State v. Ull
| Decision Date | 28 April 1994 |
| Docket Number | No. 81372,81372 |
| Citation | 642 So.2d 721 |
| Parties | 19 Fla. L. Weekly S223 STATE of Florida, Petitioner, v. Gabriel ULL, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Angelica D. Zayas, Asst. Atty. Gen., Miami, for petitioner.
Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, Eleventh Judicial Circuit, and Elliot H. Scherker, Sp. Asst. Public Defender of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, for respondent.
Nancy A. Daniels, Public Defender, Second Judicial Circuit, Tallahassee, amicus curiae for The Florida Public Defender Ass'n.
We have for review Ull v. State, 613 So.2d 928 (Fla. 3d DCA 1993), in which the court certified the following questions of great public importance:
Does the power to appoint the public defender pursuant to Florida Rule of Criminal Procedure 3.111 and section 27.51 Florida Statutes (1991), carry with it the power to revoke the appointment if the conditions for representation cease to be met?
Must the determination that no jail sentence will be imposed in the event of a conviction, for the purpose of determining entitlement to representation by the public defender, be made prior to the appointment of counsel ...?
We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We answer the first question in the affirmative and the second in the negative. We quash the decision under review.
Gabriel Ull was arrested on August 7, 1992, and charged with driving under the influence of alcohol, a misdemeanor. At arraignment on August 14, he entered a plea of not guilty and the county judge appointed a public defender. Ull demanded a jury trial, which was set for September 23. The public defender investigated the case, requested discovery of, and provided discovery to, the State, and interviewed and arranged for the testimony of expert and other witnesses on Ull's behalf. At a bond hearing prior to trial, a different judge certified that she would not impose incarceration upon conviction and discharged the public defender over objection.
Ull filed a petition for writ of certiorari in circuit court seeking review of the order discharging counsel. The petition was denied but the district court reversed, ruling that once the public defender was properly appointed the court lacked authority to discharge him. The relevant statute, the court noted, makes no provision for the de-appointment of counsel. The State moved to certify the above questions.
The United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that the Fourteenth Amendment to the United States Constitution incorporates the Sixth Amendment right to counsel and this means that the states must make appointed counsel available to indigent defendants in felony prosecutions. Nine years later, the Court ruled that this right extends to prosecutions for minor offenses where "actual imprisonment" is imposed. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). And finally, in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), the Court refused to extend the right beyond the "actual imprisonment" standard, holding that an indigent defendant convicted of shoplifting and sentenced to a fine of fifty dollars had no right to appointed counsel.
Ull thus has no federal constitutional right to appointed counsel, since the court certified that it will not impose incarceration upon conviction. We now turn to state statutory law and court rules.
Section 27.51, Florida Statutes (1991), provides that a public defender shall be appointed in the following instances:
27.51 Duties of public defender--
(1) The public defender shall represent, without additional compensation, any person who is determined by the court to be indigent as provided in s. 27.52 and who is:
(a) Under arrest for, or is charged with, a felony;
(b) Under arrest for, or is charged with, a misdemeanor, a violation of chapter 316 which is punishable by imprisonment, or a violation of a municipal or county ordinance in the county court, unless the court, prior to trial, files in the cause a statement in writing that the defendant will not be imprisoned if he is convicted....
Sec. 27.51, Fla.Stat. (1991) (emphasis added). Although the statute does not say at what point in the prosecution a public defender must be appointed, it expressly provides that counsel need not be appointed in misdemeanor cases if the court certifies prior to trial that imprisonment will not result.
Florida Rule of Criminal Procedure 3.111 is more explicit. It provides that counsel shall be appointed at the earliest of three points, and shall be provided in all prosecutions punishable by imprisonment. As with the statute, the rule states that counsel need not be...
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AMEND. TO RULES OF APP. PROC., CIV. PROC.
...a defense may leave the defendant "in a position worse than if no counsel had been appointed in the first place." State v. Ull, 642 So.2d 721, 724 (Fla.1994). In determining whether a defendant's due process rights would be violated by the discharge of the public defender, the court should ......
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Kirby v. State
...by our supreme court of an independent state constitutional guarantee of counsel applicable in Mr. Kirby's case. See State v. Ull, 642 So.2d 721 (Fla.1994) (holding counsel may be discharged where trial judge certifies incarceration will not result from misdemeanor prosecution, so long as d......
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McGee v. Inch
...dictate that the discharge of appointed counsel should not work to the detriment of an indigent defendant. Id. at 6 (quoting State v. Ull, 642 So. 2d 721 (Fla. 1994)). However, the Florida Supreme Court in Ull held that counsel may be discharged when the court "allow[s] the defendant a reas......
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McGee v. Inch
...dictate that the discharge of appointed counsel should not work to the detriment of an indigent defendant. Id. at 6 (quoting State v. Ull, 642 So. 2d 721 (Fla. 1994)). However, the Florida Supreme Court in Ull held that counsel may be discharged when the court "allow[s] the defendant a reas......
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Criminal law
...a defense may leave the defendant “in a position worse than if no counsel had been appointed in the first place” ( State v. Ull , 642 So. 2d 721, 724 (Fla. 1994)). In determining whether a defendant’s due process rights would be violated by the discharge of the public defender, the court sh......