amicus brief filed by florida capital resource center (terry lenamon) in fletcher v jac

7/28/2019 Amicus Brief filed by Florida Capital Resource Center (Terry Lenamon) in Fletcher v JAC

http://slidepdf.com/reader/full/amicus-brief-filed-by-florida-capital-resource-center-terry-lenamon-in-fletcher 1/22

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IDENTITY AND STATEMENT OF INTEREST OF

AMICUS CURIAE FLORIDA CAPITAL RESOURCE CENTER

Florida Capital Resource Center (“FCRC”) is a nonprofit organization

whose mission is to protect the constitutional rights of indigent capital defendants

by continuously working to improve the effectiveness of capital representation in

the State of Florida. To that end, FCRC provides free consultation, research,

advocacy, training, and other resources to capital defenders across the State.

The Sixth Amendment right to effective counsel for indigent capital

defendants is the cornerstone of FCRC’s mission, and FCRC recognizes that right

is dependent upon the reasonable and adequate compensation of court-appointed

attorneys. Though the cases at bar directly concern the compensation Petitioners

were awarded by the court below, FCRC’s interest is in preventing the far -reaching

and damaging implications an adverse decision for Petitioners will have on the

rights of other capital defendants, both within and beyond the Fourth Circuit.

FCRC supports Petitioners because the Sixth Amendment right to effective counsel

must be fiercely guarded, particularly for those facing the ultimate sentence.

CONTEXT OF THE CASE

To assist the Court’s understanding and disposition of this case, Amicus

offers the following as the “context” in which the issues presented herein arose.

I. COMPENSATION FOR APPOINTED CONFLICT-COUNSEL

The right to counsel is a fundamental right provided for in both the United



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States and Florida Constitutions. U.S. Const. amend.VI; Fla. Const. art. I, §16.

When a criminal defendant is found to be indigent, an attorney is appointed and

paid for by the State. Pursuant to section 27.5303, Florida Statutes (2012), when a

court determines that a conflict of interest exists such that neither the Office of the

Public Defender nor the Offices of Criminal Conflict and Civil Regional Counsel

are available to represent the defendant, the court is required to appoint private

attorneys pursuant to the procedure provided in section 27.40, Florida Statutes

(2012). As with public defenders, Article V, section 14 of the Florida Constitution

provides that these private court-appointed attorneys (“conflict-counsel”) are to be

paid from State revenues. The agency charged with disbursing those payments is

the Justice Administrative Commission (“JAC”). Fla. Stat. §27.5304(1) (2012).

Section 27.5304, Florida Statutes (2012), provides the compensation scheme

for conflict-counsel, including a schedule of flat fees based on the class of offense:

1. For misdemeanors and juveniles represented at the trial level: $1,000.2. For noncapital, nonlife felonies represented at the trial level: $2,500.3. For life felonies represented at the trial level: $3,000.4. For capital cases represented at the trial level: $15,000. . . .5. For representation on appeal: $2,000.

Fla. Stat. §27.5304(5)(a). As noted in subsection (11), the Legislature intended

“that the flat fees prescribed . . . comprise the full and complete compensation for

private court-appointed counsel.” Fla. Stat. §27.5304(11). However, subsection

(12) provides the flat fees may be exceeded in cases that require “extraordinary and



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unusual ef fort.” See Fla. Stat. §27.5304(12). Upon such a finding (by the circuit’s

chief judge (or designee)), the court may order compensation at a percentage above

the flat fee “to ensure the fees paid are not confiscatory under common law.” Id .

Should the chief judge determine that 200% of the flat fee would still be

confiscatory, the judge “shall order the amount of compensation using an hourly

rate not to exceed $75 per hour for a noncapital case and $100 per hour for a

capital case,” awarding only up to an amount deemed no longer confiscatory. Id .

