§802-5 Appointment of counsel; compensation. (a) Except as provided in section 334-126(f), when it shall appear to a judge that a person requesting the appointment of counsel satisfies the requirements of this chapter, the judge shall appoint counsel to represent the person at all stages of the proceedings, including appeal, if any. If conflicting interests exist, or if the interests of justice require, the court may appoint private counsel, who shall receive reasonable compensation for necessary expenses, including travel, the amount of which shall be determined by the court, and reasonable fees pursuant to subsection (b). All expenses and fees shall be ordered by the court. Duly ordered payment shall be made upon vouchers approved by the director of finance and warrants drawn by the comptroller.

(b) The court shall determine the amount of reasonable compensation to appointed counsel, based on the rate of $90 an hour; provided that the maximum allowable fee shall not exceed the following schedule:

(1) Any felony case $6,000

(2) Misdemeanor case-jury trial 3,000

(3) Misdemeanor case-jury waived 1,500

(4) Appeals 5,000

(5) Petty misdemeanor case 900

(6) Any other type of administrative or

judicial proceeding, including cases

arising under section 571-11(1),

571-14(a)(1), or 571-14(a)(2) 3,000.

Payment in excess of any maximum provided for under paragraphs (1) to (6) may be made whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of that court.

(c) The public defender and the judiciary shall submit to the department of budget and finance for inclusion in the department's budget request for each fiscal biennium, the amount required for each fiscal year for the payment of fees and expenses pursuant to this section. [L 1971, c 185, pt of §1; HRS §705C-5; ren L 1972, c 9, pt of §1; am L Sp 1981 1st, c 22, §1; gen ch 1985; am L 1987, c 227, §1; am L 2004, c 202, §78; am L 2005, c 86, §§1, 2; am L 2006, c 94, §1 and c 133, §1; am L 2010, c 109, §1; am L 2015, c 231, §6]

Case Notes

Total fees cannot exceed twice the maximum scheduled fee. 66 H. 366, 663 P.2d 630 (1983).

The language of this section does not empower the Hawaii supreme court to compensate attorneys for services rendered before the United States Supreme Court. 95 H. 28, 18 P.3d 890 (2001).

Under subsection (b), both the trial judge and the administrative judge independently review excess fee requests to determine whether a fee award is "fair compensation"; both the trial judge's and the administrative judge's orders awarding fees under subsection (b) are judicial acts subject to appellate review under the abuse of discretion standard; to enable appellate review of excess fee awards, if a fee request is reduced, it is necessary for the judge reducing the request to set forth reasons for the reduction in order to determine whether the judge abused the judge's discretion in ordering reduced fees. 126 H. 26, 265 P.3d 1122 (2011).

"Case" means all matters within numbered case, not each count. 6 H. App. 20, 709 P.2d 105 (1985).

Where record indicated petitioner did not waive right to appeal and trial counsel did not take steps to prosecute appeal, petitioner's allegation of denial of effective assistance of counsel on appeal presented colorable claim for post-conviction relief. 81 H. 185 (App.), 914 P.2d 1378 (1996).

Discussed: 97 H. 1, 32 P.3d 647 (2001).