Dade County v. Baker

• Citation: 362 So.2d 151
• Decision Date: 12 September 1978
• Docket Number: No. 78-765,78-765
• Parties: DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. The Honorable H. Paul BAKER, Circuit Judge in and for the Eleventh Judicial Circuit of Florida, and the Honorable Bennett H. Brummer, Public Defender of the Eleventh Judicial Circuit of Florida, Respondents. The STATE of Florida, Plaintiff, v. Hernando AHUMADA, Defendant.
• Court: Florida District Court of Appeals

Page 151

362 So.2d 151

DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. The Honorable H. Paul BAKER, Circuit Judge in and for the Eleventh Judicial Circuit of Florida, and the Honorable Bennett H. Brummer, Public Defender of the Eleventh Judicial Circuit of Florida, Respondents.

The STATE of Florida, Plaintiff, v. Hernando AHUMADA, Defendant.

No. 78-765.

District Court of Appeal of Florida, Third District.

Sept. 12, 1978.

Stuart L. Simon, County Atty., for petitioner.

Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Bennett H. Brummer, Public Defender, for respondents.

Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.

PEARSON, Judge.

Dade County, as petitioner, seeks certiorari review of an order of the circuit court (1) granting a motion of the Public Defender for leave to withdraw as the legal representative of a named indigent defendant (Hernando Ahumada) in all appellate proceedings and (2) appointing a special assistant public defender to represent the defendant. We issued an order to show cause pursuant to Fla.R.App.P. 9.100(f); response was filed and argument heard. We hold that the granting of the motion upon the facts presented to the court by the Public Defender was a departure from the essential requirements of law and quash the order.

In order to clarify the issue presented so that the appeal of Hernando Ahumada may not be thwarted, the County has agreed to pay the costs and the fees of the special assistant public defender for the Ahumada appeal, pending disposition of this cause. This stipulation by the County is approved by this court and is accepted as in the interests of justice. The stipulation shall be without prejudice to the position of the County on its petition.

It is important to recognize that the trial judge has statutory authority to appoint a special assistant public defender. Section 27.53(2), Florida Statutes (1977), provides:

"In addition, any member of the bar in good standing may be appointed by the court to, or may register his or her availability to the public defender of each judicial circuit for acceptance of, special assignments without salary to represent insolvent defendants. Such persons shall be listed and referred to as special assistant public defenders and be paid a fee and costs and expenses. Such fee and costs and expenses shall be fixed by the trial judge and shall be paid in the same manner as counsel fees are paid in capital cases or as otherwise provided by law. In addition, defense counsel may be assigned and paid pursuant to any existing or future local act or general act of local application."

Although not raised by the respondents in their response, the first question that occurs is whether the County has standing to bring this petition. We hold that such standing does exist because it is clear that the County will be required to pay the fees of the special assistant public defender. The Constitution of the State of Florida and the statutes enacted pursuant thereto provide for a state-controlled and a state-financed judicial system. See Article V, Section 1, Florida Constitution; and Section 27.54, Florida Statutes (1977). Especially noted is Section 27.54(2), Florida Statutes (1977), which provides:

"No county or municipality shall appropriate or contribute funds to the operation of the offices of the various public defenders."

The County has appropriated money to pay for special assistant public defenders when appointed pursuant to Section 27.53(3), Florida Statutes (1977), which provides:

"If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff, it shall be his duty to move the court to appoint one or more members of The Florida Bar who are in no way affiliated with the public defender in his capacity as such, or in his private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict, and said attorney may, in the discretion of the court, be paid a fee and costs and expenses as is provided in subsection (2)."

