FL · rules

Fla. R. Crim. P. 3.111

Providing Counsel to Indigents

activein force · 2026-07-13 – presentact-effective-date

(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.

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;

insolvency as required by section 27.52, Florida Statutes.

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;

(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).

History

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).

Provenance

Source: floridabar.org
Retrieved: 2026-09-14
Edition: 2026-09-14
Content hash: 8e0864f67d86ec84bc08d8489b7b0e03f1aab420a6d191ff1ae6a2cda62d0ca7

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