II. THE RECENT AMENDMENTS TO SECTION 27.5304

In the final days of the 2012 legislative session, the Florida Legislature

passed Senate Bill 1960. That bill, which became session law Chapter 2012-123,

amended section 27.5304(12) (2011), restructuring the funds from which

attorney’s fees beyond the flat rates are paid. Previously, conflict-counsel fees,

including those above the flat rates, were paid by the JAC from the Criminal

Conflict Appropriation Category in the General Appropriation Act, and last year

the Legislature appropriated $3 million to a special category specifically to cover

fees ordered in excess of the flat rates. See STATE OF FLA., 7120 BILL A NALYSIS

A ND FISCAL IMPACT STATEMENT, Senate Budget Committee, Reg. Sess., at 3

(2011). However, over the last several years, the costs of conflict-counsel have

exceeded the original appropriations and the Legislature has had to transfer funds

from other due process categories in the JAC and make supplemental



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appropriations from unallocated general revenue to resolve projected deficits. Id .

The amended provisions of section 27.5304(12) (2012) are one of several

new mechanisms the legislature has devised in an attempt to reduce these costs.

Pursuant to newly amended section 27.5304(12)(f), the amount of attorney’s fees

ordered in excess of the flat rates “shall be paid by the Judicial Administrative

Commission in a special category designated for that purpose in the General

Appropriations Act.” Fla. Stat. §27.5304(12)(f)(2). Like last year, this special

category was allocated $3 million in the 2012 General Appropriations Act. Ch.

2012-118, at Line Item 828, Laws of Fla. However, and of particular import to the

controversy in this case, the newly amended section continues:

If, during the fiscal year, all funds designated for payment of the amount ordered by the court in excess of the flat fee arespent, the amount of payments in excess of the flat fee shall bemade from the due process funds, or other funds as necessary, appropriated to the state courts system in the GeneralAppropriations Act.

Fla. Stat. §27.5304(12)(f)(3) (emphasis added).

This amendment represents a significant policy shift. Whereas previously

the Legislature and the JAC bore the burden of funding all conflict-counsel

compensation, the amendment has effectively shifted some of that burden to the

judiciary. As reported in the Bill Analysis and Fiscal Impact Statement:

This change is aimed at encouraging the courts to take astronger role in governing the ordering of fees. If the courtsystem is answerable for some of the costs associated with



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payments above the flat fee, judges may be less willing to order these fees.

STATE OF FLA., 1960 BILL A NALYSIS A ND FISCAL IMPACT STATEMENT, Senate

Budget Committee, Reg. Sess., at 3-4 (2012) (“1960 IMPACT STATEMENT”).1

Following the enactment of these amendments, the Office of the State

Courts Administrator (“OSCA”) and the Trial Court Budget Commission

(“TCBC”) projected the amount of funding needed to cover excess attorney fees

once the $3 million allocation is exhausted and devised a funding methodology

under which OSCA will administer a Statewide Conflict Counsel Payment Over

the Flat Fee Pool (“Pool”). (See App. 1, p. 4.) See also Trial Court Budget

Commission, Summary of the TCBC Decisions Made on August 11, 2012, at 12-13,

available at http://www.flcourts.org/gen_public/funding/bin/tcbc/summaries/

TCBCRecommendationsFY13-14LBR.pdf. Excess fees associated with capital

and RICO cases will be paid from that Pool. While excess fees in all other cases

will also be paid from the Pool, each circuit has been given an “expenditure

allowance” for such other cases which requires a circuit to transfer funds from its

own budget into the Pool once its allowance is exceeded. (See App. 1, p. 4.) It is

unclear what would happen should a court award excess fees in a capital or RICO

case once the Pool is exhausted, though section 27.5304(12)(f) would still require

1 Amicus further notes that the $3 million appropriated to cover these fees is patently inadequate; the JAC estimated the total cost of excess fees for Fiscal Year 2011-12 to be $6,798,189. Id . at 2.



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that those payments come from funds appropriated to the state courts system.

