RULE 3.111. PROVIDING COUNSEL TO INDIGENTS

(a) When Counsel Provided. A person entitled to
appointment of counsel as provided herein shall have counsel
appointed when the person is formally charged with an offense, or
as soon as feasible after custodial restraint, or at the first
appearance before a committing judge, whichever occurs earliest.

(b) Cases Applicable.

(1) Counsel shall be provided to indigent persons in all
prosecutions for offenses punishable by incarceration including
appeals from the conviction thereof. In the discretion of the court,
counsel does not have to be provided to an indigent person in a
prosecution for a misdemeanor or violation of a municipal
ordinance if the judge, at least 15 days prior to trial, files in the
cause a written order of no incarceration certifying that the
defendant will not be incarcerated in the case pending trial or
probation violation hearing, or as part of a sentence after trial,
guilty or nolo contendere plea, or probation revocation. This 15-day
requirement may be waived by the defendant or defense counsel.

(A) If the court issues an order of no incarceration
after counsel has been appointed to represent the defendant, the
court may discharge appointed counsel unless the defendant is
incarcerated or the defendant would be substantially disadvantaged
by the discharge of appointed counsel.

(B) If the court determines that the defendant
would be substantially disadvantaged by the discharge of appointed
counsel, the court shall either:

(i) not discharge appointed counsel; or

(ii) discharge appointed counsel and allow
the defendant a reasonable time to obtain private counsel, or if the
defendant elects to represent himself or herself, a reasonable time
to prepare for trial.

(C) If the court withdraws its order of no
incarceration, it shall immediately appoint counsel if the defendant
is otherwise eligible for the services of the public defender. The
court may not withdraw its order of no incarceration once the
defendant has been found guilty or pled nolo contendere.

(2) Counsel may be provided to indigent persons in all
proceedings arising from the initiation of a criminal action against a
defendant, including postconviction proceedings and appeals
therefrom, extradition proceedings, mental competency
proceedings, and other proceedings that are adversary in nature,
regardless of the designation of the court in which they occur or the
classification of the proceedings as civil or criminal.

(3) Counsel may be provided to a partially indigent
person on request, provided that the person shall defray that
portion of the cost of representation and the reasonable costs of
investigation as he or she is able without substantial hardship to
the person or the person’s family, as directed by the court.

(4) “Indigent” shall mean a person who is unable to pay
for the services of an attorney, including costs of investigation,
without substantial hardship to the person or the person’s family;
“partially indigent” shall mean a person unable to pay more than a
portion of the fee charged by an attorney, including costs of
investigation, without substantial hardship to the person or the
person’s family.

(5) Before appointing a public defender, the court shall:

(A) inform the accused that, if the public defender
or other counsel is appointed, a lien for the services rendered by
counsel may be imposed as provided by law;

(B) make inquiry into the financial status of the
accused in a manner not inconsistent with the guidelines
established by section 27.52, Florida Statutes. The accused shall
respond to the inquiry under oath;

(C) require the accused to execute an affidavit of
insolvency as required by section 27.52, Florida Statutes.

(c) Duty of Booking Officer. In addition to any other duty,
the officer who commits a defendant to custody has the following
duties:

(1) The officer shall immediately advise the defendant:

(A) of the right to counsel;

(B) that, if the defendant is unable to pay a
lawyer, one will be provided immediately at no charge.

(2) If the defendant requests counsel or advises the
officer that he or she cannot afford counsel, the officer shall
immediately and effectively place the defendant in communication
with the (office of) public defender of the circuit in which the arrest
was made.

(3) If the defendant indicates that he or she has an
attorney or is able to retain an attorney, the officer shall
immediately and effectively place the defendant in communication
with the attorney or the Lawyer Referral Service of the local bar
association.
(4) The public defender of each judicial circuit may
interview a defendant when contacted by, or on behalf of, a
defendant who is, or claims to be, indigent as defined by law.

(A) If the defendant is in custody and reasonably
appears to be indigent, the public defender shall tender such advice
as is indicated by the facts of the case, seek the setting of a
reasonable bail, and otherwise represent the defendant pending a
formal judicial determination of indigency.

