Florida Criminal Law Opinions

MACK REED TEDDER, II, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 5D08-4510. District Court of Appeal of Florida, Fifth District. Opinion filed May 15, 2009.Appeal from the Circuit Court for Hernando County, Curtis J. Neal, Judge.

Mack Reed Tedder, II, Polk City, pro se.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

In an attempt to collaterally attack his 33-year-old first degree murder conviction, Mack Reed Tedder, II, filed a declaratory judgment action alleging defects in the underlying information charging him with murder. The trial court dismissed the complaint, and we affirm. Tedder’s collateral attack is time-barred under Florida Rule of Criminal Procedure 3.850, and a defendant cannot circumvent that rule by filing a civil action for declaratory judgment. See, e.g., Hollywood Lakes Section Civic Ass’n, Inc. v. City of Hollywood, 676 So. 2d 500 (Fla. 4th DCA 1996) (“The `declaratory decree statute is no substitute for established procedure for review of final judgments or decrees. Nor is it a device for collateral attack upon them.’”) (quoting deMarigny v. deMarigny, 43 So. 2d 442, 445 (Fla. 1949)); Stahl v. Wilson, 121 So. 2d 662, 663 (Fla. 3d DCA 1960) (“[T]he declaratory decree proceeding is not a substitute for established procedure for review of final judgments and decrees. Nor is it a device for collateral attack upon them.”); State ex rel. Butterworth v. Kenny, 714 So. 2d 404, 409-10 (Fla. 1998) (explaining that “postconviction relief proceedings, while technically classified as civil actions, are actually quasi-criminal in nature because they are heard and disposed of by courts with criminal jurisdiction,” and indicating that a purely civil action cannot be used to test the legality of a criminal conviction or sentence).

AFFIRMED.

TORPY, J., and PLEUS, JR., R., Senior Judge, concur.

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Jorge Guerrero, Appellant,
v.
The State of Florida, Appellee. No. 3D09-91. District Court of Appeal of Florida, Third District. Opinion filed May 13, 2009.An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge. Lower Tribunal No. 03-20824.

Jorge Guerrero, in proper person.

Bill McCollum, Attorney General, for appellee.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

ROTHENBERG, J.

The defendant filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) on or about May 7, 2008. On October 7, 2008, he filed a motion to dismiss the May 7, 2008 motion to correct an illegal sentence. The trial court subsequently issued two orders: (1) an order dated November 13, 2008, which was filed on December 3, 2008, denying the defendant’s motion to dismiss dated October 7, 2008; and (2) an order dated November 21, 2008, stating that defendant’s motion to correct illegal sentence dated May 7, 2008, was withdrawn per defendant’s request. Thus, the trial court entered conflicting orders—one denying the motion to dismiss and one granting the motion to dismiss.

In an abundance of caution, the defendant filed a notice of appeal and has sought clarification of the trial court’s rulings. Because the trial court granted the defendant’s motion to dismiss his May 7, 2008 motion to correct an illegal sentence on November 21, 2008, and subsequently entered an order denying his motion to dismiss on December 3, 2008, we treat the December 3, 2008 order as issued in error and a nullity.

Because the trial court granted the defendant’s motion to dismiss the May 7, 2008 motion to correct an illegal sentence, we dismiss the instant appeal as moot. However, we note that defendant alleges that he filed a subsequent rule 3.800(a) motion to correct illegal sentence on or about October 23, 2008, that is still pending. The trial court is instructed to rule on the defendant’s pending rule 3.800(a) motion, and if it cannot be located, to notify the defendant so that he can resubmit the motion.

Appeal dismissed.

Not final until disposition of timely filed motion for rehearing.

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JOSEPH DENNIS, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-5931 District Court of Appeal of Florida, First District Opinion filed May 13, 2009.An appeal from the Circuit Court for Suwannee County, David W. Fina, Judge.

Joseph Dennis, pro se, Appellant.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We affirm the denial of appellant’s motion to correct illegal sentence seeking out-of-state jail credit. However, we do so without prejudice to appellant’s raising this claim in a properly sworn rule 3.850 motion. See Lewis v. State, 926 So. 2d 437 (Fla. 1st DCA 2006) (court cannot treat rule 3.800(a) motion as rule 3.850 motion where motion is not properly sworn); Daily v. State, 750 So. 2d 37 (Fla. 4th DCA 1999) (affirming denial of 3.800(a) motion seeking jail credit without prejudice to defendant’s filing facially sufficient 3.800(a) motion demonstrating where in the record entitlement to relief can be shown or for defendant to file properly sworn rule 3.850 motion raising the same issue); Petscher v. State, 936 So. 2d 639 (Fla. 5th DCA 2006) (if jail credit claim cannot be resolved from face of record without resorting to fact finding, claim must be raised in rule 3.850 motion) (Orfinger, J., concurring).

AFFIRMED.

