PRELIMINARY STATEMENT. for post death penalty conviction relief, Robert Peede as Petitioner, and references

Transcription

1 PRELIMINARY STATEMENT Appellant, Orange County, will be referred to herein as County, Appellee, Capitol Collateral Regional Counsel, Middle district, as CCR, the Petitioner below for post death penalty conviction relief, Robert Peede as Petitioner, and references to the record below as R followed by the page number. When block quotations are made herein from case citations, Orange County will place the relevant quotation footnotes, which the reporter had included within the case holding, at the end of the quotation, except for the footnotes within the quote which the County specifically notes as having been excluded. Orange County has discovered that an additional document should be included in the record, and contemporaneously herewith has filed a motion to supplement the record. In the meantime, Orange County will refer to that document, CCR s Motion for Determination of competency as MDC, followed by a page number. STATEMENT OF THE CASE AND FACTS CCR, acting as attorney for petitioner, for the purpose of a petition for post conviction relief under the provisions of Rule 3.850, Fla. R. Crim. P., filed a motion to determine competency, (hereinafter MDC ) on March 24, In pertinent part the MDC stated: 1. Attached to this motion... is an affidavit executed by Dr. 1

2 Brad Fisher, a... psychologist. In it he states: "[I]t is the current professional opinion of this evaluator, that Mr. Peede is not competent... to provide... specific... information... that his attorney will need to move forward In Carter v. State, 706 So.2d 873,875 (Fla.1997), the Florida Supreme Court stated that a Judicial determination of competency is required when... factual matters are at issue, the development or resolution of which require the defendant's input." 3. Also in Carter, supra, the Florida Supreme Court ruled that:... the rules for raising and determining competency at trial should be looked to. See Fla. R.Crim. P In considering the issue of competency to proceed in postconviction proceedings, the examining experts should follow the basic procedures set forth in Florida Rule of' Criminal Procedure and,... which specifically provides for consideration of "any other factors deemed relevant by the experts." The experts also should consider any areas of inquiry specified by the trial court. [Footnote omitted]. 4. The Florida Bar Criminal Rules Committee has filed a comment and proposed new Rule A copy of the... Rule is attached hereto and incorporated herewith. 5. Rule provides in part: * * * (b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant's mental condition,... and shall order the 2

3 defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing. Attorneys for the state and the defendant may be present at the examination. * * * 6. Fla. R. Crim P. Rule provides in part: Competence to Proceed: Scope of Examination and Report (a) Examination by Experts. Upon appointment by the court, the experts shall examine the defendant with respect to the issue of competency to proceed, as specified by the court in its order appointing the experts to evaluate the defendant, and shall evaluate the defendant as ordered. * * * (MDC, unnumbered pages 3 through 5, emphasis added.) The Court then did in fact order the evaluation. ( R 43) The CCR filed a motion to determine costs on July 17, ( R 23,24) In it CCR recounted that it had filed the above stated motion to determine competency, and in response the Court had ordered the appointment of two mental health experts, which, CCR indicated, had submitted billing, and been refused payment, the CCR claiming that the County, not CCR, should pay the experts. The lower court held a hearing by telephone on July 20, 2000 to address that cost matter, among others. At that time the County put forward, primarily, the Orange County v. Williams, 702 So.2d 1245 (Fla. 1997) case and the CCR the Colonel v. 3

4 State 723 So. 2d 853 ( Fla. 3 rd DCA 1998) case respectively, both claiming that their respective cases showed that the other party should pay. ( See R 5 and R 9) The court below then issued two orders, dated as having been rendered July 25 and August 15, respectively, (apparently the second one being intended to clarify the first one,) ruling that Orange County was required to pay for the fees of the examining Psychiatrists.( R 46 through 49) (The County was not listed on the lower court s certificate of service. (See R 46,47)) Notwithstanding the fact that it was the CCR which filed the motion for determination of competency, ( R 23, paragraph 2) the August 15, 2000 Order stated: The issue... is whether Orange County or...ccrc-m should be responsible for the payment of the fees of the examining psychiatrists in this case. While CCRC-M acknowledges that it is responsible for the fees of such examinations when... performed at their request, the exams now in question were ordered by the Court to determine whether Mr. Peede was competent to proceed. These were not examinations performed at the behest of CCRC-M and the expenses should be borne by Orange County. ( R 48, emphasis added) The court below cited neither of the primary cases presented by the parties. This appeal followed. SUMMARY OF ARGUMENT 1. The underlying and profound requirement of the applicable Florida Statute is that the Office of the Capital Collateral Representative must pay for the 4

5 Petitioner s litigation costs, and for that matter, his attorneys fees, in accordance with Section and 703, Fla. Stat. The Williams case cited by the County at the hearing, was correct, and should have been adopted by the court in holding that CCR should have to cover the subject costs. 2. The statute normally requiring counties to provide for courtrooms and personnel for the judicial branch, section 43.28, Fla. Stat., would not apply to place the burden on the counties for this type of cost, in this category of cases. It may have been this statute which gave the circuit court the impression, in view of the CCR s citations of authority, that the County was responsible. The Williams and Hoffman cases eliminate that statute, and the Colonel case does not support it. 3. CCR s motion really did ask for examiners to be appointed. It is an abuse of discretion both to declare the appointment of the examiners as not at the behest of CCR, and to construe the motion, legally, as not being a request to appoint such experts. 4. By definition, the fees and costs of such experts cannot possibly be defined as the kind of general expenses which counties normally are duty bound to cover under section 43.28, Fla Stat. 5. The Colonel case relied upon by the CCR is completely inapplicable. Colonel did not involve a defendant sentenced to death. 5

