
    STATE of Florida, Appellant, v. Bennie Ray HOBBS, Appellee.
    No. E-479.
    District Court of Appeal of Florida, First District.
    March 5, 1964.
    Rehearing Denied April 2, 1964.
    Richard W. Ervin, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., for appellant.
    Douglas M. Andrews, of Campbell & Andrews, DeFuniak Springs, for appellee.
   STURGIS, Chief Judge.

The State of Florida has appealed from an order of the Circuit Court for Walton County requiring the state to pay all costs of a proceeding under Section 917.12, Florida Statutes, F.S.A., including a fee fixed by the court for the services of an attorney appointed by the court to represent an alleged criminal sexual psychopathic person, appellee Hobbs, against whom said proceedings were had in accordance with the mandate of the Supreme Court of Florida in Hobbs v. Cochran, 143 So.2d 481 (1962).

In compliance with said mandate and the provisions of law the trial court appointed two psychiatrists who made an examination of and submitted a report touching upon the alleged psychopath, and also appointed legal counsel to represent the accused in said proceedings. The basis for the latter appointment is in the provision of the statute that the accused psychopath “shall have the right to have legal counsel present and assisting him at such hearing.”

Upon consideration of the report of the psychiatrists and the evidence presented on the hearing, the trial court found and determined that appellee Hobbs is a criminal sexual psychopath as defined by the statute, and entered a decree committing him to a state mental institution and assessing against the state all costs of the proceeding, including a fee of $500 found to be a reasonable fee to be paid for the services of the court-appointed counsel for the insolvent psychopath.

The sole issue on this appeal is whether the trial court erred in including as part of the costs to be paid by the state said item for the services of said attorney for the accused. Appellant contends that there is no authority for such fee to be paid and that the order is unenforceable because there has been no appropriation of funds with which to discharge the same as required by Section 4, Article IX, Constitution of Florida, F.S.A.

Section 917.12(7), Florida Statutes, F.S.A., provides:

“COSTS. — The state shall defray all cost and expense necessarily incurred by the state in the ascertainment of whether or not such person is a criminal sexual psychopathic person, as well as that incident to his confinement and treatment in a state institution, and where possible, the state may recover the amount so paid from such person, upon a proceeding instituted for that purpose by the state attorney of the county where such person was charged with a criminal offense.”

The general rule in this jurisdiction is that attorney’s fees are not allowable unless provided for by statute or agreement. In re Field’s Estate, 121 So.2d 46 (Fla.App. 1960). The issue here depends, therefore, upon whether the above quoted portion of the statute authorizes the mentioned attorney’s fee to be included as part of the costs payable by the state. We hold that it does, that by necessary implication a reasonable fee for the services of the attorney appointed by the court to represent the accused psychopath is a component part of the “cost and expense necessarily incurred by the state” at such hearings. That part of F.S. § 917.12(2) (d), F.S.A. providing that the accused psychopath shall have the right to have legal counsel present and assisting him at such hearing reiterates the time-honored right of an accused to be represented by counsel of his own employment. It is quite meaningless unless construed to mean, as we hold, that the trial court is required to appoint counsel to represent an indigent person so accused who has not independently procured the services of counsel to represent him in the premises. We will not ascribe to the legislature an intent to compel the appointment of such counsel and deprive him alone of reasonable compensation for his services. Having so held, it is unnecessary to explore the proposition that to hold otherwise would raise provocative constitutional questions touching upon the rights of an attorney whose person and talents are so conscripted.

In Smith v. Smith, 90 Fla. 824, 107 So, 257, the Florida Supreme Court held that the term “suit money” as used in Section 3194, Rev.Gen.Stat.1920, was broad enough to cover solicitor’s fees and all costs of the divorce proceedings pendente lite. The construction is with equal logic applicable to our conclusion that the term “cost and expense necessarily incurred by the state” as used in the statute here involved embraces the subject attorney’s fee no less than other items of necessary expense.

It is unnecessary to ponder the academic question of how the state will discharge the obligation imposed by the decree in question. That is a matter for the legislature to deal with in good conscience and in due course of time. The decree appealed will be complied with when and if funds are appropriated and available for the purpose. Better late than never.

Affirmed.

RAWLS, J., concurs.

CARROLL, DONALD K., J., dissents.

CARROLL, DONALD K., Judge

(dissenting) .

I fully agree with the majority opinion to the extent that I think that the legislature ought to have provided, that the fee of an indigent accused’s attorney in the instant proceeding may. be assessed against the state, but I cannot agree that the legislature has in fact so provided.

Few rules are as firmly established in Florida as that “attorneys’ fees may not be allowed unless provided for by statute or agreement.” See our decision in In re Field’s Estate, 121 So.2d 46 (1960), and the cases cited therein for this proposition. In the present case there is not even a suggestion that there was any agreement for the allowance of an attorney’s fee, so we are compelled, in obeisance to the established rule, to find such authority in the statute. The only conceivable statutory provision that we might consider in this search is that in Section 917.12(7), Florida Statutes, F.S.A., which provides that the state “shall defray all cost and expense necessarily incurred by the state in the ascertainment of whether or not such person is a criminal sexual psychopathic person, as well as that incident to his confinement and treatment in a state institution * * Certainly an attorney’s fee is not incident to the accused person’s confinement or treatment, so we must find the statutory authority, if any, in the words “all costs and expenses necessarily incurred by the state in the ascertainment of whether or not such person is a criminal sexual psychopathic person. * * * »

In many cases the appellate courts of Florida have held that a provision for the allowance of “costs” does not include an attorney’s fee. See, for instance, State ex rel. Royal Ins. Co. v. Barrs, 87 Fla. 168, 99 So. 668 (1924) and Thibert v. Thibert, 106 So.2d 918 (Fla.App.1958). In no case that I have found has a court in this state held that the word “expense” includes an attorney’s fee. Besides, the only “cost and expense” provided for in the instant statute are specifically limited to those “necessarily incurred by the state” in ascertaining whether the person is a criminal sexual psychopathic person. The fee of an accused person’s attorney does not seem to me to fit in this category, for it was neither incurred “by the state,” nor incurred in such ascertainment.

Nevertheless, as I indicated at the beginning of this dissenting opinion, I feel that the legislature should have provided in the statute that the state should pay the fee of the accused person’s attorney, for it declared in Sec. 917.12(2) (d) that such accused “shall have the right to have legal counsel present and assisting him” at the hearing before the court. It would have been perfectly in keeping with the modern trend to safeguard the rights of accused persons, as manifested by the adoption of public defender laws by many state legislatures, including that in Florida, and by the innumerable state and federal court decisions recognizing the fundamental right of indigent accuseds to government-furnished counsel, if our legislature had enacted a provision for an attorney’s fee in Section 917.12(7). Nevertheless, since no court has the power to amend statutes and since our legislature has failed to so provide, I must regretfully enter my dissent from the majority decision. I would reverse that part of the final decree appealed from requiring the State to pay the appellant’s attorney’s fee and otherwise affirm the decree.  