On October 12, 2012, Caroline C. Emery, Court Counsel for the Fourth

Judicial Circuit, issued a memorandum to all conflict-counsel on behalf of Chief

Judge Donald R. Moran, Jr. discussing attorney’s fees for conflict-counsel

(“Conflict-Counsel Memo,” attached as App. 1). The Conflict-Counsel Memo was

issued in response to the Criminal Conflict Attorney Payments Over the Flat Fee –

July & August 2012 Reports (“OSCA Reports”) created by the OSCA and

notifying Chief Judge Moran that two months into the fiscal year, his Circuit had

already exhausted 25% of its expenditure allowance. (See App. 1, p. 4-7.)

On October 30, 2012, Chief Judge Moran entered the two Orders on which

Petitioners now seek review. (See App. 2 (“Fletcher Order”); App. 3 (“Schlax

Order”) (together, the “Orders”).) The Conflict-Counsel Memo (with OSCA

Reports) was attached to the Orders, which significantly reduced Petitioners’

attorney’s fees, referencing the Conflict-Counsel Memo as justification.

SUMMARY OF THE ARGUMENT

The Petitions for Writ of Certiorari should be granted because the Orders

below constitute a departure from the essential requirements of law. Petitioners’

fee reductions are based on an unconstitutional application of statutory law that

violates the Sixth Amendment right to effective assistance of counsel.

Furthermore, the resulting Orders should be quashed because they are



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confiscatory of Petitioners’ “time, energy and talents,” and if allowed to stand will

have a severe “chilling effect” on competent private attorneys’ willingness to

accept capital representation of indigent defendants.

ARGUMENT

I. THE ORDERS BELOW SHOULD BE QUASHED BECAUSE THEY

RELY ON AN UNCONSTITUTIONAL APPLICATION OF

STATUTORY LAW THAT VIOLATES THE RIGHT TO COUNSEL

UNDER THE UNITED STATES AND FLORIDA CONSTITUTIONS.

The right to the assistance of counsel is a fundamental right founded in both

the United States and Florida constitutions. U.S. Const. amend.VI; Fla. Const. art.

I, §16. It was secured for all within our justice system when the Supreme Court

held that the Sixth and Fourteenth Amendments obligated the states to provide

representation to indigent defendants, Gideon v. Wainwright , 372 U.S. 335 (1963),

and it was subsequently reinforced when the Court clarified that the Sixth

Amendment guarantee is not just to assistance of counsel, but to the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

Though fundamentally important in all criminal prosecutions, courts must be

most vigilant in protecting the right to effective counsel in the capital context. The

“qualitative difference of death from all other punishments” means that capital

proceedings demand a higher degree of reliability under the Eighth and Fourteenth

Amendments. Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). Unfortunately,

higher reliability carries with it a higher cost to the State.



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The Legislature has tried to reduce those costs by instituting statutory fee

caps limiting attorney’s fees for conflict-counsel. In Makemson v. Martin County,

491 So. 2d 1109, 1110 (1986), the Florida Supreme Court held that while statutory

fee limitations are facially constitutional, they are “unconstitutional when applied

to cases involving extraordinary circumstances and unusual representation.” The

Court reasoned that given the time and effort required in such cases, the rigid

application of statutory fee caps would amount to mere “token compensation,”

confiscatory of the attorney’s “time, energy, and talents,” and that the “availability

of effective counsel [would] therefore [be] called into question in those cases when

it is needed most.” Id . at 1112-15. The Court held that a defendant’s right to

effective counsel and an appointed attorney’s right to reasonable compensation are

“inextricably interlinked,” and in “extraordinary and unusual cases,” an award of

fees beyond the statutory limitations is required to protect both. Id .

Moreover, the Makemson Court recognized that it is the independent

judiciary that is charged with placing a shield between a legislature that seeks to

cut costs and the individual who has a right to an effective defense. Though “it is

ordinarily well within the legislature’s province to appropriate funds for public

purposes and resolve questions of compensation,” the Court made clear that it is

within “the court’s inherent power to ensure the adequate representation of the

criminally accused” by ordering fees that exceed statutory limitations when



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deemed necessary. Id . at 1112 (citations omitted).

