Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT THE LAW OFFICE OF THE PUBLIC DEFENDER, SEVENTEENTH JUDICIAL CIRCUIT, Petitioner, v. STATE OF FLORIDA, Respondent. No. 4D21-1233 [May 12, 2021] Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Daniel Casey, Judge; L.T. Case Nos. 19- 011497 CF10A, 20-009610 CF10A, and 20-009812 CF10A. Gordon Weekes, Public Defender, and Bernadette Guerra, Assistant Public Defender, Fort Lauderdale, for petitioner. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard, Assistant Attorney General, West Palm Beach, for respondent. PER CURIAM. Having considered the response and reply to this court’s order to show cause, the petition for writ of certiorari is granted, and the order denying the Public Defender’s motion to withdraw is quashed. The circuit court departed from the essential requirements of law in denying the Public Defender’s motion to withdraw because the defendant is not indigent and private counsel has substituted for the Public Defender. See § 27.51(1), Fla. Stat. (2020); Behr v. Gardner, 442 So. 2d 980, 982 (Fla. 1st DCA 1983). The circuit court mistakenly believed that the defendant’s potential incompetency to proceed in this criminal case equated to a lack of capacity to consent to the substitution of counsel. However, we are not aware of any authority holding that private counsel may not be substituted for the Public Defender on behalf of a potentially incompetent, yet not indigent, defendant. Thus, the only issue for the circuit court to decide is whether the defendant is competent to proceed with counsel, whomever that counsel may be. See Dusky v. United States, 362 U.S. 402, 402 (1960) (competence to proceed in a criminal case is a question of “whether [the defendant] has sufficient present ability to consult with [counsel] with a reasonable degree of rational understanding—and whether [the defendant] has a rational as well as factual understanding of the proceedings ….”). Petition granted; order quashed. GERBER and ARTAU, JJ., concur. CIKLIN, J., concurs specially with opinion. CIKLIN, J., concurring specially. It should be noted that even incompetent criminal defendants retain the capacity to exercise certain rights, such as the right to give written consent for treatment, section 916.107(3)(a), Florida Statutes (2020), and the right to vote, section 916.107(7), Florida Statutes (2020). * * * Not final until disposition of timely filed motion for rehearing. 2