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2016 Florida Statutes
SECTION 5304
Private court-appointed counsel; compensation; notice.
Private court-appointed counsel; compensation; notice.
27.5304 Private court-appointed counsel; compensation; notice.—
(1) Private court-appointed counsel shall be compensated by the Justice Administrative Commission as provided in this section and the General Appropriations Act. The flat fees prescribed in this section are limitations on compensation. The specific flat fee amounts for compensation shall be established annually in the General Appropriations Act. The attorney also shall be reimbursed for reasonable and necessary expenses in accordance with s. 29.007. If the attorney is representing a defendant charged with more than one offense in the same case, the attorney shall be compensated at the rate provided for the most serious offense for which he or she represented the defendant. This section does not allow stacking of the fee limits established by this section.
(2) The Justice Administrative Commission shall review an intended billing by private court-appointed counsel for attorney fees based on a flat fee per case for completeness and compliance with contractual and statutory requirements. The commission may approve the intended bill for a flat fee per case for payment without approval by the court if the intended billing is correct. An intended billing that seeks compensation for any amount exceeding the flat fee established for a particular type of representation, as prescribed in the General Appropriations Act, shall comply with subsections (11) and (12).
(3) The court retains primary authority and responsibility for determining the reasonableness of all billings for attorney fees, costs, and related expenses, subject to statutory limitations. Private court-appointed counsel is entitled to compensation upon final disposition of a case.
(4)(a) The attorney shall submit a bill for attorney fees, costs, and related expenses within 90 days after the disposition of the case at the lower court level, notwithstanding any appeals. The Justice Administrative Commission shall provide by contract with the attorney for imposition of a penalty of:
1. Fifteen percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 90 days after the disposition of the case at the lower court level, notwithstanding any appeals;
2. For cases for which disposition occurs on or after July 1, 2010, 50 percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 1 year after the disposition of the case at the lower court level, notwithstanding any appeals; or
3. For cases for which disposition occurs on or after July 1, 2010, 75 percent of the allowable attorney fees, costs, and related expenses for a bill that is submitted more than 2 years after the disposition of the case at the lower court level, notwithstanding any appeals.
(b) For purposes of this subsection, the term “disposition” means:
1. At the trial court level, that the court has entered a final appealable judgment, unless rendition of judgment is stayed by the filing of a timely motion for rehearing. The filing of a notice of appeal does not stay the time for submission of an intended billing; and
2. At the appellate court level, that the court has issued its mandate.
1(5) The compensation for representation in a criminal proceeding may not exceed the following:
(a) For misdemeanors and juveniles represented at the trial level: $1,000.
(b) For noncapital, nonlife felonies represented at the trial level: $15,000.
(c) For life felonies represented at the trial level: $15,000.
(d) For capital cases represented at the trial level: $25,000. For purposes of this paragraph, a “capital case” is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
(e) For representation on appeal: $9,000.
(6) For compensation for representation pursuant to a court appointment in a proceeding under chapter 39:
(a) At the trial level, compensation for representation for dependency proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an adjudication of dependency, shall be completed by the trial attorney and is considered compensated by the flat fee for dependency proceedings.
1. Counsel may bill the flat fee not exceeding $1,000 following disposition or upon dismissal of the petition.
2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year following the date of appointment and each year thereafter as long as the case remains under protective supervision.
3. If the court grants a motion to reactivate protective supervision, the attorney shall receive the annual flat fee not exceeding $200 following the first judicial review and up to an additional $200 each year thereafter.
4. If, during the course of dependency proceedings, a proceeding to terminate parental rights is initiated, compensation shall be as set forth in paragraph (b). If counsel handling the dependency proceeding is not authorized to handle proceedings to terminate parental rights, the counsel must withdraw and new counsel must be appointed.
(b) At the trial level, compensation for representation in termination of parental rights proceedings shall not exceed $1,000 for the first year following the date of appointment and shall not exceed $200 each year thereafter. Compensation shall be paid based upon representation of a parent irrespective of the number of case numbers that may be assigned or the number of children involved, including any children born during the pendency of the proceeding. Any appeal, except for an appeal from an order granting or denying termination of parental rights, shall be completed by trial counsel and is considered compensated by the flat fee for termination of parental rights proceedings. If the individual has dependency proceedings ongoing as to other children, those proceedings are considered part of the termination of parental rights proceedings as long as that termination of parental rights proceeding is ongoing.
