LAVELL NIXON, AND BENNETT H. BRUMMER, AS PUBLIC DEFENDERS OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, PETITIONERS,
v.
THE HONORABLE PAUL SIEGEL, AS JUDGE OF THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY, RESPONDENT
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Nixon sought mandamus relief to compel the trial court to allow the public defender's office to withdraw from representing him based on a conflict of interest certification. The Third District Court of Appeal granted the petition, holding that once the public defender certifies a conflict, the trial court must appoint other counsel and cannot reweigh the public defender's conflict determination or find that the conflict terminated after the conflicted representation ended.
Once the public defender has certified a conflict of interest and moved the court to appoint other counsel, section 27.53(3), Florida Statutes requires the trial court to appoint other counsel not affiliated with the public defender's office. The trial court may not reweigh the factors considered by the public defender in determining conflict exists, and the conflict does not dissipate as a matter of law merely because the representation of the adverse party concluded.
[1] A trial court must appoint counsel not affiliated with the public defender's office once the public defender certifies a conflict of interest.
[2] A trial court cannot reweigh the factors considered by the public defender in determining a conflict of interest.
Previewing 2 of 4 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“section 27.53(3) clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the public defender's office.”
Establishes the mandatory nature of the statutory requirement once a conflict is certified
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Join FLexlaw to unlock all legal intelligenceNixon was charged with three violent felonies and initially assigned an assistant public defender who withdrew based on a conflict certification—the p…
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FERGUSON, Judge.
Nixon seeks an order, by petition for extraordinary relief, that the public defender’s office be allowed to withdraw from representing him based on its certification of conflict of interest. We treat the petition for writ of mandamus as certiorari and quash the order denying the request for withdrawal.
The petitioner, charged with three violent felonies, was appointed an assistant public defender who was allowed to withdraw based on a certification of conflict pursuant to section 27.53(3), Florida Statutes (1993). The certificate alleged that the public de fender’s office had previously represented the State’s main witness. Nixon was convicted on all three counts. On appeal we reversed in part and remanded for a new trial. On remand Nixon’s specially-appointed private counsel moved to withdraw alleging hostility and irreconcilable differences between himself and the client. The trial court granted the motion to withdraw and reappointed the public defender’s office.
As grounds for denying the public defender’s renewed motion to withdraw based on the certification of conflict, the trial court reasoned: (1) the public defender’s certificate of conflict is not conclusive on the question of whether there is a real conflict; and (2) whatever conflict may have existed terminated when the public defender’s office concluded its representation of the State’s witness.
In response to a certified question, the supreme court held in Babb v. Edwards, 412 So. 2d 859, 862 (Fla.1982), that once the public defender has determined conflict and has moved the court to appoint other counsel “section 27.53(3) clearly and unambiguously requires the trial court to appoint other counsel not affiliated with the public defender’s office.” The trial court is not permitted to reweigh those factors considered by the public defender in determining that there is a conflict in representing two adverse defendants. Further, it cannot be said as a matter of law that the conflict vanishes when the case of one of the adverse defendants is concluded. See Lightbourne v. Dugger, 829 F. 2d 1012, 1023 (11th Cir.1987) (“An attorney who cross-examines a former client inherently encounters divided loyalties.”).1
Certiorari is granted. The order denying the public defender’s motion for the appointment of other counsel is quashed.
. This case is also distinguishable from Bouie v. State, 559 So. 2d 1113 (Fla.1990). First, in this case, the public defender had certified a conflict based on a factual finding of hostilities. That certification was acted upon by the court in appointing private counsel. Second, in Bouie, there was no certification of conflict filed by the public defender. Further, as the supreme court noted in Bouie, the interests of Bouie and his former codefendant "were neither hostile nor adverse to one another." Id. at 1115.
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Guzman v. State, 644 So. 2d 996 (Fla. 1994)…oves to withdraw from the representation of a client based on a conflict due to adverse or hostile interests between the two clients, under section 27.53(3), Florida Statutes (1991), a trial court must grant separate representation. Nixon v. Siegel, 626 So. 2d 1024 (Fla. 3d DCA 1993). As the district court stated in Nixon, a trial court is not permitted to reweigh the facts considered by the public defender in determining that a conflict exists. This is true even if the representation of one of the adverse cli…
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Valle v. State, 763 So. 2d 1175 (Fla. 4th DCA 2000)…ellant. These interests were directly adverse.” Id. at 639^40 (citing R. Regulating Fla. Bar 4 — 1.7(a)). The fact that the representation of the adverse client has been concluded does not necessarily eliminate the conflict. Guzman; Nixon v. Siegel, 626 So. 2d 1024 (Fla. 3d DCA 1993); Mincey v. State, 666 So. 2d 954 (Fla. 1st DCA 1996). In Reardon v. State, 715 So. 2d at 348, the prior representation of a witness by the public defender had been very brief, and the trial court had denied the motion to withdraw…
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Johnson v. State, 917 So. 2d 226 (Fla. 3d DCA 2005)…right to representation that is free from conflicts of interests.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). “An attorney who cross-examines a former client inherently encounters divided loyalties.” Nixon v. Siegel, 626 So. 2d 1024, 1025 (Fla. 3d DCA 1993) (quoting Lightbourne v. Dugger, 829 F. 2d 1012, 1023 (11th Cir.1987)). Additionally, the public defender was understandably reticent to cross-examine Jackson on her criminal liability in this case and the State’s lack of pro…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir. 1987)
- Bouie v. State, 559 So. 2d 1113 (Fla. 1990)
- Babb v. Honorable W. F. Edwards, 412 So. 2d 859 (Fla. 1982)