As described in Rose v. Palm Beach County, 361 So. 2d 135, 137 (Fla. 1978)

(and subsequently cited in White v. Bd. of County Comm’ rs of Pinellas County,

537 So. 2d 1376, 1378 (Fla. 1989)):

The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by theexecutive and legislative branches of government hasdeveloped as a way of responding to inaction or inadequateaction that amounts to a threat to the courts’ ability to make

effective their jurisdiction. The doctrine exists because it is

crucial to the survival of the judiciary as an independent,functioning and co-equal branch of government. Theinvocation of the doctrine is most compelling when the judicialfunction at issue is the safe-guarding of fundamental rights.

Therefore, a statute regulating attorney’s fees “is unconstitutional when applied in

such a manner that curtails the court’s inherent power to secure effective,

experienced counsel for the representation of indigent defendants.” White, 537 So.

2d at 1379. “At that point the statute impermissibly encroaches upon a sensitive

area of judicial concern and violates article V, section 1 [judicial power to courts],

and article II, section 3 [separation of powers] of the Florida Constitution.” Id.

The principles above have been repeatedly reaffirmed2, and in 2007, the

Legislature amended the compensation scheme for conflict-counsel, providing the

current procedure by which trial courts can award attorney fees in excess of the

2 See, e.g., Hagopian v. Justice Admin. Comm’n, 18 So. 3d 625, 638 (Fla. 2009); Florida Dept. of Fin. Servs. v. Freeman, 921 So. 2d 598, 600 (Fla. 2006); Olive v.

Maas, 811 So.2d 644, 651-54 (Fla. 2002).



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statute’s flat rates on those “rare occasions” an attorney is appointed to a case “that

requires extraordinary and unusual effort.” See Hagopian, 18 So. 3d at 628-29

(describing the amendments); see also White, 537 So. 2d at 1878 (holding all

capital cases are extraordinary and unusual). However, as outlined above,

section 27.5304(12)(f) (2011) was recently amended to include a new legislative

mechanism aimed at reducing the costs associated with conflict-counsel. See Fla.

Stat. §27.5304(12)(f) (2012). The amended statute provides that once the special

appropriation of funds for attorney fees in excess of the flat fee is exhausted, the

excess fees “shall be made from the due process funds, or other funds as necessary,

appropriated to the state courts system….” Id . (emphasis added).

This new provision violates the Sixth Amendment because it attempts, by

financial duress, to curtail “the court’s inherent power to secure effective,

experienced counsel for the representation of indigent defendants in capital cases.”

White, 537 So. 2d at 1379. As the Florida Supreme Court stated in Makemson, “In

order to safeguard the individual’s rights, it is our duty to firmly and

unhesitatingly resolve any conflicts between the treasury and fundamental

constitutional r ights in favor of the latter.” Makemson, 491 So. 2d at 1114

(emphasis added). However, newly amended section 27.5304(12)(f) creates a new

conflict between fundamental constitutional rights and the court’s capacity to

maintain its budget, and while the court’s duty remains the same, judges are all but



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certain to “hesitate” before awarding attorney’s fees in excess of the statutory

limitations, as the duty to protect the individual’s rights now comes at the court’s

financial sacrifice. Indeed, that “hesitation” was precisely the intent of the

Legislature. See 1960 IMPACT STATEMENT (“If the court system is answerable for

some of the costs associated with payments above the flat fee, judges may be less

willing to order these fees.”).

Much to the detriment of the “individual’s rights,” it appears that the new

statutory provisions are achieving their legislative purpose. While finding that

Petitioners proved by competent and substantial evidence that their case required

“extraordinary and unusual efforts,” Chief Judge Moran still reduced drastically

their respective fee awards. (App. 2, pp. 2-3; App. 3, pp. 2-3.) Significantly, the

only justification for the fee reductions was a statement that the court found the

reduced awards to be “more appropriate, given the totality of the circumstances.

