CopyCited 3 times | Published | Supreme Court of Florida | 2008 WL 4346431
...hat in appropriate capital collateral cases involving extraordinary circumstances, registry attorneys may request and, upon judicial approval, receive compensation in excess of the statutory fee schedule, despite the language to the contrary *199 in section 27.7002, Florida Statutes (2007)....
...[3] We also remanded the case to the trial court for dissolution of the permanent injunction against Maas, based on the representation that Maas did not intend to exclude Olive from the registry list. Id. at 657. Only weeks after we issued Olive I, the Legislature added section
27.7002 to the Registry Act. See ch.2002-31, § 2, at 674-75, Laws of Fla. This new provision provides that compensation above the amounts set forth in section
27.711 "is not authorized." §
27.7002(5), Fla....
...ny attorney who seeks fees in excess of the statutory cap and requires permanent removal of any attorney who declares that he or she cannot provide adequate or proper representation under the terms and conditions set forth in section
27.711. See id. §
27.7002(6)-(7)....
...of the Registry Act. However, Olive did not sign the contract and informed the judge about the pending litigation in Olive I. When that litigation was resolved, Olive advised the judge that he could not sign the contract because of the enactment of section 27.7002....
...Olive has continued to represent Dougan pro bono in his postconviction proceedings. In 2003, Olive filed a new complaint for declaratory judgment, challenging the amended Registry Act on the same grounds as he did in Olive I. [5] He sought a declaration that: (1) section 27.7002 violates the courts' inherent authority under article V of the Florida Constitution; (2) section 27.7002 violates the separation of powers provision in article II of the Florida Constitution; and (3) death row inmates have a Florida constitutional right to postconviction counsel....
...Finally, the First District found that the amended complaint complied with the Florida Rules of Civil Procedure. Id. at 839. Accordingly, the First District remanded the case back to the circuit court. On remand, the court granted summary judgment in favor of Olive on Count I, finding that section 27.7002(5) must be construed to permit the use of state funds for compensation of registry attorneys above the statutory limit in capital postconviction cases involving extraordinary circumstances upon judicial approval. Further, the court ruled that the attorneys should not suffer the penalty of permanent removal from the registry list as provided in section 27.7002(6) for seeking such compensation. The court concluded that this Court's ruling in Olive I and other controlling case law required this construction in order to preserve the constitutionality of section 27.7002....
...Additionally, in the instant case Olive has continued to represent death row inmate Dougan in his postconviction proceedings pursuant to the trial court's order of appointment, albeit Olive has represented Dougan pro bono because he has refused to sign the registry contract because of the enactment of section 27.7002....
...27.711 "where extraordinary or unusual circumstances exist in capital collateral cases," notwithstanding the statutory language that this fee schedule is "the exclusive means of compensation" for such attorneys. Id. at 654. The instant case involves section
27.7002, which provides that state funds cannot be used for compensation above the amounts set forth in section
27.711 and outlines sanctions that may be imposed on registry counsel who seek compensation in excess of the statutory schedule. Section
27.7002 was added to the Registry Act after our decision in Olive I. Thus, none of the provisions of section
27.7002 were or could have been considered in Olive I....
...ment action. See Martinez v. Scanlan,
582 So.2d 1167, 1170 (Fla.1991) ("The purpose of the declaratory judgment statute is to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations...."). Section
27.7002 As noted above, the Florida Legislature amended the Registry Act shortly after we decided Olive I by adding section
27.7002....
...At issue in this case is the language that limits "[t]he use of state funds for compensation of counsel ... to the amounts set forth in section
27.711," the capped fee schedule, and authorizes the permanent removal from the registry of any attorney who seeks compensation above the fee schedule. §
27.7002(5)-(6), Fla....
...propriate cases and to permit attorneys to request such compensation when justified by unusual or extraordinary circumstances. The circuit court noted that the provisions must be construed in this manner in order to preserve the constitutionality of section 27.7002....
...cap would be confiscatory of his or her time, energy and talent and violate the principles outlined in Makemson and its progeny." Olive I,
811 So.2d at 654. Maas argues that the rationale of Olive I is no longer valid because the Legislature enacted section
27.7002 to clarify its intent that the fee caps cannot be exceeded in any circumstances....
...unctioning and co-equal branch of government. The invocation of the doctrine is most compelling when the judicial function at issue is the safe-guarding of fundamental rights. Rose,
361 So.2d at 137 (footnote omitted). Thus, despite the enactment of section
27.7002 after we issued our opinion in Olive I, the reasoning underlying Olive I, Makemson, White, and Remeta still controls our interpretation of the statute. We agree with the trial court that section
27.7002(5) must be construed as permitting compensation in excess of the statutory fee caps where a trial court exercises its inherent authority to grant such fees in light of extraordinary circumstances in a case....