1. Counsel may bill the flat fee not exceeding $1,000 30 days after rendition of the final order. Each request for payment submitted to the Justice Administrative Commission must include the trial counsel’s certification that:
a. Counsel discussed grounds for appeal with the parent or that counsel attempted and was unable to contact the parent; and
b. No appeal will be filed or that a notice of appeal and a motion for appointment of appellate counsel, containing the signature of the parent, have been filed.
2. Counsel may bill the annual flat fee not exceeding $200 following the first judicial review in the second year after the date of appointment and each year thereafter as long as the termination of parental rights proceedings are still ongoing.
(c) For appeals from an adjudication of dependency, compensation may not exceed $1,000.
1. Counsel may bill a flat fee not exceeding $750 upon filing the initial brief or the granting of a motion to withdraw.
2. If a brief is filed, counsel may bill an additional flat fee not exceeding $250 upon rendition of the mandate.
(d) For an appeal from an adjudication of termination of parental rights, compensation may not exceed $2,000.
1. Counsel may bill a flat fee not exceeding $1,000 upon filing the initial brief or the granting of a motion to withdraw.
2. If a brief is filed, counsel may bill an additional flat fee not exceeding $1,000 upon rendition of the mandate.
(7) Counsel entitled to receive compensation from the state for representation pursuant to court appointment in a proceeding under chapter 384, chapter 390, chapter 392, chapter 393, chapter 394, chapter 397, chapter 415, chapter 743, chapter 744, or chapter 984 shall receive compensation not to exceed the limits prescribed in the General Appropriations Act.
(8) A private attorney appointed in lieu of the public defender or the criminal conflict and civil regional counsel to represent an indigent defendant may not reassign or subcontract the case to another attorney or allow another attorney to appear at a critical stage of a case who is not on the registry developed under s. 27.40.
(9) Private court-appointed counsel representing an individual in an appeal to a district court of appeal or the Supreme Court may submit a request for payment to the Justice Administrative Commission at the following intervals:
(a) Upon the filing of an appellate brief, including, but not limited to, a reply brief.
(b) When the opinion of the appellate court is finalized.
(10) Private court-appointed counsel may not bill for preparation of invoices.
(11) It is the intent of the Legislature that the flat fees prescribed under this section and the General Appropriations Act comprise the full and complete compensation for private court-appointed counsel. It is further the intent of the Legislature that the fees in this section are prescribed for the purpose of providing counsel with notice of the limit on the amount of compensation for representation in particular proceedings.
(a) If court-appointed counsel moves to withdraw prior to the full performance of his or her duties through the completion of the case, the court shall presume that the attorney is not entitled to the payment of the full flat fee established under this section and the General Appropriations Act.
(b) If court-appointed counsel is allowed to withdraw from representation prior to the full performance of his or her duties through the completion of the case and the court appoints a subsequent attorney, the total compensation for the initial and any and all subsequent attorneys may not exceed the flat fee established under this section and the General Appropriations Act, except as provided in subsection (12).
This subsection constitutes notice to any subsequently appointed attorney that he or she will not be compensated the full flat fee.
(12) The Legislature recognizes that on rare occasions an attorney may receive a case that requires extraordinary and unusual effort.
(a) If counsel seeks compensation that exceeds the limits prescribed by law, he or she must file a motion with the chief judge for an order approving payment of attorney fees in excess of these limits.
1. Before filing the motion, the counsel shall deliver a copy of the intended billing, together with supporting affidavits and all other necessary documentation, to the Justice Administrative Commission.
2. The Justice Administrative Commission shall review the billings, affidavit, and documentation for completeness and compliance with contractual and statutory requirements. If the Justice Administrative Commission objects to any portion of the proposed billing, the objection and supporting reasons must be communicated in writing to the private court-appointed counsel. The counsel may thereafter file his or her motion, which must specify whether the commission objects to any portion of the billing or the sufficiency of documentation, and shall attach the commission’s letter stating its objection.
(b) Following receipt of the motion to exceed the fee limits, the chief judge or a single designee shall hold an evidentiary hearing. The chief judge may select only one judge per circuit to hear and determine motions pursuant to this subsection, except multicounty circuits and the eleventh circuit may have up to two designees.
