Opinion
1D2023-2573
12-18-2024
Doctawnus L. Anderson, Appellant, v. State of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Taylor County. Gregory S. Parker, Judge.
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
ORDER STRIKING INITIAL BRIEF &CERTIFYING A QUESTION
PER CURIAM.
I.
Doctawnus Anderson appeals the revocation of his probation and the resulting sentence.[*] We strike Appellant's initial brief. As we have explained before and reiterate below, the initial brief is legally insufficient pursuant to Florida Rule of Appellate Procedure 9.140(g)(2) and In re Anders Briefs, 581 So.2d 149 (Fla. 1991). See Blackmon v. State, 49 Fla.L.Weekly D1406 (Fla. 1st DCA July 3, 2024) (Order Striking Brief).
Florida Rule of Appellate Procedure 9.140(g)(2)(A) provides, in part, that "[i]f appointed counsel files a brief stating that an appeal would be frivolous, the court must independently review the record to discover any arguable issues apparent on the face of the record." Appointed counsel's brief does not comply with rule 9.140(g)(2)(A) because it does not "stat[e] that an appeal would be frivolous." However, even if the brief included that statement, it would still be noncompliant.
Rule 9.140(g)(2) was promulgated to "codif[y] Anders case law." In re Amends. to Fla. R. App. P. 9.140 , 194 So.3d 309, 309 (Fla. 2016). The Anders procedure that rule 9.140(g)(2)(A) sought to codify is rooted in "[t]he constitutional requirement of substantial equality and fair process," which is "attained where counsel acts in the role of an active advocate." Anders v. California, 386 U.S. 738, 744 (1967). Appointed counsel's role "requires that he support his client's appeal to the best of his ability." Id. at 744. To accomplish this, appellate counsel must "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." In re Anders Briefs, 581 So.2d at 151 (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 (1988)).
In turn, the procedure serves the interest of the client and assists appellate courts in their review. See In re Order of First Dist. Ct. of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114, 1117 (Fla. 1990) ("A careful review of the record, combined with a complete discussion of any possible points of merit to the appeal, serves the interests of both the client and the court."); McCoy, 486 U.S. at 439 ("Thus, the Anders brief assists the court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw."); State v. Causey, 503 So.2d 321, 322 (Fla. 1987) ("The requirement in Anders of submitting a brief stating that the public defender has found no reversible error even worthy of a good faith argument is intended to promote fair appellate review, not stifle it. This requirement was specifically meant to 'induce the court to pursue all the more vigorously its own review.'") (quoting Anders, 386 U.S. at 745)).
Appointed counsel here has failed to show mastery of the trial record and thorough research of the law. The proceedings below were contested. Several witnesses testified. There were disputes about offense elements, Anderson's designation as a violent felony offender of special concern, and the propriety of a downward departure sentence. But the brief fails to address these issues, contains only limited facts, and lacks references to the record evidence that will be central to an adjudication.
In the brief, the discussion of the law consists of a single page, merely describing the trial court's finding that Anderson violated conditions of his probation. It lacks ready references to legal authorities, such as section 948.06, Florida Statutes, which governs revocation of probation. Briefly describing what occurred at the hearing and requesting that this Court cite cases pending before the Florida Supreme Court to preserve issues for further review does not comply with In re Anders Briefs or Florida Rule of Appellate Procedure 9.140(g)(2).
The initial brief is therefore stricken. Appointed counsel has thirty days to file a compliant brief that demonstrates a mastery of the trial record, thorough research of the law, and an exercise of judgment in identifying arguments that could be advanced on appeal.
II.
The supreme court has recently, and repeatedly, recommitted Florida courts to the fundamental appellate principle of party presentation. With that commitment in mind, we turn now to the continued viability of our current Anders procedures. Addressing the recurring inadequacy in briefing led us to evaluate the procedures more broadly. In doing so, we found them to be in tension with our core neutral adjudicatory power.