(See Exhibit ‘A.’).” (App. 2, p. 3; App. 3, p. 3.) Attached to each of Petitioner’s

Orders as “Exhibit A” was the Conflict-Counsel Memo. (See App. 1.)

As the Conflict-Counsel Memo indicates, in applying section 27.5304(12)(f)

in the Fourth Judicial Circuit, Chief Judge Moran apparently felt compelled to

institute a policy in which “almost all” motions for excess fees will be summarily

denied, and “[i]f any motions are granted, the awards will have to be extremely

conservative.” (App. 1, p. 2) (emphasis in original). Reacting to the OSCA



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Reports attached thereto (reporting that the Fourth Circuit had spent more than

25% of its expenditure allowance in the first two months of the fiscal year), the

Conflict-Counsel Memo makes clear that the Chief Judge’s primary concern is the

Circuit’s budget under newly amended section 27.5304(12)(f):

[O]nce we have spent all of the Fourth Judicial Circuit’s

expenditure allowance, the funds will be taken out of theCircuit’s budget, which will jeopardize essential programs,

services, resources, and personnel, which have alreadyexperienced severe downsizing and cuts due to the state of theeconomy. This Circuit (Duval, Nassau and Clay counties)

cannot afford any more cuts whatsoever.

(App. 1, pp. 1-2.) (emphasis in original).

Such a policy clearly violates the Sixth Amendment because it all but

guarantees that conflict-counsel will not receive reasonable compensation if

appointed to a capital (or otherwise complex) case, thereby calling into question

the availability of effective counsel. Makemson, 491 So. 2d at 1112. Moreover,

this policy is direct evidence that Chief Judge Moran’s application of section

27.5304(12)(f) unconstitutionally undermines the court’s inherent power to ensure

the effective representation of indigent capital defendants, compromising the

independence of the judiciary and violating the Sixth Amendment. See Fla. Const.

art. I, §16; art. II, §3; art. V, §1; see also Rose, 361 So. 2d at 137 (“[W]here the

fundamental rights of individuals are concerned, the judiciary may not abdicate its



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responsibility and defer to legislative or administrative arrangements.”).3

As the Orders under review are a product of this policy, which itself is based

on the unconstitutional application of newly amended section 27.5304, the Orders

constitute a departure from the essential requirements of law. Further, citing

budgetary concerns to justify the reduction of fees not only means the court

considered criteria beyond the scope of the statute, see Fla. Stat. §27.5304(12), but

also violates the separation-of-powers doctrine. See Still v. Justice Admin.

Comm’n, 82 So. 3d 1168, 1170 (Fla. 4th DCA 2012) (“[M]atters of appropriation

and adequacy of state funds are legislative functions and not judicial. It would be a

violation of the separation of powers doctrine for trial courts to address whether

adequate state funding is available to discharge a statutory provision authorizing

payment of attorney’s fees, such as here.”); Art. II, §3, Fla. Const.4

II. THE ORDERS BELOW SHOULD BE QUASHED BECAUSE THEY

ARE CONFISCATORY OF PETITIONERS’ “TIME, ENERGY, AND

TALENTS,” AND ALLOWING THEM TO STAND WILL HAVE A

3 Amicus makes special note that it appreciates the difficult and unfair position inwhich the Legislature has placed Chief Judge Moran (and those of other circuits).However, Amicus also submits that the Fourth Circuit’s new policy is just as likely

to increase the Circuit’s actual defense expenditures due to the increase in valid

post-conviction claims sure to follow. “When counsel in a capital case falls below

the threshold of effectiveness . . . [a] tremendous waste result[s as] the entire judicial process must be repeated,” increasing the costs charged to the State.

Sheppard & White, P.A. v. City of Jacksonville, 827 So. 2d 925, 932 (Fla. 2002).4 See also State v. Martin, Case No. F11-003648, Order Granting In Part AndDenying In Part Defendant’s Motion To Declare Section 27.5304 Florida Statutes(2012) Unconstitutional (11th Jud. Cir. Oct. 25, 2012) (striking down statute

because courts’ re-appropriation of funds would also violate separation of powers).



