Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, In re

Decision Date03 May 1990
Docket Number74630 and 74631,74580,Nos. 74574,74629,s. 74574
Citation561 So.2d 1130
CourtFlorida Supreme Court

Susan H. Churuti, County Atty., and John E. Schaefer, Asst. County Atty., Clearwater, James G. Yaeger, County Atty., and Elizabeth M. Woodford, Asst. County Atty., Fort Myers, Lee County joining Pinellas County, and Kenneth B. Cuyler, County Atty., and Brenda C. Wilson and Ramiro Manalich, Asst. County Attys., Naples, Collier County joining Pinellas County, for petitioner in No. 74574.

James Marion Moorman, Public Defender, Bartow, for respondents.

Will J. Richardson, Tallahassee, amicus curiae for Florida Ass'n of Counties, Inc.

Bennett H. Brummer, Public Defender, and Joseph Louis Campbell, Sp. Asst. Public Defender, Miami, amicus curiae for the Florida Public Defender Ass'n, Inc.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Director, Criminal Appeals, Dept. of Legal Affairs, Tallahassee, amicus curiae for State of Fla.

H. Hamilton Rice, Jr., County Atty., and Paul G. Bangel, Asst. County Atty., Bradenton, for petitioner in No. 74580.

Sandra J. Augustine, County Atty., and Charles H. Webb, Asst. County Atty., Port Charlotte, for petitioner in No. 74629.

Frederick B. Karl, County Atty., and Jeanne Z. McLean and Robert R. Warchola, Asst. County Attys., Tampa, for petitioner in No. 74630.

James G. Yaeger, County Atty., and Elizabeth M. Woodford, Asst. County Atty., Fort Myers, for petitioner in No. 74631.


Six Florida counties, Pinellas, Manatee, Charlotte, Hillsborough, Lee, and Collier, in five consolidated cases, challenge an order of the Second District Court of Appeal dated May 12, 1989, regarding the prosecution of criminal appeals by the Public Defender for the Tenth Judicial Circuit. We have jurisdiction because this case affects a class of constitutional officers, public defenders. Art. V, § 3(b)(3), Fla. Const. We approve in part and modify the order of the Second District Court.


The order under review is a response to the tremendous backlog of appeals to the Second District Court by indigent defendants in which briefs are substantially overdue. This backlog of cases awaiting briefing has grown from 408 cases in June 1986 to 1,005 cases in March 1989. Brief of James Marion Moorman at 5. The Public Defender for the Tenth Judicial Circuit, James Marion Moorman, 1 has estimated that currently as many as 1700 cases could be awaiting the filing of appellate briefs. Id. at 5 n. 1.

The state of Florida provides defendants with the statutory right to appeal their judgments and sentences. § 924.06, Fla.Stat. (1989). When a state affords a first appeal of right, it must supply indigent appellants with an attorney, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), because under the doctrine of equal protection, indigent appellants must have the same ability to obtain meaningful appellate review as wealthy appellants. Id.; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Because of the tremendous backlog of indigent appeals, the briefs of nonindigents in the Second District are being filed at least a year sooner than those of indigents represented by the public defender. Certainly this creates a serious constitutional dilemma. 2 Further, as we noted in Hatten v State, 561 So.2d 562 (Fla.1990), the lengthy delay in filing initial briefs in appeals by indigents is a clear violation of the indigent state defendant's constitutional right to effective assistance of counsel on appeal. See Hooks v. State, 253 So.2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972); McDaniel v. State, 219 So.2d 421 (Fla.1969); see also Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

The source of this problem is clearly the woefully inadequate funding of the public defenders' offices, despite repeated appeals to the legislature for assistance. Although this problem has been most acute in the Second District because that court has the highest number of criminal appeals of any of Florida's district courts of appeal, Order on the Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, slip op. at 1, (Fla. 2d DCA May 12, 1989) [hereinafter "Order "], we recognize that this is a statewide concern. The same problem exists, though at present to a lesser extent, in the other four districts. 3 Further, this serious underfunding of the public defenders' offices affects both trial and appellate caseload. This problem was studied statewide by a special committee of the Florida Judicial Council, which concluded that

the problem of the criminal workload within the judicial system of the State of Florida is a problem of volume that cannot be regulated, but must be dealt with as it occurs. Not only does the problem exist now in crisis proportions, but it appears that the workload in regard to all parts of the criminal justice system is likely to increase.

