CHARLES TAYLOR, PETITIONER,
v.
JAMES T. CARLISLE, HAROLD J. COHEN AND WALTER N. COLBATH, AS CIRCUIT APPEALS PANEL FOR THE FIFTEENTH JUDICIAL CIRCUIT, PALM BEACH COUNTY, FLORIDA, RESPONDENTS
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Where the public defender withdraws due to conflict of interest in an appellate proceeding, a circuit court acting in appellate capacity must appoint privately appointed appellate counsel for an indigent defendant pursuant to Florida Rule of Criminal Procedure 3.111(b)(1), unless a written pretrial statement was filed that the defendant will not be imprisoned upon conviction.
[1] Where a pretrial written statement that a defendant will not be imprisoned upon conviction has not been filed, Florida Rule of Criminal Procedure 3.111(b)(1) requires app…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), does not preclude appointment of appellate counsel where appellant is not incarcerated. However, Florida Rule of Criminal Procedure 3.111(b)(1) appears to mandate it in this case.”
Court distinguishing federal constitutional requirement from state appellate procedure rule
Taylor, an indigent appellate defendant represented by the public defender, requested privately appointed appellate counsel when the public defender w…
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PER CURIAM.
We grant the petition for writ of certiorari, or in the alternative, writ of mandamus. Our attention is first directed to the question of which remedy is appropriate, where the circuit court, acting in its appellate capacity, denied petitioner’s request for privately appointed appellate counsel upon the public defender’s withdrawal for conflict. While certiorari would certainly be an appropriate remedy, in this instance mandamus may also apply, with the following caveat. The determination of whether a defendant is qualified, because of his indigency, for the continued services of a public defender or special public defender, could not be said to be a ministerial function, and therefore would not be subject to mandamus proceedings. That issue, however, is not presented here. Assuming no issue as to economic eligibility, it would appear that either certiorari or mandamus would be an appropriate remedy.
Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), does not preclude appointment of appellate counsel where appellant is not incarcerated. However, Florida Rule of Criminal Procedure 3.111(b)(1) appears to mandate it in this case. Denial of appellate counsel would certainly result in irreparable harm to petitioner throughout the proceedings below.
Therefore, we quash the orders of the circuit court denying petitioner privately appointed appellate counsel, and direct the court to enter an order in conformity with this opinion.
WALDEN and POLEN, JJ., concur. WARNER, J., concurs specially with opinion.
WARNER, Judge,
concurring specially.
I agree that in this case counsel should have been appointed for the indigent appellant pursuant to Florida Rule of Criminal Procedure 3.111(b)(1). Respondents argue that because petitioner was not sentenced to incarceration, appointed appellate counsel is not required, citing Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). However, the only exception in the criminal rules for the appointment of counsel is where the judge prior to trial files in the cause a written statement that the defendant will not be imprisoned in the event he is convicted. It does not appear such a statement was filed in this case and, indeed, petitioner has been represented by the public defender throughout these proceedings until withdrawal was necessitated by conflict.