A man charged with murder can't have a free additional attorney appointed to defend him in a capital case, a Florida state appeals court said Wednesday, finding in a reversal that since he had privately paid for primary counsel, under state law, he couldn't have gratis help, despite now being indigent.

In what the Third District Court of Appeal called "a question of great public importance," certifying a query on the matter to the state's highest court, the three-judge panel said in a unanimous opinion that state law "does not provide in the context of capital cases for private court-appointed counsel where the defendant already has a privately retained counsel but claims he cannot afford a second."

The appeals court explained that Ian Jackson was initially charged with second-degree murder in 2020 and privately paid for his attorney, Ana M. Davide, to defend him for a specific fee against that charge. Then, nearly two years later, the state indicted Jackson on two counts of first-degree murder, intending to seek the death penalty, the panel said.

As a result of the capital case, Jackson sought to have the court appoint an additional private attorney, Reginald "Tony" Moss "as second chair, penalty phase counsel, stating that he did not have money to retain a second attorney to handle the penalty phase of a death penalty case," the panel explained.

Defendants may have more than one attorney when facing the death penalty, according to the panel, which noted that in cases where defendants who aren't paying for retained counsel show a need for a second attorney, they may be appointed a second lawyer.

In Jackson's case, a trial court allowed Moss to be appointed and ordered the state's Justice Administrative Commission to foot the bill. However, under state law, this was improper, the appeals court said. It agreed with the state's Justice Administrative Commission, which appealed the trial court's decision.

"The defendant must choose between keeping the one privately retained counsel of his choice or dismissing his retained counsel and seeking court-appointed counsel, whether a public defender, criminal conflict counsel, or private court-appointed counsel," the panel said, citing relevant passages of state law which explained that, if a defendant can pay for representation, the state could not pay for another lawyer.

"Accordingly, the trial court had no discretion to appoint Moss to serve as a second-chair counsel in Jackson's defense," the panel said.

Jackson argued that not having Moss appointed would violate his Sixth Amendment right to effective assistance of counsel, "in part because he was unable to afford two attorneys," the panel explained.

Jackson also said that failure to appoint Moss "would violate his rights to due process and equal protection under Florida and Federal Constitutions."

But under the text of the law, the panel found that nothing could be done.

"We recognize that the result of this decision means that to be eligible for a court appointed private counsel to represent him in the penalty phase in this death penalty case, Jackson must terminate his lead private counsel of choice, who has maintained his defense since 2020," the panel said.

It asked the state's highest court to opine on whether someone in Jackson's position might have an attorney appointed by the state, agreeing with the trial court that the issue was important.

Ana M. Davide, who represents Jackson, said in an email to Law360 that the appeals court's decision "reflects the predicament that defendants like Ian Jackson face."

"The court has certified this issue as one of great importance, and we fully intend to continue to litigate this matter and protect defendants' rights to be represented by an attorney of their choice," she said, explaining that she would be "filing a petition for discretionary review in the Third [District Court of Appeals] followed by a jurisdictional brief to the [Florida] Supreme Court."

Representatives for The Justice Administrative Commission declined to comment on the case.

Judges Ivan F. Fernandez, Norma S. Lindsey and Fleur J. Lobree sat on the panel.

The Justice Administrative Commission is represented by Ana Cristina Martinez and Christian D. Lake.

Jackson is represented by Ana M. Davide of Ana M. Davide PA, and the Florida Association of Criminal Defense Lawyers-Miami Chapter appeared as amicus through Michael T. Davis and Daniel Tibbitt.

The case is The Justice Administrative Commission v. Ian Jackson, case number 3D22-2082, in the Third District Court of Appeal of the State of Florida.

--Editing by Dave Trumbore.