State v. Pub. Defender, Eleventh Jud. Cir.

• Decision Date: 13 May 2009
• Docket Number: No. 3D08-2537.,No. 3D08-2272.,3D08-2272.,3D08-2537.
• Citation: 12 So.3d 798
• Parties: The STATE of Florida and Office of Criminal Conflict and Civil Regional Counsel, Third District Court of Appeal Region, Appellants, v. PUBLIC DEFENDER, ELEVENTH JUDICIAL CIRCUIT, Appellee.
• Court: Florida District Court of Appeals

12 So.3d 798

The STATE of Florida and Office of Criminal Conflict and Civil Regional Counsel, Third District Court of Appeal Region, Appellants, v. PUBLIC DEFENDER, ELEVENTH JUDICIAL CIRCUIT, Appellee.

No. 3D08-2272.

No. 3D08-2537.

District Court of Appeal of Florida, Third District.

May 13, 2009.

Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Louis F. Hubener, Charles B. Upton, II, and Courtney Brewer, Deputy Solicitors General, Tallahassee, for appellant, The State of Florida; Joseph P. George, Jr., and Nancy C. Wear, for appellant, Office of Criminal Conflict and Civil Regional Counsel.

Hogan & Hartson and Parker D. Thomson and Alvin F. Lindsay and Julie E. Nevins and Matthew R. Bray, Miami, for appellee, Public Defender, Eleventh Judicial Circuit.

Public Defender Association and James Marion Moorman, Public Defender Tenth Judicial Circuit, and Robert A. Young, General Counsel for the Florida Public Defender, Tenth Judicial Circuit, as amicus curiae.

Florida Prosecuting Attorneys Association and Arthur I. Jacobs, General Counsel for the Florida Prosecuting Attorneys Association, as amicus curiae.

Before SHEPHERD, CORTIÑAS, and SALTER, JJ.

PER CURIAM.

We review an order of the Circuit Court of the Eleventh Judicial Circuit permitting the Public Defender for Florida's Eleventh Judicial Circuit ("PD11") to decline representation in all future third-degree felony cases.

I. Background

In twenty-one criminal cases, PD11 filed motions seeking permission to be relieved of its statutory obligation to represent indigent defendants in noncapital felony cases. Each motion was accompanied by a certificate of conflict wherein PD11 claimed that underfunding led to excessive caseloads, which has prevented it from carrying out its legal and ethical obligations to indigent defendants. The twenty-one motions were consolidated and heard by the trial court. The State Attorney's Office ("the State") was denied standing to oppose PD11's motions, but was allowed to participate as amicus curiae.

After an evidentiary hearing, the trial court found that PD11's excessive caseload permitted only minimally competent representation and ordered that PD11 may decline all future representation of indigent defendants charged with third-degree felonies.¹ The trial court ordered the Office of Criminal Conflict and Civil Regional Counsel for the Third District ("Regional Counsel") to represent the affected indigent defendants.²

On appeal, the State³ requested a stay of the trial court's order and PD11 suggested that the order be certified to our Supreme Court as either an issue of great public importance or as having a great effect on the proper administration of justice throughout the state. As this case implicates not only the manner in which the criminal justice system is structured and funded, but also constitutional separation of powers principles as well as the Sixth Amendment right to counsel in criminal cases, we granted the stay and certified the order to the Florida Supreme Court, which, in turn, dismissed for lack of jurisdiction. State v. Pub. Defender, Eleventh Judicial Circuit of Fla., 996 So.2d 213 (Fla.2008). We then set an expedited hearing schedule and invited amici curiae to submit briefs.

II. Standing

The trial court first addressed whether the State had standing to oppose PD11's motion. We review de novo the issue of standing. Sanchez v. Century Everglades, LLC, 946 So.2d 563, 564 (Fla. 3d DCA 2006); Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005). Generally, standing "requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006).

In ruling against the State's standing, the trial court relied on In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130 (Fla.1990) ("In re Prosecution") and Escambia County v. Behr, 384 So.2d 147, 150 (Fla.1980). These cases address the unrelated issue of whether a county's financial stake in the withdrawal of an assistant public defender is sufficient to grant the county standing to oppose a motion to withdraw. In re Prosecution, 561 So.2d at 1138 ("[T]he county need not be given an opportunity to be heard before the appointment of counsel, even though it will be the responsibility of the county to compensate private counsel."). Under the former law, counties were required to fund the private attorneys, who were appointed by courts to replace assistant public defenders. Id. at 1137 ("The legislative history of ... Florida, makes it clear that the legislature never intended to relieve the counties of the obligation of paying for court-appointed attorneys in noncapital conflict cases."). The counties' obligation to fund replacement counsel has since shifted to the State of Florida. See Art. V, § 14(c), Fla. Const.; Crist v. Fla. Ass'n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 138 (Fla.2008).

