, the motion

to exceed the statutory limit is granted as to the each

of the defendants no is receiving the services of public

defender or special public defender in this case, at this

time.

Now is there any question concerning the ruling or

is the ruling not complete in any fashion?

STATE OF FLORIDA

OKEECHOBEE COUNTY

THIS IT TO CERTIFY THAT

THIS IS A TRUE AND

CORRECT COPY OF THE

ORIGINAL.

GLORIA J. FORD, CLERK

BY P Dasher D.C.

DATE 10/9/86

App. 56

[FILED 1983 JUN 17]

STATE OF FLORIDA

OKEECHOBEE COUNTY

THIS IS TO CERTIFY THAT THIS IS A TRUE

AND CORRECT COPY OF THE ORIGINAL

BY CLIF BETTS, JR. CLERK

BY SUE CLARK D.C.

DATE 10/20/83

IN THE CIRCUIT COURT OF THE NINETEENTH

JUDICIAL CIRCUIT IN AND FOR

OKEECHOBEE COUNTY, FLORIDA

CASE NO. 82-196-CF

STATE OF FLORIDA,

Plaintiff

US-

VL. UNDERHILL, JOHN CLYDE SPEARS, GUSS

ROSS, JR., EDWARD ALBERT WOMBLE, JEAN

PIERRE CHASSAGNE, DOYLE DEWAINE

HAZELLIEF, ROY JEFFREY UNDERHILL, JODY

CLINTON UNDERHILL, LOWRY WARNER

DAVIS, ALAN BAKER PARROTT, GLENN GARY

CARDEN, JAMES LAMAR MIDDLETON,

‘ Defendants

AMENDED ORDER

THIS CAUSE came on to be heard on February

25, 1983, upon motion of the court appointed special

public defenders in this case regarding the applicability

of Florida Statutes 925.036; upon argument of court

App. 57

appointed counsel, the county attorney of Okeechobee

County, Florida, and the State Attorney; and the court

being fully advised in the premises, it is

ORDERED AND ADJUDGED

1. This case is ripe for a decision at this time.

2. The court finds as facts upon which to base its

decision:

a. The defendants for whom counsel have been

appointed in this case have been charged with trafficking

in controlled substance and conspiracy to trafficking

controlled substance. Preparation for and trial of cases

of this type are generally characterized as some of the

most complex criminal defense cases. In this particular

case the state may call as witnesses over one hundred

and thirty persons. The state has disclosed some four

thousand pages of evidence that may be introduced.

Currently eight defendants are charged and are being

tried together. Counsel for defendants opine that most

of the witnesses should be deposed or at least interviewed

by each counsel. The evidence already heard by this

court as of February 25, 1983, indicates interception of

oral communication by use of body bugs, informers,

and investigation by both Federal and State agencies.

Defendants have asserted the defense of entrapment.

b. As of February 25, 1983, it is estimated by

counsel for state and defendants that over six weeks, at

approximately four days a week and six in-court hours

per day will be required to select a jury in the case. As

of February 25, 1983, there have been approximately

thirty-six hours of evening sessions held in this case for

the purpose of the court hearing evidentiary motions.

App. 58

Counsel estimate that the trial will take between four

to eight weeks, once the jury is selected. The court

anticipates spending six hours per day, four days each

week, in the trial. Defense counsel have spent between

forty and one hundred sixty-five hours each in discovery

and pre-trial out-of-court preparation.

e. 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.

d. A defense counsel's fee which would be

reasonably expected in this case for privately obtained

counsel would be an amount between thirty and forty

thousand dollars, exclusive of out-of-pocket costs.

3. Based upon these facts the a on as

a matter of law that Section 925.036, Florida Statutes

(1981) which provides a twenty-five hundred dollar fee

limitation for appointed counsel in non-capital, non-life

felony cases is unconstitutional as applied to this particular

case.

DONE AND ORDERED this 15th day of June

1983 in chambers, nunc pro tunc.

s Dwight L. Geiger

DWIGHT L. GEIGER

Circuit Judge

cf: Counsel of Record

Kyle S. Van Landingham, Esq., County Attorney

App. 59