Before Anders, the Supreme Court provided for indigent criminal defendant rights to appellate review and appointed counsel. See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956) (holding that indigent defendants must be afforded adequate appellate review without regard to financial wherewithal); Douglas v. California, 372 U.S. 353 (1963) (holding that indigent defendants were entitled to appointed counsel on direct appeal). Then, in Anders v. California, the Supreme Court effectively prohibited appellate courts from resolving direct criminal appeals without either a counseled brief or an independent court review of the record on appeal. 386 U.S. 738.
In Anders, appointed counsel did not proceed with the appeal; instead, counsel filed a "no-merit letter," without indicating whether the appeal was frivolous. Id. at 744. The appellate court examined the record and affirmed the judgment. Id. Although the lower court appointed counsel, Anders held that the procedure stopped short of achieving "substantial equality and fair process." Id. And this was because the "procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity." Id. at 743.
Anders offered one potential procedure that could address the court's concerns. It explained that appointed counsel "can with honor and without conflict, be of more assistance to his client and to the court." Id. at 744. It instructed, "[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal." Id. Then, the defendant should also be allowed to file a brief raising any points that he chooses. Id. "[T]he court-not counsel- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Id. If the court finds the case is wholly frivolous, the court "may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires." Id. But if the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Id. And so, we see that the procedure set out in Anders contemplates counsel briefing issues in support of the appeal, and then the court determining whether any of the briefed issues are nonfrivolous.
The procedure offered in Anders was crafted to provide a fair process for indigent defendants, while also addressing the ethical and professional dilemma of appointed counsel. But it left procedural questions unanswered, some of which have since been addressed. For instance, in Jones v. Barnes, the Supreme Court clarified that, to be compliant, appointed counsel need not raise every nonfrivolous issue requested by the client. 463 U.S. 745, 751 (1983). It explained, it is a matter of professional judgment of appointed counsel to determine which issues to present for review and it is not "[f]or judges to second-guess reasonable professional judgments." Id. at 752-54. This point brings us to the principal difficulty in Florida's Anders briefing procedure-it blurs the line between a court's duty to neutrally arbitrate disputes and counsel's duty to advocate for a party. Our current procedure requires the appellate court to look beyond the issues raised by counsel. That is, it requires that courts second-guess appointed counsel's professional judgment. It forces courts to review such briefs with the presumption that appointed counsel did not represent his client to the best of his ability. And, in doing so, Florida courts are asked to independently raise issues not presented by a party; issues we must then turn, awkwardly, to consider neutrally and objectively. The result shifts the appellate court from the role of neutral arbiter to the role of advocate.
We are not alone in recognizing this difficulty in the Anders briefing procedure. Other jurisdictions, such as Georgia, Idaho, Indiana, Massachusetts, Nevada, and New Hampshire, have adopted procedures to comply with Anders while maintaining the appellate court's role as a neutral arbiter. See Huguley v. State, 324 S.E.2d 729, 730-31 (Ga. 1985) (concluding that an Anders process which permits counsel to withdraw is "unduly burdensome in that it tends to force the court to assume the role of counsel for the appellant" and explaining that counsel "is in a far better position to perceive error than is an appellate court looking at a cold record"); State v. McKenney, 568 P.2d 1213, 1214 (Idaho 1977) ("We further determine that if a criminal case on appeal is wholly frivolous, undoubtedly, less of counsel and the judiciary's time and energy will be expended in directly considering the merits of the case in its regular and due course as contrasted with a fragmented consideration of various motions, the consideration of which necessarily involves a determination of merits."); Mosley v. State, 908 N.E.2d 599, 608 (Ind. 2009) ("An Anders withdrawal prejudices an appellant and compromises his appeal by flagging the case as without merit, which invites perfunctory review by the court. The result is to jeopardize receptive and meaningful appellate review. We understand the frustration of the Court of Appeals in receiving underdeveloped briefs and poorly substantiated arguments.") (citations omitted); Commonwealth v. Moffett, 418 N.E.2d 585, 590 (Mass. 1981) ("Aside from the possibility of prejudice, practical administrative reasons exist for prohibiting withdrawal. If appointed counsel may move to withdraw on grounds of frivolousness, the court must determine whether the appeal is frivolous in order to rule on counsel's motion, and the determination necessarily entails consideration of the merits of the appeal.") (footnote omitted); Ramos v. State, 944 P.2d 856, 857 (Nev. 1997) ("The Anders approach is schizophrenic in nature . . . We refuse to accept the notion that an attorney can file a no merit affidavit without actually advocating against the merit of his client's appeal, and we recognize that the Anders procedure often entails the expenditure of more court resources than would be expended upon a meritorious appeal."); State v. Cigic, 639 A.2d 251, 252 (N.H. 1994) ("[T]he Anders procedure places the appellate court in the inappropriate role of defense counsel, forcing the court to devise and recommend viable legal arguments for subsequent appellate counsel. In making such recommendations, the appellate court may appear to have lost its impartiality, displaying a potential bias in favor of any arguments it recommends.").
