Beliveau v. State , 2014 Fla. App. LEXIS 12215 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GARY BELIVEAU, )
)
Appellant, )
)
v. ) Case No. 2D13-2993
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 8, 2014.
Appeal from the Circuit Court for Polk
County; Dennis P. Maloney, Judge.
Ita M. Neymotin, Regional Counsel,
Second District, and Joseph Thye Sexton,
Assistant Regional Counsel, Office of
Criminal Conflict and Civil Regional
Counsel, for Appellant.
Gary Beliveau, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
Gary Beliveau appeals the trial court's order denying his postconviction
motion after an evidentiary hearing. We affirm that order. We take this opportunity to
emphasize that the appointment of appellate counsel for postconviction proceedings is
not a matter of right. When deciding whether to appoint postconviction appellate
counsel, trial courts should be guided by the due process considerations described in
Graham v. State, 372 So. 2d 1363 (Fla. 1979). See Gantt v. State, 714 So. 2d 1116,
1117 (Fla. 4th DCA 1998).
We also use this case as an opportunity to announce a change in
procedure affecting the handling of postconviction appeals when appointed appellate
counsel can find no arguable issue to brief. This court has been permitting counsel to
file Anders1 briefs in these cases. After an Anders brief has been filed, we have
followed procedures similar to the Anders procedures applicable to direct appeals of
judgments and sentences. As explained in this opinion, we will now follow procedures
comparable to those used in the First and Fourth Districts.2
I. THIS CASE
Mr. Beliveau was convicted in 2008 of attempted felony murder with a
weapon, burglary with an aggravated battery, and robbery with an aggravated battery.
The charges arose from a criminal episode during which he stole an automobile from its
owner. The owner was injured during the episode. The weapon for purposes of the
felony murder charge and the deadly weapon for purposes of aggravated battery was
the automobile. He is serving concurrent life sentences as a prison releasee reoffender
for the attempted felony murder and the burglary, and a thirty-year term of imprisonment
for the robbery.
1
Anders v. California, 386 U.S. 738 (1967).
2
The policy change announced in this opinion was approved by the entire
court at a regular monthly conference in June 2014.
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Mr. Beliveau filed a notice of appeal from his judgments and sentences in
2008. His attorney filed a motion to correct a sentencing error pursuant to Florida Rule
of Criminal Procedure 3.800(b)(2) and later filed an Anders brief. Thereafter in June
2009, Mr. Beliveau filed a voluntary dismissal of his appeal without filing a pro se brief.
See Beliveau v. State, 9 So. 3d 623 (Fla. 2d DCA 2009).
In March 2010, he filed a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. In the motion he raised three grounds: (1)
that his attorney had been ineffective for failing to call the victim's physicians as
witnesses to testify that her broken ankle did not occur during the car theft; (2) that his
attorney should have prevented the victim from testifying concerning her medical
treatment; and (3) that his attorney should have filed a postconviction motion requesting
a new trial because of a violation of the sequestration rule. The trial court summarily
rejected ground (2) in a nonappealable order with attachments demonstrating that the
victim's medical condition was not a significant issue in the case because the battery
was an aggravated battery due to the use of the vehicle as a weapon, not due to the
victim's injuries. The court concluded that the limited testimony concerning her
treatment was either relevant to prove the battery or harmless in the overall context of
the trial.
The trial court then ordered an evidentiary hearing on the two remaining
grounds. The court appointed counsel to represent Mr. Beliveau. Several witnesses
testified at the evidentiary hearing, including Mr. Beliveau and his trial counsel. The
court denied relief following this hearing, and Mr. Beliveau filed a notice of appeal.
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When the notice of appeal was filed, Mr. Beliveau's postconviction counsel
sent a letter to the trial court enclosing an order of insolvency that included language
appointing the Public Defender for the Tenth Judicial Circuit to represent Mr. Beliveau
on appeal. There is no separate motion for appointment of appellate counsel in our
record, and the letter makes no legal showing to justify such appointment. It is likely
that postconviction counsel believed that Mr. Beliveau was entitled to counsel merely on
a showing of his insolvency.
