Albert A.A. Cartenuto, III v. Justice Administrative Commission ( 2019 )

Supreme Court of Florida
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No. SC18-322
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ALBERT A. A. CARTENUTO, III, et al.,
Appellants,
vs.
JUSTICE ADMINISTRATIVE COMMISSION,
Appellee.
December 20, 2018
CORRECTED OPINION
PER CURIAM.
This case is before the Court on appeal from an order denying a motion for
attorney’s fees. Because the order concerns certain fees incurred during a capital
postconviction proceeding, this Court has jurisdiction of the appeal under article V,
section 3(b)(1), Florida Constitution. See McClain v. Atwater, 110 So. 3d 892, 893
n.1 (Fla. 2013). Based on the following, we reverse the circuit court’s order and
remand for a hearing to reconsider the proper statutory qualifications and
determine reasonable attorney’s fees.
FACTS AND PROCEDURAL HISTORY
Noel Doorbal is a death defendant represented by court-appointed private
counsel. Since 2012, his lead attorney, or “registry attorney,” has been Maria del
Carmen Calzon, Appellant. At the time of her appointment, Calzon designated
Albert A. A. Cartenuto, III, Appellant, as her “designated attorney” to provide
assistance with Doorbal’s case.
Calzon moved for attorney’s fees in the circuit court on November 6, 2017.
The Justice Administrative Commission (JAC)—the agency that manages the
contracts of, and payments to, registry attorneys—objected to the billing, which
totaled $12,010.00. In its written objection, JAC stated that these fees, combined
with previously billed fees on this case, exceeded the $20,000.00 statutory cap set
forth in section 27.711(4)(d), Florida Statutes (2017).1
On December 12, 2017, the circuit court held a hearing on the motion for
fees. At the fee hearing, the circuit court questioned Cartenuto about whether he
met the statutory qualifications to be a designated attorney under section 27.704(2),
Florida Statutes. Cartenuto responded that he did not meet the qualifications.
Neither Cartenuto nor JAC offered any other evidence with regard to the
qualifications. Accordingly, the circuit court orally denied the motion for
1. Unless indicated otherwise, all statutory citations below are to Florida
Statutes (2017).
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attorney’s fees to the extent that it included Cartenuto’s fees as a designated
attorney. As to Calzon’s fees, the court orally granted the motion.
Two days later, on December 14, 2017, the circuit court entered an order
granting the motion for Calzon’s fees in the amount of $7,430.00. In the order, the
circuit court found that the case was “unusual and extraordinary”; thus the fees
could exceed the statutory cap pursuant to Makemson v. Martin County, 491 So. 2d
1109 (Fla. 1986). The order, however, was silent as to Cartenuto’s fees.
A few days later, on December 18, 2017, Calzon and Cartenuto filed a
Verified Motion for Reconsideration of the denial of Cartenuto’s fees (the Verified
Motion). In the Verified Motion, Cartenuto argued that the circuit court applied
the wrong statutory qualifications. The circuit court applied the current statutory
requirements, which are more stringent than the requirements in force when
Cartenuto became a designated attorney in 2012. Cartenuto contended that he
satisfied the 2012 requirements, listing several cases as evidence of his
qualifications. He explained that he was unprepared to address questions
concerning his qualifications at the fee hearing, so he answered incorrectly.
Without a hearing, on February 9, 2018, the circuit court denied the Verified
Motion in an order denying rehearing. In that order, the circuit court took issue
with the amount of fees charged in this case. Then, it applied the current statutory
qualifications again and noted Cartenuto’s admission of his failure to satisfy the
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requirements at the fee hearing. For that reason, the circuit court denied the
Verified Motion without making any other factual findings.
This appeal follows.
ANALYSIS
The issue is whether the circuit court improperly denied attorney’s fees to
Cartenuto as a designated attorney. This presents a mixed question of fact and law.
This Court reviews legal determinations, such as the statutory requirements, de
novo. McClain, 110 So. 3d at 898. Whereas this Court reviews factual findings
for competent, substantial evidence. Fla. Dep’t of Fin. Servs. v. Freeman, 921 So.
2d 598, 601 (Fla. 2006).
In part, this case turns on which designated attorney qualifications apply
under section 27.704(2): those in force when Cartenuto was appointed in 2012 or
the current statutory qualifications. We conclude that the statute in force when
Cartenuto was first appointed to the case in 2012 applies. Thus—based on the
record here—the only evidence supports the conclusion that he was qualified.
