On application of assigned counsel for counsel fee and reimbursement of expenses.
Crane, J.c.c. (temporarily assigned).
[87 NJSuper Page 120] Defendant was convicted of murder after a trial by jury in 1962. The conviction was affirmed on appeal, State v. Loray, 41 N.J. 131 (1963), but was set aside by this court on an application for post-conviction relief because of the failure of the Juvenile and Domestic Relations Court to advise defendant of his right
to be represented by assigned counsel if he were indigent. See State v. Tuddles, 38 N.J. 565 (1962).
Upon the filing of the petition for post-conviction relief the assignment judge appointed Arthur R. Schmauder, Esq. of the Essex County Bar to represent defendant on his application. Having served notice upon the prosecutor, the county treasurer and the county counsel, Mr. Schmauder now applies for a fee for his services in connection with his representation and for reimbursement of his expenses. According to his affidavit, a total of 165 3/4 hours was directed to the matter, including several court appearances and two trips to Bordentown to interview defendant.
There is no real dispute as to counsel's expenses. The Supreme Court said in State v. Horton, 34 N.J. 518 (1961), that an assigned attorney's reasonable and necessary out-of-pocket disbursements should be reimbursed in cases where the defendant is charged with a crime other than murder as well as in murder cases. It said that "While we are dealing in the instant case with a situation where compensation to the attorney is authorized, we believe that what we have just said as to both major expenses of defense and miscellaneous disbursements of attorneys should have equal application where counsel is assigned to an indigent defendant charged with other than murder." (at p. 534) The view expressed was to be considered as prospective only; however, no reason is perceived why it should not be applied to the instant case. Counsel's expenses fall into the category of miscellaneous disbursements for travel and telephone toll charges for which advance approval is not required under the Horton opinion. They seem to be reasonable and necessary, having to do with interviewing defendant and his mother; consequently, they will be allowed as requested in the sum of $28.10.
With respect to the request for allowance of a fee, county counsel concedes that the matter is one of practice and procedure governed by the rules of court. See State v. Donaldson, 36 N.J. 45, 49 (1961). Thus, if compensation is permitted by the rules of court and the amount to be allowed is
certified by the court, the county treasurer would be required to pay the amount so fixed pursuant to the provisions of N.J.S. 2A:163-1.*fn1
It is argued on behalf of the county treasurer, however, that R.R. 1:12-9(f) does not contemplate the allowance of a fee in post-conviction relief matters, even though the charge upon which the defendant was convicted was murder. The rule provides as follows:
"(f) In cases of murder counsel shall be specially assigned by the Assignment Judge and on appeal in such cases the same counsel shall be assigned by the appellate court, unless otherwise ordered. Counsel so assigned shall be allowed reasonable compensation by the trial court for services rendered in such court and by the appellate court for services rendered on appeal. Before an allowance of counsel fees is made in such cases, notice of the application therefor, which shall state the amount of the counsel fee requested, shall be given to the prosecuting attorney, the county treasurer and the county counsel and the county shall be given an opportunity to be heard thereon."
Specifically, counsel was assigned in this matter pursuant to R.R. 3:10A-6 after the filing of a petition for post-conviction relief. Does this fact prevent the award of a fee in accordance with R.R. 1:12-9(f)?
It is clear that even though a homicide is involved, unless the grand jury has returned an indictment, the court may not award a fee to counsel assigned to represent the defendant, State v. Donaldson, supra; State in Interest of Steenback, 34 N.J. 89 (1961). This is predicated upon the concept that unless an indictment has been returned, the ...