Opinion
No. 1D19-4577
05-04-2022
Daniel A. WEISMAN, Appellant, v. JUSTICE ADMINISTRATIVE COMMISSION, Appellee.
Daniel A. Weisman, pro se, Appellant. Ana Cristina Martinez and Bradley R. Bischoff, Tallahassee, for the Appellee.
Daniel A. Weisman, pro se, Appellant.
Ana Cristina Martinez and Bradley R. Bischoff, Tallahassee, for the Appellee.
Tanenbaum, J.
This case came to us initially as a petition for a writ of certiorari, asking that we review the trial court's refusal to award excess fees to court-appointed counsel pursuant to section 27.5304, Florida Statutes (2018). We will explain our handling of this case after we give some background, but we treat the petition as a direct appeal of a final order and affirm.
* * *
In March 2019, the trial court appointed private lawyer Daniel A. Weisman to serve as counsel for a defendant charged with attempted first-degree murder and tampering with the evidence. See generally § 27.40, Fla. Stat. (2018). The case eventually resolved with a plea agreement, whereby the defendant pleaded to a lesser included offense and was sentenced to five years in prison. Once the case was over, Weisman was entitled to compensation as set out in section 27.5304, Florida Statutes (2018). See §§ 27.40(7), 27.5304(3), Fla. Stat. (2018). Because "the most serious offense for which [Weisman] represented the defendant" was a first-degree felony, the General Appropriations Act fixed Weisman's fee at $1,875. § 27.5304(1), Fla. Stat.; ch. 2019-115, § 4, Laws of Fla.; ch. 2018-9, § 4, Laws of Fla.; see § 27.5304(1), Fla. Stat. (providing that the "specific flat fee" to be paid to appointed counsel as compensation "shall be established annually in the General Appropriations Act").
Weisman sought compensation in an amount that exceeded the flat fee fixed by the Legislature. Cf. § 27.5304(2), (11), (12), Fla. Stat. (providing for process by which counsel may seek excess compensation for the "rare occasions an attorney may receive a case that requires extraordinary and unusual effort"). He submitted his "intended billing" and supporting documentation to the Justice Administrative Commission ("JAC") for review, as statutorily required. See § 27.5304(12)(a) 1., Fla. Stat.
His original claim was for $6,397.50 in hourly billing, which reflected 85.3 hours of legal work. Cf. § 27.5304(12)(b) 1., Fla. Stat. (precluding "relief" from the fixed fee in a criminal case "if the number of work hours does not exceed 75"). The JAC submitted written objections to his claim. Cf. § 27.5304(12)(a) 2., Fla. Stat. (requiring that the JAC review counsel's billings and supporting documentation for completeness and compliance and that it state its objections and reasons in writing to counsel). Weisman then filed a motion that sought approval of a payment of fees in excess of the legislatively set limit. Cf. § 27.5304(12)(a), Fla. Stat. (requiring counsel to file a motion with the chief judge of the judicial circuit if he "seeks compensation that exceeds the limits prescribed by law," but only after he has submitted his billing and supporting documentation and the JAC has reviewed the request). The motion reduced the claim to $6,285.00, which reflected 83.8 hours of legal work. Attached to the motion was a single exhibit, a copy of the JAC's objections.
A hearing on the motion took place before the judge designated to handle such matters for the judicial circuit. See § 27.5304(12)(b), Fla. Stat. (requiring the judicial circuit's chief judge or his designee to "hold an evidentiary hearing" upon receipt of the motion). Counsel for the JAC appeared by telephone and opposed the motion. See § 27.5304(12)(c), Fla. Stat. (providing that the JAC "has standing to appear before the court" and participate in the evidentiary hearing, including telephonically, "to contest any motion for an order approving payment of attorney fees"). Weisman did not submit any evidence at the hearing; no testimony was taken, and no exhibit was admitted. Instead, Weisman merely described to the court the work he put into his handling of the case, arguing that the trial court should grant his request based on how subjectively demanding and burdensome the case was on him personally. But cf. H.K. Dev., LLC v. Greer , 32 So. 3d 178, 181 n.4 (Fla. 1st DCA 2010) (explaining that an unsworn statement by a lawyer does not establish facts, so a trial court cannot rely on such statements as support for its factual determinations). The trial court denied Weisman's motion, leaving him with compensation in the amount of $1,875.00, as fixed by law.
In the hope of flipping that outcome, Weisman seeks our review of the trial court's denial. He asks for that review, though, as certiorari relief. We opened this opinion by stating that this case is being treated as an appeal. Before we get to the merits of Weisman's argument, then, we should explain that handling.
