What are the rights of the respondent?
The Marchman Act is a civil procedure (not criminal). Accordingly, a respondent has the right to be noticed of any court proceeding and a right to appear.
After a Marchman Act Petition is filed and a hearing date set by the Court, the respondent will be asked if they wish to have an attorney. If the respondent wishes to be represented by an attorney and cannot afford one the court will appoint Regional Conflict Counsel to represent the respondent. The respondent has the right to know the time, date, allegations, and specific location of a hearing. The respondent can choose not to attend the hearing but must be noticed properly regardless. A hearing may take place without the respondent being present if proper service has been met and is demonstrated to the court. There are two manners of service: (1) service by a law enforcement officer or (2) by the private process server. The petitioner can have private service of the notice, petition or motion arranged to best coordinate the time and place for the respondent to be served. A law enforcement officer may simply serve the respondent at their discretion. If the officer arrives and the respondent is not present, the service will not be effectuated. This will ultimately result in delaying all legal proceedings.
Once again, it is also important to note that the respondent, by statute, has the right to an attorney at every stage of the proceedings. The respondent does have the right to hire a private attorney. However, a court-appointed attorney will be available to the respondent if they are unable to obtain counsel due to financial reasons
The respondent is provided ten individual rights as stated in Florida Statute 397. The rights and their respective descriptions are as follows:
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The dignity of the individual served must be respected at all times and upon all occasions, including any occasion when the individual is admitted, retained, or transported. Individuals served who are not accused of a crime or delinquent act may not be detained or incarcerated in jails, detention centers, or training schools of the state, except for purposes of protective custody in strict accordance with this chapter. An individual may not be deprived of any constitutional right.
Each individual in treatment must be afforded the opportunity to participate in the formulation and periodic review of his or her individualized treatment or service plan to the extent of his or her ability to so participate.
It is the policy of the state to use the least restrictive and most appropriate services available, based on the needs and the best interests of the individual and consistent with optimum care of the individual.
Each individual must be afforded the opportunity to participate in activities designed to enhance self-image.
An individual has the right to possess clothing and other personal effects. The service provider may take temporary custody of the individual’s personal effects only when required for medical or safety reasons, with the reason for taking custody and a list of the personal effects recorded in the individual’s clinical record.
Each minor in a residential service component is guaranteed education and training appropriate to his or her needs. The service provider shall coordinate with local education agencies to ensure that education and training is provided to each minor in accordance with other applicable laws and regulations and that parental responsibilities related to such education and training are established within the provisions of such applicable laws and regulations. This chapter does not relieve any local education authority of its obligation under law to provide a free and appropriate education to every child.
Each individual must be informed that he or she has the right to be represented by counsel in any involuntary proceeding for assessment, stabilization, or treatment and that he or she, or if the individual is a minor his or her parent, legal guardian, or legal custodian, may apply immediately to the court to have an attorney appointed if he or she cannot afford one.
At any time, and without notice, an individual involuntarily retained by a provider, or the individual’s parent, guardian, custodian, or attorney on behalf of the individual, may petition for a writ of habeas corpus to question the cause and legality of such retention and request that the court issue a writ for the individual’s release.