While states cannot use the procedure from which Anders originated-the no-merit letter-they are free to craft different procedures. See Martha C. Warner, Anders in the Fifty States: Some Appellants' Equal Protection Is More Than Others', 23 Fla. St. U. L. Rev. 625 (1996) (examining Anders, discussing the approaches deployed by different state courts, and providing recommended solutions to the problems raised for appellate courts). For instance, in Nevada and New Hampshire, if counsel finds that the appeal lacks merit, it must advise its client against pursuing the appeal; and if the client insists on continuing the appeal, counsel must proceed with an ordinary appeal by filing a merits brief asserting a claim for relief. Ramos, 944 P.2d at 858; Cigic, 639 A.2d at 254.
In contrast, Florida appellate courts are asked to look beyond the issues raised by an appellant, a procedure that goes beyond the example outlined in Anders. Our supreme court requires that an appellate court "review the record, sua sponte, to determine whether or not, in its opinion there has been error committed." State v. Davis, 290 So.2d 30, 33 (Fla. 1974). And directs that courts "assume[] the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record." In re Anders Briefs, 581 So.2d at 151.
This Anders procedure sharply deviates from the ordinary appeal and briefing process. From the outset, even an Anders appellant must still properly preserve an issue for appellate review. See e.g., Washington v. State, 328 So.3d 364, 367-68 (Fla. 1st DCA 2021). To properly preserve an issue, it "must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved." Archer v. State, 613 So.2d 446, 448 (Fla. 1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985)); see also § 924.051(1)(b), Fla. Stat. (defining "preserved" as "an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor"). But preservation below is not enough. A party must also properly raise the issue on appeal by asserting the claimed error in its initial brief. See D.H. v. Adept Cmty. Servs. Inc., 271 So.3d 870, 880 (Fla. 2018). Otherwise, the issue is deemed abandoned or waived. See id.; State v. Clark, 373 So.3d 1128, 1131 (Fla. 2023).
While Florida's Anders procedure requires appellate counsel to "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal," it also compels courts to overlook appellate counsel's judgment. In re Anders Briefs, 581 So.2d at 151; Fla. R. App. P. 9.140(g)(2)(A). We are told to conduct an independent review of the record and order additional briefing on issues the court identifies. Meanwhile, in ordinary appeals, counsel must strategically preserve and raise issues to be reviewed. See DeLisle v. Crane Co., 258 So.3d 1219, 1237 (Fla. 2018) (Canady, C.J., dissenting) ("Parties every day make choices in litigating cases that limit their options for review. And parties ordinarily must live with the choices they make. This Court should not rescue a party from a poor choice by exercising jurisdiction where none exists.").
Our Anders procedure is irreconcilable with the supreme court's more recent instruction that we not consider arguments outside of those raised in the parties' briefs. See Bainter v. League of Women Voters of Florida, 150 So.3d 1115, 1126 (Fla. 2014). This is because "'[b]asic principles of due process'-to say nothing of professionalism and a long appellate tradition-'suggest that courts should not . . . consider arguments outside the scope of the briefing process.'" Id. Earlier this year the supreme court recommitted to this principle. See Pinellas Cnty. v. Joiner, 389 So.3d 1267, 1273 n.10 (Fla. 2024) (recognizing the Court's inability to raise issues not argued by the parties or considered by the court below because of "fundamental party-presentation principles"); Trappman v. State, 384 So.3d 742, 751 n.4 (Fla. 2024) ("But [Appellant] never raised this . . . issue below or in his initial brief to this Court. We do not now consider this issue that was not properly preserved or presented."); see also United States v. Sineneng-Smith, 590 U.S. 371, 375-76 (2020) ("[O]ur system is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.") (second alteration in original) (internal quotations omitted).
