Wood v. State

951 P.2d 601, 113 Nev. 1455, 1997 Nev. LEXIS 167
CourtNevada Supreme Court
DecidedDecember 31, 1997
DocketNo. 30608
StatusPublished
Cited by1 cases

This text of 951 P.2d 601 (Wood v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wood v. State, 951 P.2d 601, 113 Nev. 1455, 1997 Nev. LEXIS 167 (Neb. 1997).

Opinion

OPINION

Per Curiam:

Appellant’s court-appointed attorney, Michael K. Powell, has filed an application for the certification of excess fees. See NRAP 15; NRS 7.125(4). Specifically, counsel seeks this court’s certification of payment in the amount of $4,656.25 for services rendered in this appeal as of August 25, 1997. Attorney Powell has attached a copy of a district court order to his application. The order indicates that the district court believes that the time spent and work done by counsel in this matter are both reasonable and necessary.

Attorney Powell was appointed by the district court to represent appellant in this direct appeal from a judgment of conviction on several felony counts. At the time counsel filed the current application for certification, he had only submitted a fast track statement and appendix to this court on behalf of appellant. See NRAP 3C(e). We subsequently directed the parties to fully brief this appeal and counsel has since filed an opening brief on behalf of appellant. See NRAP 3C(j). However, respondent has yet to [1457]*1457file an answering brief, and the merits of this matter have not been submitted to this court for consideration.

NRS 7.125 governs the amount of compensation that court-appointed attorneys may obtain for the representation of an indigent client in a criminal matter. NRS 7.125(2)(e) limits compensation in appeals from one or more gross misdemeanor or felony convictions to $2,500. However, that amount may be exceeded under certain circumstances. First, the appointing court must deem a payment in excess of the limit appropriate. See NRS 7.125(4). Second, the court in which the representation occurred must certify the excess payment as both reasonable and necessary. Id. Finally, the presiding or senior judge of the district in which the attorney was appointed must approve the payment. Id. We had the opportunity to address the issue of compensation for court-appointed attorneys in excess of statutory limits in Brown v. Board of County Comm’rs, 85 Nev. 149, 451 P.2d 708 (1969). At that time, the legislature had imposed inflexible limits on the amount of compensation that could be provided to court-appointed attorneys. We recognized that in certain instances the statute’s failure to adequately compensate court-appointed attorneys for their services might create an unbearable personal hardship. Id. at 152-53, 451 P.2d at 710-11. However, we declined to exceed the statutory limits in Brown and instead invited legislative correction of the matter. Id.

After our decision in Brown, the legislature amended NRS 7.260 1 to provide for fee payments in excess of the established limits in “unusual circumstances.” See 1975 Nev. Stat., ch. 612, § 1, at 1154. The amended statute established a process by which attorneys might seek payment in excess of the statutory limit. Id. The process required a justice of this court to approve excess fee claims in appellate matters. Id.

We first had an opportunity to review the legislature’s attempt to ease the potential financial burden on court-appointed attorneys in Brackenbrough v. State, 92 Nev. 460, 553 P.2d 419 (1976). Upon review, we found the legislature’s attempt to place the “administrative and fact finding burden” of processing excess fee claims upon this court invalid. Id. at 462, 553 P.2d at 420. We noted the historical practice and wisdom of allowing the district court to process excess fee claims in the first instance and concluded “that normally such fees [should] be first processed and resolved in district court, which is a fact finding tribunal, before we consider them.” Id. at 463-64, 553 P.2d at 420-21.

In the years since our decision in Brackenbrough, NRS 7.125 has been amended several times. See 1977 Nev. Stat., ch. 236, § [1458]*14581, at419-20; 1977 Nev. Stat., ch. 435, § 1, at 875-76; 1981 Nev. Stat., ch. 451, § 3, at 874-75; 1983 Nev. Stat., ch. 26, § 4, at 109-10; 1983 Nev. Stat., ch. 429, § 1, at 1095-97; 1985 Nev. Stat., ch. 365, § 1-2, at 1023-26; 1987 Nev. Stat., ch. 554, § 1, 1295-96; 1991 Nev. Stat., ch. 630, § 1, 2077-78; 1993 Nev. Stat., ch. 590, § 1, 2465-66. The requirement that this court approve excess fees in appellate matters was eventually replaced with the current requirements that the appointing court deem an excess fee appropriate, that the court in which the representation was rendered certify the excess fee as reasonable and necessary, and that the presiding or senior district court judge approve the excess fee. See NRS 7.125(4).

We initially embraced the certification requirements embodied in NRS 7.125(4). See Beury v. State, 108 Nev. 219, 826 P.2d 956 (1992). In fact, we formally established a procedure by which court-appointed attorneys in criminal matters could request certification of excess fee claims as “reasonable and necessary” from this court. See NRAP 15. However, our experience has shown that the very “administrative and fact finding burden” we feared in Brackenbrough has been imposed upon us by the current statutory requirements.

As we indicated in Brackenbrough, the district court that hears the underlying matter traditionally appoints local counsel to represent an indigent person on appeal. 92 Nev. at 463, 553 P.2d at 420. The district court presides over the trial, pre-trial proceedings, and post-trial motions. Id. The district court’s intimate familiarity with a case and retention of the complete trial record usually puts it “in a better position than this court to determine expeditiously how much new and effective effort has truly been devoted to preparation of appellate briefs.” Id.

In addition to the practical reasons for having the district court process all excess fee claims, our constitution suggests that the current procedure embodied in NRS 7.125(4) is invalid. The constitution vests this court with final appellate jurisdiction over matters which arise in the district court. See Nev. Const, art.

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Cite This Page — Counsel Stack

Bluebook (online)
951 P.2d 601, 113 Nev. 1455, 1997 Nev. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-state-nev-1997.