Public Defender's Certification of Conflict, In re

• Decision Date: 08 April 1998
• Docket Number: Nos. 92636,92534,s. 92636
• Citation: 709 So.2d 101
• Parties: 23 Fla. L. Weekly S215 In re PUBLIC DEFENDER'S CERTIFICATION OF CONFLICT AND MOTION TO WITHDRAW DUE TO EXCESSIVE CASELOAD AND MOTION FOR WRIT OF MANDAMUS.
• Court: Florida Supreme Court

Page 101

709 So.2d 101

23 Fla. L. Weekly S215

In re PUBLIC DEFENDER'S CERTIFICATION OF CONFLICT AND MOTION TO WITHDRAW DUE TO EXCESSIVE CASELOAD AND MOTION FOR WRIT OF MANDAMUS.

Nos. 92636, 92534.

Supreme Court of Florida.

April 8, 1998.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Chief, Appeals Division, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Petitioner in No. 92636.

Teddy N. Williams, Jr., County Attorney, and Paul G. Bangel, Senior Assistant County Attorney, Bradenton, for Manatee County, Amicus Curiae.

Robert A. Butterworth, Attorney General and Robert J. Krauss, Chief of Criminal Law, Senior Assistant Attorney General, Tampa, for Petitioner in No. 92534.

William J. Roberts of Nabors, Giblin & Nickerson, P.A., Tallahassee, Thomas J. Wilkes, President, Florida Association of County Attorneys, Inc. Orlando, and Suzanne T. Smith, Senior Assistant County Attorney for Pinellas County, Clearwater, for the Florida Association of Counties, Florida Association of County Attorneys, Inc. and Pinellas County, Amicus Curiae.

PER CURIAM.

We have for review an en banc order of the Second District Court of Appeal which addresses the problem of "hundreds of delinquent cases involving indigent defendants who are not receiving timely appellate review." In re Public Defender's Certification of Conflict and Motion to Withdraw due to Excessive Case Load and Motion for Writ of Mandamus, --- So.2d ----, ----, slip op. at 3 (Fla. 2d DCA Feb. 13, 1998).

This case concerns a major crisis that we have considered on an emergency basis to ensure that the legislature has notice of this problem and can consider providing emergency funding. The district court noted in its opinion that it is reviewing cases in which the defendants have served their prison sentences or have completed their probation before the appellate public defender's office has filed its briefs with that court. The order of the Second District was precipitated by a motion from the public defender for the Tenth Circuit to withdraw in 248 cases to which that office was currently assigned, due to what the public defender deemed to be "an excessive caseload." At oral argument, this Court was advised that the number of cases presently delinquent exceeds 640.

As a solution to this significant constitutional problem of an indigent's right to counsel, the Second District, relying on our decisions in In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So.2d 1130 (Fla.1990), and In re Certification of Conflict in Motions to Withdraw filed by the Public Defender of the Tenth Judicial Circuit, 636 So.2d 18 (Fla.1994), ordered that, commencing May 1, 1998, the Public Defender of the Tenth Judicial Circuit shall accept no appellate cases until further order of the court and that the chief judges of the Sixth, Tenth, Twelfth, Thirteenth, and Twentieth Circuits shall appoint qualified attorneys to represent indigents in appeals arising in their respective circuits.

The district court acknowledged that its order would "put an enormous burden on the individual counties to pay appellate attorneys for indigent criminal defendants." In re Public Defender's Certification of Conflict, --- So.2d at ----, slip op. at 4. It explained that its action was necessary because "[w]ithout this drastic step, this court has no hope of fulfilling its constitutional duty to provide meaningful review to the indigent criminal defendants filing appeals in this court." Id. at ----, at 5. The court then stated that its decision involved an issue of great public importance and certified the following question to this Court:

WHEN A BACKLOG HAS EXISTED IN A PUBLIC DEFENDER'S OFFICE FOR MANY YEARS AND THAT BACKLOG HAS RESULTED IN SERIOUS DELAYS IN THE APPEALS OF ALMOST ALL DEFENDANTS REPRESENTED BY THE PUBLIC DEFENDER, IF REPEATED ORDERS REMOVING THE PUBLIC DEFENDER FROM VERY OLD CASES HAVE NOT SOLVED THE PROBLEM, MAY THE DISTRICT COURT REMOVE THE PUBLIC DEFENDER FROM HIS STATUTORY RESPONSIBILITIES FOR NEW CASES AND REQUIRE THE COUNTIES TO BEAR THE BURDEN OF PERFORMING THE PUBLIC DEFENDER'S DUTIES UNTIL THE BACKLOG IS RELIEVED?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The public defender and the attorney general of the State of Florida have each filed a petition for review. In addition, the affected counties sought and were allowed participation in this action. The Court heard oral argument.

This problem of substantial delays in the representation of indigents in both noncapital and capital cases is not a new issue before this Court. It is an issue that has been before us and other courts of this state on multiple occasions, involving this and other public defenders' offices, for the last eighteen years. ¹ While the public defender of the Tenth Judicial Circuit has repeatedly had this problem, his office is not the only one in the state confronted by this serious constitutional problem. However, the problem is particularly significant in the Second District Court of Appeal because that court has a higher percentage rate of criminal appeals than the other district courts of appeal.

The facts in this record establish a significant problem of constitutional magnitude that must immediately be addressed. We do not want to face a situation where a significant number of defendants convicted of felony offenses must be released on bond because their appeals of right are not being timely addressed due to the lack of counsel required to be provided under the United States Constitution. We must provide an immediate short-term solution to this crisis. Accordingly, we approve the order of the Second District Court of Appeal, which provides as follows:

[I]t is

ORDERED that, commencing on May 1, 1998, and until further order of this court, the Public Defender of the Tenth Judicial Circuit shall accept no further appellate cases over which this court has jurisdiction. By the fifth of every month, beginning June 1998, the Public Defender of the Tenth Judicial Circuit shall provide this court with a list of cases that have been assigned to that office which are on appeal to this court, and in which that office has not filed appellate briefs. It is further

ORDERED that, as of May 1, 1998, all indigent defendants who appeal their cases to this court from the Sixth, Tenth, Twelfth, Thirteenth, and Twentieth Circuits shall obtain appointed counsel through the following procedures:

1. The trial court shall direct that the attorney representing the indigent defendant in the trial court shall remain on the case until the appellate record is prepared;

2. Upon filing of the notice of appeal in a case over which this court has jurisdiction, if the indigent defendant would otherwise have been entitled to the services of the Public Defender of the Tenth Judicial Circuit, the trial attorney shall notify the chief judge of that circuit that the appeal has been filed and that an appellate attorney must be appointed to represent the indigent defendant;

3. If the chief judge is satisfied that the defendant is indigent and would otherwise be entitled to the appellate services of the Public Defender of the Tenth Judicial Circuit, the chief judge shall appoint a qualified attorney who is not an attorney in the Office of the Public Defender of the Tenth Judicial Circuit to represent the indigent defendant in the appeal no later than forty days after the filing of the notice of appeal; and

4. The attorney appointed by the chief judge shall file a notice of appearance with this court and, thereafter, timely process the appeal.

We additionally require that we be provided a status report from the chief judge of the Second District Court of Appeal, the public defender of the Tenth...