(B) If the defendant is at liberty on bail or
otherwise not in custody, the public defender shall elicit from the
defendant only the information that may be reasonably relevant to
the question of indigency and shall immediately seek a formal
judicial determination of indigency. If the court finds the defendant
indigent, it shall immediately appoint counsel to represent the
defendant.

(d) Waiver of Counsel.

(1) The failure of a defendant to request appointment of
counsel or the announced intention of a defendant to plead guilty
shall not, in itself, constitute a waiver of counsel at any stage of the
proceedings.

(2) A defendant shall not be considered to have waived
the assistance of counsel until the entire process of offering counsel
has been completed and a thorough inquiry has been made into
both the accused’s comprehension of that offer and the accused’s
capacity to make a knowing and intelligent waiver. Before
determining whether the waiver is knowing and intelligent, the
court shall advise the defendant of the disadvantages and dangers
of self-representation.

(3) Regardless of the defendant’s legal skills or the
complexity of the case, the court shall not deny a defendant’s
unequivocal request to represent himself or herself, if the court
makes a determination of record that the defendant has made a
knowing and intelligent waiver of the right to counsel, and does not
suffer from severe mental illness to the point where the defendant is
not competent to conduct trial proceedings by himself or herself.

(4) A waiver of counsel made in court shall be of record;
a waiver made out of court shall be in writing with not less than 2
attesting witnesses. The witnesses shall attest the voluntary
execution thereof.

(5) If a waiver is accepted at any stage of the
proceedings, the offer of assistance of counsel shall be renewed by
the court at each subsequent stage of the proceedings at which the
defendant appears without counsel.

(e) Withdrawal of Defense Counsel After Judgment and
Sentence. The attorney of record for a defendant in a criminal
proceeding shall not be relieved of any duties, nor be permitted to
withdraw as counsel of record, except with approval of the lower
tribunal on good cause shown on written motion, until after:

(1) the filing of:

(A) a notice of appeal;

(B) a statement of judicial acts to be reviewed, if a
transcript will require the expenditure of public funds;

(C) directions to the clerk, if necessary; and

(D) a designation of that portion of the reporter’s
transcript that supports the statement of judicial acts to be
reviewed, if a transcript will require expenditure of public funds; or

(2) substitute counsel has been obtained or appointed,
or a statement has been filed with the appellate court that the
appellant has exercised the right to self-representation. In publicly
funded cases, the public defender for the local circuit court shall be
appointed initially until the record is transmitted to the appellate
court; or
(3) the time has expired for filing of a notice of appeal,
and no notice has been filed.

Orders allowing withdrawal of counsel are conditional, and counsel
shall remain of record for the limited purpose of representing the
defendant in the lower tribunal regarding any sentencing error that
the lower tribunal is authorized to address during the pendency of
the direct appeal under rule 3.800(b)(2).

Committee Notes

1972 Adoption. Part 1 of the ABA Standard relating to
providing defense services deals with the general philosophy for
providing criminal defense services and while the committee felt
that the philosophy should apply to the Florida Rules of Criminal
Procedure, the standards were not in such form to be the subject of
that particular rule. Since the standards deal with the national
situation, contained in them were alternative methods of providing
defense services, i.e., assigned counsel vs. defender system; but,
Florida, already having a defender system, need not be concerned
with the assigned counsel system.

(a) Taken from the first sentence of ABA Standard 5.1. There
was considerable discussion within the committee concerning the
time within which counsel should be appointed and who should
notify defendant’s counsel. The commentary in the ABA Standard
under 5.1a, b, convinced the committee to adopt the language here
contained.

(b) Standard 4.1 provides that counsel should be provided in
all criminal cases punishable by loss of liberty, except those types
where such punishment is not likely to be imposed. The committee
determined that the philosophy of such standard should be
recommended to the Florida Supreme Court. The committee
determined that possible deprivation of liberty for any period makes
a case serious enough that the accused should have the right to
counsel.

