The case of Gideon v. Wainwright, decided by the United States Supreme Court in 1963, led to the establishment of the Florida Public Defender System. In Gideon the court recognized that two systems of justice had prevailed for most of our history: one for the rich and another for the poor. Before 1963 there was no recognized constitutional right to an attorney for those who could not afford one.
The Founding Fathers were concerned that criminal laws, while necessary, could be used by government to suppress the rights of citizens. The public defender office exists to guarantee that the poor have the right to a fair trial. The legal word for "poor" is "indigent". It means simply that you do not have money to hire a lawyer. In Florida, the judge will ask the person charged with a crime a few questions about their ability to pay for a lawyer. This hearing is called the "determination of indigency". Once the judge determines that the person has insufficient funds, the public defender is officially appointed to represent that individual.
Other States have different systems to ensure the right to counsel guaranteed in Gideon. Almost all of them are taxpayer supported, some are pro bono "for free" systems established by local bar associations. A study of indigent defense systems nationwide may be found at the University of Alaska: Indigent Criminal Defense- A National Perspective.
The Florida Public Defender System is created in Chapter 27 of the Florida Statutes, an excerpt follows:
PART III PUBLIC DEFENDERS
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, criminal contempt, 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 or she is convicted;
(c) Alleged to be a delinquent child pursuant to a petition filed before a circuit court; or
(d) Sought by petition filed in such court to be involuntarily placed as a mentally ill person or involuntarily admitted to residential services as a person with developmental disabilities.
(2) The court may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent. The court, however, may appoint private counsel in capital cases as provided in s. 925.035.
(3) Each public defender shall serve on a full-time basis and is prohibited from engaging in the private practice of law while holding office. Assistant public defenders shall give priority and preference to their duties as assistant public defenders and shall not otherwise engage in the practice of criminal law.
(4) The public defender for a judicial circuit enumerated in this subsection shall, after the record on appeal is transmitted to the appellate court by the office of the public defender which handled the trial and if requested by any public defender within the indicated appellate district, handle all felony appeals to the state and federal courts required of the official making such request:
(a) Public defender of the second judicial circuit, on behalf of any public defender within the district comprising the First District Court of Appeal.
(b) Public defender of the tenth judicial circuit, on behalf of any public defender within the district comprising the Second District Court of Appeal.
(c) Public defender of the eleventh judicial circuit, on behalf of any public defender within the district comprising the Third District Court of Appeal.
(d) Public defender of the fifteenth judicial circuit, on behalf of any public defender within the district comprising the Fourth District Court of Appeal.
(e) Public defender of the seventh judicial circuit, on behalf of any public defender within the district comprising the Fifth District Court of Appeal.
(a) When direct appellate proceedings prosecuted by a public defender on behalf of an accused and challenging a judgment of conviction and sentence of death terminate in an affirmance of such conviction and sentence, whether by the Florida Supreme Court or by the United States Supreme Court or by expiration of any deadline for filing such appeal in a state or federal court, the public defender shall notify the accused of his or her rights pursuant to Rule 3.850, Florida Rules of Criminal Procedure, including any time limits pertinent thereto, and shall advise such person that representation in any collateral proceedings is the responsibility of the capital collateral representative. The public defender shall then forward all original files on the matter to the capital collateral representative, retaining such copies for his or her files as may be desired. However, the trial court shall retain the power to appoint the public defender or other attorney not employed by the capital collateral representative to represent such person in proceedings for relief by executive clemency pursuant to s. 925.035.
(b) It is the intent of the Legislature that any public defender representing an inmate in any collateral proceedings in any court on June 24, 1985, shall continue representation of that inmate in all postconviction proceedings unless relieved of responsibility from further representation by the court.
(6) A sum shall be appropriated to the public defender of each judicial circuit enumerated in subsection (4) for the employment of assistant public defenders and clerical employees and the payment of expenses incurred in cases on appeal.
27.52 Determination of indigency. ---
(a) The determination of indigency of any accused person shall be made by the court, and may be made at any stage of the proceedings.
(b) An accused person, or if applicable a parent or legal guardian of an accused minor or an accused adult tax-dependent person, asserting indigency and requesting representation by the public defender, shall file with the court a completed affidavit containing the factual information required under subsection (2) and stating that the affidavit is signed under oath and under penalty of perjury.
(c) A fee of $40 shall be paid into the county depository at the time the affidavit is filed. However, the affidavit shall be accepted without the fee if the court finds, after reviewing the financial information contained in the affidavit, that the fee should be reduced, waived, or assessed at the disposition.
