Reed v. StateReed v. State
PER CURIAM.
An assistant public defender of the Fourteenth Judicial Circuit has filed a motion to withdraw as appellant‘s attorney, contending that he cannot comply with our prior order directing him either to proceed as counsel or file a motion to withdraw in accordance with the procedure stated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). He correctly observes that Anders requirеs a motion to withdraw “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” He states that he cannot file a brief referring to the record because he previously filed a statement before the trial court that he was unable to file assignments of error or a statement of judicial acts to be reviewed. As a result, the trial court, following the procedure which we had approved in Moore v. State, 298 So.2d 561 (Fla.1st DCA 1974), denied his request for a trial transcript. He concludes that he cannot comply with Anders
We sympathize with the quandary the public defender complains of, but we think he can do more. In Moore v. State, supra, we held that an indigent was not entitled to a transcript at state expensе for the reason that the requested transcript was not within the scope of any assignments of error when the motion was made. The Moore decision was based primarily upon an interpretation of the 1962 аppellate rules. For example, Rule 6.8 required the appellant to file a motion before the trial court for an order directing the reporter to transcribe his notes of the proceedings or such part as was requested by the motion. There is no similar requirement in the 1977 appellate rules. It is now required by
We do not feel that an attorney has discharged his obligation to his client by simply filing a statement that he cannot refer to any judicial acts to be reviewed and then asking permission to withdraw, if the effect of his no-merit statement denies a transcript to his indigent client who, contrary to his attorney‘s representations, contends the existence of errors. Such a procedure smacks of the same treatment indigents received in the State of Washington, where a trial judge was permitted to withhold a transcript if he concluded a defendant had received a fair trial and no prejudicial errors had occurred, Eskridge v. Washington State Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), or he concluded the appeal was frivolous. Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). In both cases, the procedure was condemned by the United States Supreme Court as an inadequate substitute to the right of full appellate review available to all defendants in thе state who could afford the expense of a transcript.
A summary of relevant United States Supreme Court cases involving an indigent‘s right either to a record or an attorney on appeal shоws that in all cases the indigents themselves raised errors which allegedly had occurred during trial. E.g., Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Eskridge v. Washington State Board, supra; Draper v. Washington, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The recurring theme implicit throughout all the cases is the same: The evil to be avoided is a system which discriminates in favor of the person seeking review of alleged errors who can afford both a record and an attorney, to the detriment of the indigent who cannot, while also alleging the existence оf errors. Absolute equality is not required \x97 a state may, consistently “with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an `invidious discrimination.‘” Douglas v. California, supra, 372 U.S. at 356, 83 S.Ct. at 816, 9 L.Ed.2d at 814. An indigent‘s constitutional right to an appeal as effective as that of the wealthy defendant presumes the existence of appellate contentions. Or, as stated in Draper v. Washington, supra:
In all casеs the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds \x97 the State must provide the indigent defendant with means of prеsenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions. 372 U.S. at 496, 83 S.Ct. at 779, 9 L.Ed.2d at 906 (e.s.).
Conversely, when no contentions are raised by the indigent, the necessity for providing him with an equivalent appeal disappears.
While Rule 9.140(d) requires the trial attorney (in conjunction with appellate counsel, whenever possible) to file the stаtement, we do not interpret the Rule as precluding a transcript solely upon a no-merit representation by the attorney. We think the Anders decision requires the attorney to do more: That he first advise his client that in his professional opinion no error occurred during the trial proceedings and he cannot in good conscience file a statement of judicial acts to be reviewed. Thе attorney should then request his client to inform him, if he can, of any error which he believes transpired. If the defendant responds and designates specific errors, then the attorney should file with the trial cоurt his client‘s statement of the judicial acts sought to be reviewed and direct the court reporter to prepare a transcript of the proceedings in support of the issues raised by his cliеnt. We do not consider that Rule 9.140(d) permits a trial court to deny a transcript to be furnished to an indigent at public cost when either the indigent or the attorney files a statement of judicial acts to be reviewed, although the trial court may entertain motions by either party to reduce or expand the transcript. Alternatively, with his client‘s approval, the attorney may, as permitted by
Should the client not respond to his attorney‘s request for specific errors within a reasonable time, or should he reply that hе is not aware of any error, we think the spirit of Anders will be satisfied by the attorney filing a motion to withdraw, with a copy served on his client, accompanied by an affidavit reflecting that he is unable to state the occurrence of any errors. He should also obtain from his client, if possible, a statement stipulating that he is unaware of any errors and that he agrees to his attorney‘s withdrawal. When both counsel and client fail to assert any error to appeal, we do not believe it is necessary for counsel to file a brief referring to anything in the record which might arguably support the appeal, nor \x97 for that matter \x97 is a record necessary.
In those limited instances where an indigent fails to specify the existence of trial errors, after being advised that his attorney is himself unable to do so, the attorney‘s motion to withdraw may be honored and no record need be prepared.4 The appeal, however,
The public defender‘s motion tо withdraw is denied until he complies with the procedure stated in this opinion.
MILLS, C.J., and ERVIN and BOOTH, JJ., concur.