1. At the hearing, the attorney seeking compensation must prove by competent and substantial evidence that the case required extraordinary and unusual efforts. The chief judge or single designee shall consider criteria such as the number of witnesses, the complexity of the factual and legal issues, and the length of trial. The fact that a trial was conducted in a case does not, by itself, constitute competent substantial evidence of an extraordinary and unusual effort. In a criminal case, relief under this section may not be granted if the number of work hours does not exceed 75 or the number of the state’s witnesses deposed does not exceed 20.
2. The chief judge or single designee shall enter a written order detailing his or her findings and identifying the extraordinary nature of the time and efforts of the attorney in the case which warrant exceeding the flat fee established by this section and the General Appropriations Act.
(c) A copy of the motion and attachments shall be served on the Justice Administrative Commission at least 5 business days before the date of a hearing. The Justice Administrative Commission has standing to appear before the court, including at the hearing under paragraph (b), to contest any motion for an order approving payment of attorney fees, costs, or related expenses and may participate in a hearing on the motion by use of telephonic or other communication equipment. The Justice Administrative Commission may contract with other public or private entities or individuals to appear before the court for the purpose of contesting any motion for an order approving payment of attorney fees, costs, or related expenses. The fact that the Justice Administrative Commission has not objected to any portion of the billing or to the sufficiency of the documentation is not binding on the court.
(d) If the chief judge or a single designee finds that counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or single designee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage must be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the flat fee in the case would be confiscatory. If the chief judge or single designee determines that 200 percent of the flat fee would be confiscatory, he or she 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. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.
(e) Any order granting relief under this subsection must be attached to the final request for a payment submitted to the Justice Administrative Commission.
(f) For criminal cases only, if the court orders payment in excess of the flat fee established by law, fees shall be paid as follows:
1. The flat fee shall be paid from funds appropriated to the Justice Administrative Commission in the General Appropriations Act.
2. The amount ordered by the court in excess of the flat fee shall be paid by the Justice Administrative Commission in a special category designated for that purpose in the General Appropriations Act.
3. If, during the fiscal year, all funds designated in the special category for payment under subparagraph 2. of the amount ordered by the court in excess of the flat fee are spent, the amount of payments in excess of the flat fee shall be made from the due process contingency funds, or other funds as necessary, appropriated to the Justice Administrative Commission in the General Appropriations Act.
(g) The Justice Administrative Commission shall provide monthly to the Office of the State Courts Administrator data concerning the number of cases approved for compensation in excess of the flat fee and the amount of these awards by circuit and by judge. The Justice Administrative Commission shall report the data quarterly in an electronic format to the chairs of the legislative appropriations committees and the Office of the State Courts Administrator.
History.—s. 20, ch. 2003-402; s. 11, ch. 2004-265; s. 4, ch. 2005-236; s. 11, ch. 2007-62; s. 9, ch. 2010-162; s. 4, ch. 2012-123; s. 2, ch. 2013-216; s. 3, ch. 2014-49; s. 4, ch. 2014-59; ss. 63, 64, ch. 2016-62.
1Note.—
A. Section 63, ch. 2016-62, amended subsection (5) “[i]n order to implement Specific Appropriation 780 of the 2016-2017 General Appropriations Act.”
B. Section 64, ch. 2016-62, provides that “[t]he amendment made by this act to s. 27.5304(5), Florida Statutes, expires July 1, 2017, and the text of that subsection shall revert to that in existence on June 30, 2016, except that any amendments to such text enacted other than by this act shall be preserved and continue to operate to the extent that such amendments are not dependent upon the portions of text which expire pursuant to this section.” Effective July 1, 2017, subsection (5), as amended by s. 64, ch. 2016-62, will read:
(5) The compensation for representation in a criminal proceeding shall not exceed the following:
(a) For misdemeanors and juveniles represented at the trial level: $1,000.
(b) For noncapital, nonlife felonies represented at the trial level: $6,000.
(c) For life felonies represented at the trial level: $9,000.
(d) For capital cases represented at the trial level: $25,000. For purposes of this paragraph, a “capital case” is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
(e) For representation on appeal: $9,000.