6 6. Statutory provisions, when coupled to the requirements of the Constitution, require counties to front the money to pay the fees and costs for most indigent criminal cases which do not involve the death penalty, but that should not mislead the courts into believing that such is so for cases involving CCR and the death penalty: Section and 703, Fla. Stat. Provide that the Florida Office of the Capital Collateral Representative ( CCR ) is responsible for representing the petitioner in collateral motions for post conviction relief. a. The petitioner s need for funds, and questions of his right to them is less of an issue than the proper source of the funds. The County is mandated to help defendants and appellants, not petitioners for Collateral Relief. Section , , , , Fla. Stat. b. Orange County has just as many arguments of an equitable nature as Petitioner and the CCR have. See Section , Fla. Stat. The County is in a much poorer planning position than the CCR for budgeting for such payments. c. Counties are not even indirectly responsible for such costs by way of their responsibilities to the Public defender. See Section 27.51, Fla. Stat. d. There is no penumbra or general duty in the absence of a statute for a public defender (and therefore through them the County) to represent an indigent. Yacussi v. Hershey 549 So. 2d 782 (Fla. 4th DCA 1989) and Office of the 6

7 Public Defender v. Baker, 371 So. 2d 684 (Fla. 4th DCA 1979) Counties are only required to assist indigents, otherwise than through their support via special Public Defenders, where no other statute (like Section and 703) exists and there is a constitutional right to assistance. See In the Interest of D.B., 385 So. 2d 83 (Fla. 1980). Common law provides no such mechanism. Pinellas County v. Sawyer, 620 So. 2d 757 (Fla. 1993). Cost provisions against the State (meaning also the County) must be strictly construed. Sawyer, supra. e. There are several cases which provide a good illustration of the requirements of the statute. Orange County believes they can all be interpreted, when all things are considered, to support the County s position. Songer v. Citrus County, 462 So. 2d 54 (Fla. 5th DCA 1984), Brevard v. Moxley 526 So. 2d 1023 (Fla. 5th DCA 1988). They demonstrate that where no statute, constitutional or contractual authority exists to bill counties, and where statutory authority exists to bill someone else, Counties should not be forced to pay. STANDARD OF REVIEW Orange County submits that all three of the major criteria under which the Court should review the decision below are present here: (1) the de novo standard, 7

8 since the County asserts that the circuit court below misinterpreted the law by, apparently, applying Section 43.28, Fla. Stat., in making its determination that the County should pay the fees and costs of the particular expert under the specific circumstances, instead of applying Section and 702, Fla. Stat., and requiring the CCR to pay, and: (2) the abuse of discretion standard in determining that the particular cost was of the category or type, personnel necessary to operate the courts, that would fall under a catch-all of costs required to be paid by the County, instead of falling under the category of an expert requested by a party for his defense or for his benefit, which by statute would have to be paid by the CCR, and: (3) the lack of competent substantial evidence to support the apparent finding that the expert s fees were the type of expense to fall under the definition of personnel necessary as defined in section 43.28, Fla Stat. There is sufficient record to support the review. The County will show that reasonable men could not differ as to whether the expert s fees should be under section and 702, Fla. Stat., thereby requiring them to be paid by CCR, showing an abuse of discretion. The evidence below shows nothing to support the alternative, and thereby fails under the competent substantial evidence test. 8

9 ARGUMENT I: THE CCR IS REQUIRED TO COVER ALL COSTS FOR THE DEFENDANT/ PETITIONER The Supreme Court of Florida has, on several occasions, made clear, unequivocal rulings which declared the CCR responsible for all necessary costs and expenses for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgement and sentence imposed against any person convicted and sentenced to death in the State of Florida. Orange County v. Williams, 702 So.2d 1245 (Fla. 1997), citing Hoffman v. Haddock, 695 So.2d 682 (Fla. 1997). Also the legislature of Florida has, over time, clarified ,.702,.703,.704 and.705 Fla. Stat. to make it obvious what has always existed, that CCR is responsible. Orange County cited the Williams case as one which combined several concepts concerning the CCR s responsibility. The Supreme Court in Williams set forth an excellent summary of the framework of responsibilities for payment of the fees and costs for indigents in the Criminal court system: Orange County appeals an order of the trial court requiring the County to pay the costs associated with Freddie Lee Williams' motion for postconviction relief pursuant to Florida Rule of Criminal Procedure In April 1996, Williams filed a motion for costs in order to obtain investigative assistance and expert witnesses and for other litigation expenses related to the hearing... After considering the motion.... Circuit Judge Michael F. Cycmanick entered an order granting Williams' motion for costs. The court ruled that CCR was not obligated to absorb the costs because Williams was represented by private volunteer counsel. The court further found the costs proposed by 9

