Opinion
No. 1D22-1306
06-21-2023
Randy J. WADE, Appellant, v. STATE of Florida, Appellee.
Randy J. Wade, pro se, Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Randy J. Wade, pro se, Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Randy Wade appeals the denial of his motion for postconviction relief challenging the trial court's decision not to appoint postconviction counsel and other issues. We affirm.
After a jury found Appellant guilty of three crimes, this court affirmed Appellant's judgment and sentence. Appellant sought postconviction relief citing errors related to the jury instructions, to testimony elicited by the prosecutor, and to his counsel's failure to require the State to justify its preemptory strike of a particular venire panelist. Appellant asked that counsel be appointed to represent him, but the trial court denied his motion because the issues were not complex. The trial court's order reserved the option of appointing counsel later at the evidentiary hearing "[s]hould it become apparent during the hearing that Defendant requires court-appointed counsel." Appellant then represented himself at the evidentiary hearing after which the court denied Appellant's postconviction motion.
This appeal raises the issue of Appellant's non-receipt of postconviction counsel among other issues. A court's denial of a motion for postconviction counsel is reviewed for abuse of discretion. Simmons v. State , 99 So. 3d 620, 623 (Fla. 1st DCA 2012) ; Fla. R. Crim. P. 3.850(f)(7) (providing that the court " may appoint counsel ... under this rule") (emphasis added). "A defendant has no absolute right to counsel in post-conviction proceedings. The right to appointment of counsel turns upon whether, under the circumstances of a particular case, ‘the assistance of counsel is essential to accomplish a fair and thorough presentation’ of a defendant's claim(s) for collateral relief." Woodward v. State , 992 So. 2d 391, 392 (Fla. 1st DCA 2008) (quoting State v. Weeks , 166 So. 2d 892, 897 (Fla. 1964) ). In deciding whether to appoint counsel, "[t]he factors to be considered by the court ... include: the adversary nature of the proceeding, the complexity of the proceeding, the complexity of the claims presented, the defendant's apparent level of intelligence and education, the need for an evidentiary hearing, and the need for substantial legal research." Fla. R. Crim. P. 3.850(f)(7).
Here, the trial court denied Appellant's motion for appointment of postconviction counsel, even though appellant was alleged to have less than a high school education. In the trial court's view Appellant could capably present the claims himself because the issues were not complex and did not require substantial research. See Hartfield v. State , 312 So. 3d 172, 173 (Fla. 1st DCA 2021) (citing similar factors). For instance, with Appellant's claim that the prosecutor knowingly presented evidence at trial which violated Miranda and Giglio (through testimony of a law enforcement officer), Appellant laid the groundwork for his claim via his own testimony, and then examined both the prosecutor and his own defense counsel. These efforts accomplished a fair and thorough presentation of Appellant's claim even while falling short of establishing that the officer perjured himself or that the prosecutor was complicit in the presentation of perjured testimony.
Appellant also made non-colorable, postconviction arguments that did not require appointment of counsel. Henderson v. State, 919 So. 2d 652, 656-57 (Fla. 1st DCA 2006) (finding no right to appointment of counsel in the absence of presenting a colorable grievance). For instance, Appellant's claim identifying a supposed jury-instruction error by the trial court is not a cognizable postconviction claim. Swanson v. State , 984 So. 2d 629, 629 (Fla. 1st DCA 2008) (citing Hodges v. State , 885 So. 2d 338, 366 (Fla. 2004) (holding that claims of trial court error should be raised on direct appeal and not in a rule 3.850 motion)). Likewise, Appellant's ineffectiveness claim that counsel should have done more to object to the State's strike of a venire panelist could not have succeeded because it was unaccompanied by evidence of a biased juror or jury, or other prejudice affecting the entire trial. See Carratelli v. State , 961 So. 2d 312, 323 (Fla. 2007) (concluding that counsel ineffectiveness allegations in the area of juror objections must allege and show prejudice at the trial).
And so, Appellant capably presented his various postconviction claims, but they lacked merit. We see no abuse of discretion in the trial court's decision to deny the appointment of postconviction counsel and affirm as to all issues raised in this appeal.
AFFIRMED .
Lewis, Roberts, and Osterhaus, JJ., concur.