3. We note that a trial judge is authorized by law to appoint co-counsel in the situation presented by the facts in the instant case. See §925.034, Fla. Stat. (1993) (as to a public defender with a conflict on a capital case, "it shall be his duty to move the court to appoint one or more members of The Florida Bar . . . to represent the[e] accused."). Although we encourage trial judges to appoint dual counsel pursuant to this statute under the proper circumstances, we do not suggest that dual representation is mandated in every circumstance.

Thus, the initial appointment of a co-counsel is not even required by the Constitution, but is only included as one of the discretionary decisions which the trial court is permitted to make.

Section 925.035(1) states:

925.035 Appointment and compensation of an attorney in capital cases; appeals from judgments imposing the death penalty. --

(1) If the court determines that the defendant in a capital case is insolvent and desires counsel, it shall appoint a public defender to represent the defendant. If the public defender appointed to represent two or more defendants found to be insolvent determines that neither he nor his staff can counsel all of the accused without conflict of interest, it shall be his duty to move the court to appoint one or more members of The Florida Bar, who are in no way affiliated with the public defender in his capacity as such or in his private practice, to represent those accused. The attorney shall be allowed compensation, as provided for in s. 925.036 for representing a defendant.

Nothing is there to allow a private attorney to move to obtain a co-counsel at county’s expense. As previously stated, and as shown below in Argument V, unless it is shown in the statute, it cannot be implied.

Regarding Case No. 92,846

In addition to noting Mills v. State, 462 So. 2d 1075 (Fla. 1985) cited by Seminole County, which specifically rules out payment by counties for such things, this Court should also be aware that for all intents and purposes, the use of such a survey relates indirectly to the selection of a jury. The use of experts and the expenditure of money for jury selection has been long. ago excluded as one of the expenses which a court must grant and that counties are expected to cover. San Martin v. State, 705 So. 2d 1337, 1346 (Fla. 1997); Goldberg v. County of Dade, 378 So. 2d 1242, 1244 (Fla. 3rd DCA 1979); Short v. State, 479 So. 2d 163 (Fla. 2d DCA 1991)

There must be a connection somewhere between a statutory provision and the costs which are expected to be paid by a county, and only those costs "reasonably within the scope of statutory authority" may be taxed to a county. Goldburg, 1244.

Argument Applying to Both Cases, 92,846 and 92,801

The Circuit Court below did not focus on this Court’s underlying position as concerns payments of attorneys fees and costs. Several cases have been decided by this Court which make it very plain that no court can force a government to pay fees or costs where that payment has not been provided for specifically, and by statute. Board of County Commissioners, Pinellas County v. Tom F. Sawyer, 620 So. 2d 757 (Fla. 1993); Wolf v. Volusia County, 22 Fla.L.Weekly S192 (1997); Orange County v. Williams, 702 So. 2d 1245 (Fla. 1997); Milligan v. Palm Beach Bd. Of County Comm., 704 So. 2d 1050 (Fla. 1998).

The Circuit Court below, has analyzed the law from entirely the wrong direction, and based on a false assumption. It assumed that the entire analysis must take place from the standpoint of the defendant’s right to a payment. It also assumed that if a defendant has a right, justified by a terrible need as well, then that need supports the idea that even a distant and debatable connection to a county would be enough to require a county to provide a given type of cost. The Circuit Court, as did Wolf, in Wolf, supra, assumed also that counties pay any and all costs for indigent defendants unless a specific case eliminates that cost from the list of possible costs. The analysis that follows shows the opposite with regard to all three assumptions:

In Board of County Commissioners, Pinellas County v. Tom F. Sawyer, 620 So. 2d 757 (Fla. 1993) this Court, in reversing the finding that an acquitted defendant could recover investigative costs, held that

[1] Common law provided no mechanism whereby one party could be charged with the costs of the other. Cost provisions are a creature of statute and must be carefully construed. This Court has held for over a century that cost provisions against the State must be expressly authorized:

Buckman v. Alenxander, 24 Fla. 46, 49, 3 Do. 817 818 (1888).

