Public defender or private lawyer in Florida: how is it decided?

Families often ask this in the first hours after an arrest, when a judge or a jail officer mentions the public defender. The answer has two parts. The law decides whether a person qualifies for a public defender, and the person decides whether to use one or hire a lawyer. This page explains how the qualification works under section 27.52 of the Florida Statutes and Rule 3.111 of the Florida Rules of Criminal Procedure, how to apply in Palm Beach, Broward, Miami-Dade and Martin counties, and what each choice can cost. The other early steps in a case are mapped on our criminal defense practice areas page.

Who can get a public defender in Florida?

The public defender represents a person found indigent under s. 27.52 who is under arrest for, or charged with, a felony; a misdemeanor prosecuted by the State Attorney; a chapter 316 traffic offense punishable by imprisonment; or criminal contempt, among other cases (s. 27.51(1)). Rule 3.111(b)(1) says counsel shall be provided to indigent persons "in all prosecutions for offenses punishable by incarceration."

There is one important exception. In a misdemeanor or ordinance case, the judge may file a written order of no incarceration, certifying that the person will not be jailed in the case. A public defender is then not required (s. 27.512(1); Rule 3.111(b)(1)). If the order comes after counsel was appointed, s. 27.512(1) directs the court to end the appointment, while the rule says the court may discharge appointed counsel unless the person is in custody or would be substantially disadvantaged by losing a lawyer (Rule 3.111(b)(1)(A), (B)). The rule also calls for the order to be filed at least 15 days before trial, unless the defense waives that time.

The rule also sets the timing. Counsel is to be appointed when the person is formally charged, as soon as feasible after being taken into custody, or at the first appearance, whichever comes first (Rule 3.111(a)). What happens at that first hearing is described in the first 48 hours after an arrest in Palm Beach or Broward.

How is indigency decided, step by step?

1. The application. The person applies to the clerk of court on a statewide form listing net income, other income, assets, debts and any bail paid and who paid it, signed as true (s. 27.52(1)(a)). The clerk must help a person who asks for help with the form (s. 27.52(1)(e)1.).
2. In jail. If the person is in custody, the public defender provides the application, helps complete it and submits it to the clerk (s. 27.52(1)(e)2.).
3. The $50 fee. Each application carries a $50 fee, due within 7 days. If it is not paid by the end of the case, the court adds it to the sentence or as a condition of probation, but a person found indigent may not be refused counsel for failing to pay it (s. 27.52(1)(b), (c)).
4. The clerk's decision. The clerk compares the application with the statute's criteria and decides "indigent" or "not indigent." The statute calls this a ministerial act, not a judgment call (s. 27.52(2)(b), (d)).
5. An interim lawyer. If the clerk has not decided by the time the person asks for a public defender, the court makes a preliminary decision and may appoint counsel on an interim basis (s. 27.52(3)).
6. Review by the judge. A person found not indigent may ask the court to review the decision at the next scheduled hearing (s. 27.52(2)(e), (4)).
7. Conflicts. If the public defender has a conflict, it moves to withdraw and the court appoints the office of criminal conflict and civil regional counsel (s. 27.52(2)(c)2.).

What does the clerk look at?

Rule 3.111(b)(4) defines "indigent" in similar terms, as a person unable to pay for a lawyer, including the costs of investigation, without substantial hardship to the person or the family. It also allows counsel for a "partially indigent" person, who pays the part of the cost he or she can manage (Rule 3.111(b)(3)).

How do you apply in each county?

• Palm Beach County (15th Circuit). The Palm Beach Public Defender says applications go to the Clerk of the Circuit Court and Comptroller, and that a person in custody is given an application before the first appearance hearing. The Clerk accepts the application in person at any Clerk's office or by mail to P.O. Box 3544, West Palm Beach, FL 33402, notifies the applicant in writing, and warns that the $50 fee is assessed at the end of the case if not paid within seven days.
• Broward County (17th Circuit). The Broward Public Defender says all applications are submitted to the Broward County Clerk of Courts, by email or by mail or in person at 201 S.E. 6th Street, East Building, Room 1360, Fort Lauderdale. For someone in the Broward jail, the office asks families to call (954) 831-8650 so an application can be provided. The fee is paid to the Clerk, not to the Public Defender.
• Miami-Dade County (11th Circuit). The Miami-Dade Public Defender says defendants who want its services must fill out the Affidavit of Indigent Status, that a $50 fee will be imposed, and that the judge at the first appearance determines whether the defendant can pay for an attorney. Cases at the main felony courthouse are covered on our Gerstein Justice Building page.
• Martin County (19th Circuit). The Martin County Clerk's resource directory lists the Office of the Public Defender at (772) 288-5581. The same statewide application and $50 fee under s. 27.52 apply.

Is a public defender free?

Not always. Before appointing a public defender, the court must tell the person that a lien for the lawyer's services may be imposed (Rule 3.111(b)(5)(A)). A person who is convicted, or found in violation of probation, after receiving public defender services owes the application fee plus attorney's fees and costs of at least $50 for a misdemeanor or criminal traffic case and at least $100 for a felony, even if adjudication is withheld, and the court imposes them regardless of present ability to pay (s. 938.29(1)(a), (b)). The Palm Beach Clerk's page puts it plainly: the provision of a public defender is "not free." The Miami-Dade Public Defender says its services are not free unless the client is acquitted or the charges are dismissed.