To begin, Weisman can be forgiven for pursuing certiorari instead of direct appellate review regarding his request for fees as appointed counsel. This appears to have been the review "vehicle" utilized by the district courts, repeatedly and without much analysis or reflection, for decades. It is an approach acknowledged by the supreme court as late as 2002. See Sheppard & White, P.A. v. City of Jacksonville , 827 So. 2d 925, 928 n.3 (Fla. 2002) ("A writ of certiorari is the proper vehicle for challenging an award of attorney's fees to court-appointed counsel."). There nevertheless is a problem with our continuing this practice: The Legislature enacted significant amendments to section 27.5304 in 2007 that obviated the need for this mode of review. See ch. 2007-62, § 11, at 452–53, Laws of Fla. (among other revisions, adding subsection twelve, which established a process in the trial court by which counsel and the JAC could have an excess-fee dispute adjudicated); cf. Regan v. ITT Indus. Credit Co. , 469 So. 2d 1387, 1390 & n.3 (Fla. 1st DCA 1984) (granting a second motion for rehearing as extraordinary relief in order to comply with a "previously unnoticed" legislative disapproval of a supreme court statutory interpretation that the court had relied on, because we are "bound to interpret and apply the law as pronounced by the legislature").
This obviation becomes readily apparent with an understanding of the historical purpose of common-law certiorari and how the writ came to be used in this context in the first place. As far as relief goes, common-law certiorari is known to be narrow in purpose and scope. After all, it is extraordinary relief. The writ enables a superior court to inspect the record of the proceeding in the lower court and "determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law." Seaboard Air Line Ry. v. Ray , 52 Fla. 634, 42 So. 714, 715 (1906). On certiorari the superior court's inquiry is limited to whether the trial court "exceeded [its] jurisdiction in hearing the case at all, or adopted any method unknown to the law or essentially irregular in [its] proceeding under the statute." Basnet v. City of Jacksonville , 18 Fla. 523, 526 (1882) ; see also Goodkind v. Wolkowsky , 151 Fla. 62, 9 So. 2d 553, 562 (1942) (explaining that certiorari is available to provide relief "[w]here the judgment of the Circuit Court is rendered without or in excess of its jurisdiction; where the judgment of the Circuit Court is a palpable miscarriage of justice; or where the result of such judgment would constitute a substantial injury to the legal rights of the petitioner; or where the judgment sought to be reviewed is illegal or essentially irregular and violative of established principles of law").
This writ has been available, however, only where the law fails to provide for adequate relief by direct appeal. See Seaboard Air Line Ry. , 42 So. at 715 ; cf. Robinson v. State , 132 So. 2d 3, 5 (Fla. 1961) (explaining how common-law certiorari authority, once possessed by the supreme court, is now vested in the district courts to look for "a deviation from the essential requirements of the law," but only in "situations in which review of a judgment or decree of a lower court is not otherwise provided for"); Goodkind , 9 So. 2d at 562 (explaining that common-law certiorari is available to address an order of an inferior court that threatens "substantial injury to the legal rights of the petitioner, and for which no other adequate remedy is afforded by law").
Along these lines, then, certiorari is available for a non-party to seek review of an "alleged illegal or improper judgment" that "vitally affect[s]" the substantial rights of that petitioner, who has no entry point to obtain direct appellate review. State v. Crawford , 104 Fla. 440, 140 So. 333, 335 (1932) ; cf. Deans v. Wilcoxon , 18 Fla. 531, 547 (1882) ; see also State ex rel. Boyles v. Fla. Parole & Prob. Comm'n , 436 So. 2d 207, 210 (Fla. 1st DCA 1983) ("A person need not necessarily be a party to a proceeding in order to obtain certiorari review if he has sufficient interest in the subject matter of the order."). It is this principle that indubitably gave rise to the use of certiorari as the "proper vehicle" for considering challenges to grants and denials of excess fee awards requested by court-appointed counsel.
Consider, though, that use in context. It came about at a time when there was no statutory point of entry at the trial or appellate level for counsel to appear on his own behalf and argue for an excess cost or attorney fee claim, or for a county to contest the claim that by law it would have to pay if awarded. See Dade County v. Strauss , 246 So. 2d 137, 140 (Fla. 3d DCA 1971) (relying on Dade County v. Carr to approve county's petition for certiorari review regarding an order for fees that it would be required to pay, rendered in case to which the county was not a party); Dade County v. Carr , 231 So. 2d 844, 846 (Fla. 3d DCA 1970), modified , 250 So. 2d 865 (Fla. 1971) (approving same use of certiorari review where the county had no way to contest "a claim upon the public treasury," and relying on earlier decisions approving use of certiorari as vehicle for review where the petitioner was substantially affected by order but did not have access to appellate review); see also § 925.035, Fla. Stat. (1970) (requiring payment by county); § 939.15, Fla. Stat. (1967) (same); § 32.17, Fla. Stat. (1967) (same, implicitly); see also Mackenzie v. Hillsborough County , 288 So. 2d 200, 200–01 (Fla. 1973) (citing Carr and Strauss approvingly in support of same proposition in similar context).
The changes to section 27.5304, Florida Statutes, enacted in 2007 by the Legislature rendered obsolete the use of certiorari as a vehicle for review in a case like this one. See ch. 2007-62, § 11, at 452–53, Laws of Fla. (adding subsection twelve to the statute). The Legislature created a point of entry and a process in the trial court for both private court-appointed counsel and the JAC (the obligor on any excess fee order) to obtain an adjudication of the facts on which an award of excess fees would turn. For instance, the amended statute now allows for initiation of the adjudication process by counsel's filing of a motion on his own behalf with the chief judge of the judicial circuit. See § 27.5304(12)(a), Fla. Stat. The JAC, which is responsible for paying counsel, has standing to appear and contest the motion at the evidentiary hearing that must be held. See id. (1), (12)(b)–(c), Fla. Stat. Finally, counsel "must prove by competent and substantial evidence that the case required extraordinary and unusual efforts," and the trial court must make factual findings in a written order to support its determination that an excess fee is warranted. See id. (12)(b)1.–2.
We see here, then, an extant statutory process that allows for a trial-court adjudication of a fee dispute between the two interested parties. This proceeding is, in essence, a collateral or supplemental case between counsel and the JAC. See First Nat'l Bank v. Bebinger , 99 Fla. 1290, 128 So. 862, 863 (1930) ("The words ‘case’ or ‘cause,’ when used as legal terms, are generally understood as meaning a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected or wrongs are prevented or redressed." (citation omitted)); id. (further describing a "case" as a claim under the law taking "such a form that the judicial power is capable of acting upon it" and as implying "the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication" (quoting Muskrat v. United States , 219 U.S. 346, 357, 31 S.Ct. 250, 55 L.Ed. 246 (1911) )); cf. Orange Belt Packing Co. v. Int'l Agric. Corp. , 112 Fla. 99, 150 So. 264, 265 (1933) (noting that a supplementary proceeding regarding execution of a judgment is, "in legal contemplation, an entirely separate legal cause from the main suit in which the judgment supporting the execution involved was rendered").
The written order that comes out of this statutory process—conclusively determinative of any entitlement or obligation that exists between counsel and the JAC regarding compensation for counsel's representation in the underlying case—is, without a doubt, an appealable final order. See Theo. Hirsch Co. v. Scott , 87 Fla. 336, 100 So. 157, 159 (1924) (holding "that, where a proceeding in an original action is a distinct proceeding in itself, and collateral to the main action, an order made in reference to that proceeding is a final one that may be appealed from"); cf. Orange Belt Packing Co. , 150 So. at 265 (explaining that with regard to a collateral proceeding taking place within and related to the main action after a final judgment has been rendered, "a final order or judgment disposing of such separate proceeding is considered a final one as to such separate matter or proceeding" and is reviewable in a distinct appeal "as a final judgment in such separate proceeding"); Bebinger , 128 So. at 863 (concluding that a "judge's final order or judgment, rendered at the conclusion of such special proceedings, adjudicating the question as to whether certain property is or is not subject to be applied to the satisfaction of the plaintiff's judgment and execution, is so far final and conclusive in its nature as to constitute a final judgment" that has "been rendered in a ‘case’ " and is reviewable as such on appeal).
The supreme court long ago expanded on this point as follows:
As a general rule, however, even in the absence of special statutory provisions, an appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, when such order or decree partakes of the nature of a final decision of those rights. But the appeal must be prosecuted on some new and distinct ground not covered by the original judgment or decree; and it has been held that on such an appeal only matters arising subsequent to the final judgment or decree can be reviewed.
Theo. Hirsch Co. , 100 So. at 158 (quotation marks and citation omitted); see also id. at 160 (further observing that the rule allows "persons incidentally interested in some branch of a cause" to participate in the lower court to protect their interests, and to participate on appeal, "when a final decision of their right or claim has been made by the court below"); id. at 159 (explaining that "a final determination of the particular matter arising upon" a collateral petition that is "incidental" to the main cause already decided was of "a distinct and independent character," making "the decision substantially a final decree for the purposes of an appeal" (quotation marks and citation omitted)).