WOLF, KAHN, AND VAN NORTWICK, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

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RESHAWNANA D. PETERSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-5425 District Court of Appeal of Florida, First District Opinion filed May 13, 2009.An appeal from the Circuit Court for Duval County, Linda F. McCallum, Judge.

Reshawnana D. Peterson, pro se, Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The appellant challenges the postconviction court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant’s motion raises two claims attacking his habitual violent felony offender sentence and multiple claims alleging ineffective assistance of counsel. The ineffective assistance of counsel claims were denied as conclusory but the postconviction court failed to allow the appellant an opportunity to amend the claims pursuant to Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). We therefore reverse the summary denial of the appellant’s rule 3.850 motion with respect to his ineffective assistance of counsel claims and remand for the postconviction court to allow the appellant the opportunity to amend his facially insufficient claims within a reasonable period of time. We affirm without further discussion the appellant’s claims concerning the validity of his habitual violent felony offender sentence.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, KAHN, AND VAN NORTWICK, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

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TODD SCHULTHEIS, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-4922 District Court of Appeal of Florida, First District Opinion filed May 13, 2009.An appeal from the Circuit Court for Wakulla County, N. Sanders Sauls, Judge.

Todd Schultheis, pro se.

Bill McCollum, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

When the postconviction court denied appellant Todd Schultheis’s motion for postconviction relief, the court concluded the record of Schultheis’s trial refuted some claims, but the court did not attach any record excerpts supporting the denial of relief. With respect to the second, fifth, seventh, ninth, and tenth claims in appellant’s motion alleging ineffective assistance of counsel, this omission requires reversal. See Gay v. State, 995 So. 2d 541, 542 (Fla. 2d DCA 2008); Miller v. State, 905 So. 2d 981, 982 (Fla. 3d DCA 2005). We remand the order denying relief as to these claims and direct the postconviction court to either attach supportive record excerpts or conduct an evidentiary hearing. See Fla. R. App. P. 9.141(b)(2)(D).

We also reverse the denial of relief as to appellant’s first claim, in which he argued trial counsel was ineffective for failing to raise the issue of competency to stand trial. As the postconviction court explained, a defendant cannot cloak an argument of incompetency, which should be raised on direct appeal, as an ineffective-assistance claim. See Patton v. State, 784 So. 2d 380, 393 (Fla. 2000). A narrow argument that counsel was ineffective for failing to raise the competency issue, however, is cognizable in the postconviction posture. See generally Carroll v. State, 815 So. 2d 601, 610 (Fla. 2002). The argument as phrased in appellant’s motion is, at its heart, an ineffective-assistance claim and was not procedurally barred, as the postconviction court concluded. Accordingly, we reverse the denial of relief as to this claim and remand for the postconviction court to address it on the merits. We affirm the order in all other respects.

AFFIRMED in part; REVERSED in part.

KAHN, DAVIS and CLARK, JJ., CONCUR.

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DANA SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-4380. District Court of Appeal of Florida, Second District. Opinion filed May 13, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

FULMER, Judge.

We affirm, without comment, the order denying Dana Smith relief under Florida Rule of Criminal Procedure 3.850. However, we remand with directions for the postconviction court to correct a scrivener’s error in the written sentence.

On January 16, 2007, the trial judge orally sentenced Smith to a term of 15 years, requiring the first 37.2 months to be served in prison, suspending the remaining 142.8 months, and placing Smith on probation for the suspended period. The order of probation accurately reflects this true split sentence by requiring service of the suspended term as a condition of probation. The written sentence, however, reflects a probationary split sentence consisting of 15 years in prison followed by 142.8 months’ probation, with no portion of the prison sentence suspended. The written sentence shall be corrected to reflect that a portion of the prison sentence was suspended as orally pronounced.

Affirmed, but remanded with directions.

DAVIS and KELLY, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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LUCAS GOODWIN, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-2422. District Court of Appeal of Florida, Second District. Opinion filed May 13, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Sarasota County, Charles E. Roberts, Judge.

Lucas Goodwin, pro se.

WALLACE, Judge.

Lucas Goodwin appeals the order that summarily denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court’s order as to the denial of claims two and seven of Mr. Goodwin’s motion. We affirm without comment the postconviction court’s denial of all other claims for relief.

On March 16, 2005, Mr. Goodwin was found guilty of burglary of a dwelling and grand theft. He was sentenced as a habitual felony offender to concurrent terms of twenty years in prison for the burglary and ten years for the grand theft.

In the first part of claim two, Mr. Goodwin alleged that his trial counsel rendered ineffective assistance at a hearing on a motion to suppress a pretrial confession and at the trial on the charges. In the portion of claim two addressing the motion to suppress, Mr. Goodwin alleged that his trial counsel was ineffective for failing to research the effects of heroin withdrawal on an addict. This allegation is conclusory, and we need not address it further.

