LAW OPPIcm Op nm PUBLIC DEFENDER NANCY DANIELS. SECOND JUDICAL CRCUIT OP FLORIDA Pranklin. Gadsden. Jefferson. Leon. Liberty.

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1 Telcpboae ~ M ' Suncom Fax Number. Administration (850) S~om: ~~~~~ 1- Fax Number - Triala (850) SuiICom: Fax Number.. Appe2l8 (850)~ S1X1COm: LAW OPPIcm Op nm PUBLIC DEFENDER NANCY DANIELS SECOND JUDICAL CRCUIT OP FLORIDA Pranklin. Gadsden. Jefferson. Leon. Liberty. WakuUa REFERRAL ' June Honorable Thomas Bateman ill Chair, Criminal Court Rules Committee Leon County Courthouse, Room 365-C Tallahassee, Florida Re: Criminal Rule 3.111(b)(S)(C) Dear Judge Bateman: I am writing about the pending change to Criminal Rule 3.1 I I (b)(5)(c). The current proposal incorporates the statutory language of the Article V "glitch bill" concerning indigency affidavits. However, this year's "glitch bill," HB 1935, changed that language to require that the indigency application form be "developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court." (See page 21, line 562 ofhb 1935, attached). It appears that the rule proposal will now have to be amended to incorporate the 2005 legislative change. Thank you for your consideration of this minor technical revision. Sincerely, - -JI ~ tl-4:~..«.,~t~- Nancy Daniels Public Defender NAD/sf Appendix K-1

2 F L 0 R D A H 0 U s E 0 F R E P R E S E N T A T V E S HB 1935, Engrossed Legislature (b) Funds for criminal conflict attorney's fees and expenses shall be appropriated by the Legislature in a separate appropriations category within the Justice Administrative Commission. These funds shall be allocated to each circuit as prescribed in the General Appropriations Act. (c) Funds for attorney's fees and expenses for child dependency and civil conflict cases shall be appropriated by the Legislature in a separate appropriations category within the Justice Administrative Commission. (d) Any funds the Legislature appropriates for other court-appointed counsel cases shall be as appropriated within the Justice Administrative Commission. The Justice Administrative Commission shall separately track expenditures on private court-appointed counsel for the following categories of cases: criminal conflict, civil conflict, dependency and termination of parental rights, and guardianship. From October 1, 2005, through September 30, 2007, the Justice Administrative Commission shall also track and issue a report on the race, gender, and national origin of private court- counsel for the Eleventh Judicial Circuit. Section 3. Section 27.52, Florida Statutes, is amended to read: ~S~!tantial rewording of section. See s , F.B., for present text.) D~termi!!ation of indigen~ status.-- (1) APPLICATION TO THE CLERK.--A person seeking a ointment of a ~lic defender under s based u on an Page 20 of 117 CODING: Words stfiekea are deletions; words underlined are additions. Appendix K-2

3 F L 0 R D A H 0 U S E 0 F R E P R E s E N T A T V E S HB 1935, Engrossed Legislature inability to pay must apply to the clerk of the court for a determination of indigent status using an application form developed by the Florida Clerks of Court Operations Corporation with final approval by the Supreme Court. (a) The.ication must include, at a minimum, the following financial information: 1. Net income, consisting of total salary and wages, minus deductions required by law, including court-ordered support payments. 2. Other income, including, but not limited to, social securitv benefits, union funds, veterans' benefits, workers' compensation, other regular support from absent family members, public or private employee pensions, unemployment compensation, dividends, interest rent, trusts. and aifts. 3. Assets, including, but not limited to, cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a boat or a motor vehicle or in other tangible property. 4. All liabilities and debts. 5. If applicable, the amount of any bail paid for the funds. icant's release from incarceration and the source of the - - The application must include a signature by the applicant which attests to the truthfulness of the information 'ded. The application form developed by the corporation must include notice that the applicant may seek court review of a clerk's Page 21 of 117 CODING: Words str:gkea are deletions; \Wrds underlined are additions Appendix K-3

4 F L 0 R 0 A H 0 u s E 0 F R E P R E S E N T A T V E s HB 1935, Engrossed Legislature de!:ermination that the applicant is not indigent, as provided in this section. (b) An applicant shall pay a $40 application fee to the clerk for each application for court-appointed counsel filed. The applicant shall pay the fee within 7 days after submitting the application. If the applicant does not pay the fee prior to the disdosition of the case, the clerk shall notify the c9urt and the court shall: as a condition of probation; or 2. Assess the application fee pursuant to s (c) Notwithst,!!!ding any prov!!io~ of la!, c2~rt rule, or administrative order the clerk shall assi the first 40 of any fees 2!: CO!ts paid by an indigent person as payment of the application fee. A person found to be indigent may not be refuse~ counselor other required due-process services for failure to pay the fee. (d~ All application fees co!lecte~ by the clerk under.r:his section!hall be transferred monthly by the clerk to the Department of Revenue for deposit in the Indigent Criminal Defense Trust Fund administered by the Justice Administra~~ Commission, to be used to as appropriated by the Legislature. The cle~~!!!!y ret~in 2 percent of applicat!on fees collected monthly for a~!~istrative cos~sprior to remitting the remainder to the Department of Revenue. (e)l. The clerk shall assist a person who appears before the clerk and requests assistance in completing the application, and the cle!:k shall notify the court if a person is unable to Page 22 of 111 CODING: Words stfigkea are deletions; words underlined are additions. Appendix K-4

