March 1, 2002 Regular News Court takes up capital case fee issues Court takes up capital case fee issues Judges can increase the compensation for private “registry” attorneys who handle collateral death penalty appeals, despite a state law setting maximum compensation, the Florida Supreme Court has ruled.In a 4-3 decision released February 14, the justices upheld a circuit judge’s declaratory judgment sought by Tallahassee attorney Mark Evan Olive. But the court rejected Olive’s contention that limitations in the state contract cause ethical conflicts for registry lawyers.The dissenters from the opinion said Olive lacked standing to seek a declaratory judgment.The majority opinion, written by Justice Fred Lewis, said Olive had standing because he had met with his client and remained on the registry list of available attorneys, even though he refused to sign the state-mandated contract. Another attorney was eventually appointed to represent that client.The opinion said Olive met the standards set out in Holley v. Adams, 238 So. 2d 401 (Fla. 1970).On the compensation schedule outlined in the state contract and set by law, Olive argued by signing the agreement he was waiving any further compensation to which he might be entitled. Lewis noted in several cases the court had overruled compensation schedules if they impinged on a party’s right to counsel.In White v. Board of County Commissioners of Pinellas County, 537 So. 2d 1376 (Fla. 1989), Lewis noted the court held that, “It must be remembered that an indigent defendant’s right to competent and effective representation, not the attorney’s right to reasonable compensation, give rise to the necessity of exceeding the statutory maximum fee cap. The relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored.”Counsel for the state conceded that other decisions gave the courts authority to exceed statutory schedules, Lewis wrote, and the legislative staff analysis for the bill setting the schedule also acknowledged that fact.The analysis said, “[W]here unusual or extraordinary circumstances exist, the fees caps established by [F.S.] § 27.711(f). . . and increased by the provisions of this bill, do not prevent a court from ordering payment above the maximum authorized.”Consequently, Lewis concluded that trial courts are authorized to approve fees in excess of the schedule “where extraordinary or unusual circumstances exist in capital collateral cases.” He added that does not mean extra fees are justified in every case or will automatically be awarded when requested.The justices rejected Olive’s contention the statutorily-mandated contract caused ethical violations by preventing frivolous or repetitive motions, that prohibiting registry attorneys from filing civil actions in federal court was unconstitutional, and that contract provisions dealing with records could make client confidences part of the public record.Lewis said lawyers already have ethical obligations against frivolous or repetitive motions and noted that the court has upheld the statutory prohibition for the state’s Capital Collateral Regional Counsels from filing civil actions in federal courts. As for the records, he said the contract clearly specifies that only information already public under F.S. Chap. 119 is covered, not confidential work product or attorney-client matters.Justices Leander Shaw, Jr., Harry Lee Anstead, and Barbara Pariente concurred with Lewis. Justice Major Harding wrote a dissent, in which Chief Justice Charles Wells and Justice Peggy Quince concurred.Harding argued since Olive never signed the contract and didn’t provide any evidence that he performed any work beyond meeting with his potential client, he lacked the standing to seek a declaratory judgment. Had he signed the contract, done the representation, and then presented evidence the compensation was inadequate, standing would have been there, Harding said.The majority’s action, he said, constituted issuing an advisory opinion in a case where it had no authority to do so. “In sum, Olive had no contractual right then in doubt and no legal relationship that was affected by sections 27.710 and 27.711,” Harding wrote. “Although Olive argued below that he was entitled to bring a declaratory judgment action because the rights at issue would arise in the future, that is not so; that could not arise if he never signed a contract and never represented a capital defendant.”Sen. Locke Burt, R-Ormond Beach, who sponsored the bill that created the registry and who chairs the state commission that oversees that and other death appeal issues, said he was pleased the court upheld the fee statute, adding most of the cases so far have come in well below the caps.“I think that’s very positive. The registry attorneys have become a significant part of the collateral process,” Burt said. “I think that the discussion about fee caps simply reaffirmed the line of Florida cases going back to 1986, which said if there are unusual and extraordinary circumstances, then you can get more money. I think they specifically stated a death penalty case wasn’t in of itself particularly unique, extraordinary or unusual.”The ruling came in Olive v. Maas, case no. SC00-317.