Rule 9.140(g)(2) also conflicts with our duty to remain a neutral arbiter. See D.H., 271 So.3d at 888 (Canady, C.J., dissenting) ("This requirement of specific argument and briefing is one of the most important concepts of the appellate process. Indeed, it is not the role of the appellate court to act as standby counsel for the parties."); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them."); see also Berben v. State, 268 So.3d 235, 239 (Fla. 5th DCA 2019) (Grosshans, J., dissenting) ("As an appellate court, our role is not to act as counsel for a party by raising issues that were not briefed."). This Court, too, has been resolute in its commitment to remain an impartial arbiter of the parties' disputes. See Rosier v. State, 276 So.3d 403, 406 (Fla. 1st DCA 2019) (holding that "an appellate court [cannot] 'depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention") (quoting Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983)).
Yet, in Anders appeals, it is not just that the appellate court may stray too far from the issues raised by the parties. Instead, Anders appellants often raise nothing at all, depriving the court of any controversy to adjudicate. This is not just a matter of appellate philosophy or of a general, but exceptable, principle. This is a matter of the judicial power of the court, and therefore, one of jurisdiction. We are vested with judicial power. Art. V § 1, Fla. Const. But we cannot exercise our judicial power unless there is a "controversy between parties." First Nat'l Bank of Miami v. Bebinger, 128 So. 862, 863 (Fla. 1930). We have jurisdiction to hear direct appeals. Art. V, § 4(b)(1), Fla. Const. But "only actual controversies are reviewed by direct appeal." Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which Drainage Taxes for the Year 1952 Have Not Been Paid, 80 So.2d 335, 336 (Fla. 1955). "[Contentions . . . submitted to the court for adjudication" are a necessary precondition for the exercise of our judicial power. Bebinger, 128 So. at 863. Here, as we find in most Anders appeals, there is not a single controversy presented to the Court. No legal dispute between the parties. Nothing for the Court to adjudicate. It does not appear, then, that we have jurisdiction-that is, the power to act.
The current Florida Anders brief procedure asks the appellate courts to abandon the principles fundamental to appellate review and close their eyes to jurisdictional limitations. The procedure proffered in Anders v. California does not suffer from the same inadequacies. But neither is it designed as a single solution to be imposed in every state. The Supreme Court explained, "[it] is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may-and, we are confident, will-craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders." Smith v. Robbins, 528 U.S. 259, 275-76 (2000). Our current procedure is governed by the rules promulgated by the supreme court. See Art. V, § 2, Fla. Const. ("The supreme court shall adopt rules for the practice and procedure in all courts."). In light of the principles set out here, and the supreme court's recent recommitment to the fundamental principles of party presentation, we certify the following question of great public importance:
DOES FLORIDA RULE OF APPELLATE PROCEDURE 9.140(G)(2) AND IN RE ANDERS BRIEFS, 581 SO. 2D 149 (FLA. 1991), CONTINUE TO ACCORD WITH THE FUNDAMENTAL PRINCIPLES OF APPELLATE REVIEW IN A MANNER SUFFICIENT TO INVOKE THE COURT'S JURISDICTION, AND, IF SO, DO THEY REQUIRE APPELLATE COURTS TO DEPART FROM THEIR ROLES AS NEUTRAL ARBITERS?
BRIEF STRICKEN; QUESTION CERTIFIED.
ROWE, KELSEY, and LONG, JJ, concur
[*] Appellant filed this matter, appealing the revocation order and sentence from case no. 23-CF-0025. He also appeals the revocation order and sentence from case no. 22-CF-0407. See Anderson v. State, 1D2023-2579. Appellant's appointed counsel filed nearly identical Anders briefs in both cases.