Opinion
CASE NO. 8:12-cr-181-T-23EAJ
12-20-2012
UNITED STATES OF AMERICA v. SENAD DJEDOVIC
ORDER
Mark O'Brien, retained counsel for the defendant, moves (Doc. 46) either for an order appointing him as appellate counsel under the Criminal Justice Act or for leave to withdraw as counsel of record. The motion was referred to the magistrate judge for a report and recommendation. Magistrate Judge Elizabeth A. Jenkins directed counsel to submit an affidavit, which counsel filed in camera and ex parte (Docs. S-1 and S-2). Additionally, the defendant completed and filed an affidavit of indigency (Doc. 49).
In her November 28, 2012, "Report and Recommendation" (Doc. 50) Magistrate Judge Jenkins found that, "Counsel's in camera filing reveals the amount of the fee, but no time records or other material to evaluate the extent of services rendered . . . ." [I]t is appropriate to require counsel to continue to represent Defendant on appeal, consistent with the Eleventh Circuit's Criminal Justice Act plan." (Doc. 50) In a December 7, 2012, "Objection" (Doc. 51) to the "Report and Recommendation," Mr. O'Brien states that he is filing additional information in camera. When filing his "Objection," counsel used the incorrect filing code. The Clerk terminated the document and instructed counsel to re-file using the correct code. Mr. O'Brien has not re-filed the document, and the Clerk confirms the absence of a subsequent in camera submission. In any event, Mr. O'Brien's obligation was to submit his papers to the magistrate judge before, not after the report and recommendation.
Upon consideration of the filings and Magistrate Judge Jenkins "Report and Recommendation" and upon an independent examination of the file, the report and recommendation is adopted (Doc. 50), and the motion (Doc. 46) for an order appointing Mr. O'Brien as appellate counsel under the Criminal Justice Act or for leave to withdraw as counsel of record is DENIED.
A review of the stricken objection reveals no persuasive argument. If not stricken, the objection would be OVERRULED.
ORDERED in Tampa, Florida, on December 20, 2012.
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STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE