Opinion
24068
Heard January 4, 1994
Decided May 9, 1994 Rehearing Denied June 7, 1994
Appeal From Pickens County C. Victor Pyle, Jr., Judge.
G. Edward Welmaker, Pickens, for appellant. Christopher G. Olson, Clemson, for respondent.
This appeal arises from the trial court's retroactive application of Bailey v. The State of South Carolina, ___ S.C. ___, 424 S.E.2d 503 (1992), to award attorney fees in excess of the State's statutory fee obligation for death penalty defense. We reverse.
FACTS
Christopher Olson was appointed in July 1991 to defend Larry Eugene Hall for a murder trial in which the State sought the death penalty. Prior to trial, Olson filed a complaint in September 1991 in the Pickens County Court of Common Pleas seeking payment of attorney fees in excess of the State's statutory obligation for death penalty defense.
The capital murder trial of Larry Eugene Hall was held in January 1992.
Olson requested payment for 415.5 hours at $140.00 an hour.
A hearing was held on February 2, 1993 before the same judge presiding at the murder trial. Just prior to the hearing on attorney fees, this Court decided Bailey v. State of South Carolina, supra, on December 7, 1992, with the Petition for Rehearing denied on January 6, 1993. Evidence of attorney fees was presented and after oral argument, the trial judge awarded Olson attorney fees in the sum of $36,156.38. In reliance on this Court's decision in Bailey, Olson's fees were computed at a less than market rate of $90.00 per hour for out-of-court time, and $103.35 per hour for court appearances.
Pickens County sought reconsideration of the trial court's ruling which was denied by an order issued March 12, 1993. This appeal followed.
ISSUE
The sole issue on appeal is whether the trial court erred in retroactively applying our decision in Bailey v. The State of South Carolina, ___ S.C. ___, 424 S.E.2d 503 (1992).
LAW/ANALYSIS
Pickens County argues that Bailey should only be applied prospectively and we agree. Since our decision in Bailey, supra, we have had an occasion to address this very issue in Ex Parte John F. Hardaway and S. Kirkpatrick Morgan, Jr., v. The County of Lexington, ___ S.C. ___, 443 S.E.2d 569 (S.C.Sup.Ct. 1994). In Hardaway, we held that Bailey v. State of South Carolina, supra, was to be applied prospectively in setting attorney's fees and costs for the defense of an indigent capital defendant. Our decision in Hardaway directly resolves the issue presented here and any further discussion would add little to that analysis.
Accordingly, the trial court's retroactive application of Bailey was in error and the trial court's decision must now be REVERSED.
CHANDLER and MOORE, JJ., concur.
HARWELL, C.J., and FINNEY, J., dissenting in separate opinion.
I respectfully dissent. For the reasons set forth in my dissenting opinion in Ex Parte Hardaway v. County of Lexington, Op. No. 24067 ___ S.C. ___, 443 S.E.2d 569 (S.C. Sup. Ct. 1994), the Court should apply Bailey retroactively and affirm the trial judge's award of attorney's fees in this case.
FINNEY, J., concurs.