A deprivation of due process and other civil rights may be the normal practice in Marion County during first appearance. A simple reading of Florida Rules of Court, 3.130, evidences that all defendants have the rights to receive a copy of the complaint and confer with counsel prior to the court proceeding with first appearance. However, many times the assistant public defender sits mute in tacit agreement as the judge conveniently, one, fails to cause a copy of the complaint (arrest affidavit) to be given to the defendant; two, fails to make clear the right to counsel begins that very moment and; three, fails to ask whether the defendant has had opportunity to confer with counsel; four, proceeds with first appearance without allowing the defendants opportunity to confer with counsel. Florida Rules of Court, rule 3.130 states: b) Advice to Defendant. At the defendant‘s first appearance the judge shall immediately inform the defendant of the charge, including an alleged violation of probation or community control and provide the defendant with a copy of the complaint… and, (1) Appointed Counsel. If practicable, the judge should determine prior to the first appearance whether the defendant is financially able to afford counsel and whether the defendant desires representation. When the judge determines that the defendant is entitled to court-appointed counsel and desires counsel, the judge shall immediately appoint counsel. This determination must be made and, if required, counsel appointed no later than the time of the first appearance and before any other proceedings at the first appearance. If necessary, counsel may be appointed for the limited purpose of representing the defendant only at first appearance or at subsequent proceedings before the judge. and, (3) Opportunity to Confer. No further steps in the proceedings should be taken until the defendant and counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to be represented by counsel. Now in most cases, conferring with counsel prior to proceeding with first appearance will have little or no affect. However, in those rare occasions it could mean the incarceration of an innocent man or, indeed, depriving a technically innocent person the right to due process. I believe we all agree the United States Constitution and all the attendant rights are applicable to everyone. So how is justice served when the courts purposely cause a deprivation of due process. Further, an egregious deprivation of due process manifests when a judge would find probable cause to hold an accused for further proceedings even when the arrest affidavit fails to support the charge. Rule 3.130 seeks to protect the accused from such deprivation by requiring appointment of counsel and allow the accused to confer with appointed counsel. Counsel must educate the court when, “if the allegation taken as true does not meet the required elements of the charge” probable cause to hold the accused must not be found. This brings us to the even more perplexing and certainly egregious prosecution when the allegation fails to meet the elements required by law. The assistant state attorneys are prohibited from prosecuting a person unless in good faith the accusation does meet the requirements of the charge. We have to ask ourselves “why does the Court, Public Defender’s office and State Attorney’s office deprive accused persons their due process. The answer, Your rights are an inconvenience to them. Ask Brad King and Michael Graves why they do it and they will say they do not. I say ask anyone who has been involved in the first appearance process. Ask Judge Ritterhoff Williams and she will be perplexed.
Posted on: Wed, 04 Sep 2013 22:35:26 +0000
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