10 Williams to be "necessary to afford the Defendant due process at an evidentiary hearing and to permit this Court to address this complex postconviction claim." Citing section 43.28, Florida Statutes (1995), [FN2] and Brevard County v. Moxley, 526 So.2d 1023 (Fla. 5th DCA 1988), [FN3] the circuit court concluded that Orange County was responsible for paying these costs. Counties are obligated by statute to pay for attorney fees and costs for indigent defendants, both at trial and on appeal. See, e.g., (county must pay costs associated with procuring attendance of witnesses for indigent defendant); (6) (county must compensate appointed attorney and pay all costs associated with trial, appeal, second trial, and application for executive clemency for indigent capital defendant); (specifies the amount of compensation for representation by counsel appointed under section ; only specifies fees for various offenses at the trial level and on appeal ); (county must pay legal expenses and costs for indigent defendant in all criminal cases prosecuted in name of state), Fla. Stat. (1995). There are no statutory provisions that impose an obligation on the counties to pay the costs of collateral litigation. In the order granting Williams' motion for costs, the court cited Section as imposing that responsibility on the County. Presumably, the judge relied upon the portion of the statute that requires the counties to provide "the personnel necessary to operate the circuit and county courts." However, the phrase "unless provided by the state," which immediately precedes the necessary personnel language, mandates a different result in this case.... The duties of CCR include representing such individuals "for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person[s]" in state and federal courts , Fla. Stat. (1995 & Supp.1996)... In our recent opinion in Hoffman v. Haddock, 695 So.2d 682 (Fla.1997), we stated that "chapter 27 expressly directs that CCR is to provide for the collateral representation of any person convicted and sentenced to death in this state and is to be responsible for the payment of all necessary costs and expenses." Id. at 684. Hoffman involved a death-sentenced individual who was and had been 10

11 represented by CCR. The fact that Williams is represented by volunteer counsel, not CCR, does not change the outcome here. Given the specific directives contained in chapter 27, the County cannot be compelled to pay the costs here. See Hoffman, 695 So.2d at 684. Thus, we vacate the trial court's order in this case. As to the issue of who should pay the costs of Williams' postconviction proceeding,... In the case of trial costs, the counties are statutorily required to pay those costs. In the case of postconviction proceedings, CCR is statutorily charged with representation and "is to be responsible for all necessary costs and expenses." Hoffman, 695 So.2d at 684. Based upon the pertinent statutes and cases, we hold that CCR is responsible for the litigation expenses... FN2. Section 43.28, Florida Statutes (1995), provides: The counties shall provide appropriate courtrooms, facilities, equipment, and, unless provided by the state, the personnel necessary to operate the circuit and county courts. FN3. In Moxley, the district court concluded that the attorney fees and costs for conflict counsel representing a noncapital defendant in postconviction proceedings must be borne by the county pursuant to section So.2d at Williams, at 1246 through 1248 (Emphasis added, footnotes omitted except where noted.) If no other service was available, the Williams case alone would support the requirement that CCR pay the costs. In turn, ,.702,.703,.704 and.705 Fla. Stat. provide that the CCR receive compensation and reimbursement from various sources, none of them the County, either by funds appropriated by the State, ( , and.705) funds appropriated to the Comptroller, ( ) or by way of motion in Federal court, if applicable, pursuant 18 U.S.C. s. 3006A. (27.702(3)(a)). 11

12 ARGUMENT II. THE STATUTE NORMALLY REQUIRING COUNTIES TO PROVIDE FOR COURTROOMS AND PERSONNEL FOR THE JUDICIAL BRANCH, SECTION 43.28, FLA. STAT., WOULD NOT APPLY TO PLACE THE BURDEN ON THE COUNTIES FOR THIS TYPE OF COST, IN THIS CATEGORY OF CASES. One of the possible reasons why the court below ignored the clear holding above, was that it may have been misled by the initial issue in Williams, that the legal work was being done by a volunteer counsel in Williams, and that somehow the County was presenting a case valid only in such cases. But even in the Williams case, the real issue was, as the court put it then; The court ruled that CCR was not obligated to absorb the costs because Williams was represented by private volunteer counsel. The court further found the costs proposed by Williams to be "necessary to afford the Defendant due process at an evidentiary hearing and to permit this Court to address this complex postconviction claim." Citing section 43.28, Florida Statutes (1995), [FN2] and Brevard County v. Moxley, 526 So.2d 1023 (Fla. 5th DCA 1988),... the circuit court concluded that Orange County was responsible for paying these costs. Williams, at (Emphasis added, footnotes deleted) The critical concern which the Supreme Court had with the circuit court s analysis was that the Williams circuit court relied more on the theory that counties had the burden of providing generally for the courts, based on Moxley and the above cited 43.28, Florida Statutes (1995.) To reiterate, the circuit court apparently did not reason that the presence of a 12