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SEVERE CHILLING EFFECT ON ATTORNEYS’ WILLINGNESS TO

REPRESENT INDIGENT CAPITAL DEFENDANTS.

In Makemson, the Florida Supreme Court held that in extraordinary and

unusual cases, courts have the power to deviate from statutory caps so conflict-

counsel “is not compensated in an amount which is confiscatory of his or her time,

energy, and talents.” 491 So. 2d at 1115. Just three years later, the Court expanded

that holding, ruling “all capital cases by their very nature can be considered

extraordinary and unusual.” White, 537 So. 2d at 1378 (emphasis added).

The finding in White recognizes – as courts long have – that death is

different. See, e.g., Woodson v. North Carolina, 428 U.S. 280 (1976); Walker v.

State, 707 So. 2d 300, 319 (Fla. 1997). As mentioned above, the finality of the

punishment requires a higher degree of reliability. Caldwell , 472 U.S. at 329. But

death is different not just in punishment; it requires is a different kind of

proceeding and a different kind of representation.

A capital trial is bifurcated into two separate phases; the guilt/innocence

phase, and, if a defendant is convicted of first-degree murder, a second “penalty

phase” in which additional evidence is presented before a jury to consider the death

penalty. See Fla. Stat. §921.141 (2012). Thus, in a capital proceeding, “counsel is

actually representing the defendant in not one but two separate trials,” White, 537

So. 2d at 1380, and moreover, must provide effective representation in both.

Given their unique and complex nature, providing effective representation to



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a client facing the death penalty requires an experienced attorney who possesses

“large measures of intellect, skill, character, creativity, and emotional stability.”

Sheppard & White, P.A., 827 So. 2d at 932. And given the added responsibilities

involved in a capital trial, it has become common practice for trial courts in Florida

to appoint two attorneys to represent each capital defendant. Consistent with the

elevated degree of reliability required in capital proceedings, the Florida Supreme

Court has promulgated elevated “standards – above the mere holding of a license

to practice law – which attorneys in capital cases are required to meet.” Sheppard

& White, P.A., 827 So. 2d at 932 citing Fla. R. Crim. P. 3.112 (requiring significant

experience and specialized knowledge of experts, forensic evidence, and capital

proceedings before an attorney is eligible for capital representation).

Courts also look to the American Bar Association (ABA) standards as

guides when determining what is reasonable or whether an attorney provided

effective assistance, including the ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases (2003) (“ABA Guidelines”). See,

e.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003) (citing ABA Guideline 11.4.1(C),

11.8.6 (1989)) (failure to investigate and present mitigating evidence deemed

ineffective assistance); Walker v. State, 88 So. 3d 128 (Fla. 2012) (“This Court has

also specifically noted that both Wiggins and the ABA Guidelines . . . §10.11 on

counsel’s duties mandate mitigation investigation and preparation, even if client



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objects.”) (citations omitted); see also Criminal Specialists Investigation, Inc. v.

State, 58 So. 3d 883, 886 (Fla. 1st DCA 2011) (citing ABA Guideline 4.1)

(recognizing mitigation specialist under Florida law as an “indispensable member

of the defense team throughout all capital proceedings”).

The above standards and cases not only demonstrate the higher level of

representation required in the capital context, but also touch on the greatly

expanded duties and responsibilities of a capital defense attorney. As noted in

Hagopian, “the typical [death penalty] case can be active for several months, if

not years, and routinely consume hundreds of hours of professional time,” 18

So. 3d at 629 (emphasis added), and it is for that reason that the White Court was

“hard pressed to find any capital case in which the circumstances would not

warrant an award of attorney’s fees in excess of the statutory fee cap.” 537 So. 2d

1397. As troubling as that reality may be for a legislature attempting to cut costs,

“[so long as] the State of Florida enforces the death penalty, its primary obligation

is to ensure that indigents are provided competent, effective counsel in capital

cases,” and that means the State must provide reasonable compensation. Id .

