Opinion
No. 92-2341.
January 26, 1993.
Petition for review from the County Court.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for petitioner.
Robert A. Butterworth, Atty. Gen. and Angelica Zayas, Asst. Atty. Gen., for respondent.
Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.
At arraignment, the county court appointed the public defender to represent Ull, an indigent, on DUI and related offenses. Because the charges carried the possibility of a prison sentence, this ruling was not only correct, but constitutionally required. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). On the date set for trial, however, the assistant state attorney announced, and the trial judge certified that no jail sentence would be sought or imposed. On that basis, the county court then purported to discharge or "dis-appoint" the public defender and, although the office had conducted discovery and was otherwise fully prepared and desired to continue the representation, precluded it from doing so. After the appellate division of the circuit court denied relief from this order, Ull now seeks a writ of certiorari from this court. We grant the petition.
After the public defender had undertaken to represent the defendant under an appropriate order, the trial court lacked authority — certainly at that stage of the proceedings — to revoke the appointment and leave the defendant without counsel to defend him. The fact that an initial appointment of the public defender may not have been permissible under the facts as they only later developed makes no difference. Allen v. McClamma, No. 87-651 (Fla. 2d Cir. Nov. 1, 1988) (per Miner, J.) ("[T]he issue . . . is whether the court improperly discharged a lawfully appointed public defender on the eve of trial through issuing an ONI [order of no imprisonment]. Sec. 27.51 addresses only the appointment of a public defender. It does not give the appointing court authority to remove a public defender once lawfully appointed. Therefore, it appears that the County Court acted without authority when it removed the Public Defender under the facts of this case. This result is supported by the equities which seem to this Court to weigh clearly in favor of Mr. Reynolds and the Public Defender."); Roswall v. Municipal Court of N. Solano Judicial Dist., 89 Cal.App.3d 467, 472, 152 Cal.Rptr. 337, 340 (1979) ("[O]nce counsel is appointed to represent an indigent defendant . . . the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.").
The order of the circuit court under review is quashed and the cause remanded with directions that the order of the county court revoking the appointment of counsel be itself quashed.
Certiorari granted.
HUBBART, J., concurs.
The power of the trial court to appoint the public defender to represent an indigent defendant, Fla.R.Crim.P. 3.111, carries with it the power to revoke that appointment if the conditions for representation cease to be met. See § 27.51, Fla. Stat. (1991).
In chapter 316 traffic cases punishable by imprisonment the public defender is authorized to represent indigent defendants "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. . . ." § 27.51(1)(b), Fla. Stat. (1991). The statute does not require that the imprisonment/no imprisonment determination be made prior to the initial appointment of the public defender. On the contrary, as the statute expressly states, the "no imprisonment" determination may be made by the court at any time prior to trial. Here, the "no imprisonment" determination was made, as the statute allows, prior to trial. On the facts present here, there was no abuse of discretion in the county court's ruling. The appellate division of the circuit court denied certiorari. I would not disturb that ruling.
While there is authority to the contrary, those cases are factually distinguishable. In Allen v. McClamma, No. 87-651 (Fla. 2d Cir.Ct. Nov. 1, 1988) the county court consolidated two cases for trial while issuing a no imprisonment order for one of them. Slip op. at 5. "Consolidation of the two offenses made it impractical, if not impossible, for the defense of each case to operate in a vacuum." Id. On those facts, the county court either had to allow the public defender the latitude to handle the entire defense, or sever the "no imprisonment" offense.
Similarly, in Roswall v. Municipal Court, 89 Cal.App.3d 467, 152 Cal.Rptr. 337 (Ct.App. 1979), the concern was that the trial court revisited the defendants' indigency status after defendants demanded a jury trial. No such circumstances are present here.