The baseball team welcomed Wake Forest to Dedeaux Field this weekend, and the Trojans nabbed their first series win of the season to push their record above .500.The No. 21 Trojans took down the Demon Deacons 2-1 in the three-game series winning the first one 9-4 before dropping a 4-5 loss on Saturday. USC finished strong though with a 2-1 performance Sunday afternoon.The team still sat even with a 3-3 record when Sunday rolled around for the series finale. Senior Brent Wheatley took the mound, and the right-hander locked horns with Wake Forest sophomore Drew Loepprich in a pitchers duel. Wheatley turned in six strong innings of work, scattering one run, three hits and two walks throughout while striking out six batters, and the Trojans and Demon Deacons remained knotted at one run apiece through the top of the eighth inning.USC finally broke the deadlock in the bottom of the eighth. Senior outfielder David Oppenheim drew a one-out walk and redshirt junior Reggie Southall was put in as a pinch-runner. He promptly swiped second base and moved to third on a ground ball from junior catcher Jeremy Martinez, and Oppenheim scored on a wild pitch to push the Trojans in front. A clean inning from senior closer Marc Huberman sealed a 2-1 USC win and the team’s first series win of the season.Head coach Dan Hubbs praised his players’ fighting spirit when facing a pitcher who was on his game.“I was proud of them for grinding out a game,” Hubbs said. “We put up some runs over the first two days, and then we showed we could win a 2-1 game.”After a tough outing to begin his season last weekend, Wheatley said he took a simplified approach into Sunday’s start, and it paid dividends.“I had a different mentality,” he said. “I was just trying to throw hard and make good pitches.”Two games led up to Sunday’s deciding contest. Senior pitcher Kyle Davis toed the rubber for the Trojans to kick off the series on Friday, and the veteran right-hander turned in seven strong innings, however, he allowed four runs in a sloppy fifth inning. Martinez and freshman centerfielder Lars Nootbaar had big nights at the plate as the USC bats backed up their ace in a 9-4 win.“We saw the fastball a lot, and we took advantage of it,” Nootbaar said.Martinez, who smashed his first home run of the season on Friday, also tipped his hat to associate head coach Matt Curtis for preparing the offense for the Demon Deacons’ pitchers.“Give a lot of credit to coach Curtis,” Martinez said. “We had a scouting report … so I was just trying to stay inside, put a good swing, and [the ball] just happened to run right into my barrel.”Junior pitcher Bernardo Flores started game two, and like Davis the night before, fought through one tough inning but was sharp otherwise, allowing four runs across six frames of work. Flores left the game with the score knotted at four thanks to a game-tying solo shot from sophomore third baseman Adalberto Carrillo— his second of the season. Redshirt junior Joe Navilhon replaced Flores and struck out the side in order in his first inning of relief.After cruising through two innings, however, Navilhon ran into trouble in the top of the ninth. The right-hander made an errant throw to first base on a leadoff bunt attempt, and freshman first baseman Dillon Paulson dropped the throw from Carrillo on the subsequent sacrifice bunt.Senior pitcher Brooks Kriske then entered the game to try to put out the fire, but Martinez fired a low throw past Carrillo trying to pick off the runner at third, scoring the go-ahead run. The Trojans committed three errors in one inning and were unable to rally in the bottom of the ninth, dropping a 4-5 contest to set up Sunday’s deciding game.Although he was disappointed with the ninth inning fiasco, Hubbs said it shouldn’t have come down to that at all.“That’s not where the game was lost,” Hubbs said. “The game was lost when we left 14 guys on base. We had all sorts of opportunities to score a lot of runs, and we didn’t.”It is still early in the season, however, and Hubbs said his squad, carrying high expectations, just needed to settle down.“A lot of guys did some good things,” Hubbs said. “We just have to have some guys be able to relax in the moment and get it done.”Next up, the Trojans hit the road on Tuesday for a tough tilt against Long Beach State before a weekend that includes hosting Oklahoma and Mississippi State as well as the annual game against UCLA at Dodger Stadium on Sunday.
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