In certain capital collateral proceedings, qualified private counsel may
represent defendants as registry attorneys. See § 27.710(1), Fla. Stat. Under the
relevant statutes, a registry attorney may enlist a designated attorney for assistance
on the case. See § 27.710(6). Like registry attorneys, designated attorneys may
receive fees pursuant to the fee statute. § 27.711(4). A designated attorney,
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however, must also meet the qualifications of a registry attorney. § 27.710(6) (“[A
registry attorney] may designate another attorney to assist him or her if the
designated attorney meets the qualifications of this section.”); see also
§ 27.710(2). 2 The qualifications for registry and designated attorneys are set out in
section 27.704(2). Prior to 2013, the statute stated:
A private counsel or public defender under contract with the regional
counsel must have at least 3 years’ experience in the practice of
criminal law, and, prior to the contract, must have participated in at
least five felony jury trials, five felony appeals, or five capital
postconviction evidentiary hearings or any combination of at least five
of such proceedings.
§ 27.704(2), Fla. Stat. (2012) (emphasis added). A 2013 amendment increased the
qualifications for these attorneys, and the statute now reads:
A private counsel or public defender under contract with the regional
counsel must not be disqualified pursuant to s. 27.7045; must have at
least 3 years’ experience in the practice of criminal law; and, prior to
the contract, must have participated in at least two capital trials or
capital sentencing proceedings, five felony appeals, or five capital
postconviction evidentiary hearings, or any combination of at least
five of such proceedings.
2. An exception exists for unqualified pro bono attorneys, who may serve
“at the discretion of the capital collateral regional counsel.” § 27.704(3).
Therefore, for those unqualified designated attorneys attempting to become death
qualified by assisting registry attorneys, they must participate pro bono. See id.
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§ 27.704(2) (emphasis added).3
In his Verified Motion, Cartenuto stated that he became the designated
attorney on Doorbal’s case in 2012. Because Cartenuto began representation in
2012 and continued that representation through this fee dispute, we conclude that
the contractual and statutory qualifications in force at the time of appointment
apply to him. This reasoning is buttressed by the fact that both versions of the
statute determine qualifications “prior to the contract.” § 27.704(2). And the 2013
amendments did not take effect until July 1, 2013—the year after Cartenuto’s
designation and appointment. Ch. 2013-216, § 19, at 2613, Laws of Fla.
Therefore, the 2012 version of section 27.704(2) applies and controls here.
The only record evidence supports Cartenuto’s qualification under the 2012
statute, by demonstrating participation in “at least five felony jury trials.”
§ 27.704(2), Fla. Stat. (2012). At the fee hearing, Cartenuto stated that he was a
criminal trial lawyer and worked on “a number of jury trials in other matters that
are not death penalty.” In the Verified Motion, Cartenuto also affirmed that he
worked on “ ‘at least’ five felony jury trials.” JAC offered no evidence to rebut
these assertions. Moreover, the circuit court made no findings that would support
3. The statute incorrectly states that these attorneys are “under contract with
the regional counsel.” § 27.704(2). Registry and designated attorneys are under
contract with JAC. § 27.710(4).
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rejecting Cartenuto’s qualifications, except Cartenuto’s erroneous—and promptly
corrected—concession of disqualification. Therefore, no competent, substantial
evidence supported the denial of Cartenuto’s fees based on his lack of
qualifications.
CONCLUSION
Accordingly, we reverse the circuit court’s order and remand for
reconsideration of the proper qualifications and a determination of reasonable
attorney’s fees.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
ON OR BEFORE DECEMBER 27, 2018. A RESPONSE TO THE MOTION
FOR REHEARING/CLARIFICATION MAY BE FILED ON OR BEFORE
JANUARY 2, 2019. NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO
FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED,
DETERMINED.
An Appeal from the Circuit Court in and for Miami-Dade County,
Dava Tunis, Judge - Case No. 131995CF017381B000XX
Maria del Carmen Calzon of Law Offices of Maria del Carmen Calzon, P.A., Coral
Gables, Florida,
for Appellants
Ana Cristina Martinez, General Counsel, and Bradley R. Bischoff, Assistant
General Counsel, Justice Administrative Commission, Tallahassee, Florida,
for Appellee
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