Escambia County v. Behr

Decision Date01 May 1980
Docket Number55280,Nos. 53572,s. 53572
Citation384 So.2d 147
PartiesESCAMBIA COUNTY, Petitioner, v. Jack BEHR, etc., Respondents. Paul BAKER, etc., et al., Petitioners, v. DADE COUNTY, etc., Respondents.
CourtFlorida Supreme Court

John W. Fleming, Pensacola, for petitioner, Escambia County.

Jim Smith, Atty. Gen., and Randy Schwartz, Asst. Atty. Gen., Tallahassee, for respondents Jack Behr, etc.

Bennett H. Brummer, Public Defender, Miami, for amici curiae Florida Public Defenders Ass'n.

William K. Howell, Jr., Sr. Asst. County Atty., DeLand, for amici curiae Volusia County.

Wilson W. Wright and William J. Roberts, Tallahassee, for amici curiae State Ass'n of County Commissioners.

Marilyn C. Wolf, Asst. County Atty., Gainesville, for amici curiae Alachua County.

Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for petitioners, Paul Baker et al.

Stuart L. Simon, Dade County Atty., and Stephen P. Lee, Asst. County Atty., Miami, for respondents Dade County, etc.

BOYD, Justice.

These cases are before the Court on petitions for certiorari to review district court decisions and have been consolidated for purposes of this opinion. In case no. 53,572 we accepted jurisdiction on the ground that the decision of the District Court of Appeal, First District, affects a class of constitutional state officers. In case no. 55,280, the District Court of Appeal, Third District, certified that its decision passed upon a question of great public interest. This Court has jurisdiction. Art. V, § 3(b)(3), Fla.Const.

In case no. 53,572 the facts and status of the case are as follows.

On May 10 and 11, 1977, the Public Defender for the First Judicial Circuit filed motions to withdraw as counsel in a number of felony cases on the ground that his excessive case load would preclude the performance of effective representation on behalf of the indigent defendants. Prior to any ruling on these motions, petitioner Escambia County sought a writ of mandamus in circuit court to compel the public defender to defend the cases. The writ was denied without the issuance of an order to show cause which would have required a response from the public defender. The court was of the opinion that the duty of the public defender to provide representation flows from his appointment by a trial court in a particular case and that mandamus does not lie to compel representation. Meanwhile, the motions to withdraw were granted in six noncapital felony cases. Escambia County, which would ultimately have to bear the expense of appointed counsel, 1 sought certiorari review in the district court of the denial of its petition for mandamus.

The county argued that section 27.51(1), 2 Florida Statutes (1977), imposes a clear duty on the public defender to provide representation to insolvent defendants. The district court denied relief, saying that the cited subsection

must be read in pari materia with other relevant statutes and standards. Section 27.53(2) allows the trial court the discretion to appoint as special assistant public defender any member of the Bar to represent insolvent defendants. Canon 6 of the Code of Professional Responsibility provides generally that a lawyer should represent a client competently. The corresponding disciplinary rule, 6-101, requires "a lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances." Ethical Consideration 2-30 provides, "Employment shall not be accepted by a lawyer when he is unable to render competent service . . . ."

State ex rel. Escambia County v. Behr, 354 So.2d 974, 975 (Fla. 1st DCA 1978). The court held that the circuit court may grant a public defender's motion to withdraw and appoint private counsel at county expense on the ground of excessive case load in the public defender's office.

The petitioner here reiterates its argument that the public defender has a clear duty, under section 27.51, to represent insolvent defendants. It argues further that section 27.53(3), Florida Statutes (1977), 3 provides that the only circumstance under which the public defender may withdraw is conflict of interest among the clients of the office.

The respondent argues that section 27.53(2), Florida Statutes (1977), 4 contemplates various kinds of special circumstances and reasons for appointment of private counsel and that these may include excessive case load. The duty of the public defender to provide representation derives not from the statute, respondent contends, but from court appointment. Therefore the appointment of private counsel under section 27.53(2) can be either instead of the public defender in the first instance, or following the granting of a public defender's motion to withdraw.