13 volunteer counsel mandated that the County had the affirmative cost responsibility (As opposed to the CCR s not being responsible) but instead burdened the County under Moxley and It is really that holding which was thrown out, since the Supreme Court ruled that CCR in all such cases has the statutory burden of all of the costs. The Hoffman court, cited in Williams, in reaching its holding, stated: Barry Hoffman petitions this Court for writ of prohibition to prevent Judge L. Page Haddock from holding a postconviction evidentiary hearing on Hoffman's first-degree murder conviction and sentence of death because of a lack of funds in the budget of the Capital Collateral Representative (CCR)... Judge Haddock was scheduled to hold an evidentiary hearing April 29, 1997, through May 2, 1997, on Hoffman's motion to vacate judgment.... In this petition, CCR asks that this Court issue a writ to prohibit Judge Haddock from holding the hearing unless Duval County or the City of Jacksonville is required to pay all costs associated with the hearing. In the alternative, CCR asks this Court to issue a writ of mandamus directing Judge Haddock to continue the hearing until after the beginning of CCR's next fiscal year, which begins July 1, In its petition, CCR asserts that, as of April 23, 1997, it had expended all its available funds... it cannot possibly represent Hoffman... Based on these allegations, this Court stayed the evidentiary hearing and set this matter for emergency oral argument.... Second, we cannot compel the City of Jacksonville and Duval County to pay the costs of this proceeding because, as CCR conceded at oral argument, the legislature has provided that CCR is to bear this responsibility. In general, counties are responsible for all costs necessary to operate the circuit and county courts not paid by the State , Fla. Stat. (1995). Under section 43.28, "counties shall provide 13

14 appropriate courtrooms, facilities, equipment, and, unless provided by the state, personnel necessary to operate the circuit and county courts." This includes attorney's fees and costs of required counsel. See In re D.B. and D.S., 385 So.2d 83 (Fla.1980); Brevard County Bd. of County Comm'rs v. Moxley, 526 So.2d 1023 (Fla. 5th DCA 1988)(finding non-capital postconviction fees and costs for conflict counsel must be borne by county under section 43.28). In this type of case, however, chapter 27 expressly directs that CCR is to provide for the collateral representation of any person convicted and sentenced to death in this state and is to be responsible for the payment of all necessary costs and expenses , (3), Fla. Stat. (1995). Given the specific directives contained in chapter 27, CCR is responsible for the costs of this proceeding and we cannot compel the City of Jacksonville or Duval County to pay the costs associated with this case. * * * Hoffman, at 683, 684. (Emphasis added.) The Supreme Court would not, in Hoffman, require the County to pay the costs because under , (3), Fla. Stat. (1995) the CCR was required to pay them. The Supreme Court clearly understood the difference between the general requirement that the Counties provide appropriate courtrooms, facilities, equipment, and personnel necessary to operate the circuit and county courts as set forth in 43.28, Fla. Stat. (1995), and this type of case, where chapter 27 expressly directs that CCR to provide for the collateral representation of any person convicted and sentenced to death in this state and is to be responsible for the payment of all necessary costs and expenses , (3), Fla. Stat. (1995). 14

15 ARGUMENT III. CCR S MOTION REALLY DID ASK FOR EXAMINERS TO BE APPOINTED. IT IS AN ABUSE OF DISCRETION BOTH TO DECLARE THE APPOINTMENT OF THE EXAMINERS AS NOT AT THE BEHEST OF CCR, AND TO CONSTRUE THE MOTION LEGALLY AS NOT BEING A REQUEST TO APPOINT SUCH EXPERTS. The circuit court below in our Peede case did not break out the various sections of the statute, or assist in the analysis by indicating that it believed that the particular costs it commanded the County to pay were 43.28" costs, as opposed to costs under , (3), Fla. Stat. Instead, the lower court this case appears to have distinguished the costs from those CCR must pay by saying that;... the exams now in question were ordered by the Court to determine whether Mr. Peede was competent to proceed. These were not examinations performed at the behest of CCRC-M and the expenses should be borne by Orange County. ( R 48, emphasis added.) One method of rationalizing this circuit s order in Peede, somehow, to make it fit under the framework discernable in the Williams and Hoffman cases, would be to assume that the court was placing the exams it ordered under the category of 43.28" costs instead of costs under , (3). If that were the rationale, it conflicts with Williams. Another way of making sense of the ruling that these were not examinations performed at the behest of CCRC-M, is for the lower court to have articulated that 15

16 not... at the behest, meant that the CCR did not specifically ask that particular examiners be appointed. The circuit court could not possibly have reasoned that not... at the behest meant that the CCR did not ask that examiners be appointed at all, because just by asking for a hearing on competency, they were expressly asking for exactly that. The specific demands within the MDC themselves leave no room for doubt, but if any did remain that CCR meant to ask the circuit court to appoint competency examiners expressly, one need only look at the support they used for the motion: CCR specifically supported the MDC using Carter v. State, 706 So.2d 873,875 (Fla.1997), Rule (b) Fla. R. Crim. P., and the Florida Bar Criminal Rules Committee comment including their proposed new Rule dealing with competency in postconviction proceedings. All of these sources specifically require the circuit court to appoint experts to examine the petitioner. To say that the appointment was not at CCR s behest is, to put it as politely as possible, factually and legally at variance with what took place below. It is an abuse of discretion for the circuit court to ignore or even redefine what the CCR was asking for. Finding that the examination was not at the behest of CCR certainly is not a reasonable legal interpretation. Nothing in the evidence showed otherwise. 16

