MICHAEL ZELMAN, PETITIONER,
v.
METROPOLITAN DADE COUNTY, RESPONDENT
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Michael Zelman, court-appointed appellate counsel in a capital case, appeals an attorney's fee award that was limited to $33.18 per hour based on trial-level statutory rates and capped by comparison to trial counsel's fee. The Florida appellate court granted the petition, holding that appellate counsel is entitled to reasonable compensation under different fee schedule provisions and cannot be arbitrarily limited by trial counsel's award.
The trial court erred. Appellate counsel's fees are governed by Part VII of the administrative order, which contains no hourly rate limitation, not Part I which applies only to trial counsel. Additionally, appellate counsel is entitled to reasonable compensation for appellate services independent of the trial counsel's fee award, and the fee cannot be arbitrarily capped by reference to trial counsel's compensation.
[1] A court may exceed statutory fee limitations for appointed counsel in capital cases when warranted.
[2] Hourly rates for appointed appellate counsel in capital cases are governed by a separate administrative order provision than those for trial counsel.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Zelman correctly points out that Part I of the administrative order applies solely to compensation for trial counsel in capital cases. Capital appeals, by contrast, are regulated by Part VII of the administrative order, which does not contain a limitation on hourly rates.”
Establishes the key legal error: the trial court applied the wrong fee schedule provision to appellate counsel.
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Join FLexlaw to unlock all legal intelligenceZelman was appointed as appellate counsel in a capital case and successfully pursued it to conclusion. After the appeal, he applied for attorney's fee…
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PER CURIAM.
Michael Zelman appeals an attorney’s fee award made to him for his court appointed appellate representation of a defendant in a capital case. We treat the appeal as a petition for writ of certiorari, see Hillsborough County v. Marchese, 519 So. 2d 728 (Fla. 2d DCA), cause dismissed, 526 So. 2d 75 (Fla.1988), and grant the petition.
Zelman was appointed to serve as appellate counsel in a capital case, which he pursued to a successful conclusion. See Garcia v. State, 564 So. 2d 124 (Fla.1990). He then applied for an award of attorney’s fees and costs. The trial court conducted an evidentiary hearing, received expert testimony, and correctly concluded that the statutory fee limitation should be exceeded under authority of Makemson v. Martin County, 491 So. 2d 1109 (Fla.1986), cert. denied, 479 U.S. 1043, 107 S.Ct. 908, 93 L.Ed.2d 857 (1987). The trial court also made findings of the number of hours reasonably expended in handling the appeal, which findings are not contested here.
Zelman contends that the trial court erred by ruling that the hourly rate which could be awarded was limited to forty dollars per hour for out-of-court hours and fifty dollars per hour for in-court hours reasonably expended. The hourly rates relied on by the trial court are found in Part I of In re: Fee Schedule for Compensation of Special Assistant Public Defenders, Admin. Order No. 89-6 (Fla. 11th Cir.Ct. Mar. 24, 1989). See generally Metropolitan Dade County v. Gold, 509 So. 2d 407, 408 (Fla. 3d DCA 1987).
Zelman correctly points out that Part I of the administrative order applies solely to compensation for trial counsel in capital cases. Capital appeals, by contrast, are regulated by Part VII of the administrative order, which does not contain a limitation on hourly rates. There must therefore be a new hearing in order to establish a reasonable hourly rate.
The trial court order also stated, “[t]he approximately $14,000.00 fee award made to the defendant’s trial counsel ... compels that an appropriate fee for Attorney Zelman is $15,000.00.” Accordingly appellate counsel’s fee was subjected to a further reduction. The net effect was an award of $33.18 per hour for the hours reasonably expended.*
The factors to be considered in establishing a reasonable fee are enumerated in Rule 4-1.5, Rules of Professional Conduct. See also White v. Board of County Commissioners, 537 So. 2d 1376, 1380 (Fla.1989). In the present case, the trial and appellate phases of the criminal case constituted two distinct segments of legal representation for the criminal defendant. Counsel for each phase is entitled to reasonable compensation for the services performed. We do not see a basis on which the attorney’s fee award for appellate counsel’s work should be arbitrarily limited to the amount awarded to trial counsel, or vice versa. As the Supreme Court has said, “[w]hen an attorney is called upon by the state to represent an indigent defendant in a criminal case, not only is the attorney expected to provide legal services as part of his or her ethical obligation, but the state, as part of its constitutional obligation, must reasonably compensate the attorney for those services.” White v. Board of County Commissioners, 537 So. 2d at 1379.
The order under review is quashed and the cause remanded for further proceedings to set a reasonable hourly rate and to enter a new fee award accordingly.
*
As a preliminary matter, Zelman disputes the factual accuracy of the recitation of the fee awarded to trial counsel, but we need not resolve that issue here. Zelman contends that the $14,000 figure is not a correct depiction of the fee awarded to trial counsel because there was a mistrial in the case. The record indicates that the aggregate fee awarded for the two proceedings in the trial court was $28,000. In view of the conclusion we reach in this case, we need not analyze the basis for, or adequacy of, the award to trial counsel.
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Sheppard & White, P.A. v. City OF Jacksonville, 827 So. 2d 925 (Fla. 2002)…ore than one occasion. We also note record evidence from other attorneys who stated that fee requests by this board-certified attorney, which were based on the $40 hourly rate, were "reasonable.” . We distinguish Zelman v. Metropolitan Dade County, 586 So. 2d 1286 (Fla. 3d DCA 1991), on which the petitioner also relies, on this basis. We also note that the rate awarded in [*932] Zelman had not been established in an administrative order by the chief judge of the judicial circuit. . In the past we have rephra…
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Monroe Cnty. v. Garcia, 695 So. 2d 823 (Fla. 3d DCA 1997)…, concurs. .Certiorari is the appropriate avenue for review of this order. See Escambia County v. Ratchford, 650 So. 2d 154 (Fla. 1st DCA 1995); Weinstein v. Palm Beach County, 588 So. 2d 329 (Fla. 4th DCA 1991); Zelman v. Metropolitan Dade County, 586 So. 2d 1286 (Fla. 3d DCA 1991); Metropolitan Dade County v. Gold, 509 So. 2d 407 (Fla. 3d DCA 1987); Dade County v. Goldstein, 384 So. 2d 183 (Fla. 3d DCA 1980). . The motion listed the date, description of the work done, and the time spent. The total hours ex…
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Sheppard & White, P.A. v. The City OF Jacksonville, 751 So. 2d 731 (Fla. 1st DCA 2000)…at the local administrative order setting the hourly rate for trial counsel in a capital case did not apply to appellate counsel in a capital case and ordered a new hearing to establish “a reasonable hourly rate.” Zelman v. Metropolitan Dade County, 586 So. 2d 1286, 1287 (Fla.3d DCA 1991)(Zel-man I). On remand, the trial court set the fee based on a rate of $40 per hour for out-of-court services and $50 per hour for in-court services, causing a second reversal and remand for a new hearing to set a reasonable h…
Previewing 3 of 5 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)
- White v. Bd. of Cnty. Comm'rs of Pinellas Cnty., 537 So. 2d 1376 (Fla. 1989)
- Bowman v. United States, 479 U.S. 1043 (U.S. 1987)
- Williams v. Marlboro State Hosp., 479 U.S. 1043 (U.S. 1987)
- Garcia v. State, 564 So. 2d 124 (Fla. 1990)
- Affordable Homes, Inc. v. McKINNEY-Green, Inc., 509 So. 2d 407 (Fla. 1st DCA 1987)
- Hillsborough Cnty. v. Marchese, 519 So. 2d 728 (Fla. 2d DCA 1988)