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Trial court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict.  [Added 7/8/10]

    The Public Defender for the Eleventh Judicial Circuit of Florida ("PD11") moved to withdraw from representation of a criminal defendant, Bowens, alleging that the "excessive caseload of Assistant Public Defender Jay Kolsky ['Kolsky'] prevents him from diligently and competently representing the defendant."  Defendant "asserted that the conflict of interest created by Kolsky's excessive caseload will result in unavoidable prejudice where there is a substantial risk that Kolsky's representation will be materially limited by his responsibilities to other clients."

    After an evidentiary hearing the trial court granted PD11's motion to withdraw but rejected PD11's motion to declare unconstitutional Fla.Stat. sec. 27.5303(1)(d) (2007), which provides:  "In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel."  The State petitioned for a writ of certiorari to quash the order granting the motion to withdraw, and PD11 cross-petitioned the order denying its constitutional challenge to the statute.

    The Third DCA quashed the disqualification order but upheld the order regarding the constitutionality of Fla.Stat. sec. 27.5303(1)(d).

    Citing its decision in State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), the court reiterated that a determination on a motion to withdraw must be made on a case-by-case bas, considering whether counsel is sufficiently competent.  Neither the statute nor the decision in State v. Public Defender preclude the granting of a motion to withdraw "upon determination of actual prejudice to a defendant's constitutional rights."  (Emphasis by court.)  In the instant case, however, the appellate court concluded that "there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights.  If the trial court’s order stands, all that the PD11 must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the  client’s speedy trial rights.  This 'prejudice' is not the type of prejudice that this Court referred to in State v. Public Defender.  Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated.  And this is the critical fact – the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.  Neither the PD11 nor the trial court has demonstrated that there was something substantial or material that Kolsky has or will be compelled to refrain from doing.  The prejudice is speculative and the plain language of the statute defeats this particular case."  State v. Bowens, __ So.3d ___ (Fla. 3d DCA, No. 3D09-3023, 7/7/2010).

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