Though clear from the cases above that courts have generally agreed the

statutory flat fees are unreasonably low5, it should not be overlooked that courts

5 Amicus points out that with the exception of the rate for capital cases, flat fees in place today are the same as those the White Court in 1989 concluded were, “in this

day and age, unrealistic.” White, 537 So. 2d at 1379 (emphasis added).



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have also taken issue with the adequacy of hourly rates. See, e.g., Sheppard &

White, P.A., 827 So. 2d at 933:

We have recently concluded that appointed counsel in capitalcases must meet high standards and it seems unrealistic toexpect that qualified counsel will be available if a reasonablefee structure having a basis in prevailing hourly rates for thecommunity is not utilized to determine a reasonable fee in suchcases.

Section 27.5304(5)(a)(4), Florida Statutes (2012) provides a flat fee of

$15,000 for private court-appointed counsel in a capital case. At the applicable

hourly rate of $100 per hour 6, Fla. Stat. §27.5304(12), that amounts to just 150

hours of attorney time in cases that typically last “several months, if not years,

and routinely consume hundreds of hours of [attorney] time .” Hagopian, 18

So. 3d at 629 (emphasis added) (noting that the $100 hourly rate for capital cases is

“substantially below market rates for similar services.”);7 Cf. Tyson v. Astrue, No.

8:11-CV-1991-T-TGW, 2012 WL 2917974, at *1 (M.D. Fla. July 17, 2012)

(noting hourly rate for appointed counsel in federal capital case is $178); ABA

6 While the statute allows an hourly rate “not to exceed . . . $100 per hour for acapital case,” courts generally view that limitation as the applicable rate, accepting

that anything less is confiscatory. See Justice Admin. Comm’n v. Lenamon, 19 So.3d 1158, 1162 (2009) (“[I]n a capital case…, the applicable hourly rate payable to

ensure that the total fees paid are not confiscatory is $100.”) (emphasis added). 7 See The Florida Bar, Results of the 2010 Economic and Law Office Management

Survey, at 8 (Feb. 2011) (finding 87% of Florida Attorneys report average billingrate of $150 or higher; only 4% report a rate of $125 or less), available athttps://www.floridabar.org/TFB/TFBResources.nsf/Attachments/926DF1F161CEFBA08525783B006F7541/$FILE/2010%20Economics%20Survey%20-

%20Final.pdf?OpenElement.



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Guideline 9.1 (specifically rejecting flat fees and caps on compensation in death

penalty cases, instead requiring counsel be fully compensated at hourly rate

commensurate with jurisdiction’s prevailing rates for similar services).

Petitioners expended “extraordinary and unusual efforts” in the zealous

defense of their client only to have their fees substantially reduced over concern for

the court’s budget. Even though the JAC apparently conceded to the

reasonableness of Petitioners’ proposed fees, ( see App. 4, p.2, ¶5; App. 5, p. 2, ¶6),

Mr. Fletcher’s fees for 627.5 hours were reduced from $62,750 to $35,000 (App. 2,

pp. 1-3), and Ms. Schlax’s fees for 236.7 hours were reduced from $23,670 to

$17,000 (App. 3, pp. 1-2), amounting to hourly rates of $55.77 and $71.82,

respectively. Though Petitioners may not be entitled to “market value”

compensation, they are entitled to “reasonable compensation.” See Makemson,

491 So. 2d at 1113 (“Token compensation is no longer to be an alternative.”).

Such a reduction in fees – below even the statutory hourly rate – in the name of

preserving the court’s resources can only be described as confiscatory of

Petitioners’ “time, energy, and talents,” and “forces [them] . . . to bear a burden

which is properly the state’s.” Id . at 1114.

