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Is Every Defendant Entitled to a Free, Appointed Defense Lawyer in Florida?

Most Americans are familiar with a particular phrase from the Miranda Rights spiel recited in many popular cops-crime-and-courts shows. It’s the part about, “...You have the right to an attorney. If you can’t afford one, one will be provided for you at no cost to you.”

But is this a promise that is actually fulfilled for every criminal defendant who can’t afford a defense lawyer?

In short: No.

We should preface the forthcoming explanation by saying that there’s no question that having a defense lawyer is critically important in a Florida criminal case. It’s so vital it’s written right into the U.S. Constitution. As noted in the Sixth Amendment, the accused in all criminal prosecutions “shall enjoy” (among other things) “the assistance of defense counsel.”

But it wasn’t until the 1963 U.S. Supreme Court ruling in Gideon v. Wainwright that the public was guaranteed the right to be appointed an attorney by the state if you cannot afford it on your own. In order to qualify for a public defender’s services, you must be declared “indigent.”

Who is Indigent in Florida Criminal Cases?

To be indigent, by the dictionary definition, means: “To be extremely poor, impoverished, lacking the basic resources of a normal life.”

But that’s not quite the same meaning as outlined in F.S. 27.52(2)(a). The statute holds that one is indigent if their income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed by the U.S. Department of Health & Human Services for the size of the household of the applicant. Indigency can also be established if the defendant is receiving TANF (Temporary Assistance for Needy Families-Cash Assistance), poverty-related veterans’ benefits, or SSI (Supplemental Security Income).

For instance, in 2022, the federal poverty guideline for states in the continental U.S. was set at $13,590 for a single person. Doubling that to 200 percent would give us a figure of $27,180. So if in 2022 you were a single person earning that much or less annually, you could be declared indigent for purposes of being appointed a Fort Lauderdale criminal defense lawyer.

Defendants must also fill out an Application for Criminal Indigent Status with the clerk of courts in the jurisdiction wherein they are facing charges. This document will detail your annual income, public or private benefits, debts and liabilities, assets, etc. The application costs $50 to file - and that alone can be more than some folks can afford. Florida is the only state where judges can’t waive this fee requirement.

If you do not meet the criteria for indigency but know that you still cannot afford a lawyer, your best bet would be to reach out to the local legal aid organization. Broward County legal aid services can provide low-cost and sometimes pro bono legal services.

As noted by the ACLU, roughly 80 percent of criminal defendants cannot afford their own criminal defense attorney. While public defenders are often highly-qualified and dedicated to their service, they often lack adequate funding (usually receiving less than prosecutors, despite both being publicly-funded) and grapple with overwhelming caseloads. They may have only a few minutes with each client before they must appear in court.

It’s important to understand that if there is any way you can swing the cost of a private criminal defense lawyer - especially if you’re facing serious charges - it’s probably worth the investment to ensure you are represented by a defense attorney who can devote more than the bare minimum level of the skill,  time, and resources for your case.

Public Legal Resources Reserved for Serious Criminal Cases

Even if you are indigent, you might still be denied a court-appointed Florida criminal defense lawyer. If you are facing charges that carry no possibility of jail time, the court may not grant your request for a publicly-funded lawyer.

A few years ago, the Miami New Times conducted an analysis of public defender appointments in all 20 judicial circuits in Florida. What they found was that statewide in a single recent year, only 45 percent of misdemeanor, criminal traffic, and other low-level crimes proceeded with a public defender in the courtroom. Broward County fared by far the worst, with only 24 percent of defendants in these cases being appointed a public defender. (And remember, per the ACLU, about 80 percent of all defendants can’t afford a lawyer.)

Furthermore, the New Times detailed cases wherein defendants were facing maybe a handful of misdemeanor charges and a felony, and prosecutors dropped the felony to proceed solely on the misdemeanor charges. They did this presumably knowing the defendant was indigent and that the circuit’s public defender’s office was short-staffed. It may be presumptuous to speculate on their motivation, but it’s worth pointing out that such a strategy would likely translate to higher prosecutor conviction rates - and that looks good come election time.

There is some speculation from civil rights groups that prosecutors may be particularly apt to go this route when they know they have a weaker case. If there’s no public defender to criticize the evidence and the defendant is left to represent themselves pro se, there’s a higher chance the state will win its case. And judges might presume it’s “not that bad” in any case because there’s no risk of jail time involved. But a misdemeanor conviction can cost a person their job, deportation, child custody rights, etc. It’s a mistake to think such a conviction is inconsequential.

Studies show that defendants who appear in court without a lawyer are significantly likelier to:
  • Accept prosecutor plea deals.
  • Spend more time in prison.
  • Pay higher court costs.

Even though most misdemeanor cases don’t make it to the trial phase, if they do and the defendant has no lawyer, they’re forced to do their own legal research, properly call/question witnesses, conduct cross-examinations, and provide evidence to the court.

Why It’s Smart to Hire a Private Criminal Defense Lawyer

There are many ways a criminal defense lawyer can help, regardless of the severity of the charge you’re facing.

Criminal defense lawyers tap into their extensive knowledge, experience, and skill to minimize consequences faced by an accused. We’ll employ legal knowledge and analysis to thoroughly sift through the facts of the case, identifying any legal issues or weaknesses that can be used to challenge the prosecutor’s case. We’ll advocate to suppress any evidence collected through violation of your rights in the process of detaining, arresting, or questioning you.

We’ll work diligently to build a robust defense strategy that’s tailored to the specific circumstances of the case. That may involve interviewing witnesses, gathering evidence, hiring experts, and conducting independent investigations to reveal new facts or alternative explanations that prosecutors may have overlooked.

Where there is strong evidence against you, we can negotiate a plea with prosecutors to seek a more favorable outcome. That can include asking for reduced charges, minimized penalties, and alternative sentencing options (such as diversion programs or probation). Our goal is always going to be to secure the best possible outcome for our clients.

In rare cases that proceed to trial, we’re committed to developing a compelling argument and effective defense strategy. If you are convicted, our highly skilled team can give a mitigation presentation, wherein we present any mitigating factors during the sentencing phase for the purpose of convincing the court a reduced sentence is warranted. Some examples of mitigating factors would be evidence of your character, personal circumstances, and lack of prior criminal record.

Bottom line: You can’t count on the state to provide you with a court-appointed criminal defense lawyer. If you have any strings you can pull to afford to hire a private defense lawyer, now may be the time to do so.

If you have been arrested in South Florida, call The Ansara Law Firm in Fort Lauderdale today for your free initial consultation at (954) 761-4011.
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