Opinion
No. 1D22-0494
06-22-2022
Nadrian BUTTS, Appellant, v. STATE of Florida, Appellee.
Nadrian Butts, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
Nadrian Butts, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
Per Curiam.
Appellant is awaiting trial on felony charges in the lower tribunal, where he is currently represented by counsel. Despite being counseled below, Appellant filed numerous pro se pleadings in this Court—to include a notice of appeal seeking review of an order from the lower tribunal striking a pro se petition as unauthorized.
We do not address the appealability of that order. See Fla. R. App. P. 9.140(b). Because we dismiss the appeal as unauthorized, we need not decide whether the notice of appeal properly invoked this Court's jurisdiction.
This Court ordered Appellant to show cause why this appeal likewise should not be dismissed as authorized. See Fla. R. App. P. 9.360(b) ("Attorneys, representatives, and guardians ad litem in the lower tribunal shall retain their status in the [appellate] court unless others are duly appointed or substituted ...."); see also Johnson v. State , 974 So. 2d 363, 365 (Fla. 2008) ("Any papers filed pro se, addressing matters that are related to [ongoing criminal proceedings where the defendant is represented by counsel and where a death sentence has not been imposed], whether in the form of a petition, notice, motion, or another form of request for relief, will be deemed unauthorized and subsequently dismissed.").
Instead of filing a response to the order to show cause, Appellant filed a "Petition for Emergency Certiorari and Habeas Corpus." The Court treats that petition as three, separate pleadings: (1) a petition for writ of mandamus; (2) a request for judicial records; and, (3) a substantive response to the Court's order. See Art. V, § 2, Fla. Const.; see also Fla. R. App. P. 9.040(c). The Court denies the petition, grants the request, and dismisses the appeal as unauthorized.
Additionally, the Court strikes all remaining pro se pleadings in this case and warns Appellant against any future attempts at hybrid representation. See Sheppard v. State , 17 So. 3d 275, 279 (Fla. 2009) (describing "hybrid representation" as "simultaneously proceed[ing] pro se and with legal representation."); see also McCray v. State , 71 So. 3d 848, 865 (Fla. 2011) (describing "hybrid representation" as "combin[ing] self-representation with representation by counsel").
Petition for Writ of Mandamus
In the petition for writ of mandamus, Appellant argues that section 28.215, Florida Statutes, requires the clerk of this Court to assist him with certain tasks attendant to a "successful appeal." See § 28.215, Fla. Stat. (2021) ("The clerk of the circuit court shall provide ministerial assistance to pro se litigants. Assistance shall not include the provision of legal advice."). Appellant highlights that "all filings submitted by Petitioner are hand-written originals ...." Presumably, this means original filings as well as all copies served on opposing parties.
Although Appellant does not articulate in the petition exactly what he wants this Court to compel the Clerk to do, the Court notes that it has recently received numerous pro se filings from inmates who demand that the Clerk serve documents on their behalf. Indeed, Appellant filed numerous such documents in this case.
In some of those documents, Appellant requested that the Clerk provide him with copies of his filings in this case.
We squarely reject Appellant's demand that the Clerk serve pleadings on Appellant's behalf. First, we note that Appellant does not claim a Constitutional right to such assistance. See generally Bounds v. Smith , 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), abrogated by Lewis v. Casey , 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("We hold, therefore, that the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.") (emphasis added).
Second, we highlight that Chapter 28, which includes section 28.215, applies to the "Clerks of the Circuit Courts"—not the Clerk of this Court. See Art. V, § 16, Fla. Const. ("There shall be in each county a clerk of the circuit court ...."); see also Art. VIII, § 1(d), Fla. Const. (listing the "clerk of the circuit court" as a county officer); Ch. 28, Fla. Stat. (2021) (entitled "Clerks of the Circuit Courts"); cf. Art. V, § 4(b)(3)(c), Fla. Const. ("Each district court of appeal shall appoint a clerk and a marshal who shall hold office during the pleasure of the court and perform such duties as the court directs.").
