Clerk of the Court

Having practiced primarily in the Ninth Judicial Circuit since graduating from law school, one of the most frustrating procedures I have witnessed is the manner in which a person has to pay multiple “court costs” in multiple cases that all arise out of the same arrest.

For example, if you get arrested in Seminole county for Fleeing and Eluding, DUI, and Driving on a Suspended License; the Clerk of the Court opens one case file in the Circuit Court (Felony Court) and all three charges are resolved at the same time. This is the way it should be done.

However, under the same scenario in Orange and Osceola County, the Clerk of Court opens up a separate case for each criminal-traffic offense. And because one of them is a felony, there are actually a minimum of two judges, two prosecutors, and two sets of clerk personnel involved.

Well I finally put pen to paper and issued a letter to the various Florida Bar criminal rules committees outlining the problem and the applicable law I believe applies. I am hopeful that this will finally get some changes made. Below is the text of my letter:

The Criminal Procedure Rules Committee
The Rules of Judicial Administration Committee
The Traffic Court Rules Committee
c/o The Florida Bar Staff Liaisons
651 E. Jefferson Street
Tallahassee, FL 32399-2300

Re: Request to Review the Rules Related to the Duties of the Clerk of the Court and the State Attorney as they apply to the Initiation of Criminal Proceedings that Involve a Criminal Traffic Component

Dear Committee Chairs:
I am writing to request that the rules committees review and, if necessary, harmonize or clarify the Rules of Judicial Administration, Criminal Procedure Rules, and Traffic Court Rules as they relate to the initiation of criminal proceedings that involve criminal traffic offenses.

The reason for my request is based upon a questionable initiation and intake process utilized by the Ninth Judicial Circuit Clerks of the Court and State Attorney when initiating and opening criminal cases; a process that appears to be in conflict with the applicable rules of procedure.

The Clerk of Court Procedure in the Ninth Judicial Circuit

Under Rule of Judicial Administration 2.555 (“Initiation of Criminal Proceedings”), when a person is arrested and charged with multiple criminal offenses arising from one episode, the Clerk of the Court should determine jurisdiction based under the most serious charge in the criminal complaint (usually the charging affidavit) and open a case file in the appropriate court of jurisdiction (county or circuit), which includes all of the lesser offenses that the defendant was also charged and arrested for that arose out of the criminal episode.

For example, if a person was arrested by law enforcement for Fleeing and Eluding (FATE), Battery on a LEO (BLEO), Resisting Without Violence (RWOV), Reckless Driving, Driving on a Suspended License (DWLS), and Speeding; the Clerk of Court should open one case in the Circuit Court. This is because the two felonies, FATE and BLEO, can only be heard in the circuit court.

As a result, only one judge, one prosecutor, one public defender (if indigent), and one set of clerk personnel are assigned. And as the case progresses, the law enforcement officers would only appear for hearings on one case. Also, if convicted, only one probation officer is assigned to the defendant.

However, in the Ninth Judicial Circuit, the Clerks of the Court (primarily the Orange County Clerk) do not create one court file based upon the most serious charge as required by Rule of Judicial Administration 2.555. Instead the clerks separate out each misdemeanor criminal traffic offense and civil traffic infraction and open each under a separate and distinct case in the County Court.

So in the Ninth Judicial Circuit, and under the above scenario, the FATE, BLEO, and RWOV are opened under one felony case number in the Circuit Court (in some instances the RWOV is opened under a separate county case number). The Reckless Driving, DWLS, and Speeding are opened under three separate and distinct case files in the County Court. To further complicate matters, an election for a hearing must be made for the speeding ticket (or any related infractions). Otherwise the Clerk will treat it as having been filed at large; and if it goes unpaid the clerks suspend the defendant’s driver license. Consequently, a motion must be filed by the defense attorney to consolidate related infractions with the criminal traffic case under Traffic Court Rule 6.130 (“Case Consolidation”).

However, in the case of indigent clients, the Public Defender does not handle related infractions and the defendant must handle them himself. This is obviously impossible for indigent incarcerated defendants. And in the case of released indigent clients, more often than not they are not provided with copies of their related infractions, or if they are, they assume they are handled automatically with the criminal cases. So they incur needless later fees and unnecessary license suspensions.

Consequently, under the Ninth Judicial Circuit’s scheme, a defendant would find himself with a minimum of three separate cases (possibly four) and – a minimum – of three judges, two prosecutors, two assistant public defenders (if indigent), and – three sets of clerk personnel. Also, law enforcement officers and witnesses are subject subpoena and appearance multiple
times (which equals less time on the street) in four to five separate cases (all with different case numbers, making case reference difficult). Also, if convicted on both the felony and misdemeanor cases, the defendant would be assigned separate probation officers (one for state probation, one for county probation).

The State Attorney Intake Process and Handling of Criminal Related Traffic Cases
To further complicate the matter; the State Attorney in the Ninth Judicial Circuit does not review or engage in criminal intake of criminal traffic offenses that are misdemeanors on their face; and the Clerk of Court simply initiates each as a new and distinct case in the County Court. This failure to review or undergo intake would seem to be in contradiction to the requirements of Florida Rule of Criminal Procedure 3.115 (“Duties of State Attorney; Criminal Intake”). It also raises the ethical question of who should be held responsible if a criminal case is not prosecuted in good faith.