17 ARGUMENT IV BY DEFINITION, THE FEES AND COSTS OF SUCH EXPERTS CANNOT POSSIBLY BE DEFINED AS THE KIND OF GENERAL EXPENSES WHICH COUNTIES NORMALLY ARE DUTY BOUND TO COVER UNDER SECTION 43.28, FLA STAT. Orange County can hardly deny that there are potential costs which it could not insist that CCR should cover, which obviously would still fall under the general category intended by 43.28, Fla. Stat. For example, Orange County would not charge CCR for the air conditioning, heating, building depreciation, maintenance for the courtroom, probably not for the presence of the court deputies, (though there may be a dispute even about that if there was a special out-of-pocket expense occurred for travel or some such, for a deputy,) trial clerks, security personnel at the courthouse entrance, and so forth. These things are the sort of costs that was likely meant to address. Even today, after the clear decision in Williams, the County would hesitate to try to burden CCR with such costs. However, the appointment of experts to examine, consult and render a report is a and (3) cost, and is not even close to the line between the two groups of costs, particularly when done in response to CCR s own motion. Such an examination is not an overhead or quasi-fixed cost, the way an economist or accountant would define it. It is clearly an out-of-pocket/ variable cost. It would never have been done absent the motion. But even if the circuit court, out of the blue, on its own motion, had decided to appoint 17

18 the examiners, it could hardly be said to be a general cost, but one which could hardly help but benefit and assist the petitioner in his particular action. The statute refers to personnel necessary to operate the... courts , Fla. Stat. The experts here certainly were not for the purpose of operating a court. That for of thing is for bailiffs and clerks to do. The county does not concede that the expanded use made by some of the courts that counties are responsible for, payment of, for example, attorneys fees, in some cases, is proper. The expanded obligations of the statute for that purpose if always done in context with the decision that an underlying constitutional right would otherwise be violated. 18

19 ARGUMENT V THE COLONEL CASE RELIED UPON BY THE CCR IS COMPLETELY INAPPLICABLE. COLONEL DID NOT INVOLVE A DEFENDANT SENTENCED TO DEATH. Orange County never claimed, and does not do so now, that CCR is in any way responsible for costs in a non-death penalty case. The court in Colonel v. State 723 So. 2d 853 (Fla. 3 rd DCA 1998) held: The cases relied on by the County to support a contrary interpretation are distinguishable. Milligan v. Palm Beach County Bd. of Commissioners, 704 So.2d 1050 (Fla.1998), involved the question of whether the County was required to pay appellate filing fees on behalf of indigent defendants; the Court found that it did not, as there was no statutory basis for such a duty. In the instant case, however, transcripts are expressly identified as "costs" by section , and "costs" for indigent defendants must be paid by the County pursuant to section The other case relied on by the County, Orange County v. Williams, 702 So.2d 1245 (Fla.1997), addressed the question of whether the County or the Capital Collateral Representative (CCR) was responsible for the investigative and expert witness costs associated with a motion. The Williams Court did not even mention section in its opinion. Rather, the Court held that because chapter 27, Florida Statutes, expressly directs the CCR to provide collateral representation for indigent defendants sentenced to death, the CCR was responsible for any costs associated with collateral appeals in capital cases. Id. at The Williams Court reasoned that since the CCR was directed by statute to pay costs, see section , the County could not be responsible for them. We do not have those circumstances here. Colonel, at 855, (emphasis added.) The Colonel case s holding distinguishes itself out of consideration in a death penalty case. The case was not a death penalty case. CCR 19

20 was not involved, nor was there any indication that the volunteer lawyer was there in place of the CCR. The case, insofar as can be determined, was an appeal, not a motion under rule All of the support given by the Third District in support of the holding was related to the counties duties under section , Fla. Stat., as follows: There is statutory authority to assign the responsibility for transcript costs to the County. Section , Florida Statutes (1997) states: Costs paid by county in cases of insolvency.--when the defendant in any criminal case pending in... a district court of appeal... has been adjudged insolvent by the circuit judge or the judge of the county court,... the costs allowed by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against the county for such costs. Colonel, at 854, (Emphasis added.) The Third District also relied on Griffin v. Illinois, 351 U.S. 12, 17-18, 76 S.Ct. 585, 100 L.Ed. 891 (1956), Long v. District Court of Iowa, 385 U.S. 192, 193, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963)) State v. Byrd, 378 So.2d 1231, 1232 (Fla.1979) Cassoday v. State, 237 So.2d 146, 147 (Fla.1970); and Hall v. State, 165 So.2d 428, 430 (Fla. 1st DCA 1964). But Griffin was a direct appeal, not a or similar postconviction/post appeal motion. Long was not a death penalty case, and did not involve a situation where there existed a statutorily created agency such as the CCR, 20

21 indeed none at all in legal assistance of petitioner. Lane v. Brown involved a situation where the respondent, George Robert Brown, is in an Indiana prison under sentence of death. He is an indigent. In a federal habeas corpus proceeding the District Court held that Indiana had deprived Brown of a right secured by the Fourteenth Amendment by refusing him appellate review of the denial of a writ of error coram nobis solely because of his poverty. 196 F.Supp The Court of Appeals affirmed. 302 F.2d 537. We agree that the Indiana procedure at issue in this case falls short of the requirements of the Fourteenth Amendment of the United States Constitution. * * * The rules of the Indiana Supreme Court expressly permit an appeal from the denial of a writ of error coram nobis, but also require that a transcript be filed in order to confer jurisdiction upon the court to hear such an appeal. [FN9] The Indiana court has held that under the above-quoted provisions of the Public Defender Act, only the Public Defender can procure a transcript of a coram nobis hearing for an indigent; an indigent cannot procure a transcript for himself and appeal pro se, nor can he secure the appointment of another lawyer to get the transcript and prosecute the appeal. State ex rel. Casey v. Murray, 231 Ind. 74, 106 N.E.2d 911; Jackson v. Reeves, 238 Ind. 708, 153 N.E.2d 604; Willoughby v. State, Ind., 177 N.E.2d 465. The upshot is that a person with sufficient funds can appeal as of right to the Supreme Court of Indiana from the denial of a writ of error coram nobis, but an indigent can, at the will of the Public Defender, be entirely cut off from any appeal at all. * * * The impact of this system is fully illustrated by the history of the present case. Brown was convicted of murder in an Indiana trial court and sentenced to death. The conviction was affirmed on appeal, Brown v. State, 239 Ind. 184, 154 N.E.2d 720, and this Court denied a petition for a writ of certiorari. 361 U.S. 936, 80 S.Ct. 375, 4 L.Ed.2d

22 Thereafter, Brown filed in the Federal District Court an application for habeas corpus which was dismissed because of failure to exhaust available state remedies. Brown then filed a petition for a writ of error coram nobis in the state trial court. After a hearing at which Brown was represented by the Public Defender, the court denied relief. Brown requested the Public Defender to represent him in perfecting an appeal to the Indiana Supreme Court. This request was refused because of the Public Defender's stated belief that an appeal would be unsuccessful. [FN10] Brown next applied to the state trial court for a transcript of the coram nobis hearing and the appointment of counsel to perfect an appeal. This application was denied. The Supreme Court of Indiana refused to order the trial court to grant the petitioner's request for a transcript and appointment of counsel... * * * Both the District Court and the Court of Appeals were of the opinion that the issue in the present case is controlled by recent decisions of this Court which have held constitutionally invalid procedures of other States found substantially to deny indigent defendants the benefits of an existing system of appellate review. We are in complete agreement. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the Court held that a State with an appellate system which made available trial transcripts to those who could afford them was constitutionally required to provide 'means of affording adequate and effective appellate review to indigent defendants.' Id., at 20, 76 S.Ct 'Destitute defendants,' the Court held, 'must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' Id., at 19, 76 S.Ct * * * In Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39, the Court made clear that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state postconviction proceedings. * * * Lane v Brown, at 484. (Emphasis added.) 22

23 Although Lane v Brown takes more analysis than some of the other cases, it still addresses only a situation where the petitioner is foreclosed at the outset from an appeal or the prosecution of a post conviction petition because of the lack of any source of funds for a transcript. It did indeed concern a death penalty defendant, and whether it concerned an appeal or a post conviction motion or petition, or not, its clear that the U.S. Supreme Court would not allow a complete cut-off of funds to Brown. That is not the case here at all, in this Peede case. The issue is not at all whether or not the examiners should be paid, but the source of the funds. The Byrd case involved a question of whether a former defendant could be required as a condition of probation, to pay the court costs. The Supreme Court of Florida ruled that the defendant could be required to do so, and the only mention of the indigence issue was just that at trial counties are required to provide the support at that level, a principle not denied by the undersigned. The Cassoday case likewise just mentioned, in its holding denying the petitioner a transcript in a mandamus case, that counties generally are required to supply indigents in criminal trials and appeals, such costs. Hall also did not involve a death penalty case nor did it include participation by CCR. Further though the holding reiterated the right to have transcripts, it even stated that not all transcripts of every part of the trial were available free as of right. In 23

24 any case Hall simply is not on point. As stated above the Colonel court also relied on section Fla. Stat. The Third District should not have relied on that statute in the first place. That court cited as saying; Costs paid by county in cases of insolvency.--when the defendant in any criminal case pending in... a district court of appeal... has been adjudged insolvent by the circuit judge or the judge of the county court,... the costs allowed by law shall be paid by the county in which the crime was committed, upon presentation to the county commissioners of a certified copy of the judgment of the court against the county for such costs. Colonel, at 853, 854.(Emphasis added.) The petitioner is not a defendant. As will be noted below, in addition to everything else, the statute by its own terms does not apply. at all. In summary, the Colonel case, cited by CCR at the hearing, is not applicable 24