(c) Based on the recommendation of ABA Standard 5.1b and
the commentary thereunder which provides that implementation of
a rule for providing the defendant with counsel should not be
limited to providing a means for the accused to contact a lawyer.

(d) From standard 7.2 and the commentaries thereunder.

1980 Amendment. Modification of the existing rule (the
addition of (b)(5)(A)–(C)) provides a greater degree of uniformity in
appointing counsel to indigent defendants. The defendant is put on
notice of the lien for public defender services and must give
financial information under oath.

A survey of Florida judicial circuits by the Committee on
Representation of Indigents of the Criminal Law Section (1978–79)
disclosed the fact that several circuits had no procedure for
determining indigency and that there were circuits in which no
affidavits of insolvency were executed (and no legal basis for
establishing or collecting lien monies).

1992 Amendment. In light of State v. District Court of Appeal
of Florida, First District, 569 So. 2d 439 (Fla. 1990), in which the
supreme court pronounced that motions seeking belated direct
appeal based on ineffective assistance of counsel should be filed in
the trial court pursuant to rule 3.850, the committee recommends
that rule 3.111(e) be amended to detail with specificity defense
counsel’s duties to perfect an appeal prior to withdrawing after
judgment and sentence. The present provision merely notes that
such withdrawal is governed by Florida Rule of Appellate Procedure
9.140(b)(3).

1998 Amendment. The amendments to (d)(2)–(3) were
adopted to reflect State v. Bowen, 698 So. 2d 248 (Fla. 1997), which
implicitly overruled Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA
1967), rev’d on other grounds 216 So .2d 749 (Fla. 1968). See
Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986), for a list
of factors the court may consider. See also McKaskle v. Wiggins,
465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), and Savage v.
Estelle, 924 F.2d 1459 (9th Cir. 1990), cert. denied 501 U.S. 1255,
111 S.Ct. 2900, 115 L.Ed.2d 1064 (1992), which suggest that the
defendant’s right to self-representation is limited when the
defendant is not able or willing to abide by the rules of procedure
and courtroom protocol.

2000 Amendment. This rule applies only to judicial
proceedings and is inapplicable to investigative proceedings and
matters. See rule 3.010.

2002 Amendment. Indigent defendants are entitled to
counsel if they are either currently in custody or might be
incarcerated in their case. See Alabama v. Shelton, 122 S.Ct. 1764,
1767 (2002) (Sixth Amendment forbids imposition of suspended
sentence that may “end up in the actual deprivation of a person’s
liberty” unless defendant accorded “the guiding hand of counsel”).
See also Tur v. State, 797 So. 2d 4 (Fla. 3d DCA 2001) (uncounseled
plea to criminal charge cannot result in jail sentence based on
violation of probationary sentence for that charge); Harris v. State,
773 So. 2d 627 (Fla. 4th DCA 2000).

Discharge of the public defender based on an order certifying
no incarceration that is entered after the public defender has
already spent considerable time and resources investigating the
case and preparing a defense may leave the defendant “in a position
worse than if no counsel had been appointed in the first place.”
State v. Ull, 642 So. 2d 721, 724 (Fla. 1994).

In determining whether a defendant’s due process rights
would be violated by the discharge of the public defender, the court
should consider all of the relevant circumstances, including, but
not limited to:

1. The stage of the proceedings at which the order of no
incarceration is entered.

2. The extent of any investigation and pretrial preparation
by the public defender.

3. Any prejudice that might result if the public defender is
discharged.

4. The nature of the case and the complexity of the issues.
5. The relationship between the defendant and the public
defender.

Counsel may be provided to indigent persons in all other
proceedings in, or arising from, a criminal case and the court
should resolve any doubts in favor of the appointment of counsel for
the defendant. See Graham v. State, 372 So. 2d 1363, 1365 (Fla.
1979).

See form found at Fla. R. Crim. P. 3.994.

2005 Amendment. See Affidavit of Indigent Status as
provided by In re Approval of Form for Use by Clerks of the Circuit
Courts Pursuant to Rule 10-2.1(a) of the Rules Regulating the Florida
Bar, 877 So. 2d 720 (Fla. 2004).