As a result of this lack of intake, and under the above scenario, a defendant could find himself defending against the DWLS charge even though there is no actual evidence to support knowledge of a license suspension to support the criminal charge aside from the LEO’s hunch); whereas, if the State Attorney had reviewed the case in intake, they likely would have declined to prosecute the DWLS charge because the evidence only supported a civil infraction of DWLS. As for the Reckless Driving charge; an astute defendant could plea to the charge at arraignment and, at worse, receive 90 days in jail. However, the State Attorney would be prohibited under double jeopardy principles from filing the second degree felony offense of “Fleeing and Eluding a LEO in a Reckless Manner” because all of the charges were not reviewed together in intake.

So the State Attorney would be left with pursuing the lesser charge of third degree felony FATE. Also, the Ninth Judicial State Attorney has a policy of not assuming responsibility for disposing of civil traffic infractions that are consolidated with (or arise out of) criminal traffic cases because they claim to have no jurisdiction in such cases. This assertion would appear to be contrary to Section 27.02, Florida Statutes, (“Duties Before Court”) (“The State Attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party.”)

Additionally, their refusal to assume jurisdiction over the civil traffic infractions creates needless dispositional problems. Because the infractions remain pending even if the State Attorney resolves the underlying criminal traffic case. To deal with this issue, some judges will “subsume and dismiss” related infractions; but not every judge believes they have this authority and instead requires a defendant to either plead to the infractions or elect a hearing. In the latter case it creates unnecessary work for the judiciary and requires law enforcement to make unnecessary future appearance for infraction hearings; where, instead, the State Attorney could have disposed of the infractions with the criminal traffic case and saved all parties needless time.

The Purpose of the Rules
Finally, I would point out that the underlying purpose of the each set of rules of procedure is to promote the fair and efficient resolution of cases. See Fla. R. Jud. Admin. 2.110 (“The rules shall be construed to secure the speedy and inexpensive determination of every proceeding to which they are applicable.”); See Fla. R. Crim. P. 3.020 (“These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure and fairness in administration.”); See Fla. R. Traf. Ct. 6.020 (“These rules shall be construed to secure simplicity and uniformity in procedure, fairness in administration and the elimination of unnecessary expense and delay.”)

However, the Ninth Judicial Circuit process is neither fair nor efficient. It is unfair to a defendant arrested on multiple charges, as defendants are essentially taxed multiple times in the form of “court costs” simply because the Clerk of the Court decided to open multiple cases; rather than one case.

It is unfair to the citizens of the State of Florida, as the judiciary’s budgets (and now the clerk’s) are based on caseload statistics; as are the standards that dictate requests for additional judges. See Fla. R. Jud. Admin 2.240. Obviously the Ninth Circuit’s procedure inflates the amount of cases in a manner that is disproportionate to the amount of actual defendants. Thus the Ninth Circuit clerks and courts are able to claim greater budgetary and resource needs to the detriment of other circuits who do not report inflated caseload statistics (the neighboring Eighteenth Judicial Circuit for example).

The system is inefficient because it creates additional work for every agency related to the criminal justice system. It requires a minimum two sets of judges, clerk personnel, assistant state attorneys, public defenders, and probation officers to dispose of one defendant; whereas other circuits only need one (again, the Eighteenth Judicial Circuit is a perfect example).

Probably more alarming to the public in general, law enforcement personnel in the Ninth Judicial Circuit find themselves subject to being subpoenaed in multiple cases, different dates, for different proceedings that are all related to one arrest. Their time would be better spent on the streets rather than appearing multiple times for one defendant.

It is inefficient (and unfair) because an indigent defendant must keep track of multiple cases (and infractions) all related to his one arrest. In the above example, while the Reckless Driving charge will be considered to have been formally charged; the FATE and BLEO may still be in the State Attorney intake awaiting a formal charging decision. A trial and acquittal could occur on the Reckless Driving; but the State could file formal felony charges two months later on the FATE and BLEO (probably never knowing there was a trial). This is an unnecessary waste of judicial resources that is avoidable by amending the rules to require the State Attorney to intake all charges and file them under one Information. It would save the finite time of all criminal justice personnel involved.

And I leave you with this final, but common, absurdity involving violation of probation cases in the Ninth Judicial Circuit. Many times, under the above example, a defendant receives separate probation sentences: (1) State probation for the felony charges and (2) County probation for the misdemeanor criminal traffic case. When the defendant violates probation (say with a new arrest), his state probation officer will submit a VOP affidavit to the circuit judge and his county probation officer will submit a VOP affidavit to the county judge. Two separate warrants will be issued (one from each judge) and when arrested he will have two VOP hearings. Of course, the witnesses would potentially be required to attend both hearings.

So I pray that the members of the rules committees will carefully consider this issue; and revise the current rules to clarify the criminal case initiation and intake procedures and bring the unfair and inefficient practice to a stop.

Sincerely,
Richard Hornsby