The order requiring the appointment of counsel was signed by a judge
who had handled no part of the earlier proceedings. Judge Maloney, who had presided
over the postconviction hearing, undoubtedly would not have signed the order because
he would have known that the allegedly ineffective trial counsel was a Public Defender
for the Tenth Judicial Circuit. Due to this conflict, that office could not represent Mr.
Beliveau on appeal. After the order of appointment was entered, the Public Defender
moved to withdraw, and the court ultimately appointed the Office of Criminal Conflict
and Civil Regional Counsel to represent Mr. Beliveau.
In October 2013, the appointed counsel filed an Anders brief with this
court and the standard motion to withdraw that accompanies such a brief. This court
issued its standard order, which provides the defendant with an opportunity to file his
own pro se brief. Mr. Beliveau filed his pro se brief raising three issues.
This court has reviewed the briefing and the record. We have found no
issue that merits relief or further review by this court. Accordingly, we affirm the order
on appeal.
II. APPOINTMENT OF APPELLATE COUNSEL FOR
POSTCONVICTION PROCEEDINGS
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It is well established that the appointment of counsel to represent indigent
defendants in postconviction proceedings relating to noncapital cases, including
appellate proceedings, is not a statutory or constitutional right. See § 924.066(3), Fla.
Stat. (2013); Gantt, 714 So. 2d at 1116-17. "The question to be asked in a case of this
nature is whether the assistance of counsel is essential to accomplish a fair and
thorough presentation of the petitioner's claims." Schneelock v. State, 665 So. 2d 1063,
1063 (Fla. 4th DCA 1995) (citing Hooks v. State, 253 So. 2d 424, 426 (Fla. 1971)).
Thus, a court's decision to appoint counsel is based on individualized due process
considerations, not on any constitutional right that applies across the board to a group
of defendants.
In the trial court, the factors used to determine whether to appoint counsel
in postconviction cases are listed in rule 3.850(f)(7).3 The factors in the rule derive from
Graham, 372 So. 2d 1363.
Under Graham v. State, 372 So. 2d 1363 (Fla. 1979),
in deciding whether to appoint counsel for an indigent
defendant filing a postconviction motion, the trial court
should consider: (1) the adversary nature of the proceeding;
(2) its complexity; (3) the need for an evidentiary hearing;
and (4) the need for substantial legal research.
3
The factors in the rule are somewhat broader than those listed in
Graham. Rule 3.850(f)(7) states:
Appointment of Counsel. The court may appoint
counsel to represent the defendant under this rule. The
factors to be considered by the court in making this
determination include: the adversary nature of the
proceeding, the complexity of the proceeding, the complexity
of the claims presented, the defendant's apparent level of
intelligence and education, the need for an evidentiary
hearing, and the need for substantial legal research.
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Ware v. State, 111 So. 3d 257, 260 (Fla. 1st DCA 2013).
This court has previously observed that the Graham factors are not a
perfect fit when making a discretionary decision to appoint appellate counsel for a
postconviction appeal. See Rowe v. State, 777 So. 2d 1088, 1089 (Fla. 2d DCA 2001).
The due process considerations important at the appellate level are simply different
from those at the trial level. Certainly, the complexity of the case and the need for
substantial legal research should play a role in deciding whether counsel should be
appointed for appeal. If the appeal involves a novel question or an unresolved issue
that is likely to create precedent affecting other defendants, counsel may be
appropriate. The defendant's questionable mental competence, illiteracy, or limited
English language skills may add to the equation when other factors exist.
Without limiting the due process factors that a trial court might consider in
the appointment of counsel, we hold that a case-specific determination is necessary.
