C. OF SWEETWATER V. ALVAREZ & ST. GERMAIN

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State: Florida

Court: Florida Third District Court

Docket No: 07-1486

Case Date: 06/24/2009

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2009
Opinion filed June 24, 2009. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D07-1486 Lower Tribunal Nos. F04-018494A; F04-18494B ________________

City of Sweetwater,
Appellant, vs.

George I. Alvarez and Allen St. Germain,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake, Judge. Ralph Ventura, for appellant. Hartman and Cornely and Douglas Cole Hartman; Jorden Burt, Janice Burton Sharpstein and Ari H. Gerstin, for appellees.

Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ. SHEPHERD, J.

I. Introduction The City of Sweetwater appeals a statutory award of attorney fees to counsel for two of its police officers for services rendered in obtaining the officers' acquittal on charges of felony battery and official misconduct in connection with an arrest made in the line of duty. The City challenges the award by arguing that the officers failed to first request representation from the City before hiring their own counsel. We agree with the City and, therefore, reverse the fee award. II. Facts and Procedural Background On July 7, 2004, Sweetwater police officers Allen B. St. Germain and George Ignacio Alvarez were criminally charged with felony battery and official misconduct based upon allegations of the wrongful use of force during the course of an arrest of a suspect named Peter Michael Daniels on June 19, 2003. Although the officers apparently negotiated some agreement with their union, the Police Benevolent Association, with respect to the payment of fees, they did not request that the City provide them with a defense to the charges. Instead, they chose private counsel, successfully defended the case, and then sent their legal bills to the City. The City rejected the bills, which caused the officers to file an application for fees with the court having jurisdiction over the criminal action, in accordance

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with the statutorily prescribed procedure. 1 The trial court found that the officers' counsel were entitled to reimbursement of their attorney fees. III. The Statute The statute we are required to interpret reads as if it were constructed by the proverbial designers of the camel. That said, there is no ambiguity within or between the various provisions. Therefore, our task is to apply the plain language of the statute, and where necessary prefer constructions of the statute that will give effect to all provisions of the statute over those that would not. See Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003) ("In ascertaining the legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another."). Insofar as pertinent here, the statute we are called upon to construe reads as follows: 111.065. Law enforcement or correctional officers, legal action against; employer payment of costs and attorney's fees or provision of attorney
....

(3) The employing agency shall provide an attorney and pay the reasonable attorney's fees and costs for any officer in a criminal Recently, we approved the officers' use of this procedure in their effort to collect their fees and costs. See City of Sweetwater v. St. Germain, 943 So. 2d 259 (Fla. 3d DCA 2006).
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action commenced against the officer in any court if the employing agency determines that the officer's actions that gave rise to the charges: (a)1. Occurred in response to what the officer reasonably believed was an emergency; 2. Occurred when the officer reasonably believed that his or her action was necessary to protect the officer or others from imminent death or bodily harm; or 3. Occurred in the course of the officer's fresh pursuit, apprehension, or attempted apprehension of a suspect whom the officer reasonably believed had perpetrated, or attempted to perpetrate, a forcible felony as defined in s. 776.08, or the offense of escape; (b) Arose within the course and scope of the officer's duties; and (c) Were not acts of omission or commission which constituted a material departure from the employing agency's written policies and procedures, or generally recognized criminal justice standards if no written policies or procedures exist. (4)(a) If legal representation is requested under subsection (3) and the employing agency determines that the conditions set forth in subsection (3) have not been satisfied or the officer does not choose to use the employing agency's designated attorney, the officer may: 1. Select from a list of attorneys provided by the employing agency; or 2. Choose his or her own attorney. The officer may request the employing agency to reimburse reasonable attorney's fees and costs if the officer's actions giving rise to the charge did not result in the entry of a plea of guilty or nolo contendere or in a finding of guilt by a court or jury to any offense charged or any lesser or included offense that is substantially related to the offense charged.
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