5 F L 0 R 0 A H 0 USE 0 F R E P R ESE N T A T V E S HB 1935, Engrossed Legislature complete the application after the clerk has provided assistance. 2. If the person seeking appointment of a public defender is incarcerated, the public defender is responsible for providing the application to the person and assisting him or her in its completion and is responsible for submitting the application to the clerk on the person's behalf. The public defender may enter into an agreement for jail employees, pretrial services employees, or employees of other criminal justice agencies to assist the public defender in performing functions assigned to the public defender under this subparagraph. (2) DETERMINATION BY THE CLERK.--The clerk of the court shall determine whether an applicant seeking appointment of a public defender is indigent based upon the information provided in the application and the criteria prescribed in this subsection. (a)l. An applicant, including an applicant who is a minor or an adult tax-dependent person, is indigent if the applicant's income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed for the size of the household of the applicant by the united States Department of Health and Human Services or if the person is receiving Temporary Assistance for Needy Families-Cash Assistance, poverty-related veterans' benefits, or Supplemental Security Income (881). 2. There is a presumption that the applicant is not indigent if the applicant owns, or has equity in, any intangible Page 23 of 117 CODING: Words stfigkea are deletions; words underlined are additions, hb1935-o5-er Appendix K-5

6 F L 0 R D A H 0 u S E 0 F R E P R E S E N T A T V E s HB 1935, Engrossed Legislature or tangible personal property or real property or the expectancy of an interest in any such property having a net equity value of $2,500 or more, excluding the value of the person's homestead and one vehicle having a net value not exceeding $5,000. following (b) Based upon its review, the clerk shall make one of the determinations: 1. The applicant is not indigent. ~: The applicant is indigent. (c)l. If the clerk determines that the - icant is indigent, the clerk shall submit the determination to the office of the public defender and immediately file the determination in the case file. 2. If the public defender is unable to provide representation due to a conflict pursuant to s , the oublic defender shall move the court for withdrawal from representation and appointment of private counsel. (d) The duty of the clerk in determininq whether an applicant is in~igent shall be limited to receiving the aeplication an~ compar!ng the i!!;formation provided in the ication to the criteria o_rescribed in this subsection. The determination of indiqent status is a ministerial act of the clerk ~ not a decision based on fu~~her investiqation or the exercise of i the clerk. The clerk ma contract with third parties to perform functions assigned to the clerk~~der this section. determination that the applicant is not indigent in the court hav!ng jurisd!ction over the matter at the next scheduled Page 24 of 117 CODING: Words stfigkea are deletions; words underlined are additions. Appendix K-6

7 F L 0 RID A H 0 U S E 0 F R E PRE S E N T A T V E s HB 1935, Engrossed Legislature hearing. If the applicant seeks review of the clerk's determination of indigent status, the court shall make a final determination as provided in,subsection (4). (3) APPOINTMENT OF ~OUNSBL ON INTBRIM BASIS. -~If the clerk, of the court has not made a determination of indigent status at the time a person requests appointment of a public defender, the court shall make a preliminary determination of indigent status, pending further review by the clerk, and may, by court order, appoint a public defender or private counsel on an interim basis. If the clerk of the court determines that the applicant is not indigent, and the applicant seeks review of the clerk's determination, the court shall make a final determination of indigent status by reviewing the information provided in the application against the criteria prescribed in subsection (2) and by considering the following additional factors: amount of $5,000 or more. 2. Whether a bond has been posted, the type of bond, and who paid the bond. 3. Whether paying for private counsel in an amount that exceeds the limitations in s , or other due-process services creates a substantial hardship for the applicant or the applicant's family. 4. Any other relevant financial circumstances of the applicant or the applicant's family. Page 25 of 117 CODING: Words s'fiskea are deletions; ~rds underlined are additions. hb1935.o5-er Appendix K-7

8 ~ l 0 R D A H 0 U S E 0 F R E P R e S E N T A T V E 5 HB 1935, Engrossed Legislature (b) Based its rev~~w, the court shall make one of_the following determinations and, if the applicant is indigent, shall appoint a public defender or, if appropriate, private counsel: - - 1: The applicant is not indigent. 2. The applicant is indigent. (5) INDIGENT!QR COSTS.--A person who is eligible to be represented by a public defender under s but who is represented byp!:ivate counsel not appointed by the court for a reasonable fee as approved by the court, on a pro bono basis, or who is proceeding pro se, may move the court for a determination that ~e or she is indigent for costs and eligib!e for the rovision of due- rocess services, as rescribed b ss and , funded by the state. (a) The person must submit to the court: 1. The completed application prescribed in subsection (1). 2. In the case of a person represented by counsel, an affidavit attesti!!g to the estimated amount of attorney's fees and the source of payment for these fees. (b) In reviewing the motion, the court shall consider: 1. Whether th~applicant al?;elied for a determination o~ indiqent status under subsection (1) and the outcome of such application. 2. The exte!!;t to wh!ch ~!!~ person's income equal! or exceeds the income criteria prescribed in subsection (2). 3. The additional factors rescribed in subsection 4). 4. Whether the applicant is proceeding pro se. ~. When the applicant retained private counsel. Page 26 of 117 CODING: Words stfigkea are deletions; words underlined are additions. Appendix K-8