Because the trial-court order that Weisman would have us review is a final one—to which he and the JAC are parties with standing to seek review—there is no constitutional impediment to our considering this case as a direct appeal. In fact, we have express constitutional authority to do so. See Art. V., § 4(b)(1), Fla. Const. (granting jurisdiction to district courts "to hear appeals ... from final judgments or orders of trial courts"). The common-law writ of certiorari, then, has no place here as a vehicle for review. See Edgerton v. Green Cove Springs , 18 Fla. 528, 530 (1882) ; see also Ray , 42 So. at 715 (explaining that common-law certiorari is reserved for "cases where no direct appellate proceedings are provided by law"); Janet Realty Corp. v. Hoffman's Inc. , 154 Fla. 144, 17 So. 2d 114, 117–18 (1943) (explaining that common-law certiorari cannot operate in the place of direct appellate review). We in turn proceed to consider the order denying Weisman's request for excess fees within a direct-appeal framework. Cf. Johnson v. Citizens State Bank , 537 So. 2d 96, 97 (Fla. 1989) ("There is no question that an appellate court has jurisdiction to review a cause even though the form of appellate relief is mischaracterized."); Skinner v. Skinner , 561 So. 2d 260, 262 (Fla. 1990) (concluding that even though a party mischaracterized an appeal as a petition for writ of certiorari, the court possessed jurisdiction to review as a notice of appeal); see Art. V, § 2(a), Fla. Const. (authorizing the supreme court to adopt a "requirement that no cause shall be dismissed because an improper remedy has been sought"); Fla. R. App. P. 9.040(c).
This brings us to the merits of Weisman's contention that the trial court erred. In his request for review, he argues that the trial court failed "to apply the principles of White [v. Board of County Commissioners , 537 So. 2d 1376 (Fla. 1989),] when determining whether the case required ‘extraordinary and unusual effort." Weisman points to the trial court's conclusion that the case he handled was "quite ordinary and usual," which the court reached based on a review of the underlying criminal allegations, the post-Miranda confession given by his client, and the assistance his client provided to the State that resulted in a plea deal. According to Weisman, White required the trial court instead to consider the matter subjectively and determine whether "the case required extraordinary and unusual efforts," § 27.5304(12)(b) 1., Fla. Stat., based on how the representation personally impacted him in terms of his "time, talents, energy, and law practice."
Weisman's reliance on White is misplaced. That decision and the one it sought to apply (i.e. , Makemson v. Martin County , 491 So. 2d 1109 (Fla. 1986) ) are capital cases that set out an analysis vis-à-vis a statute that later was repealed. See ch. 2003-402, § 153, at 3762, Laws of Fla.; see also ch. 2005-3, § 3, at 171; Laws of Fla.; cf. Dees v. State , 155 Fla. 157, 19 So. 2d 705, 706 (1944) (finding that a phrase in a statute that the court had interpreted and applied had been "deliberately eliminated," and the modification "change[d] the law of Florida so that our previous decisions in this regard are no longer controlling"). White also pre-dates the statute that applies here by more than fifteen years. Most importantly, White presumed "all capital cases by their very nature can be considered extraordinary and unusual and arguably justify an award of attorney's fees in excess of the current statutory maximum fee cap." White , 537 So. 2d at 1378 (emphasis supplied). The factors set out in that opinion and in Weisman's argument, then, have no application to the statutory question at hand here.
That statutory question is whether Weisman "prove[d] by competent and substantial evidence that the case required extraordinary and unusual efforts." § 27.5304(12)(b) 1., Fla. Stat. To answer that question, the trial court had to "consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial." Id. Weisman had the burden of proof, but the record does not reflect that Weisman submitted any evidence that addressed these criteria, or even those criteria that Weisman argued the trial court should have considered. He was not under oath when he spoke at the evidentiary hearing. Again, he did not submit any affidavits, did not seek to have any documents admitted as evidence, and did not call any witnesses to testify.
The trial court appropriately considered what was in the court file about the nature of the case and the manner of its disposition. Without any evidence indicating otherwise, the court had enough to support its conclusion that there was nothing about the case that put it outside the mean with respect to required attorney effort in similarly serious criminal cases in the judicial circuit. Cf. id. (12)(b) (requiring that a single judge hear and determine all fee motions for the circuit). We find no error in the trial court's disposition of Weisman's motion.
AFFIRMED .
Bilbrey and Winokur, JJ., concur.