JOSEPH D. VANNIER, PETITIONER,
v.
HON. RICHARD BURK, CIRCUIT JUDGE, FIFTEENTH JUDICIAL CIRCUIT, RESPONDENT
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Joseph Vannier sought mandamus relief to compel the trial court to hold an evidentiary hearing on whether he qualifies for court-appointed counsel after the public defender was removed based on a finding that he was no longer indigent. The court granted the petition, holding that due process requires the trial court to conduct a proper evidentiary hearing considering all statutory factors, including the anticipated cost of defense.
The court granted mandamus relief and directed the trial court to hold an evidentiary hearing to redetermine Vannier's financial ability to retain private counsel. Due process requires that when appointed counsel is revoked, the defendant must be given a reasonable time to obtain private counsel and an opportunity to present evidence of his inability to do so, with the court considering all relevant factors including the probable expense and burden of the defense.
[1] A court must consider the probable expense and burden of defending a case when determining a defendant's indigency for the purpose of appointing counsel.
[2] Due process requires that a defendant be afforded a reasonable time to obtain private counsel after the revocation of appointed counsel.
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“The power to appoint carries with it the power to revoke the appointment if the criteria for appointment cease to be met.”
Establishes that trial courts have authority to revoke appointed counsel, but this authority is not absolute.
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Join FLexlaw to unlock all legal intelligenceVannier was represented by private counsel during a two-and-a-half-year investigation into first-degree murder charges related to his wife's death. Up…
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PER CURIAM.
The petitioner seeks a writ of mandamus to compel the court below to hold an evidentiary hearing to redetermine whether he qualifies for court appointed counsel. During the two and a half year investigation that led to -the indictment charging the petitioner with the first degree murder of his wife, private counsel represented the petitioner. When the indictment was returned in July 1993, the petitioner urged that pre-indictment defense expenses had exhausted his resources. The public defender was appointed and remained on the case until June 21, 1994, when, on motion of the county attorney, the trial court reconsidered the petitioner’s financial status.
The county attorney offered evidence that the petitioner had borrowed substantial loans from a friend, was enjoying a comfortable lifestyle, and had an expectancy interest in real property located in California. No evidence was presented on the anticipated cost of defending the case. The trial court found that the petitioner did not meet the criteria for appointed counsel. The petitioner has remained unrepresented since that time.
About a month after the public defender was removed from his ease, the petitioner filed an affidavit from a private attorney who had examined the petitioner’s assets and had concluded that they were insufficient to pay the anticipated defense costs. The trial court denied the petitioner’s motion for an evidentiary hearing to reconsider his status in light of this new information.
The determination of indigency for the purpose of appointment of counsel is governed by section 27.52, Florida Statutes (1993), and Rule 3.111, Florida Rules of Criminal Procedure (1994). The power to appoint carries with it the power to revoke the appointment if the criteria 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 private counsel. Ull, 642 So. 2d at 721. If the defendant is unable to retain counsel, he must have the opportunity to present evidence that he has made a reasonable attempt to hire counsel but is unable to do so. We grant mandamus and direct the trial court to hold an evidentiary hearing to make a new determination as to petitioner’s financial ability to retain private counsel.
GUNTHER, STONE and FARMER, JJ., concur.
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Citator
Cited By
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Vera v. State, 689 So. 2d 389 (Fla. 2d DCA 1997)…v. State, 473 So. 2d 793 (Fla. 5th DCA 1985). A trial court 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.…
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Nickerson v. State, 927 So. 2d 114 (Fla. 2d DCA 2006)…ickerson’s motion suggested — he was not entitled to have an attorney appointed, the court was required to give Mr. Nickerson an opportunity to obtain private counsel for the hearing or to show the court that he was unable to do so. Vannier v. Burk, 651 So. 2d 789, 790-91 (Fla. 4th DCA 1995). “[D]ue process requires that the defendant be afforded a reasonable time to obtain private counsel.” Id. at 790. Mr. Nickerson did not waive his right to counsel. See Gonzalez, 838 So. 2d at 1243 (finding that because th…
Authorities Cited
- State v. ULL, 642 So. 2d 721 (Fla. 1994)
- Porteous v. State, 582 So. 2d 130 (Fla. 2d DCA 1991)