LAW OFFICE OF PUBLIC DEFENDER SEVENTEENTH JUDICIAL CIRCUIT v. STATE (2021)

Having considered the response and reply to this court's order to show cause, the petition for writ of certiorari is granted, and the order denying the Public Defender's motion to withdraw is quashed. The circuit court departed from the essential requirements of law in denying the Public Defender's motion to withdraw because the defendant is not indigent and private counsel has substituted for the Public Defender. See § 27.51(1), Fla. Stat. (2020); Behr v. Gardner, 442 So. 2d 980, 982 (Fla. 1st DCA 1983).

The circuit court mistakenly believed that the defendant's potential incompetency to proceed in this criminal case equated to a lack of capacity to consent to the substitution of counsel. However, we are not aware of any authority holding that private counsel may not be substituted for the Public Defender on behalf of a potentially incompetent, yet not indigent, defendant. Thus, the only issue for the circuit court to decide is whether the defendant is competent to proceed with counsel, whomever that counsel may be. See Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (competence to proceed in a criminal case is a question of “whether [the defendant] has sufficient present ability to consult with [counsel] with a reasonable degree of rational understanding—and whether [the defendant] has a rational as well as factual understanding of the proceedings ․.”).

Petition granted; order quashed.

It should be noted that even incompetent criminal defendants retain the capacity to exercise certain rights, such as the right to give written consent for treatment, section 916.107(3)(a), Florida Statutes (2020), and the right to vote, section 916.107(7), Florida Statutes (2020).

Per Curiam.

Gerber and Artau, JJ., concur. Ciklin, J., concurs specially with opinion.