As part of this portion of his second claim, Mr. Goodwin also asserted that his trial counsel failed to present the testimony of medical experts who had been sub-poenaed and were waiting to testify. The postconviction court denied this part of claim two as facially insufficient, citing Leftwich v. State, 954 So. 2d 714, 714 (Fla. 1st DCA 2007) (holding that in order to state a claim for ineffective assistance of counsel based on the failure to call a witness to testify, the claimant must allege (1) the identity of the potential witness, (2) that the witness was available to testify at trial, (3) the substance of the witness’s testimony, and (4) an explanation of how the omission of the testimony prejudiced the case).

Mr. Goodwin alleged that the potential witnesses were medical experts from the jail where he had been incarcerated. Although Mr. Goodwin asserted that the medical experts were waiting at court to testify at the hearing on the motion to suppress, he failed to explain the substance of their testimony or how its absence prejudiced his case. Thus the postconviction court correctly found that this portion of claim number two was facially insufficient. However, the postconviction court erred in denying the claim instead of dismissing it and allowing Mr. Goodwin a reasonable amount of time within which to amend his claim. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007).

In the second part of claim two, Mr. Goodwin alleged that his trial counsel was ineffective at trial for failing to interpose an appropriate objection to the introduction into evidence of firearms that the State claimed had been stolen during the burglary for which Mr. Goodwin was found guilty. According to Mr. Goodwin, the owner of the residence that had been burglarized never identified the firearms as his property. Mr. Goodwin also claimed that the serial numbers on the firearms introduced into evidence were not compared to the serial numbers on the weapons that the State alleged were stolen from the residence. Mr. Goodwin concluded that there was a reasonable likelihood that he would have been acquitted if his trial counsel had made the appropriate objections to the State’s evidence.

The postconviction court offered three reasons for denying the second part of Mr. Goodwin’s second claim. First, Mr. Goodwin was not prejudiced by trial counsel’s alleged omissions “because the judge determined that regardless of whether there had been a grand theft or petit theft (relating to the value of items stolen from [the victim]), the court would have sentenced [Mr. Goodwin] to the same sentence.” Second, “the jury determined that [Mr. Goodwin] did not actually possess a firearm during the burglary.” Third, Mr. Goodwin’s trial counsel actually did object to the introduction of the firearms into evidence.

The first two reasons offered by the postconviction court do not address the substance of Mr. Goodwin’s claim. Mr. Goodwin’s contentions do not relate to the degree of the crime or the sentences imposed after the verdict. Instead, Mr. Goodwin claimed that but for trial counsel’s poor performance, he would have been acquitted. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland v. Washington, 466 U.S. 668, 695 (1984). The fact that the trial court would have imposed the same sentence does not indicate that the jury would not have had a reasonable doubt respecting guilt.

Likewise, the postconviction court’s reliance on the jury’s finding that Mr. Goodwin did not actually possess a firearm is inapposite. Mr. Goodwin’s motion alleged that his conviction stems from a burglary where he acted as a lookout and his accomplice stole some jewelry and firearms. Although the jury found that Mr. Goodwin did not actually possess a firearm during the commission of the crime, this finding does not necessarily mean that the jury concluded that the accomplice did not steal the firearms. Thus the second reason offered by the postconviction court does not show that the jury would not have had a reasonable doubt respecting guilt.

On the other hand, the third reason—that trial counsel had in fact made the appropriate objections—properly addressed the substance of the claim by finding that it was refuted by the record. Indeed, the postconviction court cited to portions of the trial transcript in support of its finding. Unfortunately, the postconviction court failed to attach to its order the portions of the trial transcript on which it relied. Therefore, we must reverse the postconviction court’s summary denial of the second part of Mr. Goodwin’s second claim. On remand, if the postconviction court once again denies this claim without an evidentiary hearing, it must attach the pertinent portions of the trial transcript to its order. See Fla. R. Crim. P. 3.850(d).

In claim seven of his motion, Mr. Goodwin claimed that his trial counsel failed to argue to the jury that Mr. Goodwin did not enter the home that was burglarized.¹ He claimed further that trial counsel failed to argue to the jury that Mr. Goodwin’s fingerprints were not found on the weapons, that the stolen property was not found in his possession, and that he only acted as a lookout. Mr. Goodwin alleged that but for counsel’s asserted omissions, there was a reasonable likelihood that he would have been acquitted.

The postconviction court erroneously concluded that this claim should have been raised on direct appeal and was thus not cognizable in a rule 3.850 motion. Because claim seven is a claim of ineffective assistance of counsel, the postconviction court should have evaluated the claim on its merits. See Meeks v. State, 382 So. 2d 673, 675 (Fla. 1980) (noting that a claim of ineffective assistance of counsel is appropriately raised in a rule 3.850 motion). Therefore, we reverse the summary denial of claim seven and remand for the postconviction court to reconsider the claim.