25 ARGUMENT VI STATUTORY PROVISIONS, WHEN COUPLED TO THE REQUIREMENTS OF THE CONSTITUTION, REQUIRE COUNTIES TO FRONT THE MONEY TO PAY THE FEES AND COSTS FOR MOST INDIGENT CRIMINAL RULE CASES WHICH DO NOT INVOLVE THE DEATH PENALTY THAT SHOULD NOT MISLEAD THE COURTS INTO BELIEVING THAT SUCH IS SO FOR CASES INVOLVING CCR AND THE DEATH PENALTY: SECTION AND.703,.704, AND.705 FLA. STAT. PROVIDE THAT THE FLORIDA OFFICE OF THE CAPITAL COLLATERAL REPRESENTATIVE ( CCR ) IS RESPONSIBLE FOR THE COST OF REPRESENTING THE PETITIONER IN COLLATERAL MOTIONS FOR POST CONVICTION RELIEF. A. Section , Fla. Stat. establishes the responsibility of the CCR in the proceeding. It states in pertinent part: Duties of the capital collateral regional counsel ; reports. -- The capital collateral representative shall represent, each person convicted and sentenced to death in this state for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed... (Emphasis added.) From this it is clear that the Capital Collateral Representative does not represent a defendant, but rather a convicted felon seeking collateral relief. The fact that the client is no longer a defendant is the key element in virtually all of the cases. The County s information is only that the cost for which payment is sought occurred during a post conviction relief proceeding wherein CCR represented the petitioner. If an attorney had been appointed in place of the CCRC, it is clear that he 25

26 would be paid from dollars appropriated to the Office of the Capital Collateral Representative, not from Orange County. Here two experts were appointed. B. SPALDING V. DUGGER: The case of Spalding v. Dugger, 526 So. 2d 71 (Fla. 1988) illustrates that the CCR is funded by the legislature, not the County, for attorneys fees, travel costs, witness expenses and other associated litigation expenses. The case quotes the Capital Collateral Representative as asserting in pertinent part as follows: Petitioner Spalding maintains that the unprecedented signing of nine death warrants, all operative during the same time period, makes it impossible for him to provide the death-sentenced prisoners with even a semblance of the postconviction due process to which they are entitled. Spalding bases his assertion on the fact that his office s budget has the completely depleted and, thus, he lacks the necessary funds to meet travel costs, witness expenses, and other associated litigation costs until the new budget year commences on July 1, The agency s chief fiscal office stated under oath that the accounts from whom the collateral representative contracts for experts and part-time staff assistants, including experts utilized to address mental health issues, have been completely exhausted. She determined that CCR cannot expend funds for investigation, travel, experts, or other services directly related to the nine cases under active death warrants, without violating Section , Florida Statutes (1987), and subjecting the capital collateral representative to the penalties provided in Section , , or , Florida Statutes (1987). Spalding asserts that, given these fiscal circumstances he is unable to assure the presence of counsel for scheduled evidentiary hearings in the various courts prior to July 1. He concedes that when additional funds are released on July 1, the problem should dissipate. 26

27 The collateral representative requests this Court to grant relief in one of the following alternatives: (1) enter stays of execution and order no further evidentiary hearings be held in the collateral relief proceedings for the death-sentenced prisoners Spalding represents until after July 1, 1988; (2) direct the respondent trial courts to enter stays of execution and not proceed on evidentiary hearings until after July 1, 1988; or (3) order the trial courts to enter stays of execution unless the appropriate boards of county commissioners agree to pay the costs and expenses of the office of the capital collateral representative. The state responds that this Court does not have jurisdiction to provide the requested relief until a postconviction claim is filed in the trial court and the trial court has had an opportunity to entertain the issue of whether a stay is necessary. (Emphasis added.)clearly, the CCR did not believe that counties have a responsibility to pay such costs. Neither the CCR or the court behaved as if they thought the County had any duty to pay for such costs and the opinion denying the relief sought by the CCR turned on other issues. C. RIGHT TO SUPPORT VERSUS SOURCE OF SUPPORT: Indigent death penalty defendants clearly have the right to have the necessary financial support to defend against the criminal charges. Counties are required to provide those funds for such defendants. None of the statutes or case citations show that a county, as opposed to some other entity, must provide funds to assist an individual when he has completed his defense, and has exhausted his appeals. 1. COUNTIES COVER TRIALS AND APPEALS FOR DEFENDANTS All of the applicable Florida statutes, specifically sections , (6), 27

28 939.07, and most cogently (in view of the Colonel case having been cited by CCR,) , all speak of defendants in criminal cases and focus on trials and appeals. The pertinent parts are as follows: Indigent defendants. -- If a court decides, on the basis of an affidavit, that a defendant in a criminal case is indigent and unable to pay the cost of procuring the attendance of witnesses, such defendant may subpoena the witnesses, and the costs, including the cost of the defendant s copy of all depositions and transcripts which are certified by the defendant s attorney as serving a useful purpose in the disposition of the case, shall be paid by the county. When depositions are taken outside the circuit in which the case is pending, travel expenses shall be paid by the county in accordance with s and shall also be taxed as costs. (Emphasis added.) This provision clearly speaks to the disposition of a criminal case, not an ancillary or collateral proceeding. The Petitioner is not a defendant. He has already been convicted. The case is not pending. It has been decided. It was final upon review by the highest appellate court following Petitioner s direct appeal of judgment and sentence. See Burr v. State, 518 So. 2d 903 (Fla. 1987). Section , Fla. Stat. is demonstrative, also, in that it provides; * * * (1) If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint a public defender... (2) If the defendant is convicted and the death sentence is imposed, the appointed attorney shall prosecute an appeal to the Supreme Court. The attorney shall be compensated as provided for in 28

