Office of Public Defender v. State, 97-3222
| Citation | 714 So.2d 1083 |
| Decision Date | 17 June 1998 |
| Docket Number | No. 97-3222,97-3222 |
| Parties | 23 Fla. L. Weekly D1453 The OFFICE OF the PUBLIC DEFENDER, Petitioner, v. The STATE of Florida, Respondent. Third District |
| Court | Court of Appeal of Florida (US) |
Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, for petitioner.
Robert A. Butterworth, Attorney General, and Michael J. Neimand, Assistant Attorney General, for respondent.
Before COPE, GODERICH and SORONDO, JJ.
The Office of the Public Defender [public defender] petitions this Court for a writ of mandamus to compel the lower tribunal committing magistrates, who preside over the felony first appearance hearings, to inquire at the first appearance hearing into each defendant's ability to employ counsel. The system that is currently being employed is that the magistrates automatically appoint the public defender in all cases where private counsel does not appear, even though they are not making an indigency determination at the first appearance. Because this indigency determination is later being made at the arraignment, on numerous occasions, the public defender is being appointed to represent non-indigent defendants on a temporary basis. Because the system that is currently employed is contrary to the provisions of section 27.52(1)(a), Florida Statutes (1997), and Florida Rule of Criminal Procedure 3.130(c)(1), we grant the petition as limited by this opinion.
Section 27.51(2), Florida Statutes (1997), provides: "The court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent." Further, section 27.52(1)(a), Florida Statutes (1997), provides in part: "Before appointing the public defender or a conflict attorney, the court shall consider a completed affidavit that contains the financial information required under paragraph (f) and shall make a preliminary determination of indigency, pending verification by the indigency examiner." Moreover, Rule 3.130(c)(1), Florida Rules of Criminal Procedure, provides:
(c) Counsel for Defendant.
(1) Appointed Counsel. If practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether the defendant desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, the magistrate shall immediately appoint counsel. This determination must be made and, if required, counsel appointed no later than the time of the first appearance and before any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate.
Section 27.52(1)(a) and Rule 3.130(c)(1) are clear that the indigency determination must be made at the first appearance. However, Rule 3.130(c)(1) also contemplates that "[i]f necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance...." Although the rule does not particularly state when this would be "necessary," there are a few limited instances when a magistrate would be required to appoint the public defender without making an indigency determination prior to or at the first appearance. For example, when a defendant is not capable of filling out the affidavit required by section 27.52(1)(a) due to mental retardation or mental illness, or when the defendant speaks a foreign language for which no interpreter is available at the first appearance. The appointment of the public defender without first making an indigency determination, however, is clearly intended to be the exception, not the rule. Therefore, because the procedure that is currently employed by the magistrates clearly undermines the intent and spirit of rule 3.130(c)(1), we grant the petition as limited by this opinion.
Petition granted.
I agree with the majority's conclusion that the Circuit Court's present system of deferring the indigency determination on all criminal defendants until the time of arraignment is contrary to the provisions of section 27.52(1)(a), Florida Statutes (1997), and Florida Rule of Criminal Procedure 3.130(c)(1). I write separately to address the apparent conflict between the statute and the rule, and, in the interest of fairness, to elaborate on the present system.
Section 27.52(2) reads as follows:
The court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.
(Emphasis added). Rule 3.130(c)(1) states:
(c) Counsel for Defendant
(1) Appointed Counsel. If practicable, the magistrate should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether the defendant desires representation. When the magistrate determines that the defendant is entitled to court-appointed counsel and desires counsel, the magistrate shall immediately appoint counsel. This determination must be made and, if required, counsel appointed no later than the time of the first appearance and before any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the magistrate.
(Emphasis added). Contrary to the provision of the statute that the court may not appoint the public defender to a non-indigent defendant on a temporary basis, the rule does contemplate that, "if necessary," the magistrate has the discretion to appoint counsel to a non-indigent defendant. 1 Although the rule is not particularly clear on this point, I can see no other purpose for the last sentence, since, if a determination of indigency is made, there would be absolutely no reason to make anything less than a permanent appointment. The majority cites two examples of instances where such a "temporary" appointment can be made. It is the carte blanche appointment of the public defender in every case which clearly undermines the intent and spirit of the rule. Nevertheless, the provision of section 27.51(2), Florida Statutes (1997), which states that "the court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent," (emphasis added), is in conflict with Rule 3.130(c)(1).
The Florida Supreme Court is authorized to promulgate rules of procedure. See Johnson v. State, 336 So.2d 93, 95 (Fla.1976). The Florida Legislature can only enact substantive law. See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975). In Benyard, the Supreme Court explained the difference between substance and procedure:
Substantive law prescribes the duties and rights under our system of government. The responsibility to make substantive law is in the legislature within the limits of the state and federal constitutions. Procedural law concerns the means and method to apply and enforce those duties and rights. Procedural rules concerning the judicial branch are the responsibility of this Court, subject to repeal by the legislature in accordance with our constitutional provisions.
Id. at 475. The appointment of counsel to those accused of committing crimes is one of the judicial functions which enforces the fundamental right to counsel in the criminal process. As such, the procedures established for the appointment of counsel are within the exclusive jurisdiction of the Supreme Court. Consequently, in as much as section 27.51(2) conflicts with Rule 3.130(c)(1) on an issue of procedural law, the rule must prevail.
Although not necessary for the resolution of this case, I am compelled to provide a factual background for the issue presented in this proceeding. Some time ago, the Chief Judge of the Eleventh Judicial Circuit determined that criminal defendants who were not indigent were being represented by the...
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First appearance: do much to do, so little time.
...persists, the Third District Court of Appeal has stated that such a procedure is not proper. Office of the Public Defender v. State, 714 So. 2d 1083 (Fla. 3d DCA Not only shouldn't the public defender's office be appointed "across the board," the defendant must affirmatively request such re......