If the substantial costs of furnishing special assistant public defenders in other cases is to be transferred to the County, then the County has standing to bring a petition for writ of certiorari to review the order effecting the transfer. Cf. Dade County v. Strauss, 246 So.2d 137 (Fla.3d DCA 1971); and Dade County v. Carr, 231 So.2d 844 (Fla.3d DCA 1970). ¹

The gist of the present petition is that although the circuit court judges have authority to appoint special assistant public defenders in those cases where exceptional circumstances are involved, see Dade County v. Strauss, supra; and Gant v. State, 216 So.2d 44 (Fla.1st DCA 1968), they do not have authority to appoint special assistant public defenders upon the motion of a public defender that he is overworked and, therefore, not able to do his job. The ground of the Public Defender's motion which was granted by the order under review is set out in the following paragraphs of the motion:

"3. The caseloads assigned to the assistant public defenders of the Appellate Division of the Office of the Public Defender far exceed the maximum caseloads promulgated by the National Advisory Commission on Criminal Justice Standards and Goals, and the Guidelines of the Florida Governor's Commission. * * *

"4. The excessive caseloads have caused substantial delays in the filing of briefs on behalf of defendants in the District Court of Appeal, Third District. * * * As a result of the delays, numerous appeals have been dismissed by the District Court for failure of the Office of the Public Defender to timely file briefs. These delays are harmful to the integrity of the judicial system and threaten the confidence of the public in the judicial system.

"5. Unless permitted to withdraw, the Office of the Public Defender will be in jeopardy of impeding the defendant's right to speedy access to the courts as guaranteed by Article I Section 21 of the Constitution of the State of Florida which provides: 'The courts shall be open to every person for redress of any injury and justice shall be administered without sale, denial or delay.' The defendant cannot be constitutionally forced to compromise his constitutional right to undelayed review of his conviction in order to protect his right to effective counsel on appeal.

"6. Due to the excessive caseloads of the appellate assistant public defenders, effective representation to the defendant as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I Section 16 of the Constitution of the State of Florida is not possible. The prejudice suffered by the defendant may render the appellate review subject to attack alleging ineffective representation on appeal."

The County's position is that the Public Defender's motion did not set forth a permitted ground for his withdrawal. It is asserted by the County in its petition, and not denied by the Public Defender's response, that the Public Defender has filed a substantial number of similar motions upon the same asserted ground and intends to file other motions upon the same ground as a part of a plan to reduce his office's caseload. It is pointed out that the Public Defender is an elected public official charged with the statutory duty to represent, without additional compensation, any person who is determined to be insolvent and who is under arrest for, or is charged with, a felony. See Section 27.51(1), Florida Statutes (1977).

The Public Defender responds that:

"The motion to withdraw alleged that the excessive caseloads of the assistant public defenders of the Appellate Division of the Office of the Public Defender precluded effective representation of the defendant, Hernando Ahumada, on appeal."

Thereupon, it is argued that because the excessive caseload would leave an individual defendant without effective representation, the circuit court had a duty to appoint a special assistant public defender. Respondents rely upon two orders of the Supreme Court of Florida in Palmes v. State, case no. 52,045 (Fla.1978), and the opinion of the District Court of Appeal, First District, in State ex rel. Escambia County v. Behr, 354 So.2d 974 (Fla.1st DCA 1978).

The respondents have furnished us with a conformed copy of a motion and two orders ² of the Supreme Court of Florida filed in Palmes v. State, supra. These orders have not been published. We doubt that the Supreme Court intended them as a determination of the issue involved in the present petition and response. We have examined the exhibits and find that they are not determinative in this proceeding.

The cited opinion in State ex rel. Escambia County v. Behr, supra, is on point. The case holds that where the record before the court reveals that the caseload of the Public Defender's office far exceeds the workloads recommended, it is proper for the trial court to allow the Public Defender to withdraw. However, in our present case, we decline to follow the holding of our sister court in its broad application of the law.

An additional factor in the present case is the assertion by the County that the Public Defender for the Eleventh Judicial Circuit has announced a policy by which he will request the trial courts to relieve his office of responsibility in all non-capital felony appeals in the Eleventh Judicial Circuit. In response, the Public Defender says that he

". . . does not seek to 'Dump his Entire Non-Capital Appellate Caseload.' * * * Rather, withdrawal has been sought only from non-capital felony appeals. The public defender is not seeking...