Opinion
Case No. 1D22-1490
07-27-2023
Kadeem Cordale DEBOSE, Appellant(s), v. STATE of Florida, Appellee(s).
BY THE COURT:
The court strikes the Anders brief filed by the public defender, and the court denies the public defender's motion to allow the appellant to file a pro se brief in this matter, both of which were docketed June 9, 2023. See McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 438–39, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988) (noting that every appellate advocate, regardless of whether retained or appointed, "must master the trial record , thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal" (emphasis supplied)). The intent behind the Supreme Court's Anders "requirement was [ ] to provide the appellate courts with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability." Id. at 439, 108 S.Ct. 1895. Moreover, it "ensures that indigent defendants have the benefit of what wealthy defendants are able to acquire by purchase—a diligent and thorough review of the record and an identification of any arguable issues revealed by that review." Id. ; see also In re Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State , 556 So. 2d 1114, 1116 (Fla. 1990) ("The Anders brief must evidence a complete and careful review of the record in order to support counsel's representation that the appeal is wholly frivolous.").
Appellant's counsel admits in the brief that she has not reviewed all potentially pertinent trial proceedings (meaning she has not shown a mastery of the trial record), including a competency hearing, a plea hearing, and a sentencing hearing. The brief, then, does not give the court the necessary assurance that the appellant has received the full, effective assistance of appellate counsel to which he is entitled. If appellate counsel determines, after a full review of the trial record, that an Anders brief is still warranted, an amended brief may be served and filed that demonstrates a mastery of the trial record.
In response to Judge Kelsey's dissent, we simply note how the premises on which she relies are demonstrably false. See Debose v. State , 359 So. 3d 368, 372–73, 375–76 (Fla. 1st DCA 2023) (identifying the various avenues by which appellate counsel in this case may obtain publicly funded transcription without an order from this court); id. at 373 (inviting appellate counsel in this case, once an additional transcript has been obtained at public expense or other means, to "review it and assess whether it is relevant to a legal argument to be raised on appeal," and then seek to supplement the record under rule 9.200(f)); id. at 377 (clarifying that rule 9.200(f) "provides a pathway for adding publicly funded transcripts to the originally transmitted record after counsel has ordered and obtained the transcripts and after she has determined from her review of them that they are needed for the appeal" and inviting appellate counsel in this case to file a motion to supplement once "she obtains the publicly funded transcripts that she thinks she needs to fulfill her duty on appeal"); id. at 375 (agreeing that it is "undeniably true" that "indigent defendants are constitutionally entitled to transcripts prepared at public expense for their appeal" (brackets omitted)).
KELSEY, J., dissenting. I.
To address procedure first, I am dismayed that we continue to punish Anders counsel in this case—and necessarily, the litigant—for the majority's sua–sponte decision to select this case in which to change long-established procedure, and to apply its new requirements to pending cases instead of applying them prospectively only. Reacting to a permissible use of the appellate rules and our own then–operative administrative orders, the majority decided that an appellate court can no longer grant a motion to supplement the record on appeal at public expense. This no doubt came as a surprise to counsel in this and numerous other pending cases, since the pertinent appellate rule expressly authorizes, and under some circumstances requires, "the court"—meaning the appellate court—to grant motions to supplement for errors or omissions:
This is not to say that my concerns about the parties’ rights and the majority's treatment of precedent would have been alleviated under a due-process-preserving, prospective-only application. Creating a new procedural rule that departs from the rules of procedure approved by the Florida Supreme Court and is contrary to longstanding precedent, and then imposing it on counsel in pending cases, is fundamentally unfair (not to mention beyond our authority as I have already demonstrated).See Debose v. State , 359 So. 3d 368, 378–81 (Fla. 1st DCA 2023) (On A Motion for Rehearing and Certification) (Kelsey, J., dissenting).
(1) If there is an error or omission in the record, the parties by stipulation, the lower tribunal before the record is transmitted, or the court may correct the record.
(2) If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record.