(d) If the court finds that the accused person applying for representation appears to be indigent based on the factual information provided, the court shall appoint the public defender to provide representation. If the fee is not paid prior to the disposition of the case, the sentencing judge shall be advised of this fact and may: 1. Assess the fee as part of the sentence or as a condition of probation; or 2. Assess the fee pursuant to s. 27.56. Notwithstanding any provision of law or local order to the contrary, the collecting entity shall assign the first $40 to the Indigent Criminal Defense Trust Fund, if created by law; otherwise it shall be deposited in the General Revenue Fund. In no event should a person who is found to be indigent be refused counsel for failure to pay the fee.
(e) The fee shall be remitted into the county depository and transferred to the Indigent Criminal Defense Trust Fund, if created by law; otherwise it shall be deposited in the General Revenue Fund, for the purpose of supplementing the general revenue funds appropriated to public defenders.
(f) The affidavit must contain the following financial information and calculations as to the accused person's income: 1. Net income. Total salary and wages, minus deductions required by law, including court-ordered support payments. 2. Other income. Including, but not limited to, social security benefits, union funds, veterans' benefits, workers' compensation, other regular support from absent family members, public or private employee pensions, unemployment compensation, dividends, interest, rent, trusts, and gifts. 3. Assets. Including, but not limited to, cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a boat or a motor vehicle or in other tangible property.
(g) The income of an accused minor or an accused adult tax-dependent person who is substantially supported by a parent or parents or by a guardian, or who continues to be claimed as a dependent for tax purposes, shall include the income of that dependent person's parent or parents or guardian, except a parent or guardian who has an adverse interest in the proceeding.
(a) After reviewing the affidavit and questioning the accused person, the court shall make one of the following three determinations: 1. The accused person is indigent. 2. The accused person is indigent, but able to contribute. 3. The accused person is not indigent.
(b) An accused person, or an accused minor's or accused adult tax-dependent person's parent or guardian, is indigent if: 1. The income of the person is equal to or below 125 percent of the then-current federal poverty guidelines prescribed for the size of the household of the accused by the United States Department of Health and Human Services or if the person is receiving Aid to Families with Dependent Children (AFDC), poverty-related veterans' benefits, or Supplemental Security Income (SSI); or 2. The person is unable to pay for the services of an attorney without substantial hardship to his or her family.
(c) An accused person, or an accused minor's or accused adult tax-dependent person's parent or guardian, is indigent but able to contribute if the person has income of more than 125 percent and less than 250 percent of the then-current federal poverty income guidelines prescribed for the size of the household of the person by the United States Department of Health and Human Services.
(d) In determining whether a defendant is indigent, the court shall determine whether any of the following facts exist, and the existence of any such fact shall create a presumption that the defendant is not indigent: 1. The defendant has been released on bail in the amount of $5,000 or more. 2. The defendant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property. 3. The defendant retained private counsel immediately before or after filing the affidavit asserting indigency pursuant to subsection (1).
(e) A nonindigent parent or legal guardian of an accused minor or an accused adult tax-dependent person shall furnish the minor or dependent person with the necessary legal services and costs incident to a delinquency proceeding or, upon transfer of such person for criminal prosecution as an adult pursuant to s. 39.052, a criminal prosecution, in which the person has a right to legal counsel under the Constitution of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to furnish legal services and costs under this section shall not bar the appointment of legal counsel pursuant to s. 27.53. When the public defender, a special assistant public defender appointed pursuant to s. 27.53(2), or appointed private legal counsel is appointed to represent an accused minor or an accused adult tax-dependent person in any proceeding in circuit court or in a criminal proceeding in any other court, the parents or the legal guardian shall be liable for the fees and costs of such representation even if the person is a minor being tried as an adult. Liability for the costs of such representation may be imposed in the form of a lien against the property of the nonindigent or indigent but able to contribute parents or legal guardian of the accused minor or accused adult tax-dependent person, which lien shall be enforceable as provided in s. 27.56 or s. 27.561. The court shall determine the amount of the obligation; and, in determining the amount of the obligation, the court shall follow the procedure outlined by this section.
(3) If the trial court determines, within 2 years after the determination of indigency, that any accused was erroneously or improperly determined to be indigent, the state attorney shall, in the name of the state, proceed against such accused for the reasonable value of the services rendered to the accused and including all costs paid by the state or county in his or her behalf. Any amount recovered shall be remitted to the board of county commissioners of the county wherein the accused was tried. The funds shall be deposited in the fine and forfeiture fund of that county and be used to defray the expenses incurred by the county with respect to the defense of defendants in criminal prosecutions.
Click here Florida Statutes (Supplement 2001)- CHAPTER 27 for all of Chapter 27, which includes State Attorneys and Public Defenders.
Leon County Management Info Services (MIS)
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