...caps not apply. See Fla. Dep't of Fin. Servs. v. Freeman,
921 So.2d 598 (Fla.2006) (remanding for full evidentiary hearing on whether attorney's fees in excess of statutory limit were justified). Furthermore, we also agree with the trial court that section
27.7002(6) must be construed to prohibit removing an attorney from the registry list for seeking compensation above the statutory limit in cases involving extraordinary circumstances. In light of our interpretation of section
27.7002, we agree with the trial court that the statute does not violate the separation of powers doctrine....
...WELLS, J., dissents with an opinion, in which, BELL, J., and CANTERO, Senior Justice, concur. WELLS, J., dissenting. I cannot join the majority opinion because the Legislature has made it completely clear that there are to be no fees paid in excess of the legislatively mandated caps. § 27.7002(5), Fla....
...cessing of the postconviction case. In conclusion, I would reverse the decision of the circuit court and remand the case with directions that a judgment be entered declaring that attorney fees in postconviction capital cases are to be in accord with section 27.7002(5), Florida Statutes (2002)....
...wide registry of attorneys. [3] This Court found no merit to Olive's claims that the Act would compel appointed counsel to violate ethical duties to act as a zealous advocate for a death row client. Olive I,
811 So.2d at 654-55. [4] In its entirety, section
27.7002, Florida Statutes (2007), provides:
27.7002 Limitation on collateral representation; lawyer disqualification; use of state funds for excess fees not authorized. (1) This chapter does not create any right on behalf of any person, provided counsel pursuant to any provision of this chap...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 3211, 2011 WL 831135
...o represent a death-sentenced individual in a collateral postconviction proceeding attacking the validity of a prior violent felony conviction that was used as an aggravator in support of a sentence of death.” Id. at 1070 . When read together with section
27.7002(4), however, section
27.711(11) merely prohibits registry counsel from representing a capital defendant in a non-capital proceeding at state expense. Under chapter 27, part IV (“Capital Collateral Representation”), “[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter.” §
27.7002(4), Fla....
...the discipline of persons admitted.”). In sum, section
27.711(11) should not be interpreted to cut off the long-established right of a party to retain counsel of his or her choice. Reading the prohibition in section
27.711(11) in pari materia with section
27.7002(4), providing that “[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter,” it is apparent that the Legislature intends to conta...
...al Circuit. See Jan Pudlow, Kerrigan wins Simon Pro Bono Service Award, Fla. Bar News, Feb. 15, 2011, at 1. . The motion also sought dismissal on grounds appellant’s motion was successive, but the trial court did not reach that issue. Nor do we. . Section
27.7002(4), Florida Statutes (2009) provides that "[n]o attorney may be appointed, at state expense, to represent any defendant in collateral legal proceedings except as expressly authorized in this chapter,” (emphasis supplied), while section
27.711(11), Florida Statutes (2009) provides: An attorney appointed under s....
CopyPublished | Florida 1st District Court of Appeal | 2005 Fla. App. LEXIS 13869, 2005 WL 2105911
...ounsel in postconviction relief proceedings. Third, the amended complaint complied with the Florida Rules of Civil Procedure. FACTS AND PROCEDURAL HISTORY This case, while generally involving the same Registry Act at issue in Olive I, centers around section 27.7002, Florida Statutes, which was not a part of the Registry Act when the supreme court decided Olive I. 1 Section 27.7002 provides in pertinent part as follows: (3) No provision of this chapter shall be construed to generate any right on behalf of any attorney appointed pursuant to s....
...addition to the caps set forth in Chapter 27 at each stage of the representation, of a death-sentenced individual and at any other time throughout the course of the representation under the Registry Act and [contract], without suffering the penalties directed by section 27.7002, Florida Statutes, for doing so.” (Emphasis added)....
...fee schedule by recognizing that a trial court has the inherent authority to exceed the fee caps in the Registry Act based on the facts and circumstances in a particular case. See id. at 654 . In contrast, the instant case deals with the constitutionality of the Registry Act in light of the sanctions outlined in section 27.7002 that may be imposed if an attorney requests a fee in excess of the caps as specifically authorized by Olive I. This issue was not dealt with in Olive I, and it is ripe for adjudication in light of the Legislature’s enactment of section 27.7002 immediately after the supreme court’s decision in Olive I....
...he issues to be litigated and the attachments are supportive of the allegations set forth in those pleadings. We find that no violation of the pleading requirements set forth in the rules of civil procedure occurred. ALLEN and BENTON, JJ., concur. . Section 27.7002 became a part of the Registry Act on July 1, 2002....