Report of the Judicial Council Special Committee on Criminal Appeal Structure Relating to Indigent Defendants at 9 (March 30, 1989).

In an attempt to deal with this crisis situation, the Second District Court, sua sponte, issued the order under review. The court noted that because of the inability of the Public Defender for the Tenth Judicial Circuit to timely process appeals,

he is being required to choose which of his appellants' appeals will be pursued according to the severity of their sentences. When an attorney representing indigent defendants is required to make choices between the rights of the various defendants, a conflict of interest is inevitably created.


The rights of defendants in criminal proceedings brought by the state cannot be subjected to the fate of choice no matter how rational that choice may be because of the circumstances of the situation.

Order, slip op. at 2 - 3 (emphasis added). The court then stated that "[b]ecause of the increasing number of delinquent appeals and the increasing average length of time taken to file briefs in these cases, we think the necessity for further action by this court to protect the rights of those appellants is apparent." Id., slip op. at 5.

The court's order prohibits Mr. Moorman from accepting appeals from any judicial circuit other than the Tenth in which the notice of appeal was filed after May 22 1989. The order further mandates that circuit judges within each circuit appoint that circuit's public defender to handle appeals from that circuit. If a public defender from one of those circuits has a conflict, the order requires that they file motions to withdraw so that the circuit judge may appoint other counsel to represent those clients at the expense of local government.

As authority for its action, the court quoted Rose v. Palm Beach County, 361 So.2d 135, 137 (Fla.1978), in which this Court stated:

[W]here the fundamental rights of individuals are concerned, the judiciary may not abdicate its responsibility and defer to legislative or administrative arrangements....

Every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions. The doctrine of inherent judicial power as it relates to the practice of compelling the expenditure of funds by the executive and legislative branches of government has developed as a way of responding to inaction or inadequate action that amounts to a threat to the courts' ability to make effective their jurisdiction. The doctrine exists because it is crucial to the survival of the judiciary as an independent, functioning and co-equal branch of government. The invocation of the doctrine is most compelling when the judicial function at issue is the safe-guarding of fundamental rights.

(Footnotes omitted.) The court below stated that "the inherent power of courts is sufficient to afford us the remedy necessary for the protection of rights of indigent defendants charged with crimes." Order, slip op. at 3. We agree with the court below that courts have the inherent authority to issue orders addressing problems such as this. However, as the district court also recognized, that inherent power is limited by the state and federal constitutions. Because we find that some aspects of the district court's order ignore the existing statutory mechanism, we approve in part and modify the order.


The counties challenge the district court's order on both procedural and substantive grounds. First, the counties challenge the order procedurally, arguing that their due process rights have been violated because the order unquestionably will have a substantial financial impact on the counties and they were given neither notice nor an opportunity to be heard before the order was issued. We disagree. The order currently under review is merely the most recent in a series of efforts by the Second District Court to deal with this increasing problem. See, e.g., Haggins v. State, 498 So.2d 953 (Fla. 2d DCA 1986); In re Order on Prosecution of Criminal Appeals by the Tenth Circuit Public Defender, 523 So.2d 1149 (Fla. 2d DCA 1987). Although these efforts have had a beneficial effect on the prosecution of the oldest appeals, the backlog of noncapital indigent criminal appeals has continued to grow at an alarming rate. In connection with at least two of these prior efforts by the Second District Court, all interested parties, including the counties, have been given an opportunity to respond. See id. The issues remain the same, and apparently the counties' response also remains unchanged. The only difference in the situation since the counties last were given an opportunity to respond is that the backlog is even larger, developing into a crisis situation of constitutional dimensions where an...

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