ARNOLD K. PORTEOUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arnold K. Porteous appealed his convictions for false imprisonment and battery, arguing the trial court erroneously terminated his public defender appointment without determining he was no longer indigent and failed to ensure his pro se representation was knowing and voluntary. The court reversed, holding that termination of appointed counsel requires the same procedural protections as appointment.
The termination of appointed counsel requires the same procedural protections as the appointment itself, including a proper determination of lack of indigency. The trial court erred in terminating the public defender appointment without following such procedures and without giving defendant an opportunity to be heard.
[1] A trial court must follow proper procedures to determine a defendant's lack of indigency before terminating court-appointed counsel.
[2] A trial court's termination of court-appointed counsel without affording the defendant an opportunity to be heard is improper.
Previewing 2 of 3 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“just as the appointment of counsel for an indigent must follow proper procedures to determine indigency, so also, we conclude, must the termination of that appointment follow proper procedures to determine lack of indigency.”
Establishes the core holding that termination of appointed counsel requires the same procedural safeguards as appointment.
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Join FLexlaw to unlock all legal intelligenceDefendant was initially appointed a public defender based on a determination of partial insolvency, with assets allegedly frozen in Canada in connecti…
The full statement of facts, procedural history, and disposition for this case are member content.
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LEHAN, Judge.
Defendant appeals from his convictions for false imprisonment and battery. He contends that the trial court erred in terminating prior to and on the day of trial the court’s previous appointment of the public defender to represent defendant without determining that defendant was no longer indigent and taxing him with the costs of the public defender’s representation. He also contends that the trial court erred in failing to make an inquiry to determine whether the defendant made an intelligent and voluntary decision to proceed pro se at trial and sentencing. We reverse.
As to the first contention, just as the appointment of counsel for an indigent must follow proper procedures to determine indigency, so also, we conclude, must the termination of that appointment follow proper procedures to determine lack of indi-gency. Cf. Cooper v. State, 576 So. 2d 1379 (Fla. 2d DCA 1991). We do not conclude from the record that such procedures were followed in this case.
The initial indigency determination apparently was based upon the premise that defendant’s assets were frozen in Canada in connection with a pending divorce suit in which defendant was involved. It appears that the trial court, after declaring defendant “partially insolvent,” had directed defendant to file with the court within twenty days an “order prepared by an attorney in Canada in reference to liquidation of the defendant’s assets,” which apparently was to reflect the foregoing freezing of defendant’s assets, and that defendant thereafter only filed within that period a notice of a motion in the Canadian court to freeze the assets. It further appears that the trial court had considered the initial order of appointment of the public defender to be conditioned upon defendant filing thereafter such a Canadian order. However, the order of appointment did not reflect that condition, and the trial court does not appear to have given defendant an opportunity to be heard before terminating the appointment of the public defender. On remand the proper procedures should be followed to determine whether defendant is indigent and is therefore entitled to court appointed counsel.
We need not address defendant’s second contention.
Reversed and remanded for a new trial and proceedings otherwise consistent herewith.
RYDER, A.C.J., and PARKER, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vera v. State, 689 So. 2d 389 (Fla. 2d DCA 1997)…ourt must consider the factors set forth in section 27.52 before terminating an appointment of the public defender based upon a finding that the defendant is no longer indigent. Vannier v. Burk, 651 So. 2d 789 (Fla. 4th DCA 1995); Porteous v. State, 582 So. 2d 130 (Fla. 2d DCA 1991). Vera’s ability to afford private counsel was not established. The trial court assumed that Vera could afford an attorney because he had posted bond in this and another case. The court also considered that Vera had received financ…
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Vannier v. Hon. Richard Burk, 651 So. 2d 789 (Fla. 4th DCA 1995)…for appointment cease to be met. State v. Ull, 642 So. 2d 721 (Fla.1994). Before removing the public defender upon a finding that the defendant is no longer indigent, the court must consider the factors set forth in section 27.52. Porteous v. State, 582 So. 2d 130 (Fla. 2d DCA1991). Those factors include “the probable expense and burden of defending the case.” § 27.52(2)(c)l, Fla.Stat. (1993). Once the appointment is revoked, due process requires that the defendant be afforded a reasonable time to obtain pr…
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Lopez v. The Honorable Loree S. Feiler, 631 So. 2d 337 (Fla. 3d DCA 1994)…action, and the defendant responded that he wanted his private counsel to represent him. Although the defendant faced the possibility of a prison sentence for both DUI offenses, at no time was the defendant left unrepresented. Cf. Porteous v. State, 582 So. 2d 130, 131 (Fla. 2d DCA 1991) (trial court did not properly determine indigency, nor gave the defendant an opportunity to be heard before terminating the appointment of the public defender); Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981) (defendant w…
Authorities Cited
- Cooper v. State, 576 So. 2d 1379 (Fla. 2d DCA 1991)