First appearance: do much to do, so little time.

• Author: Lewis, Mark F.
• Position: Florida attorneys

It's a scene often viewed on the evening news: A person who has been recently arrested is shown standing in his jail uniform while a judge informs him of the crimes for which he has been arrested and advises him of the amount of his bond, if any. It's all over in a few seconds.

For the vast majority of the cases, that's all first appearance is about. The general rule as set forth in Fla. R. Crim. P. 3.130(a) provides that "[e]xcept when previously released in a lawful manner, every arrested person shall be taken before a judicial officer ... within 24 hours of arrest.... At the defendant's first appearance the magistrate shall immediately inform the defendant of the charge and provide the defendant with a copy of the complaint." A defendant is entitled to a prompt first appearance when he or she is arrested for violation of probation as well as on new substantive charges. Hill v. State, 739 So. 2d 634 (Fla. 4th DCA 1999). And even if this rule is not followed, there are no real consequences. A confession that would otherwise be admissible is not subject to suppression merely because the defendant was deprived of a prompt first appearance: "When a defendant has been advised of his rights and makes an otherwise voluntary statement, the delay in following the strictures of the rule must be shown to have induced the confession." Keen v. State, 504 So. 2d 396, 400 (Fla. 1987). See also Williams v. State, 466 So. 2d 1246 (Fla. 1st DCA 1985); Johnson v. State, 660 So. 2d 648 (Fla. 1995).

If it's all so simple, then why the need for this article? The answer is that first appearances can be far more significant than they seem at first, and what happens at these hearings can have some serious consequences for later stages of the criminal proceeding. This article will briefly explore the law regarding first appearances, and hopefully will better prepare all counsel who are called upon to be present at these hearings.

Appointment of Counsel

Fla. R. Crim. P. 3.111(a) states that a person is entitled to appointment of counsel when he is formally charged, as soon as feasible after custodial restraint, or at the first appearance before a committing magistrate, whichever occurs earliest." (Emphasis supplied.)Assuming that first appearance is the first such opportunity, Fla. R. Crim. P. 3.130 states that if the magistrate "determines that the defendant is entitled to court-appointed counsel and desires counsel, the magistrate shall immediately appoint counsel." In many jurisdictions, the presiding judge appoints the public defender's office to represent anyone who is without counsel without going through the formal inquiry process required by Florida law.[1] Although this practice undoubtedly persists, the Third District Court of Appeal has stated that such a procedure is not proper. Office of the Public Defender v. State, 714 So. 2d 1083 (Fla. 3d DCA 1998).

Not only shouldn't the public defender's office be appointed "across the board," the defendant must affirmatively request such representation. In Smith v. State, 699 So. 2d 629 (Fla. 1997), an assistant public defender volunteered and was appointed to represent Smith after he had been indicted on multiple charges, including first degree murder. This appointment occurred before Smith was arrested and without his request. At a later date the defendant tried to suppress his confession on the grounds that it had been obtained in violation of his right to counsel. In rejecting this argument, the Florida Supreme Court held, "The mere appointment of an attorney at the attorney's request is not enough to invoke the right: the accused must invoke the right." Id. at 639.

Perhaps this point can be best understood when another facet of the appointment of counsel procedure is examined--the fact that such appointments are offense-specific. In other words, when counsel is appointed at first appearance, that appointment applies only to the offense for which the defendant is in court at that particular time. Law enforcement officers have the right to question the defendant on an unrelated offense even though he has been previously appointed counsel on another charge. Owen v. State, 596 So. 2d 985 (Fla. 1992); cert. den., 113 S. Ct. 339 (1992); McNeil v. Wisconsin, 111 S. Ct. 2204 (1991). The new offense, however, must be truly unrelated. It is not proper to question a defendant after he has been appointed counsel if the subsequent questions relate to an offense that is "inextricably intertwined" with the previous offense. In Taylor v. State, 726 So. 2d 841 (Fla. 1st DCA 1999), the First District Court of Appeal held that the trial court should have suppressed statements obtained by detectives who questioned Taylor about a residential burglary after he had been to court and been appointed counsel on a charge of dealing in stolen property, the property in question having been taken in the burglary.

The...