Opinion
No. 1D22-171
05-18-2022
Dustine Matthew WESTFALL, Appellant, v. STATE of Florida, Appellee.
Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Michael Jerome Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel, Gainesville, and Michael Jerome Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
ON APPOINTED COUNSEL'S MOTION TO WITHDRAW
Tanenbaum, J.
In this appeal from the denial of a post-conviction motion, we grant the motion to withdraw filed on March 2, 2022, by regional conflict counsel. At the same time, we fail to see the need to have replacement counsel appointed. Cf. § 27.40(1), Fla. Stat. ("Counsel shall be appointed to represent any individual in a criminal or civil proceeding entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law." (emphasis supplied)); § 924.051(9), Fla. Stat. (precluding direct or indirect use of "[f]unds, resources, or employees of this state or its political subdivisions ... in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated" (emphasis supplied)).
The appellant filed and litigated a post-conviction motion in the trial court through retained counsel. The court summarily denied that motion without an evidentiary hearing. Counsel then asked to withdraw and for the trial court to appoint the public defender to handle the appeal. There was no argument that there was a constitutional or statutory need for the appointment of appellate counsel. The trial court simply granted the motion to withdraw and appointed the public defender without stating any rationale for the appointment. After the withdrawal of the public defender, the trial court appointed regional counsel.
"[T]here is no absolute right to counsel in post-conviction relief proceedings." Graham v. State , 372 So. 2d 1363, 1365 (Fla. 1979) ; cf. id. at 1366 ("There is no absolute duty to appoint counsel for an indigent defendant in a post-conviction relief proceeding unless the application on its face reflects a colorable or justiciable issue or a meritorious grievance."). That includes the assistance of counsel in an appeal from an adverse ruling on a request for post-conviction relief. See State v. Weeks , 166 So. 2d 892, 897 (Fla. 1964) (holding that "[t]here is no absolute organic right to the assistance of counsel" in a post-conviction appellate proceeding).
Appointment of counsel ultimately is a discretionary call, but this court notes with agreement the admonishment given by at least two other district courts that a trial court consider whether the principles of due process require the participation of counsel on appeal before making an appointment. See Rowe v. State , 777 So. 2d 1088, 1089 (Fla. 2d DCA 2001) ; Gantt v. State , 714 So. 2d 1116, 1117 (Fla. 4th DCA 1998) ; cf. Weeks , 166 So. 2d at 897 (stating that in each case, the court must consider the requirements of due process, "which generally would involve a decision as to whether under the circumstances the assistance of counsel is essential to accomplish a fair and thorough presentation of the prisoner's claims"); Graham , 372 So. 2d at 1366 (noting that the court "before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant").
The assessment of need for appellate counsel did not occur in the trial court. For the sake of judicial economy, however, we have reviewed the record on appeal and considered "[t]he adversary nature of the proceeding, its complexity [and] the need for substantial legal research," and we have determined that the appointment of counsel is not constitutionally necessary in this case. Id. ; see also Russo v. Akers , 724 So. 2d 1151, 1152–53 (Fla. 1998) ("Although there is no absolute right to counsel in a postconviction proceeding ... due process requires that counsel be provided if a postconviction motion presents a meritorious claim and a hearing on the motion is potentially so complex that counsel is necessary."); cf. Weeks , 166 So. 2d at 897 (explaining that the court considering whether the appointment is necessary "may find that the issues in the post-conviction proceedings have been simplified and are clearly drawn so that a fair hearing could be achieved without counsel").
We particularly note that this appeal comes to us after a summary denial of all the appellant's post-conviction claims. This means the record is simplified, briefing is not required, and appellate review is streamlined and weighted in the appellant's favor. See Fla. R. App. P. 9.141(b)(2)(A)–(D). Counsel is not constitutionally required here, so appointment of private counsel at public expense does not appear to us to be authorized under section 924.051(9), Florida Statutes.
The appellant must understand that we are allowing the withdrawal of his currently appointed public lawyer but not directing the appointment of new counsel. Going forward, then, he will be appearing in this case in proper person unless he retains private counsel and that counsel enters an appearance in this court. In the meantime, the appellant himself is responsible for ensuring timely compliance with the requirements of the Florida Rules of Appellate Procedure, including rule 9.141. We give him forty-five (45) days from the date of this opinion to serve an initial brief in conformity with those rules if he chooses to submit one on his own behalf.
The motion to withdraw is GRANTED.
Roberts and Osterhaus, JJ., concur.