Here, unlike Behr and In re Prosecution, the State sought standing as a party to each of the twenty-one criminal cases. The State, as a party to the criminal cases, is treated by statute differently than the counties. Section 27.02, Florida Statutes, provides in pertinent part, "[t]he state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party...." § 27.02(1), Florida Statutes (2004). The State's status as a party to the criminal cases, as well as its statutory obligation under section 27.02, distinguishes this case from Behr and In re Prosecution. Therefore, we hold that the State had standing to challenge the motions filed by PD11.

III. Excessive by any Reasonable Standard

The trial court determined that PD11's caseload was excessive by any reasonable standard. Much of the evidentiary hearing was spent trying to ascertain the maximum number of cases a public defender should handle in a single year. The record indicates that there are a number of different ways to count such cases, and that they involve different workloads as some cases go on to an early plea, some are transferred when a private attorney is retained by the defendant, and others are ultimately assigned to drug court. Thus, even if the threshold for withdrawal could be defined as a certain number of open cases per attorney—and we do not believe it can be—no such figure was proven in this record. Nevertheless, the order on review did not select a particular standard, and instead found that, under any reasonable standard, PD11's caseload was excessive.

We acknowledge the difficulty in selecting a single "correct" standard and do not believe that a magic number of cases exists where an attorney handling fewer than that number is automatically providing reasonably competent representation while the representation of an attorney handling more than that number is necessarily incompetent. See In re Certification of Conflict in Mots. to Withdraw Filed by Pub. Defender of the Tenth Judicial Circuit, 636 So.2d 18, 21-22 (Fla.1994) ("In re Certification 1994") ("[W]e do not believe that courts are obligated to permit the withdrawal automatically upon the filing of a certificate by the public defender reflecting a backlog in the prosecution of appeals."). Moreover, even if such a number could be divined, it would certainly only have meaning when applied to an individual attorney and not an office as whole.

A. Aggregate Withdrawal

Determining conflicts of interest for an entire Public Defender's Office based on aggregate calculations is extremely difficult without first having considered individual requests for withdrawal in particular cases. See In re Prosecution, 561 So.2d at 1138 (concluding that when a backlog of cases is so excessive that assistant public defenders cannot possibly handle their assigned cases, it is the responsibility of the affected public defender to individually move the court to withdraw). The conclusion in the aggregate, that a conflict of interest exists, inherently lacks the meaningful individualized information required by such a determination.

While it is well within the province of a trial court to determine whether counsel is sufficiently competent, this determination must occur on a case-by-case basis. "If the public defender deems it necessary to be relieved from other appeals, he [or she] should file a motion to withdraw in this court promptly upon [appointment]. Such motions will be considered on a case-by-case basis...." Crow v. State, 500 So.2d 171, 172 (Fla. 1st DCA 1986); Haggins v. State, 498 So.2d 953, 954 (Fla. 2d DCA 1986) ("The circuit courts can better determine on a case-by-case basis the possible prejudice to the defendants resulting from any delays...."). We find this reasoning persuasive and equally applicable to motions to withdraw made at the trial level.

Although our Supreme Court has previously approved of an order prohibiting prospectively the appointment of assistant public defenders, that case is distinguishable because relief was granted only after individual assistant public defenders had first been removed from representation and a backlog of cases had caused the delayed filing of appeals for almost all defendants in the Public Defender's Office. In re Pub. Defender's Certification of Conflict & Mot. to Withdraw Due to Excessive Caseload & Mot. for Writ of Mandamus, 709 So.2d 101 (Fla.1998) ("In re Certification 1998"). Unlike In re Certification 1998, here, there has been no initial attempt at individualized withdrawal. Instead, PD11's first attempt at withdrawal was by way of a motion to withdraw en masse.

In re Certification 1998 is also distinguishable from the present case by the type of harm claimed. The In re Certification 1998 Court was...