When an attorney is called upon by the state to represent anindigent defendant in a criminal case, not only is the attorneyexpected to provide legal services as part of his or her

professional ethical obligation, but the state, as part of its

constitutional obligation, must reasonably compensate the

attorney for those services.



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Id . at 1112 (emphasis added).

The Fourth Circuit’s new policy, evidenced by the Conflict-Counsel Memo

and resulting Orders now under review, is the antithesis of this obligation.

Allowing these Orders to stand will significantly threaten the ability of attorneys to

render effective representation in capital proceedings by creating a real uncertainty

as to whether they will be reasonably compensated. As explained in Olive v.

Maas, 811 So. 2d 644, 653 (2002) (citing White, 537 So. 2d at 1380):

The relationship between an attorney’s compensation and the

quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided . . . .As a result, there is a risk that the attorney may spend fewer hours than required representing the defendant or may

prematurely accept a negotiated plea that is not in the bestinterests of the defendant. A spectre is then raised that thedefendant received less than the adequate, effectiverepresentation to which he or she is entitled, the very injusticeappointed counsel was intended to remedy.

Moreover, that same uncertainty is likely to have a severe “chilling effect”

on attorneys’ willingness to undertake capital representation because “(1) It creates

an economic disincentive for appointed counsel to spend more than a minimum

amount of time on a case; and (2) It discourages competent attorneys from

agreeing to a court appointment, thereby diminishing the pool of experienced talent

available to the trial court.” Id. Thus, allowing the Orders to stand would have a

much greater impact than just that on Petitioners; other talented attorneys will



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become reluctant to register for court-appointment, and those who do will be

representing capital defendants under a cloud of uncertainty regarding

compensation, compromising their ability to provide the high standard of effective

counsel required in capital proceedings. See Freeman, 921 So. 2d at 604 (Pariente,

C.J., specially concurring) (“[T]he credibility of our death penalty system depends

in large part on the quality of the attorneys who undertake the representation.”).

CONCLUSION

Because the Orders below are based on an unconstitutional application of

law that violates the Sixth Amendment right to effective counsel, are confiscatory

of Petitioners’ time, energy, and talents, and will have a severe chilling effect on

competent attorneys’ willingness to accept capital representation of indigent

defendants, this Court should grant the Petitions for Writ of Certiorari.

Respectfully Submitted,

BY: /s/ Stuart L. Hartstone

STUART L. HARTSTONE, ESQ. TERENCE M. LENAMON, ESQ.Assistant Executive Director Chairman, Board of DirectorsFla. Bar No. 87934 Fla. Bar No. 970476100 N. Biscayne Blvd., Suite 3070 100 N. Biscayne Blvd., Suite 3070Miami, FL 33132 Miami, Florida 33132

(305)373-9911 (305) 373-9911Stuart.Hartstone@ [email protected]

floridacapitalresourcecenter.org

Attorneys for Amicus Curiae Florida Capital Resource Center



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S. mail to the Honorable Donald Moran, Jr., Chief Judge, 4thJudicial Circuit, 501West Adams Street, Jacksonville, Florida 32202, and viacertified email to the following counsel this 17th Day of December, 2012:

Ana Cristina Martinez, Esq.General CounselJustice Administrative CommissionP.O. Box 1654

Tallahassee, Florida 32302 [email protected] for Respondent

Christian Lake, Esq.Assistant General CounselJustice Administrative CommissionP.O. Box 1654Tallahassee, Florida [email protected] for Respondent

Rick A. Sichta, Esq.Arnold & Sichta6279 Dupont Station CourtJacksonville, Florida [email protected] for Petitioners

s/Stuart L. Hartstone, Esq.Fla. Bar No. 87934



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CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY, pursuant to Florida Rule of Appellate Procedure

9.210(a)(2), that this Brief complies with the Rule’s type-font requirements, in that

it was prepared in Times New Roman, 14-point font.

s/ Stuart L. Hartstone, Esq.Fla. Bar No. 87934

amicus brief filed by florida capital resource center (terry lenamon) in fletcher v jac

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