In summary, we reverse the postconviction court’s order to the extent that it summarily denied claims two and seven of Mr. Goodwin’s motion, and we remand for further proceedings consistent with this opinion. In all other respects, we affirm the postconviction court’s order.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Notes:

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The State of Florida and Office of Criminal Conflict and Civil Regional Counsel, Third District Court of Appeal Region Appellants,
v.
Public Defender, Eleventh Judicial Circuit, Appellee. No. 3D08-2272 No. 3D08-2537 (Consolidated) District Court of Appeal of Florida, Third District. Opinion filed May 13, 2009.An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake, Judge. Lower Tribunal No. 08-1.

Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Louis F. Hubener, Charles B. Upton, II, and Courtney Brewer, Deputy Solicitors General (Tallahassee), for appellant, The State of Florida; Joseph P. George, Jr., and Nancy C. Wear, for appellant, Office of Criminal Conflict and Civil Regional Counsel.

Hogan & Hartson and Parker D. Thomson and Alvin F. Lindsay and Julie E. Nevins and Matthew R. Bray, for appellee, Public Defender, Eleventh Judicial Circuit.

Public Defender Association and James Marion Moorman, Public Defender Tenth Judicial Circuit, and Robert A. Young, General Counsel for the Florida Public Defender, Tenth Judicial Circuit, as amicus curiae.

Florida Prosecuting Attorneys Association and Arthur I. Jacobs, General Counsel for the Florida Prosecuting Attorneys Association, as amicus curiae.

Before SHEPHERD, CORTIÑAS, and SALTER, JJ.

PER CURIAM.

We review an order of the Circuit Court of the Eleventh Judicial Circuit permitting the Public Defender for Florida’s Eleventh Judicial Circuit (“PD11″) to decline representation in all future third-degree felony cases.

I. BackgroundIn twenty-one criminal cases, PD11 filed motions seeking permission to be relieved of its statutory obligation to represent indigent defendants in noncapital felony cases. Each motion was accompanied by a certificate of conflict wherein PD11 claimed that underfunding led to excessive caseloads, which has prevented it from carrying out its legal and ethical obligations to indigent defendants. The twenty-one motions were consolidated and heard by the trial court. The State Attorney’s Office (“the State”) was denied standing to oppose PD11′s motions, but was allowed to participate as amicus curiae.

After an evidentiary hearing, the trial court found that PD11′s excessive caseload permitted only minimally competent representation and ordered that PD11 may decline all future representation of indigent defendants charged with third-degree felonies.¹ The trial court ordered the Office of Criminal Conflict and Civil Regional Counsel for the Third District (“Regional Counsel”) to represent the affected indigent defendants.²

On appeal, the State³ requested a stay of the trial court’s order and PD11 suggested that the order be certified to our Supreme Court as either an issue of great public importance or as having a great effect on the proper administration of justice throughout the state. As this case implicates not only the manner in which the criminal justice system is structured and funded, but also constitutional separation of powers principles as well as the Sixth Amendment right to counsel in criminal cases, we granted the stay and certified the order to the Florida Supreme Court, which, in turn, dismissed for lack of jurisdiction. State v. Pub. Defender, Eleventh Judicial Circuit of Fla., 996 So. 2d 213 (Fla. 2008). We then set an expedited hearing schedule and invited amici curiae to submit briefs.

II. StandingThe trial court first addressed whether the State had standing to oppose PD11′s motion. We review de novo the issue of standing. Sanchez v. Century Everglades, LLC, 946 So. 2d 563, 564 (Fla. 3d DCA 2006); Payne v. City of Miami, 927 So. 2d 904, 906 (Fla. 3d DCA 2005). Generally, standing “requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.” Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006).

In ruling against the State’s standing, the trial court relied on In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990) (“In re Prosecution“) and Escambia County v. Behr, 384 So. 2d 147, 150 (Fla. 1980). These cases address the unrelated issue of whether a county’s financial stake in the withdrawal of an assistant public defender is sufficient to grant the county standing to oppose a motion to withdraw. In re Prosecution, 561 So. 2d at 1138 (“[T]he county need not be given an opportunity to be heard before the appointment of counsel, even though it will be the responsibility of the county to compensate private counsel.”). Under the former law, counties were required to fund the private attorneys, who were appointed by courts to replace assistant public defenders. Id. at 1137 (“The legislative history of. . . Florida, makes it clear that the legislature never intended to relieve the counties of the obligation of paying for court-appointed attorneys in noncapital conflict cases.”). The counties’ obligation to fund replacement counsel has since shifted to the State of Florida. See Art. V, § 14(c), Fla. Const.; Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So. 2d 134, 138 (Fla. 2008).

