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Traylor, 596 So. 2d at 962; In re T.W., 551 So. 2d 1186, 1191 (Fla. 1989) (State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court`s interpretation of federal law. . . . [W]ithout [independent state law], the full realization of our liberties cannot be guaranteed. (quoting Brennan, 90 Harv. L. Rev. at 491) (emphasis supplied)); State v. Douse, 448 So. 2d 1184, 1185 (Fla. 4th DCA 1984) (holding that the right to counsel attaches at an earlier point during the prosecutorial process under Florida law than under federal law). Moreover, this Court is the ultimate arbiter[] of the meaning and extent of the safeguards provided under Florida`s Constitution. Busby v. State, 894 So. 2d 88, 102 (Fla. 2004). In fulfillment of that constitutional role, we specifically held in Traylor, 596 So. 2d at 969-70, that article I, section 16 of the Florida Constitution (right to counsel), read in light of article I, section 2 of that same document (equal protection), mandates that the right of indigent defendants to [the] assistance of court-appointed counsel in criminal prosecutions is constitutionally required . . . . The rule is grounded in Sections 2 and 16 of our state Constitution.


(Emphasis supplied.) Further, we clarified that this rule is not subsumed by, or derived from, the federal Sixth Amendment:


In light of the widely-recognized and oftentimes decisive role the lawyer plays in the judicial process, we conclude that our state Constitution requires that the Section 16 right to counsel be made available to impoverished defendants. No Florida citizen can be deprived of life or liberty in a criminal proceeding simply because he or she is too poor to establish his or her innocence.







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Traylor, 596 So. 2d at 969 (emphasis supplied). In opposition to this precedent, the dissent proceeds under the incorrect assumption that there is no independent right to the assistance of appointed counsel under the Florida Constitution and that, consequently, this right is secured exclusively through the Sixth Amendment to the United States Constitution. However, the dissent overlooks the true content of our decision in Traylor, including its state-law posture.9

The reasoning of the dissent is












9. The dissent relies upon State v. Owen, 696 So. 2d 715 (Fla. 1997), for the proposition that our conclusions in Traylor were no different than those set forth in prior holdings of the United States Supreme Court. Dissent at 10 (quoting Owen, 696 So. 2d at 719). However, our colleague again overlooks a significant point: Owen did not involve a right-to-counsel issue under either the federal Sixth Amendment or article I, section 16 of the Florida Constitution (rights which apply during criminal prosecutions); rather, Owen solely and exclusively addressed Miranda-based rights derived from the federal Fifth Amendment and article I, section 9 of the Florida Constitution that apply during custodial interrogation. These are distinct rights governed by equally distinct doctrine, which the dissent regrettably confuses and conflates. See, e.g., Rhode Island v. Innis, 446 U.S. 291, 300 n.4 (1980) (observing that the policies underlying the two constitutional protections are quite distinct (emphasis supplied)); see also Davis v. United States, 512 U.S. 452, 456-57 (1994) (highlighting differences between these protections and explicitly clarifying that Davis involved the Miranda-based right to counsel, not the constitutional right to counsel under the Sixth Amendment). Moreover, in Owen, it is clear that we never purported to address any portion of Traylor with regard to the right to counsel under article I, section 16 of the Florida Constitution (Traylor offered separate analyses and holdings with regard to the right against self-incrimination under article I, section 9 of the Florida Constitution and the right to counsel under article I, section 16 of that same foundational document). Compare Traylor, 596 So. 2d at 964-66 (addressing article I, section 9), with id. at 966-70 (addressing article I, sections 2 and 16). A simple textual search of Owen demonstrates that we never addressed, let alone mentioned, article I, section 16 or the Sixth Amendment. Rather, Owen dealt exclusively with the issue of equivocal invocations of the right to cut off questioning during







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thus unsound from its inception because it assumes that we lack the ability to independently interpret the Florida Constitution. We establish no new precedent in this regard as asserted by the dissent; we specifically held in Traylor--and reaffirm today--that article I, sections 2 and 16 of our state Constitution afford indigent criminal defendants a free-standing right to appointed counsel. See 596 So. 2d at 969-70. Owen did not even mention this aspect of the Traylor decision.



For reasons unexplained by our dissenting colleague, he would have us unquestionably follow the decisions of the United States Supreme Court when we are faced with questions of state law. In reply, we explain that we have the duty to independently examine and determine questions of state law so long as we do not run afoul of federal constitutional protections or the provisions of the Florida Constitution that require us to apply federal law in state-law contexts. No such considerations restrict our ability to definitively decide this case.