Contrary to the district court’s finding of ambiguity, we find that section 939.06, Florida Statutes (1989), is unequivocal:

•  •  •

§939.06, Fla. Stat. (1989). Given its plain meaning, the relevant portion of this statute simply says: No acquitted criminal defendant shall be liable for any court costs or court fees, any costs or fees of a ministerial government office, or any charges for subsistence, and that if such a defendant has paid any of these taxable costs he or she shall be reimbursed by the county. On its face, the statute does not authorize an acquitted defendant to be reimbursed for any additional disbursements. We hold that investigative costs are not taxable costs under the plain language of the statute.

Sawyer’s mutuality claim is misplaced. Sections 939.01 and 939.06, Florida Statutes (1989), do not provide for mutuality of repayment. . . . Further, we observe that the Legislature has expressly authorized repayment under various circumstances and could easily have done so here if such were the legislative intent.

(Emphasis added, Footnotes deleted).

The critical consideration in this case is that (1) there is no statute directly providing that counties pay fees for attorneys appointed to supplement a private attorney as co-counsel, nor is it reasonable to presume that survey costs are within the statute either , (2) there is no statute indirectly providing that counties will pay under any section which would require a public defender to represent such a defendant, (3) there is no organic, per se constitutional right in such a case connected with even a rough and ready general statute which would require direct responsibility by the counties, as opposed to any other entity, and (4) Sawyer is not just eliminating investigative costs, but any cost not specifically provided for by statute.

None of the cases supporting right to counsel or right to expert witnesses and costs paid by counties has ever said that an indigent gets the best possible defense. The case law instead says that the defendant gets adequate assistance of counsel, not the best, or the worst either.

Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed. 2 (1985) 53, held that indigent defendants must have meaningful access to the judicial process and an adequate opportunity to present their claims fairly within the adversary system.

Britt v. North Carolina, 404 U.S. 5226, 92 S.Ct. 431 30 L.Ed. 2d 700 (1971) stated that an indigent Defendant is entitled to the basic tools of an adequate defense. There is no requirement that there be a duplication of the legal support which might be available to a non-indigent. Ross v. Moffit, 417 U.S. 600, 41 L.Ed. 2d 341, 94 S.Ct. 2437 (1974).

CONCLUSION

Wherefore, Orange county and F.A.C.A. conclude that there is no support whatsoever for the payment of a county for a co-counsel for a private attorney in a criminal case where the defendant has been declared indigent, and the payment for a public opinion survey is clearly not within the scope of statutory authority. Orange County and F.A.C.A. would adopt the arguments and conclusions therefore of Seminole County as is more fully set forth herein.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to SUSAN E. DIETRICH, Assistant County Attorney, Seminole County Services Building, 1101 East First Street, Sanford, Florida 32771; THOMAS HASTINGS, Assistant State Attorney, 100 East First Street, Sanford, Florida 32771; and JAMES M. RUSS, ESQUIRE, 18 West Pine Street, Orlando, Florida 32801, by interdepartmental mail, this _____ day of July, 1998.

SUPREME COURT OF FLORIDA

JOSEPH R. SPAZIANO,

Petitioner,

vs.

SEMINOLE COUNTY, FLORIDA, CASE NOS. 92,801, 92,846

and 93,447

Respondent.

_______________________________ DISTRICT COURT OF APPEAL

CASE NOS. 98-1170 and

JOSEPH R. SPAZIANO, 98-1115

Petitioner, CIRCUIT COURT CASE NO.

vs. 75-430-CF-A

HARRY K. SINGLETARY, JR., etc.,

Respondent.

______________________________

SEMINOLE COUNTY,

Petitioner,

vs.

JOSEPH R. SPAZIANO,

Respondent.