These amounts sit on top of the ordinary court costs that come with a case, listed in what court costs and fees come with a Florida criminal case.

What changes the answer?

• Bond posted by family. On review, the court may weigh a bond of $5,000 or more and who paid it (s. 27.52(4)(a)). How bond is set is explained in how bond is set and posted in Florida.
• An order of no incarceration. In a misdemeanor case, that order removes the requirement to appoint counsel (Rule 3.111(b)(1); s. 27.512).
• A minor. Parents who are not indigent must provide legal services for a child, and they are liable for the cost of appointed counsel in some proceedings, enforced by a lien (s. 27.52(6)). The juvenile process is covered in what happens after a juvenile arrest.
• Private counsel, state-paid costs. A person with a private lawyer may ask the court to be declared "indigent for costs," so the state pays certain due process costs; there is a presumption against it when private attorney's fees exceed $5,000 in a noncapital case (s. 27.52(5)).
• Changed finances. If the court learns the application did not match the person's real finances, it may end the appointment, and suspected fraud is referred to the State Attorney (s. 27.52(7)).
• Choosing no lawyer. Failing to ask for counsel, or planning to plead guilty, is not a waiver by itself; the court must make a thorough inquiry and warn of the dangers of self-representation first (Rule 3.111(d)(1), (2)).

A worked example

For example, take a hypothetical warehouse worker in Fort Lauderdale arrested on a third-degree felony. He lives with his wife and two children, his household income is below 200 percent of the poverty guidelines, and his only property is an older car. At the jail, he asks for a public defender, the office helps him complete the application, and the clerk finds him indigent. If his brother had instead posted a $10,000 bond, the clerk's decision would still turn on the income and property test, but a judge reviewing a denial could consider that bond and who paid it. If the case ended in a plea with a withhold, he would owe the $50 application fee and at least $100 in public defender fees and costs, on top of the court costs. This is an illustration only, not a prediction for any case.

Common mistakes people make

• Leaving out income or assets on the application; knowingly false information is a crime (s. 27.52(7)(c)).
• Assuming a public defender cannot be appointed because the $50 fee was not paid; the statute says it cannot be refused for that reason (s. 27.52(1)(c)).
• Not asking the judge to review a "not indigent" decision at the next hearing (s. 27.52(2)(e)).
• Assuming the public defender is free and not planning for the fees and lien that may follow a conviction (s. 938.29).
• Waiting until the trial date to decide about hiring a lawyer, when early steps such as bond and diversion are already past.
• Discussing the facts of the case with anyone other than your lawyer, whoever that lawyer is.

What to do this week

1. Find the case number and the next court date on the clerk's website.
2. Gather pay stubs, benefit letters, bank statements and debts for the application.
3. If you apply, file the application with the clerk and pay or plan for the $50 fee within 7 days.
4. If the clerk says "not indigent," note the next hearing and ask the judge to review it.
5. If you are considering a private lawyer, schedule consultations before the arraignment if you can.
6. Read what to do in the first week after being charged for the other early deadlines.

Frequently asked questions

Can I choose which public defender I get?

The statute provides for the court to appoint the public defender, the conflict office or, where appropriate, private counsel (s. 27.52(4)(b)); it does not give the person a choice of a particular assistant public defender. If the office has a conflict, the case goes to the office of criminal conflict and civil regional counsel (s. 27.52(2)(c)2.).

Can I switch from a public defender to a private lawyer?

Generally, yes. Once a defendant has retained a private lawyer, the law does not allow the public defender to be appointed to represent that defendant on the same case at the same time (s. 27.51(2)). Separately, a lawyer of record may not withdraw after judgment and sentence without court approval or until certain appeal steps are taken (Rule 3.111(e)).

Do I get a public defender for a traffic ticket?

Only for a chapter 316 offense that can be punished by imprisonment, such as a criminal traffic charge (s. 27.51(1)(b)2.). Civil infractions do not qualify. The difference is explained in whether a traffic ticket is criminal or civil.

Can I get a public defender for a probation violation?

A violation can lead to jail, and s. 938.29 refers to public defender fees in violation proceedings. How those hearings work is covered in what happens at a probation violation hearing.

What if I represent myself?

The court must make a thorough inquiry and explain the disadvantages and dangers before accepting a waiver, and it must renew the offer of counsel at each later stage where you appear without a lawyer (Rule 3.111(d)(2), (5)).

Does the booking officer have to tell me about a lawyer?

Yes. The officer must advise of the right to counsel and, if the person cannot pay, that one will be provided; on request, the officer must put the person in touch with the public defender, or with the person's own lawyer or the local bar's Lawyer Referral Service (Rule 3.111(c)).

How can Mr. Mead help?

Mr. Mead has more than three decades of criminal defense experience in South Florida and handles cases in Palm Beach, Broward, Miami-Dade and Martin counties. For a family deciding what to do, a free consultation can explain the charge, the next court date and the options, whether or not the family hires him. You can call (561) 362-6677 24 hours a day. Every case is different, and no result can be promised.

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