9 F L 0 R D A H 0 U S E 0 F R E P R ESE N T A T V E s HB 1935, Engrossed legislature fees. 6. The amount of any attorney's fees and who is paying the following determinations: 1. The applicant is not indigent for costs. 2. The applicant is indigent for costs. (d) The provision of due-process services based upon a determination that a person is indigent for costs under this subsection must be effectuated pursuant to a court order, a copy of which the clerk shall provide to counsel representing the person, or to the person directly if he or she is proceeding pro se, for use in requesting payment of due-process expenses through the Justice Administrative commission. Counsel representing a person declared indigent for costs shall execute the Justice Administrative Commission's contract for - counsel representing persons determined to be indigent for costs. (6) ~IE~~~~_~ GUARDIAN.--A nonind~ parent or legal guardian of an applicant who is a minor or an adult tax-dependent person shall furnish the minor or adult taxdependent person with the necessary legal services and costs incident to a delinquency proceeding or, upon transfer of such person for criminal prosecution as an adult pursuant to chapter 985, a criminal prosecution in which the person has a right to leaal counsel under the Constitution of the United States or the Constitution of the State of Florida. The failure of a parent or legal guardian to furnish legal services and costs under this section does not bar the appointment of legal counsel pursuant to this section,s , or s When the public Page 27 of 117 CODING: Words stfigkea are deletions; words underlined are additions. hb1935-o5-er Appendix K-9

10 F L 0 R D A H 0 U S E 0 F R E P R E S E N T A T V E s HB Engrossed Legislature private attorney is appointed to represent a min2r or an adult tax-dependent person in any proceeding in circuit court or in a criminal roceedin other court the arents or the Ie al guardian shall be liable for payment of the fees, charges, and CO!ts of the representation even if the person is a minor being tried as an adult. Liability for the fees, charqes, and costs of the representation shall be imposed in the form of a lien a ainst the ro ert of the nonindi ent arents or le al ardian of the minor or adult tax- erson. The lien is enforceable as provided in s or s (7) --~ =~" FINANCIAL DISCREPANCIES; FRAUD' FALSE INFORMATION. - - ication or motion and the actual financial status of the - -- person fo~d to b~ indigent or indigent for costs, the 2ourt shall determine whether the ublic defender or rivate attorne shall continue representation or wheth~he authorization for any other du~-process se~ices Er~viously authorized shall be revoked. T!!e person!!!ay be heard regarding the information learned by the court. If the court, based 9~e information_~ determines that the erson is not indi ent or indi ent for costs, the co~rt sha!l order the public defender or private attorne to discontinue re resentation and revoke the rovision E any oth~!:authorized due-process services. (b) If the court _~~reason to believe that any ~. 1. cant ~hrough fraud o~ misreeresentation, was improperly determined to be indigent or!ndigent for costs, the matter shall be refer~ed to the state attorne. Twent -five ercent of an amount Page 28 of 117 CODING: Words stfiskea are deletions; words underlined are additions. Appendix K-10

11 F L 0 R D A H 0 U S E 0 F R E P R E S E N T A T V E s HB 1935, Engrossed Legislature recovered by the state attorney as reasonable value of the services rendered, including fees, charges, and costs paid by t.he state on the- 's behalf, shall be remitted to the Department of Revenue for deposit into the Grants and Donations Trust Fund ~th~ the J~tice Administrative Commission. Seventy-five percent of any amount recovered shall be remitted to the Department of Revenue for deposit into the General Revenue - Fund. (c) A person who knowingly provides false information to the clerk or the court in seeking a determination of indigent status under this section commits a misde~anor of the fir~t. degree, punishable as provided in s or s Section 4. Subsections (1), (2), and (6) of section , Florida Statutes, are amended, and subsections (7), (8), (9), and (10) are added to said section, to read: Private court-appointed counsel; compensation.-- (1) Private court-appointed counsel shall be compensated by the Justice Administrative Commission in an amount not to exceed the fee limits established in this section. The attorney also shall be reimbursed for reasonable and necessary expenses in accordance with s If the attorney is representing a defendant charged with more than one offense in the same case, the attorney shall be compensated at the rate provided for the most serious offense for which he or she represented the defendant. This section does not allow stacking of the fee limits established by this section. Private court-appointed counsel providing representation under an alternative model sha~l ~ter in~ a uniform contract with the Justice Page 29 of 117 CODING: Words stfigker are deletions; words underlined are additions. hb1935-o5-er Appendix K-11