HILLSBOROUGH COUNTY, PETITIONER,
v.
ANTHONY B. MARCHESE, RESPONDENT
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Hillsborough County appealed a trial court order awarding court-appointed counsel Anthony Marchese $16,500 in attorney's fees for defending a first-degree murder case. The appellate court granted the petition for certiorari and remanded, holding that while trial courts may award fees exceeding statutory minimums in extraordinary cases, they must calculate such fees using the hourly rate established by the chief judge.
Trial courts may award attorney's fees exceeding statutory amounts in extraordinary and unusual cases to ensure reasonable compensation, but such fees must be calculated based on the hourly rate established by the chief judge of the circuit, not on market rates or other bases.
[1] An appeal from an order awarding attorney's fees to court-appointed counsel is properly reviewed by petition for writ of certiorari.
[2] Trial courts may depart from statutory attorney fee limitations for court-appointed counsel in extraordinary and unusual cases to prevent confiscatory compensation.
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Join FLexlaw to unlock all legal intelligence“The proper procedure for challenging an order awarding attorney's fees to court appointed counsel is by petition for certiorari, not appeal.”
Establishes the correct procedural mechanism for reviewing attorney's fee awards
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Join FLexlaw to unlock all legal intelligenceThe trial court appointed Marchese to represent Curtis Von Woodard on a first-degree murder charge after the public defender withdrew. Marchese worked…
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SCHEB, Acting Chief Judge.
Hillsborough County appeals the circuit court’s order awarding $16,500 in attorney’s fees to Anthony Márchese for his court appointed legal services provided in a criminal case. 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 (Fla. 2d DCA 1986). Therefore, we treat this appeal as a petition for certiorari. We grant the petition.
Following an order granting the public defender’s motion to withdraw and appoint private counsel, the trial court appointed Márchese to represent Curtis Von Woodard on the charge of first degree murder. At the conclusion of his representation, Márch-ese filed a motion based on Makemson v. Martin County, 491 So. 2d 1109 (Fla.1986) cert, denied, — U.S.-, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987), requesting attorney’s fees in excess of the $3,500 amount set by section 925.036, Florida Statutes, for the defense of one charged with a capital crime. In Makemson, the supreme court held that trial courts could depart from section 925.036, Florida Statutes, in extraordinary and unusual cases, when necessary to ensure that counsel is compensated in an amount which is not confiscatory of his or her time, energy and talents. Makemson, 491 So. 2d at 1115.
Marchese’s motion reflected that he rendered 200.85 hours of professional service to the defendant. At the hearing on the motion, Márchese presented expert testimony that the fair market value of his service was $20,000 to $25,000, and that a reasonable fee would be $15,000 to $16,000. The trial court found that the case involved extraordinary circumstances due to difficulties presented by the client, who was uncooperative and hostile to Márchese. Additionally, because the defendant would not agree to a continuance of the already scheduled trial, Márchese prepared and tried the case two weeks after his appointment. This caused him to virtually abandon his law practice during those weeks. The court found that Márchese provided “extremely effective” representation. After finding that the case was extraordinary and unusual, the trial judge awarded Márchese fees totaling $16,500.
On May 28, 1985, the chief judge of the Thirteenth Judicial Circuit amended Administrative Order No. 79-3 to provide that special public defenders receive compensation at the rate of forty dollars an hour. The order was in effect at the time that Márchese accepted the appointment to represent the defendant. The fee awarded Márchese was not based on the rate established in the amended administrative order. Subsequent to the trial judge’s order, we addressed a similar situation in Board of County Commissioners of Hills-borough County, Florida v. Lopez, 518 So. 2d 372 (Fla. 2d DCA 1987). There, we found that while the court could award attorney’s fees in excess of those statutorily established, the court must impose those fees based upon the hourly rate established by the chief judge in that circuit. See also Metropolitan Dade County v. Gold, 509 So. 2d 407 (Fla. 3d DCA 1987).
Our decision here is controlled by Lopez. Accordingly, we grant the petition for writ of certiorari and remand this case to the circuit court with directions to recalculate Marchese’s fee based upon the hourly rate established by the chief judge of the Thirteenth Judicial Circuit.
HALL and THREADGILL, JJ., concur.
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R.S. Johnson v. Citizens State Bank, 537 So. 2d 96 (Fla. 1989)…urisdiction to review a cause even though the form of appellate relief is mischaracterized. Thus, district courts have considered as petitions for writs of certiorari, erroneously titled notices of appeal. See, e.g., Hillsborough County v. Marchese, 519 So. 2d 728 (Fla. 2d DCA 1988), cause dismissed, 526 So. 2d 75 (Fla. 1988); Nunez v. Gonzalez, 456 So. 2d 1336, 1339 (Fla. 2d DCA 1984); Sunshine Dodge, Inc. v. Ketchem, 445 So. 2d 395, 396 (Fla. 5th DCA 1984); Wingate v. Department of Highway Safety and Motor…
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Hillsborough Cnty. v. Simson Unterberger, 534 So. 2d 838 (Fla. 2d DCA 1988)…onstitutional. We are not insensitive to the burden that the hourly rate places upon appointed counsel, see e.g., Board of County Commissioners of Hillsborough County v. Cunningham, 529 So. 2d 724 (Fla. 2d DCA 1988); Hillsborough County v. Marchese, 519 So. 2d 728 (Fla. 2d DCA 1988), dismissed, 526 So. 2d 75 (Fla.1988); Board of County Commissioners of Hillsborough County v. Lopez, 518 So. 2d 372 (Fla. 2d DCA 1988), review denied, 529 So. 2d 694 (Fla.1988) (all setting rate of compensation at hourly rate esta…
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Monroe Cnty. v. Garcia, 695 So. 2d 823 (Fla. 3d DCA 1997)…of the statutory limit.6 To support such a fee award, the record must show and the court must find that the case involves “extraordinary circumstances and unusual representation.” Makemson, 491 So. 2d at 1110. E.g., Hillsborough County v. Marchese, 519 So. 2d 728 (Fla. 2d DCA), cause dismissed, 526 So. 2d 75 (Fla.1988). In revisiting the fee award, the trial court shall comply with the supreme court’s directives in Makemson and White. Accordingly, we grant certiorari, quash the order under review, and reman…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Makemson v. Martin Cnty., 491 So. 2d 1109 (Fla. 1986)
- Bd. OF Cnty. Comm'rs OF Hillsborough Cnty. v. Lopez, 518 So. 2d 372 (Fla. 2d DCA 1987)
- Affordable Homes, Inc. v. McKINNEY-Green, Inc., 509 So. 2d 407 (Fla. 1st DCA 1987)
- Nicholas G. Schommer and James v. Lobozzo, Jr., 489 So. 2d 40 (Fla. 2d DCA 1986)