Public Defender vs Private Attorney in Florida

A public defender in Florida is a full-time government lawyer the court appoints to a person the clerk finds indigent under Florida Statute 27.52, while a private attorney is a lawyer the accused chooses and pays. The practical differences are who qualifies, who picks the lawyer, what the client pays, and when the representation can start.

Below: the right to counsel, how the public defender system works, a side-by-side comparison, how to qualify, what a public defender costs, conflict counsel, what a private lawyer adds, private fees, switching lawyers, and the questions to ask any lawyer.

Do You Have a Right to a Lawyer in a Florida Criminal Case?

Every person accused of a crime in Florida has a right to a lawyer under the Sixth Amendment and Article I, Section 16 of the Florida Constitution. The Sixth Amendment guarantees the accused “the Assistance of Counsel for his defence,” and Article I, Section 16 guarantees the right to be heard in person, by counsel, or both.

What did Gideon v. Wainwright decide?

Gideon v. Wainwright (U.S. 1963) decided that a state must provide a lawyer to a person charged with a felony who cannot afford one. Clarence Earl Gideon was charged in a Florida state court with breaking and entering a poolroom, and the judge refused to appoint counsel because Florida then appointed lawyers only in capital cases.

Does the right to appointed counsel cover misdemeanors?

The right to appointed counsel covers any misdemeanor that ends in jail time. In Argersinger v. Hamlin (U.S. 1972), another Florida case, an unrepresented man was jailed for 90 days on a concealed weapon charge. The Court held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless represented by counsel at trial.

What Is a Public Defender in Florida?

A public defender in Florida is an elected constitutional officer who represents indigent people in one judicial circuit. Article V, Section 18 of the Florida Constitution provides for one public defender per circuit, elected to a four-year term, who must have been a member of The Florida Bar for the preceding five years. The public defender appoints assistant public defenders, and Statute 27.51(3) bars both from private criminal practice.

Which cases does the public defender handle?

The public defender handles the cases listed in Statute 27.51(1) for a person found indigent, including felonies, misdemeanors prosecuted by the state attorney, jailable traffic offenses, criminal contempt, juvenile delinquency, and appeals in those cases. On a misdemeanor, the public defender does not appear if the court files an order of no imprisonment before trial (Statute 27.512).

What does the Broward County Public Defender’s Office do?

The Law Office of the Public Defender for the Seventeenth Judicial Circuit represents indigent people charged with crimes in Broward County from the Broward County Judicial Complex at 201 SE 6th Street, Fort Lauderdale. It runs felony, misdemeanor, major crimes, juvenile, appellate, and specialty courts divisions, and an investigation unit that locates witnesses, takes statements, and reviews police documents and video.

Its Early Representation Unit represents newly arrested people in First Appearance Court 365 days a year and handles cases not yet filed after first appearance. The office states that a person arrested in Broward County is entitled to see a judge within 24 hours.

What Is a Private Criminal Defense Attorney?

A private criminal defense attorney is a lawyer the accused, or a family member, hires and pays under a fee agreement. United States v. Gonzalez-Lopez (U.S. 2006) holds that the Sixth Amendment gives a defendant who does not need appointed counsel the right to choose who will represent him, a right that does not extend to defendants who need counsel appointed.

How Do a Public Defender and a Private Attorney Compare?

A public defender and a private attorney differ mainly in eligibility, choice, cost, and timing.

Who Qualifies for a Public Defender in Florida?

A person qualifies for a public defender in Florida when the clerk of court finds the person indigent under Statute 27.52. The application lists income, assets, debts, and any bail paid. For a person in jail, the public defender provides the application, helps complete it, and submits it to the clerk.

How does the clerk decide indigent status?

The clerk decides indigent status with the income test in Statute 27.52(2). An applicant is indigent if household income is at or below 200 percent of the federal poverty guidelines, or if the applicant receives TANF cash assistance, poverty-related veterans’ benefits, or Supplemental Security Income. An applicant with $2,500 or more in net property equity, not counting the homestead and one vehicle worth up to $5,000, is presumed not indigent.

What if the clerk finds you are not indigent?

An applicant the clerk finds not indigent may ask the judge to review the decision at the next scheduled hearing. Under Statute 27.52(4), the judge also weighs whether the applicant was released on bail of $5,000 or more, who paid the bond, and whether paying a private lawyer would be a substantial hardship for the family.

Is a Public Defender Free in Florida?

A public defender is not entirely free in Florida. The client pays a $50 application fee, and a client who is convicted owes attorney’s fees and costs under Statute 938.29.

What is the $50 application fee?

The $50 application fee is charged under Statute 27.52(1)(b) for each application for court-appointed counsel and is due within 7 days. The Broward County Public Defender’s Office states that the fee is not refundable, applies whether or not a public defender is appointed, and can be paid or put on a payment plan at the Clerk of Courts. A person found indigent cannot be refused a lawyer for failing to pay it.

What does Statute 938.29 charge after a conviction?

