CAREY HAUGHWOUT, PUBLIC DEFENDER, FIFTEENTH JUDICIAL CIRCUIT, PETITIONER,
v.
RONALD F. MELLOR, RESPONDENT
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The Fourth District Court of Appeal quashed a trial court order appointing a public defender to represent a non-indigent defendant, holding that Florida law prohibits public defender appointments for persons who are not indigent and that statutory presumptions of non-indigency must be applied.
A trial court may not appoint the public defender to represent a non-indigent defendant. When statutory factors creating a presumption of non-indigency are present—such as ownership of real property or prior retention of private counsel—the trial court must find the presumption exists and should not appoint the public defender unless the defendant overcomes that presumption.
[1] A court may not appoint a public defender to represent a defendant who is not indigent.
[2] A person is considered indigent if they are unable to pay for the services of an attorney without substantial hardship to their family.
Previewing 2 of 6 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“a court 'may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.' § 27.51(2), Fla. Stat (2003)”
Establishes the statutory prohibition against public defender appointments for non-indigent persons
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Join FLexlaw to unlock all legal intelligenceMellor was charged with second-degree murder. The trial court appointed the public defender despite Mellor having an equity interest in real property …
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Petitioner seeks a writ of certiorari challenging the lower court’s order requiring the Public Defender to represent a non-indigent defendant in a criminal proceeding. Certiorari is the appropriate relief. See Brevard, County v. State, 516 So. 2d 968 (Fla. 5th DCA 1987) (certiorari relief granted when trial court required the county to pay for private counsel when the accused was solvent), rev. denied, 528 So. 2d 1183 (Fla.1988); Behr v. Gardner, 442 So. 2d 980 (Fla. 1st DCA 1983).
For the reasons set forth below, we grant the petition and quash the order appointing the public defender. Florida law requires a public defender to represent indigent defendants but a court “may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.” § 27.51(2), Fla. Stat (2003).
Section 27.52 defines indigent, for the purposes of this section, as a person who “is unable to pay for the services of an attorney without substantial hardship to his or her family.” § 27.52(2)(b)2.
The law provides further guidance by creating a presumption of non-indigen-cy when any of the following exist: (1) the defendant has been released on bond of greater than $5,000; (2) the defendant “owns, or has equity in, any ... tangible ... real property”; or (3) the defendant “retained private counsel immediately before or after filing the affidavit asserting indigency.” § 27.52(2)(c). The presence of any of these factors creates a presumption of non-indigency. See Martin v. State, 711 So. 2d 117, 119 (Fla. 4th DCA 1998). Unless the defendant can overcome this presumption of non-indigency, the trial court should not appoint the public defender.
The record indicates that Mellor has an equity interest in real property within Palm Beach County and has twice retained private counsel. As one factor is clearly present, the lower court was required to find a presumption of non-indi-gency existed. Instead, the lower court concluded Mellor would probably not retain private counsel in the future and feared Mellor would proceed to trial, on a second-degree murder charge, without any representation unless the public defender was appointed. Based on this conclusion, the lower court felt it had no choice but to appoint the public defender to preserve Mellor’s constitutional right to counsel.
Because the record shows Mellor has, and is, able to hire private counsel, the lower court order appointing the public defender must be quashed. We therefore grant the petition, issue the writ of certiorari, and remand to the trial court for further proceedings consistent with this opinion.
GUNTHER, GROSS and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gordon v. State, 960 So. 2d 31 (Fla. 4th DCA 2007)…der to represent him at trial. “Florida law requires a public defender to represent indigent defendants but a court ‘may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.’ ” Haughwout v. Mellor, 870 So. 2d 895, 896 (Fla. 4th DCA 2004) (quoting § 27.51(2), Fla. Stat. (2003)). The trial court’s decision about whether to appoint a public defender is reviewed under an abuse of discretion standard. See Romani v. State, 429 So. 2d 382 (Fla. 3d DCA 1983); Keur v…
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Spencer v. State, 922 So. 2d 282 (Fla. 5th DCA 2006)…unsel immediately before or after filing the affidavit asserting indigency, a presumption of non-indigency arises so as to require a court not to appoint a public defender to represent the defendant in a criminal proceeding. See Haughwout v. Mellor, 870 So. 2d 895 (Fla. 4th DCA 2004). In the instant case, even if the record contained evidence that Spencer did not waive her right to counsel, the court would have been under no obligation to appoint counsel under the specific facts of this case. The record does…
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LAW Offs. OF the Pub. Def. v. State, 68 So. 3d 434 (Fla. 4th DCA 2011)…certiorari and quash the orders appointing the public defender’s office to represent the two defendants. The record reflects that the defendants are not indigent within the meaning of the law. See § 27.51(2), Fla. Stat. (2011); Haughwout v. Mellor, 870 So. 2d 895 (Fla. 4th DCA 2004). MAY, C.J., GROSS and HAZOURI, JJ., concur.…
Authorities Cited
- Behr v. Gardner, 442 So. 2d 980 (Fla. 1st DCA 1983)
- Brevard Cnty. Bd. OF Cnty. Comm'rs v. State, 516 So. 2d 968 (Fla. 5th DCA 1987)
- Martin v. State, 711 So. 2d 117 (Fla. 4th DCA 1998)