JAMES RUSSO, PUBLIC DEFENDER, ETC, PETITIONER,
v.
WESLEY AKERS, RESPONDENT
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The Public Defender of the Eighteenth Judicial Circuit sought to quash an order requiring it to represent an indigent defendant in a Rule 3.850 postconviction evidentiary hearing, arguing that state law prohibited such representation in non-capital collateral proceedings. The court held that while no absolute right to counsel exists in postconviction proceedings, the due process clause mandates counsel when a meritorious claim is presented and the hearing is sufficiently complex, making the Public Defender's representation constitutionally required.
The Public Defender may be required to represent an indigent defendant in a postconviction evidentiary hearing when counsel is constitutionally mandated under the due process test established in Graham v. State and State v. Weeks. Although section 924.066(3) provides no statutory right to counsel, it does not preclude appointment of counsel when constitutionally required. Representation of indigent defendants seeking to vacate felony convictions falls within the duties of the Public Defender under Chapter 27.
[1] Due process requires that counsel be provided in a postconviction proceeding if the motion presents a meritorious claim and the hearing is potentially so complex that cou…
[2] A statute must be construed to avoid conflict with the constitution, meaning a statute providing no statutory right to counsel does not preclude appointment when constitu…
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Join FLexlaw to unlock all legal intelligence“Although there is no absolute right to counsel in a postconviction proceeding, the Florida Supreme Court has held that due process requires that counsel be provided if a postconviction motion presents a meritorious claim and a hearing on the motion is potentially so complex that counsel is necessary.”
Establishes the constitutional standard for when counsel must be appointed in postconviction proceedings
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Join FLexlaw to unlock all legal intelligenceWesley Akers, an indigent defendant, filed a Rule 3.850 postconviction motion seeking to vacate his felony conviction. The trial court determined that…
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W. SHARP, Judge.
James Russo, the Public Defender for the Eighteenth Judicial Circuit, seeks a writ of certiorari quashing an order requiring the public defender to represent an indigent defendant, Wesley Akers, in the evidentiary hearing on Akers’ Rule 3.850 motion. The Public Defender argues that section 924.051(9), Florida Statutes (Supp.1996), prohibits the use of state employees, such as public defenders, in collateral proceedings in non-capital cases unless constitutionally or statutorily mandated and that section 924.066(3), Florida Statutes (Supp.1996), provides that a defendant in a non-capital ease who is seeking collateral review has no right to court-appointed counsel. The Public Defender also claims that section 27.51, Florida Statutes (1995), lists the duties of public defenders and it does not include representing indigent defendants in collateral proceedings. We disagree with the Public Defender and deny the petition for writ of certiorari.
Although there is no absolute right to counsel in a posteonviction proceeding, the Florida Supreme Court has held that due process requires that counsel be provided if a posteonviction motion presents a meritorious claim and a hearing on the motion is potentially so complex that counsel is necessary. See Graham v. State, 372 So. 2d 1363 (Fla.1979); State v. Weeks, 166 So. 2d 892 (Fla.1964). The trial court in this case has determined that counsel is necessary under the test enunciated in Graham and the Public Defender does not dispute this finding. Therefore, counsel is constitutionally mandated and the use of the Public Defender is not prohibited under section 924.051(9).
Section 924.066(3), Florida Statutes, appears to conflict with the holding in Weeks and Graham that counsel may be constitutionally required in a collateral proceeding. However, when possible, a statute must be construed so as not to conflict with the constitution. See State v. Stalder, 630 So. 2d 1072 (Fla.1994); Florida Department of Education v. Glasser, 622 So. 2d 944 (Fla.1993). Therefore, we construe section 924.066(3) to mean that there is no statutory right to counsel. However, the statute does not preclude the appointment of counsel-when constitutionally mandated under Weeks and Graham.
Finally, we find that representation of indigent defendants who seek to vacate a felony conviction falls within the duties of the Public Defender listed in Chapter 27. The Public Defender has represented such defendants in posteonviction proceedings for years based on this same statute. Accordingly, we conclude that the trial court did not depart from the essential requirements of law in its appointment of the Public Defender to represent Akers in his posteonviction evidentiary hearing.
PETITION DENIED.
COBB and ANTOON, JJ., concur.
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Russo v. Akers, 724 So. 2d 1151 (Fla. 1998)…PER CURIAM. We have for review Russo v. Akers, 701 So. 2d 366 (Fla. 5th DCA 1997), which affects a class of state or constitutional officers. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve Russo. Wesley Akers was found guilty of two counts of assault and sentenced on June 8, 1995, to ten year…
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Jackson v. State, 707 So. 2d 412 (Fla. 5th DCA 1998)…tantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant. We begin with the proposition that a statute must be construed so that it will be constitutional. See Russo v. Akers, 701 So. 2d 366 (Fla. 5th DCA 1997); State v. Stalder, 630 So. 2d 1072 (Fla.1994); Florida Department of Education v. Glasser, 622 So. 2d 944 (Fla.1993);. Our supreme court has held that under section 924.33, the burden imposed on the state was to show “beyond a re…
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Johnson v. State, 711 So. 2d 112 (Fla. 1st DCA 1998)…in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated,” the statute apparently.does not prohibit the circuit court from appointing counsel if the test set forth in Graham is satisfied. See Russo v. Akers, 701 So. 2d 366, 367 (Fla. 5th DCA 1997) (rejecting argument that section 924.051(9) prohibits use of public defender in collateral proceeding and holding that trial court did not depart from essential requirements of law in appointing public defender to represent…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- The Petition of Andrew A. Graham v. State, 372 So. 2d 1363 (Fla. 1979)
- State v. Stalder, 630 So. 2d 1072 (Fla. 1994)
- Fla. Dep't OF Educ. v. Glasser, 622 So. 2d 944 (Fla. 1993)