Here, unlike Behr and In re Prosecution, the State sought standing as a party to each of the twenty-one criminal cases. The State, as a party to the criminal cases, is treated by statute differently than the counties. Section 27.02, Florida Statutes, provides in pertinent part, “[t]he state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party . . . .” § 27.02(1), Florida Statutes (2004). The State’s status as a party to the criminal cases, as well as its statutory obligation under section 27.02, distinguishes this case from Behr and In re Prosecution. Therefore, we hold that the State had standing to challenge the motions filed by PD11.

III. Excessive by any Reasonable StandardThe trial court determined that PD11′s caseload was excessive by any reasonable standard. Much of the evidentiary hearing was spent trying to ascertain the maximum number of cases a public defender should handle in a single year. The record indicates that there are a number of different ways to count such cases, and that they involve different workloads as some cases go on to an early plea, some are transferred when a private attorney is retained by the defendant, and others are ultimately assigned to drug court. Thus, even if the threshold for withdrawal could be defined as a certain number of open cases per attorney — and we do not believe it can be — no such figure was proven in this record. Nevertheless, the order on review did not select a particular standard, and instead found that, under any reasonable standard, PD11′s caseload was excessive.

We acknowledge the difficulty in selecting a single “correct” standard and do not believe that a magic number of cases exists where an attorney handling fewer than that number is automatically providing reasonably competent representation while the representation of an attorney handling more than that number is necessarily incompetent. See In re Certification of Conflict in Mots. to Withdraw Filed by Pub. Defender of the Tenth Judicial Circuit, 636 So. 2d 18, 212-2 (Fla. 1994) (“In re Certification 1994“) (“[W]e do not believe that courts are obligated to permit the withdrawal automatically upon the filing of a certificate by the public defender reflecting a backlog in the prosecution of appeals.”). Moreover, even if such a number could be divined, it would certainly only have meaning when applied to an individual attorney and not an office as whole.

A. Aggregate WithdrawalDetermining conflicts of interest for an entire Public Defender’s Office based on aggregate calculations is extremely difficult without first having considered individual requests for withdrawal in particular cases. See In re Prosecution, 561 So. 2d at 1138 (concluding that when a backlog of cases is so excessive that assistant public defenders cannot possibly handle their assigned cases, it is the responsibility of the affected public defender to individually move the court to withdraw). The conclusion in the aggregate, that a conflict of interest exists, inherently lacks the meaningful individualized information required by such a determination.

While it is well within the province of a trial court to determine whether counsel is sufficiently competent, this determination must occur on a case-by-case basis. “If the public defender deems it necessary to be relieved from other appeals, he [or she] should file a motion to withdraw in this court promptly upon [appointment]. Such motions will be considered on a case-by-case basis . . . .” Crow v. State, 500 So. 2d 171, 172 (Fla. 1st DCA 1986); Haggins v. State, 498 So. 2d 953, 954 (Fla. 2d DCA 1986) (“The circuit courts can better determine on a case-by-case basis the possible prejudice to the defendants resulting from any delays . . . .”). We find this reasoning persuasive and equally applicable to motions to withdraw made at the trial level.

Although our Supreme Court has previously approved of an order prohibiting prospectively the appointment of assistant public defenders, that case is distinguishable because relief was granted only after individual assistant public defenders had first been removed from representation and a backlog of cases had caused the delayed filing of appeals for almost all defendants in the Public Defender’s Office. In re Pub. Defender’s Certification of Conflict & Mot. to Withdraw Due to Excessive Caseload & Mot. for Writ of Mandamus, 709 So. 2d 101 (Fla. 1998) (“In re Certification 1998“). Unlike In re Certification 1998, here, there has been no initial attempt at individualized withdrawal. Instead, PD11′s first attempt at withdrawal was by way of a motion to withdraw en masse.

In re Certification 1998 is also distinguishable from the present case by the type of harm claimed. The In re Certification 1998 Court was attempting to stem the tide of delayed appeals. Id. at 103. In contrast, PD11 presented evidence of excessive caseload and no more. To be sure, whenever an attorney is burdened with an excessive caseload, there exists the possibility of inadequate representation.⁴ The possibility of these harms was discussed at the hearing below. However, there was no showing that individual attorneys were providing inadequate representation, nor do we believe this could have been proven in the aggregate, simply based on caseload averages and anecdotal testimony.⁵ Brown v. State, 894 So. 2d 137, 149 (Fla. 2004) (“[T]he finding as to whether counsel was adequately prepared does not revolve solely around the amount of time counsel spends on the case . . . and . . . is a case-by-case analysis.”) (citing State v. Lewis, 838 So. 2d 1102, 1113-14 n.9 (Fla. 2002)).

B. Rules Regulating The Florida BarPD11 posits that the only standard controlling whether assistant public defenders should withdraw is set forth in the Rules Regulating The Florida Bar (“RRFB”). R. Regulating Fla. Bar 4-1.1, 4-1.3, 4-1.4, 4-1.7, 4-1.16, and 4-3.2. The rules of professional conduct, however, are only meant to apply to attorneys, individually, and not the office of the Public Defender as a whole.

