                  IN THE SUPREME COURT OF TENNESSEE
                             AT NASHVILLE




                                              FOR PUBLICATION

                                              Filed:   September 8, 1998




ANN C. SHORT,                            )
                                         )
      PETITIONER,                        )
                                         )
v.                                       )    NO. 01S01-9704-OT-00078
                                         )
CHARLES E. FERRELL,                      )
in his official capacity as the
Administrative Director of the Courts,
                                         )
                                         )
                                         )
                                                  FILED
      RESPONDENT.                        )
                                                  September 8, 1998

                                                 Cecil W. Crowson
                                                Appellate Court Clerk




FOR PETITIONER:                          FOR RESPONDENT:

ANN C. SHORT                             JOHN A. DAY
KNOXVILLE                                NASHVILLE




                              OPINION



REMANDED                                                         HOLDER, J.
                                      OPINION



       This cause comes to us on a common law writ of certiorari to review a fee

dispute in a post-conviction proceeding involving an indigent defendant, David

McNish. The issue is whether an attorney appointed to review the records in a

post-conviction proceeding may exceed the maximum allowable rates for

attorneys representing indigent defendants. W e hold that: (1) Tenn. Sup. Ct. R.

13 (1996) required an attorney performing services as an "expert" to obtain prior

approval for an hourly rate in excess of the hourly rate provided for attorneys in

Rule 13; and (2) the trial court should have explicitly set forth the approved

"expert" hourly rate in its order if such rate was intended to exceed the normal

hourly rate provided for attorneys in Rule 13.



       The petitioner, Ann C. Short, was appointed to serve as an "expert" to

review trial counsel's performance in a case where a defendant sought post-

conviction relief. The order approved $ 2,500.00 for petitioner's services. The

trial court's order, however, did not set forth an hourly rate for which the

petitioner could bill the State. The petitioner also did not seek prior approval

from the Administrative Office of the Courts ("AOC") for an hourly rate exceeding

the hourly rate permitted by Rule 13 for attorneys. At the time of the petitioner's

services, Rule 13 provided for a rate of $ 40.00 an hour for an attorney's out-of-

court services and $ 50.00 an hour for in-court services.



       The petitioner submitted two separate bills to the AOC for her services.

The petitioner initially billed the State, in December of 1996, for 34.50 hours at a

rate of $ 150.00 an hour for a total of $ 5,175.00. The AOC paid the petitioner

$ 1,380.00, which equated to 34.50 hours at the out-of-court hourly rate of

$ 40.00. In March of 1997, the petitioner billed the State an additional


                                          2
$ 6,832.50. The March bill was comprised of 20.25 hours billed at an hourly rate

of $ 150.00 for a total of $ 3,037.50 and $ 3,795.00 for the unpaid portion of the

December bill. The petitioner has not received any compensation for the March

bill.



        Upon review of Rule 13(2)(B)1 in conjunction with the entire Rule, we hold

that Rule 13 required prior authorization before an attorney's services designated

as "expert" may be billed at an hourly rate in excess of the Rule 13 designated

amount. Such authorization must set forth in an order by the trial court the

hourly rate to be billed. The petitioner did not procure prior explicit approval for

an hourly rate exceeding $ 40.00 an hour and is, therefore, limited to the rate of

$ 40.00 an hour. The AOC neither abused its discretion nor acted arbitrarily in

reducing the petitioner's hourly rate from $ 150.00 to $ 40.00 an hour. See

McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990) (setting forth

standard of review for common law writ of certiorari as whether trial court

exceeded jurisdiction or acted illegally, arbitrarily or fraudulently).




        1
            Tenn. Sup. R. 13 § 2(B) provides:

                A two step procedure must be followed in obtaining authorization for
        compensation in a capital case. First, the appropriate court, trial or appellate,
        shall determine reasonable compensation to be allowed the attorney based upon
        the services rendered in the court. Second, the claim will be submitted to the
        Administrative Director of the Courts for final approval by the Administrative
        Director of the Courts and the Chief Justice.

                 In capital cases, the court may determ ine that investigative or expert
        services, or other similar services are necessary to ensure the protection of the
        constitutional rights of a defendant. (Tenn. Code Ann. § 40-14-207). The
        defense counsel must seek prior approval for such services by submitting a
        written motion to the Court setting forth:

                           (a) the name of the proposed expert or service;

                           (b) how, w hen an d where the exam ination is to
                           be conducted or the services are to be
                           performed;

                           (c) the cost of the evaluation and report thereof;

                           (d) the cost of any other necessary services,
                           such as court appearances.

                                                   3
       The cause is remanded to Charles Ferrell, Director of the Administrative

Office of the Courts, for consideration of the March 11, 1997, bill which shall be

paid in accordance with the mandates of Rule 13 and this opinion. Payment to

the petitioner, however, shall not exceed the $ 2,500.00 cap set by the trial court.

Costs shall be taxed against the petitioner, Ann C. Short, for which execution

may issue if necessary.




                                          JANICE M. HOLDER, JUSTICE



Concurring:

Anderson, C.J.
Drowota and Birch, J.J.
Reid, Sp.J.




                                         4
