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  1. #1
    Join Date
    Dec 2010

    Question Can I Sue Public Defender for Misrepresentation

    My question involves criminal law for the state of: Florida

    In late 2009, 2 police officers spoke to a person who claimed that I had damaged a vehicle in their possession. They did not own the vehicle. I later learned, the officers refused to file charges due to a lack of evidence.

    A week later, a detective showed up at my door, arrested me, and stated he had probable cause to do so, in relation to this damaged vehicle. Apparently, when the first attempt to blame me failed, thay had another friend say; "yeah, I heard him say he did it!"....(Which was a blantent lie.)

    I was then arrested, and charged with a 3rd degree felony...Criminal Mischief over $1000.00. I bonded out, and recieved legal consultation from a Public defender who informed me I needant hire an attorney, the State had NO evidence, and we go to trial...Not Guilty!

    After 6 months of pre-trials, rescheduled hearings, and several attempts by The States Attorneys to get me to take a plea....(which I refused) I finally recieved a trial date for March 1st, 2010, at 9am.

    I showed up for court early with my wife, and 1 of our 3 children, and waited for my name to be called as instructed.

    After 3.5 hours, I still hadn't seen my Public Defender, nor had my name been called. Anxious to end this 6 month nightmare, I approached another Public Defender, and asked; "Have you seen Ryan _____?" (My appointed Public Defender)

    He stated; "No, Ryan's in another trial all day, can I help you?"

    I showed him my paperwork, which clearly stated I was in the right place, on the right day, etc...

    He asked me to hold on while he checked the court docket. Minutes later he returned stating; "That's odd, your not on the docket. Any number of reaons could cause this; the State dropped the charges, is looking for more evidence and has rescheduled the trial date, or the judge threw it out! any case Ryan should have contacted you to inform you that you didn't need to be here today."

    "O.k., so now what do I do?"; I asked him

    He said; "well since your already here, I suggest you exit the courthouse, go to the Public Defenders office in Bld B., 2nd floor, and leave a message for Ryan that you were here, and to contact you in regard to your case."

    Easy enough. I did just that. (Never called me though)

    The next day March 2nd, I called his direct line, left a message that it was urgent he call me back. (Never did!)

    On March 9th, 2010 (my daughter's 14th Birthday) I was arrested at my work place for a "Failure to Appear" and detained for 43 days without bond!....for having missed my trial on March 2nd, 2010....rediculous!!!!

    My wife had spoken with Ryan on 2 occassions while I was held in jail. Both times he told her that he had scheduled appointments, and would be meeting with me in jail, and that he was confident he would have my bond reinstated with a week.

    43 days later, I was bought to court in a blue jumpsuit and pink handcuffs. I hadn't seen Ryan, nor spoken to him since pre-trial, where again he laughed and said; "The State has nothing, this is an open and shut evidence means...."Not Guilty"

    Yet, this man had the nerve to look me in the eye in that courtroom, and say; "I'm really sorry, I know there was a communication issue which caused all this grief for you."

    He proceeded to list my options;

    1.) He ask the judge for a bond hearing, but that it would take roughly 2-4 weeks to get, by which I'd be stuck in jail. He added that if we go that route, the judge may refuse to set bond, and I could be stuck in jail until a new trial be set. (For up to 6months-1year)

    *NO WAY!!!!

    2.) If you want to take it back to trial (which I did!) he said, it could take anywhere from 6 months to a year, by which if the judge maintained a ruling of no bond, I would be forced to remain in jail.

    3.) We accept a plea bargain from the States Attorney. Right now they are offering you 1 year probation, an Anger Management Course, A Drug & Alcohol evaluation, Court Costs, restitution ($1,567.00) and any investigation fees. Oh, and Ajudication withheld...whatever the hell that is?

    I was angry! I said, "NO WAY!!!....43 days I've rotted in that cesspool and this is the best you can do?"

    He told me, "look we have to act fast, or you risk being in there another month while I schedule a "Bond Hearing"

    The charge I was faced with was Criminal Mischief over $1000, which is a 3rd degree felony. I said, look there is no way, I can accept having a felony on my record after all this.

    He responded; "O.k., if I can get the State to reduce the charge to a 1st degree misdemeanor, will you consider accepting their plea?"

    I foolishly agreed. My wife and kids needed me. I had never been to jail, and with the options he gave me, it seemed logical at the time!

    Only now, I am suffering financially, have undergone huge amounts of stress pyschologically, and now I am showing physical signs (ulcers) and bouts of anxiety, as a direct result of the pressures this 2year nightmare has caused.

    All-in-all, there was NEVER any evidence to support this punishment, and I feel this entire event is both unconstitutional, and reaks of injustice.

    Clearly, if I was "guilty" I would've just taken the plea from the get go. Secondly, why would I go through all the trouble of complying with the court by showing up at every scheduled hearing...including my March 1st Trial date?

    Honestly, I was willing to suck it up for my family until last Friday when I recieved a "Post-Card" type message from the Clerk of Courts which reads;

    "You have failed to make your schedule payments. Failure to make your scheduled payments or attend the next session of collections court could result in a writ of bodily attachment. Also, your Driver's License will be suspended."

