I have a letter written by Howard Finkelstein addressed to all of Broward's municipalities and BSO regarding city cases (MOs). It is now the PD's position that it will no longer handle any city cases not ancillary to a state charge(starting April 23), pursuant to FL Statute 27.51 and 27.54, even if the county or municipality agrees to contract with the PD and pony up big bucks.

Why the hard line? The letter explains:

"The Law Office of the Public Defender has been representing persons accused of county and municipal ordinance violations without a contract while we considered how to best address the issues involved in this representation. The Legislature has given the Public Defender only two choices. The Public Defender can either refuse to provide representation in this class of cases and shift the (financial) burden of providing representation directly to the county and municipalities or the Public Defender can provide the services pursuant to a contract.

After review, I have made the difficult decision to decline to contract with the county and all municipalities. Accordingly, the Law Office of the Public Defender will no longer provide legal representation to individuals charged with a violation of county or municipal ordinance that is not ancillary to a state charge. There are many reasons for my decision. First and foremost, I do not believe that individuals accused of violating a county or municipal ordinance should be arrested. They should be given a Notice to Appear (NTA) in court. Many of these individuals are poor and homeless. Because many of them cannot afford any monetary bond, and because they are not released at first appearance hearings on nonmonetary conditions, they are forced to remain in jail until their case is resolved. The recent report on jail overcrowding submitted by the Sheriff’s Office’s jail consultant indicated that there are many individuals in jail on minor offenses with deminimus bonds.

I also believe that many people are arrested under the guise of an ordinance violation simply for being homeless. It makes much more sense, both from a humanitarian standpoint and from an economic standpoint, for local governments to provide homeless assistance rather than using the county jail as a solution to get homeless people off the street.

Although it is painful to see these people in magistrate court and not assist them, it is my strong belief that my office’s participation in their prosecution only legitimizes that prosecution. By stepping off the train, I hope that the county and municipalities will re-think these prosecutions. Too many people are being arrested on ordinance violations which are not criminal offenses under state law. If the county or municipalities continue to prosecute ordinance violations, then that jurisdiction will be responsible to retain and pay for legal counsel for any indigent defendant. For those arrested, the representation begins at first appearance pursuant to Rule 3.130(c), Florida Rules of Criminal Procedure (2007).

...Dale Ross, Chief Judge of the 17^th Judicial Circuit, by copy of this letter is on notice that the Law Office of the Public Defender will no longer provide the representation as outlined above. It will be up to the judiciary and the charging jurisdiction to insure that defendants’ right to counsel is timely complied with.

As stated above, this obligation begins at magistrate hearing. Rule 3.111, Florida Rules of Criminal Procedure (2007), sets forth the requirements for the appointment of counsel for indigents.

"A person entitled to appointment of counsel . . . shall have counsel appointed when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest." (Emphasis added).

In addition, Hardy v. State, 776 So.2d 962 (Fla. 3d DCA 2001) and Rule 3.111 prohibit a judge from certifying no jail time in lieu of appointing counsel when a defendant is in custody. As a result, absent a specific waiver of counsel from a defendant, the courts and the charging agency will need to coordinate to provide legal counsel to indigents at First Appearance hearings.

Hopefully, my decision to decline representation of persons accused of violating county or municipal ordinances will cause local governments to re-think their procedures which further burdens individuals who are already overwhelmed in life by incarcerating them in an already overcrowded jail.

Sincerely,

Howard Finkelstein"

(Please email me at wgelin@yahoo.com if you would like a copy of the full letter.)
(Did Scott Walker's job just get easier or harder?)