Several problems develop when an office of attorneys seeks to avoid future appointments on grounds that the office, on average, is already laboring under an excessive caseload. First, by viewing the claim of excessive caseload in the aggregate, a court fails to consider the particular skills and expertise of individual attorneys, thereby treating each attorney the same. Such analysis ignores the fact that varying education and experience enable each attorney to handle differing caseloads. Add to this, the disparity of time demanded depending on the type and complexity of a particular case, and an aggregate determination becomes even less meaningful. Second, an aggregate determination violates the spirit, if not also the express language, of the RRFB. See, e.g., R. Regulating Fla. Bar 4-1.7(a) (“a lawyer shall not represent a client if . . . .”) (emphasis added); R. Regulating Fla. Bar 4-1.7 (b)(1) (“the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation . . . .”) (emphasis added); R. Regulating Fla. Bar 4-1.16 (“a lawyer shall not represent a client . . . .”) (emphasis added). Therefore, under the facts of this case, the determination of whether or not a conflict exists under the RRFB, must be made on an individual basis.

C. Section 27.5303, Florida Statutes (2007)In 1990, the Florida Supreme Court determined that “[w]hen excessive caseload forces the public defender to choose between the rights of the various indigent criminal defendants he [or she] represents, a conflict of interest is inevitably created.” In re Prosecution, 561 So. 2d at 1135. In 2004, the legislature promulgated, and in 2007 amended, section 27.5303, which permits assistant public defenders to withdraw from representation based on a conflict of interest. § 27.5303(1)(a), Fla. Stat. (2007).

If, at any time during the representation of two or more defendants, a public defender determines that the interest of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without a conflict of interest . . . then the public defender shall file a motion to withdraw and move the court to appoint other counsel.

Id. The obligation to withdraw, however, is not without exception. “In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.” § 27.5303(1)(d), Fla. Stat. (2007). Within section 27.5303, the Legislature provided guidance as to what constitutes a conflict of interest.

In determining whether or not there is a conflict of interest, the public defender or regional counsel shall apply the standards contained in the Uniform Standards for Use in Conflict of Interest Cases found in appendix C to the Final Report of the Article V Indigent Services Advisory Board dated January 6, 2004.

§ 27.5303(1)(e), Fla. Stat. (2007). The only conflicts addressed in appendix C are conflicts involving codefendants and certain kinds of witnesses or parties. Conspicuously absent are conflicts arising from underfunding, excessive caseload, or the prospective inability to adequately represent a client.

We must assume that when the Legislature drafted section 27.5303, it was aware of the prior state of the law. Williams v. Jones, 326 So. 2d 425, 435 (Fla. 1975) (noting the “principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted”) (citing Collins Inv. Co. v. Metro. Dade County, 164 So. 2d 806 (Fla. 1964)).

Thus, when the Legislature promulgated a law, which prohibited withdrawal based on excessive caseload and which stated that the “conflict of interest” contemplated by section 27.5303 included only the traditional conflicts arising from the representation of codefendants, we must assume that the Legislature understood the existing law and intended to modify it. Here, PD11 failed to submit to the trial court any evidence that a “conflict of interest,” as described by section 27.5303(1)(e), existed.

The trial court did not reach the question of whether PD11 had presented evidence sufficient to prove a statutory conflict of interest, determining instead that section 27.5303(1)(d) did not apply because it addressed withdrawal from representation, rather than what PD11 sought, which was to have other counsel appointed in the first instance. We find this distinction unpersuasive for two reasons.

First, permitting PD11 to withdraw by merely couching its requests as motions to decline future appointments, would circumvent the plain language of section 27.5303(1)(d). We cannot allow such an exercise in semantics to undo the clear intent of the statute. Gannett Co. v. Anderson, 947 So. 2d 1, 8 (Fla. 1st DCA 2006). If we did, section 27.5303(1)(d) would be rendered meaningless. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 456 (Fla. 1992) (“[C]ourts should avoid readings that would render part of a statute meaningless.”).

Second, given that the trial court’s order requires PD11 to accept appointments at first appearances and continue representation until arraignment, it is fanciful to suggest that the subsequent appointment of alternate counsel is anything other than a withdrawal.⁶

That is not to say that an individual attorney cannot move for withdrawal when a client is, or will be, prejudiced or harmed by the attorney’s ineffective representation. However, such a determination, absent individualized proof of prejudice or conflict other than excessive caseload, is defeated by the plain language of the statute. § 27.5303(1)(a) and (d), Fla. Stat. (2007).

D. FundingPD11′s complaint that it receives inadequate funding is not novel. See, e.g., In re Certification 1998; In re Certification 1994; Hatten v. State, 561 So. 2d 562 (Fla. 1990); In re Prosecution. Nor is our response.

