HOWARD FINKELSTEIN, PUBLIC DEFENDER OF THE SEVENTEENTH JUDICIAL CIRCUIT, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT

Fla. 4th DCA | 2009-08-19

Nos. 4D09-2678, 4D09-2762

FARMER, MAY, and DAMOORGIAN, JJ., concur.

16 So. 3d 257 Florida District Court of Appeal, Fourth District (2009)

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Holding

Trial courts lack authority to appoint the Public Defender to represent prospective witnesses who have not been charged with a crime or taken into custody.

Facts & Procedural History

The Public Defender was appointed to represent a prospective witness in two separate criminal proceedings. The witness had not been charged with a cri…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Appointment Of Counsel Right To Counsel Sixth Amendment

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Opinion of the Court

PER CURIAM.

In these two consolidated cases, the Public Defender for the Seventeenth Judicial Circuit challenges orders appointing him, over objection, to represent a prospective witness in another person’s pending criminal case — in one case, a prosecution for a new offense and violation of probation proceeding; in the other, a post-conviction proceeding — who has been neither charged with a crime nor taken into *258custody in connection with the pending proceedings.1 Having been unable to find support for a trial court’s authority to appoint the Public Defender in the specific instances involved in this case,2 we grant the petition and quash the orders on review. See generally Yacucci v. Hershey, 549 So.2d 782 (Fla. 4th DCA 1989).

FARMER, MAY, and DAMOORGIAN, JJ., concur.

. Compare § 27.51, Fla. Stat. (2008); Fla. R.Crim. P. 3.111; Smith v. State, 699 So.2d 629, 638 (Fla.1997) ("The right to counsel under article I, section 16, attaches at the earliest of the following points: when the accused is formally charged with a crime via the filing of an indictment or information; as soon as feasible after custodial restraint; or at first appearance.”); Ibar v. State, 938 So.2d 451, 471 (Fla.2006) ("[T]he Sixth Amendment right to the assistance of counsel is 'offense specific’ and applies only to the offense or offenses with which the defendant has actually been charged, and not to any other offense he may have committed but with which he has not been charged.”). But see Russo v. Akers, 724 So.2d 1151 (Fla.1998) (concluding that trial courts are authorized to appoint the public defender to represent defendants in noncapital postconviction proceedings, though section 27.51 is silent with respect to such proceedings).

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Authorities Cited

Dobson v. State, 699 So. 2d 629 (Fla. 1997)
Ibar v. State, 938 So. 2d 451 (Fla. 2006)
Russo v. Akers, 724 So. 2d 1151 (Fla. 1998)
Yacucci v. Honorable Stewart R. Hershey, 549 So. 2d 782 (Fla. 4th DCA 1989)

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HOWARD FINKELSTEIN, PUBLIC DEFENDER OF THE SEVENTEENTH JUDICIAL CIRCUIT, PETITIONER, v. STATE OF FLORIDA, RESPONDENT

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Authorities Cited

HOWARD FINKELSTEIN, PUBLIC DEFENDER OF THE SEVENTEENTH JUDICIAL CIRCUIT, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT