Juvenile Indigent Defense Delivery System
Florida provides counsel to indigent youth through a circuit-based public defender system. Each of Florida’s 20 judicial circuits has an elected public defender and provides trial level representation. Five of the circuit public defender offices handle appeals in their regions. Fla. Stat. Ann. § 27.51(4). Public defenders represent juveniles “alleged to be a delinquent child pursuant to a petition filed before a circuit court” and in appeals. Fla. Stat. Ann. § 27.51(1). If the public defender cannot represent a youth because of a conflict, the defender shall withdraw from representation and ask the court to appoint counsel from the office of criminal conflict and civil regional. Fla. Stat. Ann. § 27.52(2)(c)(2). More information is available from the Florida Public Defenders Association.
Florida’s funding for indigent defense is supplied by the state, although counties may and do supplement the services in their areas.
The Florida Bar Standing Committee on the Legal Needs of Children released Florida Guidelines of Practice for Attorneys who Represent Children in Delinquency Proceedings, which address the specific roles and responsibilities of counsel in delinquency proceedings. These guidelines are advisory and intended to serve as a guide to assist attorneys in providing quality representation for children.
Juvenile Court Rules
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, and may or may not be supplemented by local court rules. Florida’s juvenile court rules are called the Florida Rules of Juvenile Procedure.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In Florida, youth in juvenile court have the right to counsel “at all stages of any delinquency court proceedings under this chapter.” Fla. Stat. Ann. § 985.033(1). The right to counsel specifically applies to:
- Detention hearings (Fla. R. Juv. P. R. 8.010);
- Arraignments (Fla. R. Juv. P. R. 8.070);
- Disposition hearings (Fla. R. Juv. P. R. 8.115);
- Violation of probation hearings (Fla. Stat. Ann. § 985.439(3)).
The court shall advise the child of the child’s right to counsel. Fla. R. Juv. P. R. 8.165. “If the child appears without counsel, the court shall advise the child of his or her rights with respect to representation of court-appointed counsel.” Fla. Stat. Ann. § 985.033(1). A child’s attorney “shall be allowed to provide advice and counsel to the child at any time subsequent to the child’s arrest, including prior to a detention hearing while in secure detention care.” Fla. Stat. Ann. § 985.033(1).
Determination of Indigence
Florida has no presumption of indigence in juvenile court proceedings. A person wanting court-appointed counsel must apply to the clerk of court and pay a $50 application fee. A person qualifies for indigent defense if he or she has an income that is equal to or less than 200% of the current federal poverty level and meets other criteria related to the ownership of personal or real property. A person may also qualify if he or she is unable to pay for an attorney without substantial hardship. Fla. Stat. Ann. § 27.52. The clerk of the circuit court makes the determination of indigence. The clerk’s decision can be appealed to the court. Fla. Stat. Ann. § 27.52(1).
When a minor requests court-appointed counsel, the determination of indigence appears to be based on the minor’s income and assets, but a parent or guardian is required to provide legal services for a child facing delinquency charges. Fla. Stat. Ann. §§ 27.52(2)(a) and (6). “The failure of a parent or legal guardian to furnish legal services and costs under this section does not bar the appointment of legal counsel pursuant to this section…,” and if counsel is appointed, “the parents or the legal guardian shall be liable for payment of the fees, charges, and costs of the representation.” The liability will “be imposed in the form of a lien against the property of the nonindigent parents or legal guardian of the minor….” Fla. Stat. Ann. § 27.52(6).
Waiver of Counsel
In Florida, “waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. This waiver shall be in writing…. If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.” Fla. R. Juv. P. R. 8.165. A child must be informed of his or her right to counsel at every stage of the proceedings, even if the child waived counsel at an earlier stage. Fla. R. Juv. P. R. 8.165. “No waiver shall be accepted when it appears that the party is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case or other factors.” Fla. R. Juv. P. R. 8.165(b)(4).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In Florida, a detention hearing must occur within 24 hours of the child being taken into custody, unless the child is detained for failure to appear, in which case the hearing must occur within 72 hours. Fla. Stat. Ann. § 985.255. Provisions for the detention of juveniles are found in Fla. Stat. Ann. §§ 985.203, 985.207, 985.21, 918.211, and 985.213 to 985.215, and in Fla. R. Juv. P. 8.005, 8.010, 8.013, and 8.015.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. Florida statutes list one post-disposition proceedings at which youth have a right to counsel.
In Florida, youth have a right to counsel in the following post-disposition proceeding:
Fla. Stat. Ann. § 985.439(3) If the child denies violating the conditions of probation or post-commitment probation, the court shall, upon the child’s request, appoint counsel to represent the child.
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Florida:
- The youngest age at which a juvenile can be adjudicated delinquent is not specified by any statute;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court, Fla. Stat. Ann. § 985.0301;
- In most circumstances, juvenile court retains jurisdiction over youth until age 19, provided that the offense alleged to have been committed occurred before the youth turned 18, Fla. Stat. Ann. § 985.0301(5);
- If a juvenile is committed to the Department of Juvenile Justice for placement in a juvenile prison or in a high-risk or maximum risk residential commitment program to allow the child to participate in a juvenile conditional release program, the court may retain jurisdiction until the youth’s 22nd birthday, Fla. Stat. Ann. § 985.0301(5)(d);
- In several situations, depending on the offense and the reason for commitment, the juvenile court may retain jurisdiction over the youth until the youth’s 21st birthday. Fla. Stat. Ann. § 985.0301(5).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Florida has four ways that juveniles can be prosecuted as adults:
- Statutory Exclusion: Juveniles 16 and 17 and alleged to have committed certain, statutorily delineated offenses, typically including committing or attempting to commit most felonies involving a firearm or has been previously involved in firearm offense or committed a motor vehicle theft that resulted in the death of someone not involved in the underlying offense, or where the offense is a forcible felony and the juvenile has a history of delinquency. Fla. Stat. Ann. § 985.557(2).
- Discretionary Transfer: For certain offenses, and delinquency histories for children 14 and older, prosecutor must request the transfer. Fla. Stat. Ann. § 985.556(3).
- Prosecutorial Discretion: For all children 14 and older, prosecutor may request a transfer. Fla. Stat. Ann. § 985.556(2).
- Once an Adult, Always an Adult: Juvenile who is transferred or direct filed and found guilty of the offense or lesser included offense, unless given a juvenile sanction, is thereafter to be tried as an adult. Fla. Stat. Ann. § 985.557(3)(a); Fla. Stat. Ann. § 985.556(5)(a).
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
The Florida Assessment was completed in 2006.