[W]hile it is true that the legislature’s failure to adequately fund the public defenders’ offices is at the heart of this problem, and the legislature should live up to its responsibilities and appropriate an adequate amount for this purpose, it is not the function of this Court to decide what constitutes adequate funding and then order the legislature to appropriate such an amount. Appropriation of funds for the operation of government is a legislative function.

In re Prosecution, 561 So. 2d at 1136 (citing Art. VII, § 1(c), Fla. Const.).

Finally, we note that since 2005, PD11 has not filled at least sixteen full-time attorney positions that were funded by the legislature. For example, during the 2005-06 fiscal year, PD11 accepted $401,572, but did not fill seven full-time attorney positions. During the 2006-07 fiscal year, PD11 accepted $338,843, but did not fill six full-time attorney positions. During fiscal year 2007-08, PD11 accepted $138,602, but did not fill three full-time attorney positions. During the hearing, Public Defender Bennett H. Brummer acknowledged that he opted to increase employee salaries rather than hire additional staff. Similarly, statewide funding figures for the Public Defender Offices similarly reveal an increased funding of 14% from 2004-2008, while their full-time employees increased by only 2%.⁷

Although PD11′s budget decreased during the past fiscal year,⁸ the record does not demonstrate any correlation between the State budget reductions and a complete inability on the part of PD11 to handle any third-degree felony cases. For example, the act of withdrawing from representation in approximately 11,693 third-degree felony cases (the result of the ruling below), which constitutes 60% of the post-arraignment cases handled by PD11′s 94 noncapital felony attorneys,⁹ is entirely disproportionate to the amount of the budget reductions. There is simply insufficient evidence to support such a drastic remedy.

IV. ConclusionWe understand the difficulties faced by PD11. With an ever-increasing quantity of cases and a tight budget, their important task is certainly made more difficult. The office-wide solution to the problem, however, lies with the legislature or the internal administration of PD11, not with the courts.

“We believe that within the existing statutory framework there exists a method for resolving the problem of excessive caseload.” In re Prosecution, 561 So. 2d at 1134. Only after an assistant public defender proves prejudice or conflict, separate from excessive caseload, may that attorney withdraw from a particular case. § 27.5303(1)(a), Fla. Stat. (2007) (“The court shall deny the [assistant public defender's] motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client.”).

Reversed.

CORTIÑAS and SALTER, JJ., concur.

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Notes:

SHEPHERD, J., specially concurring.

I concur in the decision announced by the majority. Even setting aside the knotty, but judicially important and legally technical question concerning whether PD-11′s twenty-one filed “Motion[s] to Appoint Other Counsel in Unappointed Noncapital Felony Cases,” create a “case or controversy” under Florida law, Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994) (noting “every case must involve a real controversy as to the issue or issues presented”),¹⁰ this action is nothing more than a political question masquerading as a lawsuit, and should be dispatched on that basis.

Twelve years ago, in a case in which an assemblage of public school parents, students, and education providers sought to prosecute a complaint alleging the state was failing in its obligation to allocate adequate resources to the public school system as mandated by the people of the state in Article IX, section 1, of the Florida Constitution (1996),¹¹ our supreme court announced six criteria by which to gauge whether a case involves a political question, namely does there exist:

(1) a textually demonstrable commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) [an] impossibility of deciding [the question] without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; and lastly (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 408 (Fla. 1996) (citing Baker v. Carr, 369 U.S. 186 (1962)). Employing these criteria, the Court approved the decision of the trial court that adjudication of the parents’ and education providers’ claims for relief was beyond its power. Coal., 680 So. 2d at 408 (“[A]ppellants have failed to demonstrate in their allegations, or in their arguments on appeal, an appropriate standard for determining `adequacy’ that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature, both generally (in determining appropriations) and specifically (in providing by law for an adequate and uniform system of education).”).

Applying these same criteria to the case at bar, our case likewise fails to present a justiciable issue. As in Coalition, the gravamen of PD-11′s complaint in this case is inadequate funding. Id. As was the case in Coalition, there exists in the Florida Constitution a “textually demonstrable commitment” of the issue before us to a “coordinate political department,” in this case the Florida legislature. Id.; see Art. VII, § 1(c), Fla. Const. (“No money shall be drawn from the treasury except in pursuance of appropriation made by law.”); Chiles v. Children A, B, C, D, E & F, 589 So. 2d 260, 264 (Fla. 1991) (holding the power to appropriate is legislative). It is not for us to intrude upon those powers. See Art. II, § 3, Fla. Const. (“No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”). Nor, as the majority well explains, is there any judicially discoverable and manageable standard to establish what is an “excessive caseload.” As presented, this case cannot be adjudicated absent policy determinations of a kind clearly for nonjudicial discretion.

