Hiring a Private Florida Defense Attorney vs. Using an Appointed Public Defender

We’ve come a long way from the days when people accused of felony crimes in Florida could be sentenced to prison without ever having the benefit of a criminal defense lawyer. In the decades since the landmark 1963 case of Gideon v. Wainwright, Florida public defenders have done a great service in fervently protecting the Constitutional rights of the accused. 

But for all they may be highly-qualified and fiercely dedicated, they’re also all too often overworked and underfunded - particularly compared to private defense attorneys. Inevitably, this can adversely impact the quality of legal services they can provide.

Still, the question of whether to hire a private Florida defense attorney versus relying on an appointed public defender is one that will probably be decided for you. Attorneys from state Public Defender’s Offices can only represent people who are indigent OR who are being held under the Baker Act or Sexually Violent Predator Act. To be indigent means the accused cannot afford to hire a private defense attorney. 

In Florida, indigent defendants are those who:

• Have an income equal to or less than 200% of the current federal poverty guidelines, OR
• Are unable to pay for the services of a private attorney without substantial hardship to his or her family.

Indigent status for public defender purposes is determined by the Clerk of Court. Defendants are presumed not indigent until they file an application for indigent status, which requires a $50 filing fee. Filing false information on these forms in order to qualify for a cost-free public defender is in itself a misdemeanor.

Although public defenders can represent people in misdemeanor, criminal traffic cases and juvenile cases, they usually won’t - not unless the person is facing possible imprisonment. 

If you don’t meet the criteria for an appointed public defender in your criminal case, then the question is not private attorney vs. public defender. Rather, you’ll be considering whether to hire a private attorney or represent yourself. (There are many reasons why the latter is ill-advised.) 

However, indigent defendants might have the choice between public defender and private attorney. This is probably only possible if they’ve secured financial assistance from friends and/or family to cover their legal costs. For these defendants and the people who care about them, it’s important to understand how these two options differ. While you may be hesitant to ask friends and family for help with these costs, there is evidence it can make a difference. 

There are 20 elected public defenders in Florida - one for every judicial circuit. Each serves a four-year term, and may employ dozens of assistant public defenders, and these are the individuals who primarily handle the defense caseloads - both in circuit courts and in the 67 county courts. 

Public defenders are primarily responsible to provide legal representation to any indigent person under arrest/charged with a felony. Defendants who are entitled to court-appointed counsel will have access to one either when formally charged, as soon as feasible after the arrest, or at the first appearance - whichever is first.

During jail intake, the first Public Defender’s Office employee indigent defendants will meet with might be an assistant public defender, but it might also be a witness interviewer, an investigator, or a legal intern. 

Just like private attorneys, public defenders and their staff may make regular visits to the jail or meet with defendants via a secure video system. They are responsible for investigating the case, updating defendants on facts uncovered, and explaining potential legal defenses. They can also file for release of custody pending trial and other motions (it’s unwise to do this yourself). They can negotiate pre-trial intervention and admission to specialty courts for some defendants, represent you at court appearances, and represent you at trial. 

As for appeals, not all public defenders offices in Florida are equipped to do this. Appeals may be handed off to a public defender in those divisions.

This question always brings about some debate. It’s our view that while most public defenders are almost certainly capable lawyers, there are several ways in which they are at a disadvantage. 

While our Fort Lauderdale criminal defense attorneys won’t argue against the dedication of many public defenders, the fact is they often have outsized caseloads. They simply cannot devote as much time and energy to individual cases as a private defense lawyer. 

Public defenders make less than almost any other government attorney in the state. New graduates can make sometimes twice as much working for a private firm versus working for the public defender’s office. Several elected public defenders quoted by the Florida Times-Union expressed concern about the high turnover rates in their divisions (1 in 5 per fiscal year). This has led to more inexperienced lawyers representing defendants accused of serious felonies, such as robbery and sexual battery. State prosecutors’ offices feel a similar squeeze, but for every dollar spent on assistant state attorneys, public defenders get 71 cents. They earn an average of 6 percent less than prosecutors and have 24 percent less staff. These disparities are wider in some Florida circuits than others.

Meanwhile, the passage of “tough on crime” laws like Three Strikes and 10-20-Life have increased responsibilities of these attorneys who are already overworked. 

In an effort to address the gap, the Florida Supreme Court is weighing a measure that would allow law school graduates who have not yet passed the bar to represent indigent defendants. There’s already an existing Florida Bar rule allowing students working in law school programs to represent indigent defendants in court appearances.

The insight of a recent law school graduate is, of course, better than nothing, but few could reasonably argue their services are equal to that of a seasoned private defense attorney with a lower caseload. 

As further evidence, a study published in the Journal of Criminal Justice in 2013 specifically analyzed data from the Bureau of Justice Studies to assess the association between public defense attorney vs. private defender and case outcomes. Here’s what they found: 

• Defendants with public defenders were less likely to have their charges dismissed. 
• Defendants with public defenders were more likely to be detained pretrial. 
• Defendants with public defenders were more likely to be convicted. 

It’s worth noting that even if you are declared indigent and appointed a public defender, you might still have to pay. Unless you are acquitted, the court can still order you to pay attorney’s fees as part of your sentence. 

Our Fort Lauderdale private practice criminal defense lawyers are knowledgeable, experienced, and committed to fighting to protect your rights and serving as a fierce advocate for your best interests.

If you have been arrested in South Florida, call The Ansara Law Firm in Fort Lauderdale today for your free initial consultation at (954) 761-4011.