FYI (tested a few years ago on FL exam mpc & essay, often missed, frequently tested distinction in MBE/FL - “right to counsel indigent defendant” (who knew this??)
Under the Sixth Amendment, indigent criminal defendants have a constitutional right to court-appointed counsel at sentencing if the conviction results in any term of actual imprisonment. The right applies to all felonies and to misdemeanors where incarceration is imposed.
Actual Incarceration Rule: The Supreme Court dictates that the right to appointed counsel hinges on whether the defendant is sentenced to actual imprisonment, not just the possibility of it. If an indigent defendant faces a misdemeanor charge and the judge sentences them only to a fine, there is no Sixth Amendment violation
Whereas in Florida, Indigent defendants are entitled to counsel for charges involving potential jail time. Exceptions: Counsel is not required for misdemeanors if a written order of no incarceration is filed at least 15 days before trial. Note that in Florida you are 100% entitled to counsel for a felony but on the MBE, there’s only a right to counsel violation if it results in sentencing.
Conclusion: Florida provides more protection for right to counsel when it comes to the 6th amendment. In Florida, if it’s a felony, no written order needed but if it’s a misdemeanor, written order needed. Federal law doesn’t make a distinction between felony and misdemeanor and is based strictly on outcome not potential. Thus, when Florida bar asks to discuss Florida and federal constitutional law, this distinction is critical. See Florida bar essay July 2022.