Fla. R. App. P. 9.200(f)(1), (2) (emphasis added). The appellate rules on transcripts in criminal cases do not depart from this role assigned to the appellate court. See Fla. R. App. P. 9.140(f). Consistent with those rules, our Administrative Order 09-1, stating that it was a joint recommendation of "the Attorney General, the Public Defender for the Second Judicial Circuit, and the Regional Conflict Counsel," expressly approved this Court's role in granting supplementation of records on appeal, and expressly provided that the lower tribunal would not be required to enter a separate order to transcribe proceedings:
Transcripts for Indigent Defendants.
In all criminal appeals in which the Circuit Court has declared the defendant indigent for purposes of appeal, an order from this Court directing supplementation of the record shall be sufficient to compel the court reporter to provide a transcript to the Circuit Court Clerk within the time period for supplementation specified in this Court's order. No separate order by the Circuit Court to transcribe proceedings shall be required .
Admin. Order No. AO1DCA 09–1 (Fla. 1st DCA April 13, 2009) (emphasis added).
See https://www.1dca.flocourts.gov/content/download/209349/file/09-1.pdf.
It was not until after counsel in this and related cases pointed out the existence and content of Administrative Order 09-1 that the Court withdrew it (without the participation of the entities that participated in its formation), in a new "Administrative Order 23-2," dated June 26, 2023, the operative language of which provides as follows:
Records on appeal in criminal cases must be assembled, transmitted, and served as directed by Rules of Appellate Procedure 9.140, 9.141, and 9.200. Upon receipt of the record on appeal, parties or their counsel must promptly and diligently review the record on appeal to determine whether correction or supplementation appears necessary.
Admin. Order No. AO1DCA 23–2 (Fla. 1st DCA June 26, 2023).
See https://1dca.flcourts.gov/content/download/871847/file/232 % 20Criminal % 20Appeals % 20in % 20the % 20First % 20District.pdf
This new Administrative Order laudably urges parties and counsel to be prompt and diligent in identifying any necessary or advisable corrections or supplementations, which was my point all along. See Debose , 359 So. 3d at 374, 377 (Kelsey, J., concurring in part and dissenting in part, and dissenting on a motion for rehearing and certification)). But, other than eliminating AO 09-1 and its suddenly problematic express embracing of established law allowing later record–supplementation by order of this Court, the new Administrative Order is unhelpful to the issues at hand. The appellate rules cited above expressly authorize this Court to enter orders to supplement the record.
Although the majority now disavows any concern about whether the source of funding shifts from one judicial circuit to another depending on whether it is this Court or the lower tribunal that orders additional transcription at public expense, the original round of merits opinions evidences the contrary. The original majority opinion needed only the introductory stage-setting paragraphs and the conclusion to make its core points that transcripts can be obtained directly from the lower tribunal and that supplementation should not be used to extend delays in briefing. Debose , 359 So. 3d at 370–71, 374. In between, though, the majority chose to sua–sponte inject at some length the public funding piece of the analysis, and expressly link it to the possibility of obtaining transcripts without this Court's involvement. See id. at 370 (mentioning the public expense three times), 372 (mentioning it twice, expressly focusing on excluding an order from this Court and reciting funding provisions), 373 (utilizing the bulk of the opinion to focus on funding authorization and sources).
The majority's creation and injection of a novel interpretation of Rule 9.200(f) removing this Court from the supplemental–transcript process is both wrong and beyond our authority, as I have already said. Debose , 359 So. 3d at 378–80 (On A Motion for Rehearing and Certification).
Again on Appellant's Motion for Rehearing and Clarification, the majority framed the problem as counsel's "looking for this court to order the transcription at public expense ." Id. at 375 (emphasis added). The distinction is made again a few lines later, rejecting "Debose's assertion that his counsel needs this court to order the transcription of hearings." Id . (emphasis original). The majority then emphasized the distinction between funding from sources allocated to appeals and that allocated at the trial–court level. Id. at 375–76.
