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Court erred in limiting appointed counsel’s fee to double the flat fee without considering whether fee award was confiscatory due to number of hours expended. [Added 2/2/12] Lawyer was appointed to represent an indigent criminal Defendant charged with manslaughter with a firearm. Lawyer expended over 230 hours on the case and ultimately filed a successful motion “motion to dismiss the manslaughter charge pursuant to section 776.032, Florida Statutes, which provided immunity from prosecution if the accused exercised an expanded right to self-defense that eliminated the common law duty to retreat before using deadly force in certain circumstances. After a one-day hearing, the trial court granted the motion to dismiss.” The state did not pursue an appeal. Lawyer then filed a motion under Fla.Stat. sec. 27.5304(12) to have the case declared “extraordinary” and to authorize him to bill the Justice Administrative Commission (“JAC”) at $75 per hour for his time. An expert witness testified for Lawyer at the hearing, opining that to merely double the flat fee of $1500 would be confiscatory. JAC’s counsel did not object to the case being declared extraordinary nor did counsel object to a ruling that $3000 would be confiscatory. The trial court found that the case required extraordinary and unusual effort but also found that “double the flat fee would not be confiscatory because ‘the amount of extraordinary and unusual effort required was limited.'" Lawyer then petitioned the First DCA for a writ of certiorari. The First DCA granted the petition and remanded for a new fee award. [Lawyer] filed an hourly invoice claiming that he expended 230.4 hours to prepare and successfully argue the motion to dismiss the manslaughter charge based upon statutory immunity. At the attorney’s fee hearing, JAC did not dispute the reasonableness of these hours except for 6.1 hours, which it claimed represented non-billable administrative time. In addition, JAC did not dispute the only witness to testify at the hearing, who opined that merely awarding $3000.00, double the flat rate, would be confiscatory of petitioner’s time because it would result in an hourly rate of only $13.40. Because there was uncontradicted evidence that petitioner reasonably expended at least 224.3 hours in the case, a fee award of $3000.00 would amount to only $13.37 per hour, ‘token compensation’ under White [v. Board of County Commissioners of Pinellas County, 537 So.2d 1376 (Fla. 1989)], absent any finding that petitioner could reasonably claim only a significantly reduced number of hours. Without making a finding regarding the reasonable number of hours expended by petitioner in the case, the trial court could not determine whether a $3000.00 fee was confiscatory.” Zelman v. Justice Administrative Comm’n, __ So.3d ___ (Fla. 1st DCA, No. 1D11-5108, 1/30/2012). |
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