    Here I thought I had to the end of my probation to pay the court costs, but apparently in the sea of shit they've had me swimming in I lost track!

    Anyway, I called to find out when the next session of collections court would be, considering that option to buy a little time. I learned the last date for 2009 case was on Dec. 16th, convienant, I received the letter Dec. 17th.

    Meanwhile, I paid the back due balance to avoid my arrest or D.L being suspended.

    Then, I decided to look up my case in the computer using the information on the post-card.

    It clearly states my charge;

    CRIMINAL MISCHIEF over $200 under $1000. Which by Florida state law constitutes a 1st degree misdemeanor, as we agreed in the plea bargain.

    However, the status reads; 3rd Degree Felony?

    Venturing through the finite detailed bit of information, I stumbled upon another find;

    On March 23rd, 2010 (while I was in jail) a motion to reinstate bond was filed

    On March 29th, 2010 The judge recieved the motion

    On March 30th, 2010 The judge ordered the bond be reinstated

    Now I don't know the law, because I don't commit crimes, but I find it odd my Public Defender misled me to think I'd be stuck in jail waiting to see if the judge might reinstate the bond, when in actuallity....he already did!

    Also, my wife checked along with my employer everday for the 43 days I was in jail, ready to post my bond so I could return to my family and my job, only to be denied, as no bond amount ever appeared.

    I am a law obiding citizen, whom until now had no quarrel with the justice system, but now I feel something can, and must be done on my part to correct this injustice. My kids have suffered, as has my wife, and I literally have physical conditions I believe route directly to the stress this situation has caused. Heck, forget about the time I lost from work, the debts that accrued while being in jail, the time loss of work to deal with all this nonsense (which exceeds $10,000.00....over an accusation I put a $200 scratch on a car worth maybe $2500) Again, a car by which the owner didn't press charges, a loser he loaned it to did....(who's currently on probation for credit card fraud)

    Is that even legal?...wasn't even his car

    Ultimately, I need some advice.

    What can I do?

    Everyone says; "Consult a lawyer, sue the Public Defender, and fight for a retrial!"

    Honestly, I need to know can that be an achievable goal?

    In closing, I apologize for the blow-by-blow details, but there really was no easy way to describe the leve lof ignorance I've witnessed and endured over nearly 2 years now.

    I do not want sympathy or pity! (((I WANT JUSTICE!!!!)))

    After all, I have 3 teenagers to wit, I am attempting to lead by example. I have NEVER been in any trouble with the law prior to this bs. Aside from traffic issues some 15 years ago. Honestly, how can I tell them to have faith in a system, if they see what the system has cost them, and done to them by unjustly punishing me?

    Again, sorry for the lenght....but I am fed up, pissed off, and literally sick to my stomach over this charade of ignorance.

  2. #2
    Join Date
    Aug 2007

    Default Re: Can I Sue Public Defender for Misrepresentation

    I am not a lawyer, but I do not believe you can sue a Public defender, as an officer of the court, they probably enjoy some type of quasi immunity for thier actions. Now, if it was a private attorney you hired, a Professional malpractice suit may be in order.

    Probably your sole remedy is appeal based on ineffective assistance of counsel.

    Sorry to see you got shafted by the system.

    Best wishes though.

  3. #3
    Join Date
    Jan 2006

    Default Re: Can I Sue Public Defender for Misrepresentation

    all attorneys are officers of the court. As a PD, the guy had the exact same responsibility to his client as a private practice attorney.

    attorneys for each party - the Supreme Court of the United States held in Ex parte Garland, 71 U. S. 333 (1866) that "Attorneys and counselors are not officers of the United States; they are officers of the court, admitted as such by its order upon evidence of their possessing sufficient legal learning and fair private character."
    I believe the PD has the same exposure to malpractice as a private practice attorney would.

    I agree with the ineffective assistance of counsel for an appeal though.

  4. #4
    Join Date
    Mar 2009
    Key West, FL

    Default Re: Can I Sue Public Defender for Misrepresentation

    There is no appeal on a guilty plea.

    Perhaps there is time to file some other post conviction motion for relief and to withdraw the guilty plea. You would need to hire an attorney for that purpose.

    You got the shaft in more ways then one. I doubt there was any chance of conviction. I also doubt the person making the complaint even had standing to do so. Finally, if you did make the scratch it would have to be intentional and the state would have to prove there was criminal intent.

    Obviously the PD had a schedule conflict and changed the date of your trial to the next day. It was outrageous he did not inform you. And where was that moron when the judge was issuing a bench warrant for your alleged non-appearance? Why didn't the attorney contact you right then and there?

    I would immediately file a complaint against this attorney with the state bar. I would also file a complaint with the head of the public defender's office.

    Finally, if this was scheduled for trial, you make no mention of depositions and any other pretrial work the attorney should have done. If there wasn't any, I would complain about that too. The complaining witness, police, and the detective all should have sat for depositions prior to trial.

