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 ( R. Juv. P. 8.010);
- Arraignments ( R. Juv. P. 8.070);
- Disposition and restitution hearings ( R. Juv. P. 8.115);
- Violation of probation hearings ( Stat. Ann. § 985.439(3)).
“The court shall advise the child of the child’s right to counsel.” Fla. R. Juv. P. 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 youth’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. Fla. Stat. Ann. § 27.52(1)(b). 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. Fla. Stat. Ann. § 27.52(2)(a). A person may also qualify if he or she is unable to pay for an attorney without substantial hardship. Fla. Stat. Ann. § 27.52(4)(a)(3). The clerk of the circuit court makes the initial determination of indigence, but the clerk’s decision can be appealed to the court. Fla. Stat. Ann. § 27.52(2), (4).
When a youth requests court-appointed counsel, the determination of indigence is based on the youth’s income and assets, but a nonindigent parent or guardian is required to provide legal services for a youth facing delinquency charges. Fla. Stat. Ann. §§ 27.52(2)(a), (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.” Fla. Stat. Ann. § 27.52(6). The liability will “be imposed in the form of a lien against the property of the nonindigent parents or legal guardian of the minor….” Id.
If a youth requests appointment of a public defender before the clerk completes a determination of indigent status, then an interim public defender is appointed. Fla. Stat. Ann. § 27.52(3).
Waiver of Counsel
In Florida, a youth can only waive the right to counsel after “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 . . . This waiver shall be in writing.” Fla. R. Juv. P. 8.165(a). If the youth is entering a plea or being tried for a delinquent act, then the written waiver must be verified and submitted to the court in the presence of a parent, guardian, or attorney. Fla. R. Juv. P. 8.165(b)(5). The decision to waive counsel must be made “intelligently and understandingly” and “appear to be knowing and voluntary.” Fla. R. Juv. P. 8.165(b)(2)-(3). Even if the youth waived counsel at an earlier stage, assistance of counsel is offered at each subsequent stage of the proceedings. Fla. R. Juv. P. 8.165(b)(5).
When and how the court may decide to detain a youth or otherwise place restrictions on the youth’s freedom is defined by statute and court rules. In Florida, a detention hearing must occur within 24 hours of the youth being taken into custody, unless the youth is detained for failure to appear, in which case the hearing must occur within 72 hours. Fla. Stat. Ann. § 985.255(1). Provisions for the detention of juveniles are found in Fla. Stat. Ann. §§ 985.101, 985.115, 985.14, 985.145, 985.24 to 985.275, 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 youth 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 proceeding 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 young person who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In Florida:
- The youngest age at which a youth can be adjudicated delinquent is not specified by any statute;
- Juvenile court has jurisdiction over offenses allegedly committed prior to a youth’s 18th birthday; after age 18, the youth is charged in adult court, Fla. Stat. Ann. § 985.0301; Fla. Stat. Ann. § 985.03(7);
- In most circumstances, juvenile court retains jurisdiction over youth until age 19, Fla. Stat. Ann. § 985.0301(5)(a)-(b);
- The court may retain jurisdiction over a youth who is ordered to pay restitution until that restitution order has been satisfied. Fla. Stat. Ann. 985.0301;
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: If a youth is 16 or older, has allegedly committed certain statutorily delineated offenses, and “has been previously adjudicated delinquent for an act qualified as a felony,” then the state attorney is required to file the charges in adult court. Stat. Ann. § 985.557(2).
- Prosecutorial Discretion: If a youth 14 or older has allegedly committed a statutorily delineated offense, then the state attorney may file charges directly in adult court. Stat. Ann. § 985.557(1).
- Discretionary Judicial Transfer: The prosecutor may request the court to transfer any child 14 years of age or older to adult court. Stat. Ann. § 985.557(2). For certain offenses and delinquency histories for children 14 and older, the prosecutor must request a transfer to adult court, and the court must grant the transfer if it satisfies the offense and history criteria. Fla. Stat. Ann. § 985.556(3).
Once an Adult, Always an Adult: A youth who is transferred or directly filed to adult court and found guilty of the offense or lesser included offense is thereafter to be tried as an adult, unless given a juvenile sanction. 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.