Finkelstein v. State

District Court of Appeal of Florida

Finkelstein v. State

16 So. 3d 257, 2009 Fla. App. LEXIS 11599, 2009 WL 2517044

CourtDistrict Court of Appeal of Florida

DecidedAugust 19, 2009

Docket4D09-2678, 4D09-2762

StatusPublished

This text of 16 So. 3d 257 (Finkelstein v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Finkelstein v. State, 16 So. 3d 257, 2009 Fla. App. LEXIS 11599, 2009 WL 2517044 (Fla. Ct. App. 2009).

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Opinion

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 *258 custody 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.

1

. See § 27.51(1), Fla. Stat. (2008) (providing that public defender must represent persons charged with felony or other specific crimes or sought to be involuntarily committed).

2

. 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).

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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 *258 custody 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.

1

. See § 27.51(1), Fla. Stat. (2008) (providing that public defender must represent persons charged with felony or other specific crimes or sought to be involuntarily committed).

2

. 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).

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16 So. 3d 257, 2009 Fla. App. LEXIS 11599, 2009 WL 2517044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finkelstein-v-state-fladistctapp-2009.

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