Troy Merck, Jr. v. State of Florida

Supreme Court of Florida
____________
No. SC16-899
____________
TROY MERCK, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 4, 2017]
PER CURIAM.
Troy Merck, Jr., a prisoner under sentence of death, appeals the circuit
court’s order striking his motion to substitute Linda McDermott for the Capital
Collateral Regional Counsel for the Middle Region (CCRC-MR) as his counsel, as
well as the successive postconviction motion that Ms. McDermott simultaneously
filed on his behalf pursuant to Florida Rule of Criminal Procedure 3.851. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Ms. McDermott previously substituted for CCRC-MR as Merck’s counsel in
federal court following the federal court’s determination that a conflict of interest
precludes CCRC-MR’s continued representation. Merck v. Sec’y, Dep’t of Corr.,
2014 U.S. Dist. LEXIS 152243, at *1 (M.D. Fla. Oct. 27, 2014). CCRC-MR
conceded below that the same conflict of interest precludes its continued
representation of Merck in state court. However, the circuit court struck the
motions at issue as unauthorized after construing our decision in Suggs v. State,
152 So. 3d 471 (Fla. 2014), to condition the termination of an attorney’s
representation upon the filing of a motion to withdraw, which CCRC-MR has not
filed. In so ruling, the circuit court erred. As we explained in Suggs, Florida Rule
of Judicial Administration 2.505(f)(1)-(3) “outlin[es] modes by which an
attorney’s appearance for a party terminates.” Suggs, 152 So. 3d at 472. Rule
2.505(f)(2) authorizes the termination of an attorney’s appearance through
substitution of counsel, which is the method that Ms. McDermott sought in this
case after we specifically directed her to do so in Merck v. State, No. SC15-1439,
2016 WL 104164, at *1 (Fla. Jan. 8, 2016) (dismissing a prior notice of appeal that
Ms. McDermott filed on Merck’s behalf “without prejudice for [her] to seek
substitution of counsel in the circuit court pursuant to Suggs”).
Accordingly, we reverse the circuit court’s order and remand with
instructions for the circuit court to enter an order substituting Ms. McDermott as
Merck’s counsel upon the filing of Merck’s written consent to the substitution with
the circuit court. Once Ms. McDermott has been substituted as counsel, we further
-2-
direct the circuit court to address the successive rule 3.851 motion that she filed on
Merck’s behalf.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County,
Cynthia Joan Newton, Judge - Case No. 521991CF016659XXXXNO
Linda McDermott of McClain & McDermott, P.A., Estero, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake,
Assistant Attorney General, Tampa, Florida,
for Appellee
-3-