Hughes v. StateHughes v. State
Carl E. Hughes timely appealed his conviction and sentence. The appeal languished in this court‘s files for some time without activity and appellant was directed to show cause why the appeal should not be dismissed for his failure to ensure preparation of a record and to timely serve a brief. In response, appellant asserted that he was in need of inmate law clerk assistance to prosecute the appeal and asked for additional time. It then came to this court‘s attention that Hughes had pled guilty in the trial court and he was directed to show cause why his appeal should not be dismissed for failure to present a justiciable issue. Receiving no response to that order, we hereby dismiss the appeal.
We take this opportunity to publish this opinion and address our concerns created by the recent increase in proceedings of this nature. It appears that many criminal defendants who pled guilty or nolo contendere to charges pending against them, despite their having been advised that such pleas constitute waiver of the right to appeal, see
In Robinson v. State, 373 So.2d 898 (Fla. 1979), our supreme court addressed these concerns in the context of a constitutional attack on
Unfortunately, the parties, counsel, and the courts have not always been clear as to the proper procedures for handling appeals of this nature. For example, it has been suggested that the clerk of the lower tribunal need not process a notice of appeal filed by a defendant who pled guilty or nolo without reservation. We reject that suggestion and adhere to our position that it is the ministerial duty of a trial court clerk to accept and promptly file a notice of appeal when tendered. See Jones v. Peninsula Motor Club, Inc., 558 So.2d 517 (Fla. 1st DCA 1990); Wemett v. State, 536 So.2d 349 (Fla. 1st DCA 1988). It has also been proposed that this court should rely on the rule that a pro se pleading is a nullity where the pleader is represented by counsel, see Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984); Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980). Pursuant to
We are also aware that some trial courts have refused to certify appellants in these circumstances as indigent on grounds that the right to review has been waived. We believe this procedure to be incorrect. Certification should be granted when an appellant properly demonstrates he meets the statutory criteria as indigent, regardless of the trial court‘s perception of appellant‘s right to proceed or the merits of the appeal. See Daniels v. State, 441 So.2d 186 (Fla. 5th DCA 1983).
A different outcome results, however, when an appellant in this posture moves for appointment of appellate counsel. If the trial court finds that the right to appeal has been waived and the movant fails to demonstrate the existence of a viable Robinson issue, such a motion may properly be denied.
On the other hand, we note that appellate counsel are being appointed in some of these cases and they are uncertain as to how to proceed. For example, one public defender has employed a “statement of judicial acts to be reviewed” which brought to the appellate court‘s attention the lack of any viable issues, McGinty v. State, 463 So.2d 495 (Fla. 2d DCA 1985). Another response has been the filing of an Anders brief, Skinner, 399 So.2d at 1065. The Public Defender for the Fourth Judicial Circuit has moved to dismiss such appeals in this court. See, e.g., Sinclair v. State, case number 90-947, dismissed by unpublished order on May 21, 1990. We find, however, that a more appropriate course of action for appellate counsel who finds his client has waived his right to appeal is to move to withdraw on the theory that a defendant who has no right to appeal has no right to appellate counsel. Such a motion must, of course, be served on the client, see
Finally, we encourage the trial courts of this district to assist us in identifying appeals of this type. If the existence of the appeal comes to the attention of the trial court through a motion for appointment of counsel or other relief, copies
The procedures we have discussed above should prove helpful by enabling the trial and appellate courts to properly and promptly distinguish those cases which present one or more justiciable issues from those which do not. Where appellants are entitled to appeal they will have counsel appointed if they so desire and if they qualify for an appointment. Their cases will then be handled in due course. Where convicted defendants’ available remedies, if any, are only in the form of collateral proceedings, dismissal of improvidently taken appeals will permit them to pursue those remedies without further delay.
IT IS SO ORDERED.
ERVIN, NIMMONS and WOLF, JJ., concur.