I empathize with PD-11′s argument that its attorneys are overworked and under-resourced. Such appears to be the natural condition of the public servants who serve clients before the judicial branch of this state. Absent individual proof of constitutional injury to those clients, however, empathy or lack thereof is for the legislature.

On these premises, I join the judgment of the Court.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

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Courtesy of David Edelstein

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D.A., a child, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D08-2029. District Court of Appeal of Florida, Fourth District. May 13, 2009.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael J. Orlando, Judge, L.T. Case No. 08-2010 DL00A.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

We hold that it was error for the trial court to impose costs of prosecution pursuant to section 938.27(1), Florida Statutes (2007) on D.A., a juvenile who was adjudicated delinquent.

This is an issue of statutory interpretation, which is subject to a de novo standard of review. Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008). Section 938.27(1), Florida Statutes (2007) provides for the imposition of costs of prosecution, as follows:

In all criminal cases, convicted persons are liable for payment of documented costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. These costs shall be included and entered in the judgment rendered against the convicted person.

A juvenile who has been adjudicated delinquent has not been “convicted,” and is not a “criminal.” See § 985.35(6), Fla. Stat. (2007);¹ A.M.P. v. State, 927 So. 2d 97, 100 (Fla. 5th DCA 2006) (stating that “an adjudication of delinquency does not qualify as a `conviction’ for purposes of section 775.083″ (Florida Statutes); State v. N.P., 913 So. 2d 1, 2 (Fla. 2d DCA 2005) (stating that juveniles are not deemed to be “convicted” by adjudications of delinquency). Thus, section 938.27, Florida Statutes (2007), which expressly applies to all “convicted persons” in “criminal cases”, does not apply to a juvenile who has been adjudicated delinquent. V.K.E. v. State, 934 So. 2d 1276 (Fla. 2006) (holding that a trial judge does not have the power to impose surcharges pursuant to sections 938.08 and 938.085, Florida Statutes on a juvenile in a juvenile delinquency proceeding and concluding that imposing such surcharges would conflict with the legislative intent in creating a separate juvenile justice system).

Accordingly, we reverse the order imposing costs of prosecution on D.A.

Reversed.

Polen and Stevenson, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

—————

Notes:

—————

Courtesy of David Edelstein

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BOJAN NASTASIC, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-195. District Court of Appeal of Florida, Second District. Opinion filed May 13, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, Joseph A. Bulone, Judge.

NORTHCUTT, Chief Judge.

Bojan Nastasic pleaded nolo contendere in January 2003 to the crimes of sale and possession of a controlled substance. In November 2007, he filed an amended motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking to vacate his plea based on the court’s failure to advise him of its deportation consequences. See Fla. R. Crim. P. 3.172(c)(8). The postconviction court summarily denied his motion, ruling that Nastasic had not shown prejudice because he was subject to deportation for other convictions as well as the ones in this case. We affirm the postconviction court’s order however, as we shall explain, our affirmance is without prejudice to allow Mr. Nastasic to file an amended motion.

Nastasic’s motion alleged that he was not advised of the deportation consequences of his plea at the plea hearing, that he first became aware of the consequences when he received a deportation notice from the Immigration and Naturalization Service on July 10, 2007, and that he would not have entered the plea if he had known of these consequences. Thus his motion was timely. See State v. Green, 944 So. 2d 208 (Fla. 2006). Nastasic attached a copy of the INS notice to his motion. The notice asserted that he was subject to removal from the United States for the convictions in this case and several other unconnected convictions.

In denying the motion, the postconviction court cited Prieto v. State, 824 So. 2d 924, 925 (Fla. 3d DCA 2002), for the proposition that Nastasic could not demonstrate the required prejudice because the documents attached to his motion established that he was deportable based on convictions other than the ones in this case. But in a recent case, Dumenigo v. State, 988 So. 2d 1201 (Fla. 3d DCA 2008), the court allowed a defendant in similar circumstances to amend his motion. Dumenigo had been convicted of felonies in 1988 and 1997. He sought to withdraw his plea for the 1997 offense based on rule 3.172(c)(8). The Third District noted that Dumenigo’s motion was insufficient because it failed to allege that he was deportable based solely on the 1997 conviction. It affirmed without prejudice to Dumenigo’s right to file an amended motion addressing the 1988 conviction. Id. at 1202.

As did the court in Duminigo, we affirm the summary denial challenged in this appeal. We note that Nastasic has attached documents to his brief filed in this case indicating that he is attempting to withdraw his plea agreements in other cases. He has also attached an affidavit from an attorney averring that he entered this country as a refugee and, because of his refugee status, only the convictions in this case would support deportation. Nastasic should have attached these documents to his motion, or he should have presented them to the postconviction court in a motion for rehearing. He did neither. Our affirmance is without prejudice for him to file an amended motion, addressing his other convictions. He may include any documents filed with this court in an amended motion.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Courtesy of David Edelstein

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