And third, while the Clerk of this Court is required to transmit copies of documents to the Supreme Court of Florida in certain cases, see Fla. R. App. P. 9.040(g), we find that it is generally not within the duties and responsibilities of any clerk of court to serve pleadings on behalf of a party. See generally Huffman v. State , 813 So. 2d 10, 11 (Fla. 2000) ("In order to be entitled to a writ of mandamus the petitioner must have a clear legal right to the requested relief, the respondent must have an indisputable legal duty to perform the requested action, and the petitioner must have no other adequate remedy available."). But see Fla. Fam. L. R. P. 12.610(b)(2) (requiring the clerk of court to provide a copy of a petition for injunction to the appropriate sheriff or law enforcement agency for personal service by law enforcement where the petition alleges domestic violence, repeat violence, dating violence, sexual violence, or stalking).
Because Appellant failed to establish a clear legal right to have the Clerk of this Court serve pleadings on his behalf, we deny the petition for writ of mandamus.
Request for Records
To the extent Appellant's pleadings constitute a request for copies of the documents he previously filed in this case, the Court grants Appellant's request for judicial branch records. See Fla. R. Gen. Prac. & Jud. Admin. 2.420. The Clerk of this Court will provide Appellant with a copy of all such documents along with a copy of this decision.
Response to Order to Show Cause
In the response to the order to show cause, Appellant argues that Florida Rule of Appellate Procedure 9.360(b) as well as the decision in Logan v. State , 846 So. 2d 472 (Fla. 2003), both of which form the basis for this Court's order, violate the right of access to courts enshrined in Article I, section 21 of the Florida Constitution. Compare Logan , 846 So. 2d at 475 ("Because the extraordinary writ proceedings at issue in the subject cases are essentially an appellate component of the pending criminal proceedings, in which petitioners are represented by counsel, petitioners’ attorneys retain their status as counsel for the petitioners in this Court unless others are duly appointed or substituted. See Fla. R. App. P. 9.360(b) (providing that ‘[a]ttorneys ... in the lower tribunal shall retain their status in the [appellate] court unless others are duly appointed or substituted’). Consequently, the petitions in the subject cases cannot be entertained on the merits as they were filed pro se and have not been adopted by counsel.") with Art. I, § 21, Fla. Const. ("The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.").
We reject Appellant's argument, as neither Rule 9.360(b) nor Logan deny him access to this or any other court. Presuming Appellant is competent and would not disrupt his trial , Appellant can proceed with counsel; or, he can proceed pro se . What he cannot do is both. See Johnson v. State , 974 So. 2d 363, 364 (Fla. 2008) (quoting Logan , 846 So. 2d at 473 ("[C]riminal defendants have no right under the Sixth Amendment or under the Florida Constitution to engage in ‘hybrid representation’—that is, to simultaneously represent themselves and be represented by counsel.")). Ultimately, regardless of whether he chooses the former (with counsel) or the latter (pro se), Appellant will get his day in court.
See Indiana v. Edwards , 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008).
See Faretta v. California , 422 U.S. 806, 834 n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Because Appellant is still represented by counsel in pending criminal proceedings below, and because this appeal directly relates to those proceedings, the Court dismisses the appeal as unauthorized. See Logan , supra .
Other Pro Se Pleadings
Appellant filed numerous other pro se pleadings in this case. None involve a request to discharge counsel. See Logan , 846 So. 2d at 476 ("Only when a pro se criminal defendant is affirmatively seeking to discharge his or her court-appointed attorney have the courts of this state not viewed the pro se pleading in which the request to discharge is made as unauthorized and a ‘nullity.’ "). Therefore, the Court strikes all of them as unauthorized. Id .
Finally, the Court warns Appellant that future attempts at hybrid representation may result in the imposition of sanctions, to include a prohibition on future pro se filings. See Fla. R. App. P. 9.410 ; see also Corner v. State , 779 So. 2d 671, 672 (Fla. 3d DCA 2001) ("As long as a public defender represents the petitioner, the petitioner is prohibited from filing any more appeals, pleadings, petitions, or motions without his or her attorney's written consent. If Corner persists, this Court will issue a show cause order as to why he should not be denied further access to this Court.").
Osterhaus, Bilbrey, and M.K. Thomas, JJ., concur.