The majority's funding emphasis is clear, in its own words. In fact, Anders counsel here construed it the same way I did, and demonstrates in the brief that the majority's funding analysis is wrong in this specific situation, because the funding for transcripts in publicly funded appeals comes out of county budgets or the Justice Administrative Commission, not the relevant Public Defender's budget. See Shuman v. State , 358 So. 2d 1333, 1336 (Fla. 1978) (noting that counties are required to pay for transcripts for indigent criminal defendants, with the over–arching concern being that indigents be given the same review available to non–indigents). Anders counsel also reminds us, correctly, that we have both the authority and the duty to order the transcriptions for our own review as required by Anders . See LoRusso v. State , 339 So. 3d 454, 455 (Fla. 2d DCA 2022) (reflecting that appellate court itself ordered supplemental transcripts as part of completing its review under Anders ); Zankman v. State , 992 So. 2d 365, 366–67 (Fla. 5th DCA 2008) (ordering lower tribunal to transcribe and file jury selection transcript, where habeas petition alleging ineffective assistance of appellate counsel raised issues about jury selection and appellate court could not discharge its duties under Anders without reviewing the transcript). The majority's solution of striking the Anders brief and leaving counsel's options circumscribed by Debose is unhelpful at best, and beyond (or beneath) our authority at worst. We can do better. I will close with that point in the next section.
II.
Turning to the majority's draconian remedy of striking the Anders brief, it is both wrong and unfair for the reasons I've just set out. We (well, the majority anyway) are the ones who backed counsel into this corner. The only reason this stalemate exists in this case is because the majority picked this case in which to simultaneously create, announce, and apply its new rule. If this rule were needed, it could have been adopted appropriately, and independently of a specific pending case (if necessary, which I dispute), only under the Florida Supreme Court's exclusive rulemaking authority. In our Court, the result could have been accomplished indirectly by simply denying the extension of time originally requested (the downside being the continuing need to get the transcripts). Possibly, it could have been accomplished more directly by adopting a prospective administrative order requiring record supplementation to be completed before the end of the automatic extension periods ("possibly" because such a rule of general applicability hews very closely to the Florida Supreme Court's exclusive rulemaking authority). None of this was this Anders counsel's doing, yet counsel commendably sought advice from The Florida Bar ethics hotline, and followed that advice in filing a quite comprehensive Anders brief, as to which we ourselves have the duty and the power to obtain and examine additional portions of the proceedings if we deem it necessary.
There may be another solution to the stalemate. We applied Debose in several other pending cases, and conducted a "hearing" on these issues on June 12, 2023 (before a different panel but with Judge Tanenbaum common to that panel and this one). During that "hearing," the panel suggested—without addressing funding—that counsel confronting these record–supplementation issues could file a motion for transcription directly in the relevant lower tribunal. Counsel in several cases have followed that suggestion, obtained the relevant transcripts, and received orders from this Court allowing counsel to file in this Court a motion to supplement the appellate record with the newly obtained transcripts, conditioned upon a showing that counsel reviewed them and can justify the need to add them to the record on appeal. See, e.g. , Stephens v. State , Case No. 1D22-3200 (orders dated June 14, 2023 (allowing request for transcription in lower tribunal), and July 12, 2023 (granting supplementation of appellate record)); Smith v. State , Case No. 1D22-3548 (allowing same procedure); Tedder v. State , Case No. 1D22-330 (same); Mitchell v. State , Case No. 1D22-4091 (same). Although the majority opinion on the motion to supplement the record in this case prominently addressed the public–funding piece, the Court has not subsequently addressed cost of transcription in any of these or similar cases. Funding thus seems not to be an obstacle at this point, particularly given the majority's present disavowal of a funding–based limitation on supplementation. I would allow counsel to follow this already–approved course of action.
See Stephens v. State, No. 1D22-3200 (June 12, 2023). The video recording of this "hearing" is available on the Court's website, under Oral Arguments, then Oral Argument Archives (organized by date with most recent first).