Thus, the appellant should file a motion in the trial court requesting the appointment of
counsel and explaining the reasons why due process considerations warrant the
appointment. In a case such as Mr. Beliveau's, where trial counsel has been appointed,
it is entirely appropriate for that counsel to file both the notice of appeal and the motion
for appointment of appellate counsel. Recognizing the limitations of pro se litigants, this
court concludes that when making this decision, it is appropriate for the trial court to
consider case-specific due process factors in addition to any alleged by the defendant.4
4
The Florida Rules of Appellate Procedure do not expressly state whether
or how this court should review orders granting or denying appointment of counsel. As
a matter of practice, this court treats the appointment of counsel in postconviction
appeals as a procedural issue over which the trial court and this court have concurrent
jurisdiction. See Fla. R. App. 9.600(a). Administratively, the motions are filed and
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III. REVIEW IN ANDERS-LIKE POSTCONVICTION CASES
The Fourth District announced in 1998 that it was not necessary for
counsel to file Anders briefs in postconviction appeals. See Mayolo v. State, 714 So. 2d
1124, 1124 (Fla. 4th DCA 1998). In Medrano v. State, 795 So. 2d 1009, 1010 (Fla. 4th
DCA 2001), it announced that it would henceforth strike such briefs. In 2007, the First
District adopted the same procedure. See Smith v. State, 956 So. 2d 494, 495 (Fla. 1st
DCA 2007).
This court has continued to accept Anders briefs, arguably more as a
matter of inertia than established policy. Appellate public defenders are familiar with
that process, and it is undoubtedly comforting for an attorney who is committed to
professionalism at least to attempt to describe issues that might warrant attention from
the court.
Our major concern with continuing the process of accepting Anders briefs
is the implicit agreement on the part of the court to conduct an independent review of
the record in search of issues that might have merit. That review is required in direct
appeals of judgments and sentences, where defendants have a Sixth Amendment right
to counsel, but no constitutional provision requires this court to perform the review in a
postconviction case, where decisions on appointing appellate counsel derive from
individualized due process concerns. As a practical matter, the review consumes
valuable judicial resources while rarely revealing an issue that results in any benefit for
addressed in the trial court. The order may then be reviewed by motion in this court
under the supervisory control provided in rule 9.600(a).
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the defendant. We conclude that there is no justification for this court to perform such a
review as a matter of course in these cases.
In cases involving termination of parental rights, where parents have a due
process right to counsel, this court has implemented procedures permitting the
appointed counsel to file a "sufficient" motion to withdraw, following which the parent is
given a reasonable time in which to file a pro se brief. See T.R. v. Dep't of Children and
Families, 779 So. 2d 292, 294 (Fla. 2d DCA 1998). We conclude that a similar
procedure can be applied to these postconviction appeals.
Accordingly, if counsel concludes that he or she cannot sign and file a
merits brief in good faith in a postconviction appeal, counsel shall file a motion to
withdraw. That motion should not be a barebones motion, but rather should contain
content demonstrating that counsel has fulfilled his or her obligation to the client but is
unable, in good faith, to demonstrate the existence of an arguable issue. If counsel
wishes, the motion, like an Anders brief, may contain a description of the facts and
potential issues that counsel has considered and rejected.
Upon the filing of a sufficient motion to withdraw, this court will enter an
order providing the defendant with the opportunity to file a pro se brief within forty-five
days. The order will grant only a conditional withdrawal of counsel; counsel will remain
of record so that he can still be called upon to serve if his services are needed. Cf. Fla.
R. Crim. P. 9.140(d)(2) (providing for conditional withdrawal of defense counsel in direct
appeals). If a pro se brief is filed, this court will review the case on the issues presented
in that brief. If the defendant fails to file a brief, the case will be dismissed.
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These new procedures will take effect on the date that mandate issues in
this case. They will apply to all cases in which briefs would otherwise be due on or after
that date. Any Anders brief filed in a postconviction appeal after that date will be
stricken by this court. Cases in which Anders briefs have already been filed will be
processed by this court under the prior procedures.5
WALLACE and SLEET, JJ., Concur.
5
The Public Defender for the Tenth Judicial Circuit, whose office handles
the majority of postconviction appeals in which counsel are appointed, is not of record in
this case. We recognize its potential interest in this decision and expressly authorize it
to file a comment during the period for rehearing addressing sections II and III of this
opinion.
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