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May 15, 2008
Court rules kids have a right to counsel before waiving rights

By Jan Pudlow
Senior Editor

In a 4-3 decision, the Florida Supreme Court did what it had hoped the legislature would do: require that a child be given a meaningful opportunity to confer with a lawyer before waiving right to counsel and entering a plea to a crime.

The May 1 opinion in Case No. SCO7-1162 In Re: Amendment to Florida Rule of Juvenile Procedure 8.165(a) found that “the substantive right to counsel for children in juvenile delinquency proceedings is firmly established under the United States Constitution and Florida Statutes.”

Chief Justice Fred Lewis and Justices Harry Lee Anstead, Barbara Pariente, and Peggy Quince held that “consultation with an attorney prior to waiving counsel is an important and necessary procedural safeguard designed to protect a juvenile’s constitutional right to counsel.”

“The Supreme Court should be commended for approving a court procedure to ensure equal justice under law for all of Florida’s children—not just those with parents who can afford to pay an attorney,” said 11th Circuit Public Defender-elect Carlos Martinez, who has been working on the issue for six years.

“With this rule, troubled kids and poor kids will have a better shot of outgrowing their delinquent behavior and becoming productive adults. Thousands of Florida’s children, particularly in rural areas, are missing out on the American dream because they plead guilty without an attorney, then they can’t get jobs, housing, or higher education. This procedure ensures that the kid can discuss it with an attorney before making a decision with lifelong consequences.”

In a dissenting opinion joined by Justices Charles Wells and Raoul Cantero, Justice Kenneth Bell agreed it is a problem that needs to be addressed — but by the legislature with d a law, not by the court in a rule.

“Essentially, this amendment creates a new, unwaivable right in all juveniles to a prewaiver consultation with counsel. Such a change is clearly substantive, not procedural,” Bell wrote. “And, given the complete absence of any substantive law upon which to base this new rule, I do not believe we can or should use our procedural rulemaking authority to impose such a sweeping mandate. To do so puts the proverbial cart before the horse. . . . Unwilling to await the necessary changes in substantive law, the majority has decided to go ahead and impose this significant change in a rules case.”

Martinez said, “There is still legislative work that needs to be done to make sure all children have representation. This is just a solution on the pleas.”

The high court’s approval of the rule has been a work in progress for years.

The opinion details the history beginning with The Florida Bar’s Commission on the Legal Needs of Children 2002 report that “noted that a disturbing number of children waive their right to counsel in delinquency proceedings.” The commission drafted the proposed rule amendment to provide standards before a child in delinquency proceedings may waive his or her right to counsel prior to entering a plea or being tried for a delinquent act.

In 2004, the Juvenile Court Rules Committee proposed the amendment based on the commission’s recommendations.

In addition, both the Steering Committee on Families and Children in the Court and the Florida Public Defender Association supported the proposal.

After hearing oral argument, in 2005 the court adopted an amendment requiring that all waivers of counsel be in writing — but fell short of requiring consultation with an attorney before waiving that right to counsel, citing concern about the cost to public defenders.

“Because of the potential impact of the amendment to rule 8.165(a) regarding consultation with attorneys and our desire to work cooperatively with the legislature, we urge the legislature to consider the commission’s recommendation,” the court wrote in the 2005 opinion.

Bills were filed in the legislature in 2005, 2006, and 2007 — but died in committees.

Meanwhile, in 2005 the National Juvenile Defender Center project — requested by the Florida Supreme Court, the Bar, and the FPDA — sent 22 Florida and national observers to juvenile courts in 15 Florida urban, suburban, and rural counties in half of the state’s 20 judicial circuits. They watched the court in action and interviewed judges, defense counsel, probation officers, prosecutors, and other juvenile court personnel.

The center’s findings were detailed in a scathing 2006 report and reported in the November 15, 2006, Bar News. Among the findings:

Shackled together in chains, children arrive in juvenile court only to routinely waive their right to an attorney. They plead guilty, just to get their cases over with, not really understanding the ramifications.

Those kids who do talk to a lawyer often meet harried, inexperienced juvenile defenders for the first and only time in crowded courtrooms and chaotic hallways.

Even very young children in Florida’s courts waive counsel, sometimes with subtle encouragement from judges.

And the rule requiring consultation with an adult about the waiver decision is “routinely flouted.”

The following year, on June 22, 2007, the committee resubmitted the proposed amendment to the rule, citing that the FPDA believes there “would only be minimal fiscal impact as a result of public defenders providing a prewaiver consultation in juvenile dependency proceedings.”

In the current opinion, the court said, “Especially given the observations brought to light by the NJDC’s assessment of children’s access to counsel in delinquency proceedings in our courts, it is clear that additional safeguards are needed. Accordingly, we conclude that a meaningful opportunity to consult with counsel before waiving the right to counsel is a necessary step in effectuating and protecting the child’s substantive right to counsel.”

[Revised: 02-08-2018]