____________________________________/

George L. Dorsett

Assistant County Attorney

Florida Bar No. 375098

Attorney for Appellant, Orange County

TABLE OF CONTENTS

Table of Citations ii

Preliminary Statement 1

Statement of the Case and Facts 2

Summary of the Argument 3

Argument 4

Regarding Case No. 92,801 4

I. The Defendant does not get his choice of co-counsel 4

II. Even the appointment, much less the payment, of co-counsel

under any circumstances is not required. 5

III. Section 925.035(1), Fla. Stat., does not grant power to the

courts to appoint a co-counsel to assist a private attorney 6

Regarding Case No. 92,846 7

IV. Counties are not statutorily responsible to pay for a public

opinion survey 7

Regarding Both Cases, 92,801 and 92,846 8

V. If a payment is not provided for by statute, counties should

be presumed not responsible to pay it 8

VI. Defendant should get an adequate defense, not the best

possible defense 10

Conclusion 11

Certificate of Service 12

TABLE OF CITATIONS

CITATIONS PAGE

Ake V. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 1985 10

Seminole County v. Spaziano, 707 So. 2d 931 (Fla. 5th DCA 1998) 3

Hickelberry v. State, 337 So. 2d 400 (Fla. 2d DCA 1976) 3

Mitchell v. State, 407 So. 2d 1005, 1006 (Fla. 5th DCA 1981) 3,4

Britt v. North Carolina, 404 U.S. 5226 92 S.Ct. 431, 30 L.Ed. 2d 700 (1971) 10

Rose v. Moffit, 417 U.S. 600, 41 L.Ed.2d 341 94 S.Ct. 2427 (1974) 10

Lowe v. State, 650 So. 2d 969 (Fla. 1994) 4

Mills v. State, 462 So. 2d 1075 (Fla. 1985) 7

San Martin v. State, 705 So. 2d 1337, 1346 (Fla. 1997) 7

Goldburg v. County of Dade, 378 So. 2d 1242, 1244 (Fla. 3rd DCA 1979) 7

Short v. State, 479 So. 2d 163 (Fla. 2d DCA 1991) 10

Board of County Commissioners, Pinellas County v. Sawyer, 620 So. 2d 757

(Fla. 1993) 8,9

Wolf v. Volusia County, 22 Fla.L. Weekly S192 (1997) 10

Orange County v. Williamss, 702 So. 2d 1245 (Fla. 1997) 8

Milligan v. Palm Beach County, 704 So. 2d 1050 (1998) 8

§ 925.035(1), Fla. Stat. 6

The Court made no special finding of fact that the Spaziano case was particularly difficult, and instead generally stated that this case was extraordinary and unusual. There was no stating that it was ___________ because of a specific theory, or unusual because of a particular difficult pont of law. In doing this, the court was not acting reasonably in the sense that the decision was "reasoned," but arbitrarily, without considering any facts or making a specific finding related to do this case. The Lowe case cited above does allow, and even encourage, courts to use their discretion to appoint "dual counsel under the proper circumstances." Lowe, supra, at p. 70, FN 3 (emphasis added). But the Supreme Court’s words of reservation "under the proper circumstances," surely must mean that the court should consider the circumstances and not just appoint dual counsel automatically in all death penalty cases, without additional specific findings of fact.

The Court below has made it abundantly clear that:

1. The Defendant in this case, Spaziano, should have a co-counsel in addition to the original volunteer counsel;

2. That the reason Spaziano should have such a co-counsel is because the Court believed the matter called for it.

3. The County shall be required to pay for such co-counsel; and

4. That Defendant’s request for co-counsel "by name," would be granted.

There are two cases directly addressing the issue of whether an indigent defendant may receive the services of an additional counsel/co-counsel at County expense, (in cases where the issue of whether the co-counsel could legally be appointed was not considered). In Dade County v. Goldstein, 384 So. 2d 183 (3rd DCA 1980), the court ordered separate fees in the amount of $8,500.00 be paid to two attorneys each for representing one defendant. Among other decisions, the 3rd District Court of Appeals quashed this order stating:

As shown, Goldstein is a Third District Case. The split in authority comes from the Fifth District which ruled in Orange County v. Corchado as follows::

In the present case, Orange County makes a distinction between the appointment of counsel and the requirement that Orange County compensate the attorney appointed. It suggests that, although additional private counsel may be appointed when the circumstances so warrant, the law does not authorize the court to require Florida counties to pay that attorney. To support its argument, Orange County cites Dade County v. Goldstein, 384 So. 2d 183 (Fla. 3d DCA 1980). In Goldstein, the defendant was charged with first degree murder, robbery with a deadly weapon, sexual battery, burglary. The trial court appointed Stanley Goldstein ("Goldstein") to represent the defendant following the public defender’s motion pursuant to subsection 27.53(3), Florida Statutes 91979). Thereafter, pursuant to Goldstein’s request, the trial court appointed Thomas Sherman ("Sherman") to act as co-counsel for the defendant because of the complexity of the case. After a jury found the defendant guilty, Goldstein and Sherman filed motions for counsel fees, along with affidavits enumerating their hours spent on the case. The trial court awarded each attorney $8,500 to be paid by Dade County. Id. at 187. The Third District reversed an appeal, stating:

Orange County contends that Goldstein precluded the trial court in the present case from ordering it to compensate Deen. We disagree with Goldstein on the basis that its holding is not only inherently unfair to those practitioners who are appointed, but it denies effective representation to indigent defendants. As the Makemson court noted, the "link between compensation and the quality of representation remains too clear." Makemson, 491 So. 2d at 1114. It further recognized:

Id. (citing MacKenzi v. Hillsborough County, 288 So. 2d 200, 202 (Fla. 1973) (Ervin, J., dissenting)). The supreme court reiterated this point more recently in Remeta v. State, 559 So. 2d 1132 (Fla. 1990):

Trial courts must have the authority to fairly compensate court-appointed counsel. It is the only way to ensure effective representation and give effect to the right to counsel in . . . death penalty clemency proceedings.

Id. at 1135. See also Schommer v. Bentley, 500 So. 2d 118, 120 (Fla. 1986) (citing that "[i]f a trial court finds multiple attorneys are necessary in a particular case for effective representation under the parameters of Makemson, . . . the attorneys should be appropriately compensated.") If this court were to accept Orange County’s argument, the rule announced in Makemson would collapse because many attorneys would be unable or unwilling to work on a pro bono basis. In essence, the purpose behind relaxing section 925.035 would be defeated, and the supreme court’s efforts to better ensure effective representation in complex death penalty cases would be lost. Accordingly, we find that, under the appropriate circumstances, trial courts are permitted to appoint an additional attorney in capital cases and counties are required to compensate those attorneys for their services.

In summary, it was within the trial court’s discretion to appoint two attorneys to represent Spaziano if the circumstances warranted the additional appointment. See Makemson, supra. Furthermore the Schommer case, which was decided after Goldstein, indicates that Orange County would be required to compensate the additional attorney. See Schommer, 500 So. 2d at 120. As such, it appears that the Florida Supreme Court has impliedly overruled Goldstein.

A defendant as his co-counsel, we do not have to be affected by the underlying unfairness of not compensating a person who has already done the work.

But both the 5th District and the Third District were contemplating work already done.

Appellee has cited below Schommer v. Bently, 500 So. 2d 118 (Fla. 1986) in support of the theory that the courts can appoint more than one lawyer as co-counsel and pay that second attorney from County Funds. Because it has an (entirely) superficial resemblance to the Spaziano case, it causes the County considerable concern that this Court will be misled by Schommer. Schommer did not involve the appointment of an additional attorney as in this case, one as the original retained and/or volunteer counsel, and an order appointing an independent individual selected as a co-counsel. Instead Schommer involved one appointment of Nicholas Schommer as follows:

Schommer v. Bently, 500 So. 2d 118; 119 (Fla. 1986).

(Emphasis supplied).

There were a number of other differences also, in fact, between Schommer and the instant case.

1. As stated above, the Court appointed one attorney, but allowed him to use "members," not by name, of his firm to assist him.

2. One order was issued by the Court, appointing Schommer and his firm. There was not then a later motion for a co-counsel, then an order specifically appointing a co-counsel by name.

3. There was never any issue contested in Schommer as to whether a member of Schommer’s firm could be allowed to assist him. The trial court, and the county attorneys in that case apparently either did not contest or (perhaps) were not even noticed on the issue of whether the court could appoint Schommer and allow any and all attorneys of his firm to directly assist him and be paid for it by the County.

4. The Second District and the Supreme Court of Florida both accepted the issue of whether the trial court could appoint the "multiple" attorneys as a given, because the County never contested it. Instead the Court went right past that issue and asked the question "Where a court issues one order . . . may each attorney be awarded the maximum compensation . . ." Schommer, Supra at 119, emphasis added) without asking "whether more than one attorney should be appointed for compensation purposes," in the first place.

5. The Supreme Court would never, as the Schommer case clearly shows, have been requested to hear the Schommer case at all, if the total amount of compensation for both attorneys had not exceeded $3500. It is clear that the fee cap was on the minds of everyone concerned, not the number of attorneys, which was not contested in the first place.

6. The case of Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986) had not been decided at the time Schommer was certified by the second district to the Florida Supreme Court. The Florida Supreme Court decided Schommer completely on the issue of the fee cap. They said:

7. In our case, there is no right to have a second attorney appointed in the first place. This Court does not even have to address the issue of compensation.