We live in a federalist republic, with multiple, independent levels of government, rather than in a unitary state, which, in contrast, is controlled by a centralized governing regime and court system. Far better writers than we have


custodial interrogation (i.e., an issue with regard to the right against self- incrimination). Thus, in Owen, we addressed an issue involving article I, section 9 of the Florida Constitution (i.e., a Miranda issue), not article I, section 16. Furthermore, we nevertheless clarified in Owen that Traylor remind[s] us that we have the authority to [independently interpret the right against self-incrimination under the Florida Constitution] regardless of federal law; we simply chose not to do so in that decision. Owen, 696 So. 2d at 719 (emphasis supplied).







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explained this dual system of republican government. For example, writing as Publius, James Madison explained this foundational aspect of our nation, which has subsequently been labeled dual or cooperative federalism,10 by stating:


In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct levels of government [referring to the national and state governments], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.




The Federalist No. 51, at 292 (James Madison) (M`Carty & Davis, Philadelphia, PA, Glazier & Co., Hallowell, ME 1826). In keeping with this foundational concept, our decision today reflects the differences that exist between Florida and federal law and promotes a double security for the constitutional rights of Floridians.


Unsurprisingly, our acknowledged role as the definitive arbiter of the Florida Constitution requires a unique standard of review in this case:









10. See, e.g., Dameron v. Brodhead, 345 U.S. 322, 326 (1953); see also Black`s Law Dictionary 644 (8th ed. 2004) (cooperative federalism. Distribution of power between the federal government and the states in which each recognizes the powers of the other while jointly engaging in certain governmental functions.).







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When called upon to decide matters of fundamental rights, Florida`s state courts are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein. We are . . . [thus] bound under our Declaration of Rights to construe each provision freely in order to achieve the primary goal of individual freedom and autonomy.


Traylor, 596 So. 2d at 962-63. Accordingly, we examine Nichols, and reexamine our current Hlad/Beach framework, to determine if either comports with Florida`s prospective-imprisonment misdemeanor right-to-counsel standard.


To properly frame this inquiry, we must first explore the United States Supreme Court precedent that preceded and eventually led to Nichols. Four major Supreme Court decisions have directly shaped indigent defendants` Sixth and Fourteenth Amendment right to appointed counsel in misdemeanor cases:


Argersinger v. Hamlin, 407 U.S. 25 (1972), Scott v. Illinois, 440 U.S. 367 (1979), Baldasar v. Illinois, 446 U.S. 222 (1980), overruled by Nichols v. United States, 511 U.S. 738 (1994), and Nichols.






i. Argersinger and Scott


In Argersinger­­a case that resulted from this Court`s holding in State ex rel. Argersinger v. Hamlin, 236 So. 2d 442 (Fla. 1970)­­the United States Supreme Court explained that the expansive right-to-counsel language appearing in







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Gideon v. Wainwright11 was not limited to felony cases. The High Court explained:




[T]he problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. . . .




[T]he prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or petty` matter and may well result in quite serious repercussions affecting his career and his reputation.


. . . [A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.


Argersinger, 407 U.S. at 36-37 (emphasis supplied) (footnotes omitted) (quoting Baldwin v. New York, 399 U.S. 66, 73 (1970)). The Court also addressed the importance of appointed counsel for defendants when entering pleas:


Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.


Id. at 34 (emphasis supplied).











11. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (emphasis supplied).







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Some justices interpreted the prospect of imprisonment language appearing in Argersinger as indicating that the right to counsel attached whenever the charged offense was punishable by imprisonment. See, e.g., Scott v. Illinois, 440 U.S. 367, 382-89 (1979) (Brennan, J., dissenting) (advocating that the Court adopt an authorized imprisonment standard similar to the one Florida employs today). In Scott, however, the High Court clarified that Argersinger limited indigent defendants` Sixth Amendment right to appointed counsel to cases in which the defendant is actual[ly] imprison[ed]. Scott, 440 U.S. at 373. But, in clarifying Argersinger, Scott did not disturb the Argersinger Court`s rationale for ensuring that indigent defendants do not face jail time as the result of uncounseled misdemeanors­­uncounseled misdemeanors lack the requisite reliability to impose imprisonment. See Argersinger, 407 U.S. at 35-36 (The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush.` . . . There is evidence of the prejudice which results to misdemeanor defendants from this assembly-line justice.` (citation omitted)); see also Baldasar, 446 U.S. at 227 (Marshall, J., concurring) (We should not lose sight of the underlying rationale of Argersinger, that unless an accused has the guiding hand of counsel at every step in the proceedings against him,` . . . his conviction is not sufficiently reliable to
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