NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MARY ANN LEAKE, ) ) Petitioner, ) ) v. ) Case No. 2D16-2639 ) STATE OF FLORIDA, ) ) Respondent. ) ) Opinion filed November 30, 2016.

Petition for Writ of Certiorari to the Circuit Court for Polk County; Wayne M. Durden, Judge. Howard L. Dimmig, II, Public Defender, and Terry Stewart, Assistant Public Defender, Bartow, for Petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Respondent.

SLEET, Judge. Mary Ann Leake seeks certiorari review of the trial court's den ial of her public defender's motion to withdraw because of a conflict of i nterest. Because the trial court applied the wrong legal standard when it denied the motio n, we grant the petition, quash the order, and remand for further proceedings.- 2 - Shortly before Leake's scheduled trial date, the public defende r became aware that two of the named victims in the case had previously signed letters of support indicating that they would contribute financially to and sponso r a fundraiser for Public Defender Howard L. Dimmig's campaign for reelection. The publi c defender informed Leake of the conflict, and Leake r equested that counsel file a motion to withdraw. For reasons not clear from the record, the State objected. At the hearing on the motion, the State argued that under MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990), two victims' contributions to the public defender' s campaign did not create a conflict of interest. In Mackenzie, the supreme court held tha t a trial judge was not "required to disqualify herself o r himself on motion where coun sel for a litigant has given a $500 campaign contribution to the political campaign of the t rial judge's spouse." Id. at 1340. The State reasoned that if a trial judge had no duty to recuse herself or himself after receiving campaign contributions, then neither should the public defender. Persuaded by Mackenzie and the State's argument, the trial cour t denied the motion. In order to be entitled to certiorari relief, "[a] petitioner m ust establish (1) a departure from the essential requirements of the law, (2) resul ting in material injury for the remainder of the trial (3) that cannot be corrected on post judgment appeal." Parkway Bank v. Fort Myers Armat ure Works, Inc., 658 So. 2d 646 , 648 (Fla. 2d DCA 1995). As this court explained in Young v. State, 189 So. 3d 9 56 (Fla. 2d DCA 2016), "a trial court order compelling an ethically conflicted attorne y to represent a criminal defendant . . . 'constitutes a departure from the essential req uirements of the law that would result in an irreparable, material harm to the [certiorar i] petitioner that cannot be remedied on final appeal.' " Id. at 959 (alteration in origina l) (quoting Smith v. State, 156 So. 3d 1119, 1126 (Fla. 1st DCA 2015)). The supreme court "has acknowledged- 3 - that 'the right to effective assistance of counsel encompasses the right to representation free from actual conflict.' " Johnson v. State, 78 So. 3d 1305 , 1308 (Fla. 2012) (quoting Hunter v. State, 817 So. 2d 786, 791 (Fla. 2002)). And "[a]n a ctual conflict of interest that adversely affects a lawyer's performance violates a defend ant's Sixth Amendment right to effective assistance of counsel." Johnson, 78 So. 3d at 1308. Accordingly, we conclude that Leake has sufficiently alleged a harm that cannot adequately be remedied on appeal, and that this court has jurisdiction. The trial court departed from the essential requirements of the law when it based its denial of Leake's motion on MacKenzie, 565 So. 2d 133 2. In MacKenzie, the supreme court considered whether a judge should have recused he rself under section 38.10, Florida Statutes (1987), and Florida Rule of Civil Proce dure 1.432. Therefore, Mackenzie is completely inapplicable to the present case, which does not involve the recusal of the trial judge but rather the withdrawal of an atto rney in a criminal case under section 27.5303, Florida Statutes (2016), and the Rules R egulating the Florida

Bar 4-1.7. The MacKenzie case did not address whether the vict ims' commitment to sponsor a fundraiser for and cont ribute to the reelection of th e public defender, the employer of defense counsel, would have an adverse impact on de fense counsel's representation of the defendant, including but not limited to c ounsel's ability to adequately confront and cross-examine the victims. The relevan t consideration for the

trial court here was whether there was an actual conflict and w hether that conflict would have an adverse effect on the public defender's representation of Leake. See State v. Alexis, 180 So. 3d 929, 937 (Fla. 2015) ("Some adverse or detri mental effect on the representation . . . is required in order to establish an actua l conflict of interest."). Because the trial court did not apply this standard and instead applied the standard- 4 - employed in MacKenzie, it deviated from the essential requireme nts of law. See Price v. Hannahs, 954 So. 2d 97, 100 (Fla. 2d DCA 2007). Accordingly, we grant the petition, quash the denial of the pub lic defender's motion, and remand for further proceedings consisten t with this opinion. Petition granted; order quashed; remanded.

CASANUEVA and KHOUZAM, JJ., Concur.