29 s (3) If there is a second trial of the same case, the appointed attorney shall be compensated as provided for in s (4) If the death sentence is imposed and is affirmed on appeal to the Supreme Court, the appointed attorney shall be allowed compensation, not to exceed $1,000, for attorneys fees and costs incurred in representing the defendant as to an application for executive clemency, such compensation to be paid out of general revenue from funds budgeted to the Department of Corrections. The public defender or an attorney appointed pursuant to this section may be appointed by the trial court that rendered the judgment imposing the death penalty, to represent an indigent defendant who has applied for executive clemency... (5) When the appointed attorney in a capital case has completed the duties imposed by this section, he shall file a written report in the trial court stating the duties performed by him and apply for discharge. (6) All compensation and costs provided for in this section, except as provided in subsection (4), shall be paid by the county in which the trial is held unless the trial was moved to that county on the ground that a fair and impartial trial could not be held in another county, in which event the compensation and costs shall be paid by the original county from which the cause was removed. (Emphasis added.) Again, it is clear from the language of this statute that the payment concerns trial in the original court and appeals of the result, for which the Public Defender or special conflict counsel shall be appointed. There is also a specific provision for an attorney to be paid from funds of the department of corrections when a special conflict public defender files for executive clemency. The statute further limits payment by the counties to those costs defined in that statute only. It even shows that by specific provision in some cases the county does not pay costs and 29

30 when it does, only while the individual is a defendant at trial and on appeal. The provision immediately following Section , provides: Appointed counsel; compensation. -- (1) An attorney appointed pursuant to s or s shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit; however, such compensation shall not exceed the maximum fee limits established by this section. In addition, such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. 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 represented the defendant. This section does not allow stacking of the fee limits established by this section. (2) The compensation for representation 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: $2,500. (c) For life felonies represented at the trial level: $3,500. (d) For capital cases represented at the trial level: $3,500. (e) For representation on appeal: $2,000. * * * * (Emphasis added) Note that there are no provisions for attorneys fees or for reimbursement of costs for any action other than a trial or an appeal. Section , Fla. Stat. states: 30

31 Pay of defendant s witnesses. In all criminal cases prosecuted in the name of the state in the circuit courts or county courts in this state where the defendant is indigent or discharged, the county shall pay the legal expenses and costs, as is prescribed for the payment of costs incurred by the county in the prosecution of such cases, including the cost of the defendant s copy of all depositions and transcripts which are certified by the defendant s attorney as serving a useful purpose in the disposition of the case; provided, that before any witness is subpoenaed on behalf of a defendant in the circuit or county court an application shall be made to the judge, in writing, on behalf of the defendant, setting forth the substance of the facts sought to be proved by the witness or witnesses, making affidavit that the defendant is insolvent, and if upon such showing the judge is satisfied that the witness or witnesses are necessary for the proper defense of the defendant, he shall order that subpoena issue, and that the costs as herein provided shall be paid by the county, and not otherwise. (Emphasis added.) Again, the proceeding for which the instant payments are requested is not prosecuted in the name of the State. The petitioner is no longer a defendant, none of the costs are necessary for the disposition of the case, because it had already been disposed of, and there is no defense of a defendant going on at all. This is a collateral matter entirely. There are many cases concerning indigence and the right to financial support All do support the right to financial support. Orange County does not disagree with the principle that indigent defendants have a right to financial support for their defense. Orange County does not even quarrel with the principle that the defendant has by statute, a general right to financial support for motions for litigation expenses for the 31

32 specific type of post conviction relief former defendant has requested. Orange County simply takes the position that no statute, rule or case requires Orange County or any county to cover such costs, and that the only provisions for such collateral actions indicate that the CCR, not the County, should pay. The critical issue is therefore not the indigency of Petitioner. He has been found indigent. His right to financial assistance is not the issue either. The only issue is the source of the funds, not the right to receive them. The public defender is supported by the counties in accordance with the Florida Statutes, and any private attorney appointed in place of the Public Defender is paid by the County. The CCR is not supported by the County. The County is not responsible for the costs in a collateral proceeding, particularly one involving the death penalty. There are no cases which require the County to be responsible in such a case. 2. EQUITABLE ARGUMENTS - FUNDING BY THE LEGISLATURE The Legislature, by its own statute, is required to reimburse counties for the attorney s fees and costs they are supposed to pay. See , Fla. Stat. The legislature has refused to do this for years. CCR has received most of the money required by statutes to be paid to it, where the County has received none or virtually none. 3. THE COUNTY IS A POORER PLANNING POSITION. The County is in no better position than the legislature/ccr to plan and budget for such 32