Statute 938.29 charges a convicted client no less than $50 per case for a misdemeanor or criminal traffic offense and no less than $100 per case for a felony, and the court may set a higher amount on proof of higher fees or costs. A conviction here includes a guilty finding with adjudication withheld, and the court imposes the amount regardless of present ability to pay.

Does the public defender lien attach to your home?

The public defender lien cannot be foreclosed on the client’s homestead. Statute 938.29(2) creates a state lien on all of the person’s real and personal property, recorded in the county where the person lives and in each county where the person owns property. Statute 938.29(4) bars foreclosure of the lien on the homestead, and under Statute 938.29(3) a person not in willful default may ask the court to defer payment.

What Happens When the Public Defender Has a Conflict?

When the public defender has a conflict of interest, the court appoints the Office of Criminal Conflict and Civil Regional Counsel. Under Statute 27.5303, when the office represents two or more defendants whose interests are so adverse or hostile that they cannot all be counseled without a conflict of interest, the public defender must move to withdraw, and the court rules on the motion. Statute 27.511 creates five regional offices, and Broward County’s Seventeenth Circuit sits in the fourth region with the Fifteenth and Nineteenth Circuits. If regional counsel also has a conflict, Statute 27.40 directs the court to appoint state-paid private counsel from a registry.

What Does a Private Attorney Offer?

A private attorney offers choice, an earlier start, and a defense budget the client controls:

• Choice of lawyer. The client picks the lawyer by experience, board certification, or trial record.
• Representation before an arrest or charge. Statute 27.51 covers people under arrest or charged, so a person who is only under investigation, or asked to give a police interview, can hire a private lawyer at that earlier stage.
• Investigators and experts chosen by the defense. A private client pays for investigators and experts separately from the lawyer’s fee, which is part of the cost of a South Florida defense lawyer.
• No public defender fee or lien. A privately retained client who does not ask for state-paid costs does not pay the $50 application fee or face the Statute 938.29 lien.

Can you hire a private lawyer and still get state-paid costs?

A person who hires a private lawyer can ask the court to be declared indigent for costs under Statute 27.52(5), so the state funds the due process services in the case while the client keeps the private lawyer. The statute presumes the person is not indigent for costs when attorney’s fees exceed $5,000 in a noncapital case, and a person later found guilty owes those costs through a recorded lien.

How Are Private Criminal Defense Fees Structured?

Private criminal defense fees in Florida are set by agreement between the client and the lawyer, and no statute fixes the price. A common structure is a flat fee for a defined stage of the case, such as through a plea or through trial, with costs like investigators, experts, and transcripts billed separately. The fee depends on the charge, the court, the volume of evidence, and whether the case is tried. The Law Offices of Robert David Malove offers payment plans to spread the fee over time.

Can You Switch From a Public Defender to a Private Attorney?

A defendant can switch from a public defender to a private attorney in Florida by hiring private counsel. Statute 27.51(2) bars the court from appointing the public defender to represent a defendant on the same case at the same time as retained private counsel, so the private lawyer replaces the public defender rather than working with it.

Can you choose a different public defender?

A defendant cannot choose a different assistant public defender, because the right to counsel of choice does not extend to appointed counsel (Gonzalez-Lopez). The court replaces the office on grounds such as a conflict of interest under Statute 27.5303.

What Should You Ask Any Criminal Defense Lawyer?

Any criminal defense lawyer, public or private, should answer the same core questions. The guide to choosing a Florida criminal defense lawyer covers more; start with these:

• Who will handle my case? Ask which lawyer will appear in court and who answers questions.
• How many cases like mine have you tried? Ask about trials on the same charge in the same courthouse.
• Are you board certified? Ask whether the lawyer holds Florida Bar board certification in criminal trial law.
• What will it cost? Ask a private lawyer what the fee covers; ask the public defender’s office about the application fee and Statute 938.29.

Why Hire The Law Offices of Robert David Malove?

Robert David Malove is a Florida Bar Board Certified Criminal Trial Lawyer who has defended felony cases in Broward, Miami-Dade, and Palm Beach Counties since 1984, including years as an Assistant Public Defender in all three. The firm’s Fort Lauderdale office at 200 SE 9th Street is a short walk from the Broward County Courthouse.

A person who already has a public defender, or who has not yet been charged, can ask a Fort Lauderdale criminal defense lawyer at the firm to review the charge, the court file, and the next court date before deciding whether to keep appointed counsel or hire private counsel.

Call (954) 861-0384 for a free consultation with a Fort Lauderdale criminal defense lawyer.

Public Defender vs Private Attorney in Florida: Frequently Asked Questions

Is a public defender a real lawyer in Florida?

A public defender is a real lawyer in Florida. Article V, Section 18 of the Florida Constitution requires the elected public defender to have been a member of The Florida Bar for five years, and Statute 27.51(3) requires assistant public defenders to give priority to their public defender duties.

Do you have to pay back a public defender in Florida?

A person who is convicted must pay back a public defender in Florida, at no less than $50 per misdemeanor case and $100 per felony case under Statute 938.29, plus the $50 application fee. The amount becomes a lien on the person’s property, which cannot be foreclosed on the homestead, and the court may defer payment for a person not in willful default.