  5. #5
    Join Date
    Dec 2010

    Default Re: Can I Sue Public Defender for Misrepresentation

    Thank You for the advice. Honestly, I wasn't sure whether or not there was a way to "appeal" considering I foolishly took the "plea offer" under diress and poor representation. As such, having already been sentenced, I have recieved conflicting advice. My probation officer has gotton to know me, and she too agrees the process failed. However, she stated that; "I had my day in court."

    Given the circumstances, neither do I feel to have had a fair trial, nor my day in court.

    In fact, there was no actual trial. As stated prior, I was looking forward to the trial on March 1st confident this nightmare was over. The State never has, nor ever could possibly prove anything, because there is NO evidence. They simply locked me up, and just assumed I was guilty.

    The hardest part to accept is the "charge" reflecting on my record, when in any and/or all absolution there was never any solid evidence to prove the damages were of my doing. Anyone can say; "I heard so and so say he did this or that"....but that is hearsay, not evidence!

    There is a major "void" here, whereby I cannot feel complete knowing; if they can do this to me, they will do it again to another.

    I'm sure there are several innocent people to whom the system has failed, or even cases to wit criminals have been released, whereby justice was currupted by human ignorance. So in essence, this goes beyond any selfish purpose. I cannot tolerate this type of ignorance, especially in a system designed to protect the innocent, and uphold justice.

    If anyone else has ANY information as to what I can do within the means of the law to fight this perversion, I welcome your advice.

    I'll be sure to follow up here, and detail upcoming events, as I am seeking a lawyer to fight this injustice. Surely, it's an uphill battle, but my spirit believes; the truth can indeed move mountains. I simply need to find the tools and a good lawyer to help me do it!

    Kinda humoring to think the court is ordering me to pay the $50 DERP fee to the Public Defender, that in itself is motivating me to fight even harder!

    Merry Christmas to You and Yours. Here's to freedom, and prosterity!

  6. #6
    Join Date
    Aug 2007

    Default Re: Can I Sue Public Defender for Misrepresentation

    Quote Quoting jk
    View Post
    I believe the PD has the same exposure to malpractice as a private practice attorney would.
    I could not find any Constitutional case law that immunes a PD for a state, just a federal PD?

    I do know the federal constitution, that is, SC case law, immunes a State Prosecutor, as we both know.

    It would then be a matter of Florida law if they grant immunity to a PD?

    This I have not researched Aurthur. Try yourself OR you can always hire a Malpractice attorney to look into it.

  7. #7
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Can I Sue Public Defender for Misrepresentation

    From what I can see, in Florida, to successfully sue a criminal defense for malpractice the plaintiff must "prove by the greater weight of the evidence that he was innocent of the crimes charged in the underlying criminal proceeding". To put it another way, the plaintiff must allege "he was exonerated in regard to the criminal charges. Exoneration is a prerequisite to a claim of legal malpractice arising from criminal prosecution". I haven't explored the issue of a malpractice claim relating to issues unrelated to the conviction - issues, for example, surrounding notice of the trial or pretrial detention - but it seems pretty clear that a plaintiff must prove exoneration in order to sue for malpractice over a criminal conviction.

    I am interested in learning more about the "communication issue" that resulted in appearance on the wrong trial date. What was the communication, what was the nature of the "communication issue", how was that error caused, and why wasn't it detected? Did notice of the trial date come from the court or the public defender's office?

    In terms of the judge supposedly reinstating bond, why is it that nobody (save perhaps the judge) appears to have been aware either that the bond had been reinstated or that an order had been entered? If somebody was calling the court and jail throughout that period to find out if it was possible to post bail, at the point the judgment was entered the answer should have been "yes".

    There's nothing special about a client insisting he's 100% innocent over a period of months until the day he changes his mind, pleads guilty, and confesses to his crime on the court record. It happens quite often. A significant percentage of cases are resolved by plea on the date of trial or even during the course of trial.

    The name of a criminal case is "State vs.", "People vs.", "Commonwealth vs.", etc., because the state is the complaining party. If the prosecutor found a basis to charge you, the prosecutor can proceed with charges even if the victim hasn't expressed that they want you charged, or even if the victim opposes the decision to prosecute.

    Your probation officer should be able to confirm that your conviction was properly entered as a misdemeanor.

  8. #8
    Join Date
    Feb 2010
    CT & IL

    Default Re: Can I Sue Public Defender for Misrepresentation

    Not that it will help this OP but if you have a court date & your case is not on the docket ... see the judge ! The judge will look on his computer to see what occurred & let you know OR at least he saw you and you can tell him "your honor, I was following your instructions from 1 MAR 10 to do this,that,the other. Now I am before you due to a simple mistake". Judges will never say "I told you something wrong but too bad" . I have even seen it where a defendant was told by a bailiff in a judge's court to leave the courtroom due to the wrong date & the judge would not punish the defendant when it was discovered the bailiff was wrong. If you have to wait until he has heard all his cases then do so ... even if it is all day (during break go to the clerk's office to chk it out too). You can see the judge's clerk too & have the same effect .. just get names so you can recall them. Dockets are usually available at the clerk's office or posted outside the courtroom. Allow yourself enough time to review the docket & see the clerk if there is an issue (rescheduling etc) with it before you scheduled hearing.

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