In case no. 55,280, the facts are as follows.

The public defender of the eleventh judicial circuit moved to withdraw as counsel for a particular indigent defendant in all appellate proceedings. The circuit court granted the motion and appointed a "special assistant public defender" to provide representation. On petition by Dade County for certiorari, the district court quashed the circuit court's order. It held that the duty of the public defender to provide representation is imposed by statute and that in purporting to relieve the public defender of that duty the court exceeded its authority. The public defender's motion, said the court, did not state a "lawful ground" for the appointment of a special assistant public defender under section 27.53(2). Dade County v. Baker, 362 So.2d 151, 154 (Fla. 3d DCA 1978).

In dissent, Judge Hubbart wrote:

The court relies on what it considers to be the public defender's statutory duty to represent the defendant herein. I cannot agree. It is clear that Chapter 27.50, Florida Statutes (1977), does not impose an exclusive statutory duty on the public defender to represent all insolvent defendants in all criminal proceedings. The statute, in fact, creates a dual system for delivering defense services to the insolvent poor in criminal cases. The public defender may be appointed by the court to represent an insolvent defendant in felony cases and in certain misdemeanor, municipal or county ordinance, and juvenile delinquency cases. If so appointed, it becomes the public defender's duty to represent such defendant. The court also has the option of appointing a member of the Florida Bar in good standing to represent an insolvent defendant in a criminal proceeding pursuant to either Section 27.53(2) or 27.53(3), Florida Statutes (1977). In a capital case, the court has the additional option of appointing private counsel under Section 925.035, Florida Statutes (1977). If so appointed, it becomes private counsel's duty to represent such defendant.

Section 27.51(1), Florida Statutes (1977) imposes upon the public defender the duty of representing "any person who is determined to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony." It does not impose a sole exclusive duty upon the public defender to represent all insolvent defendants charged with a felony. The statute must be read in pari materia with the other sections of the statute which clearly give the trial court the discretionary authority to appoint members of the Florida Bar to represent insolvent defendants in criminal proceedings.

Id. at 158 (footnote omitted). The dissenting opinion stated further that there should be no necessity for inquiry into whether the trial court's order is based on a "lawful ground" because section 27.53(2), providing the authority for the appointment in question, does not mention any such prerequisite.

Thus the two majority opinions and one dissent below provide us with three possible approaches to resolving the problem before us. The third district majority holds that the appointment of private counsel in substitution for the public defender under section 27.53(2) must be based on some "lawful ground," and holds that excessive case load is not such a lawful ground. The dissenter insists that the trial court's discretion to appoint members of the bar as special assistant public defenders under section 27.53(2) is virtually unfettered and not dependent on a showing of a lawful ground or special circumstances. The first district's approach is to hold that appointments of private counsel in lieu of or substitution for the public defender under section 27.53(2) must be based on some special circumstance and that excessive case load is such a special circumstance.

We agree with the conclusion urged by Judge Hubbart and adopt his opinion as the rationale for our holding. Dade County v. Baker, 362 So.2d at 154 (Hubbart, J., dissenting). We hold that the court has the option of appointing the public defender or private counsel. This is a matter within the sound discretion of the trial court judge. The court does not have to make any prerequisite findings or allow the county an opportunity to be heard before appointing private counsel.

In case no. 53,572 the first district's decision denying the county relief from the trial court's order is affirmed. In case no. 55,280 the third district's decision holding that the trial court departed from the essential requirements of law is quashed. The causes are remanded with directions that they be remanded to the respective circuit courts for further proceedings consistent with this opinion.

It is so ordered.

ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs with an opinion with which ALDERMAN, J., concurs.

ENGLAND, Chief Justice, concurring.

I fully agree with the approach taken by the majority in adopting Judge Hubbart's opinion in Dade County v. Baker, which allows a trial court to appoint private counsel in lieu of the public defender to represent an indigent, without a showing of "lawful grounds" or "special circumstances," either initially or upon the public defender's withdrawal. My agreement on that approach, however,...

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