Harrison v. State , 198 So. 3d 765 ( 2016 )

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
February 26, 2016
VINCENT HARRISON, )
)
Petitioner, )
)
v. ) Case No. 2D15-2436
)
STATE OF FLORIDA, )
)
Respondent. )
________________________________ )
BY ORDER OF THE COURT:
This court on its own motion withdrew the opinion issued in this case on
December 23, 2015. The attached opinion, which is substantially revised, is issued in
its place. Mr. Harrison's motion for rehearing is denied as moot, but he has the right to
seek rehearing from this opinion.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
_______________________________
MARY ELIZABETH KUENZEL, CLERK
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
VINCENT HARRISON,
)
Petitioner, )
)
v. ) Case No. 2D15-2436
)
STATE OF FLORIDA, )
)
Respondent. )
)
_______________________________ )
Opinion filed February 26, 2016.
Petition Alleging Ineffective Assistance of
Appellate Counsel Hillsborough County;
Chet A. Tharpe, Judge.
Vincent Harrison, pro se.
ALTENBERND, Judge.
In his timely petition filed under Florida Rule of Appellate Procedure
9.141(d), Mr. Harrison alleges that his private appellate counsel was ineffective for
advising him to sign a notice of voluntary dismissal and then filing it for him after she
determined that she was unable to write a brief on his behalf. Mr. Harrison contends
that his appellate counsel should have instead filed a merits brief arguing that his
convictions for robbery with a firearm and dealing in stolen property violate the
prohibitions against double jeopardy because both convictions are based on the theft of
the same property. We deny Mr. Harrison's petition because he cannot demonstrate
that his appellate counsel's failure to file such a brief in his direct appeal prejudiced him.
See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) ("If a legal issue 'would in all
probability have been found to be without merit' had counsel raised the issue on direct
appeal, the failure of appellate counsel to raise the meritless issue will not render
appellate counsel's performance ineffective." (quoting Williamson v. Dugger, 651 So. 2d
84, 86 (Fla. 1994))). See also Valdes v. State, 3 So. 3d 1067, 1068 (Fla. 2009)
(receding from precedent that applied the "primary evil" test to interpret section
775.021(4)(b)(2), Florida Statutes (2008), and holding that the statute prohibits separate
punishments for crimes arising from the same criminal transaction only when a criminal
statute defines an offense with multiple degrees); State v. Zanger, 572 So. 2d 1379,
1380 (Fla. 1991) (holding that section 812.025, Florida Statutes (1983), does not
prohibit convictions for both robbery and dealing in stolen property).
Mr. Harrison's petition and its attachments caused this court to realize that
privately retained appellate attorneys may not fully appreciate the options available to
them when they are representing a client who is legally indigent. The record also
suggests that private counsel might be well advised when filing a notice of voluntary
dismissal to document carefully a client's informed consent to that decision.1 We write
to briefly explain these matters.
In late 2012, Mr. Harrison's assistant public defender filed a notice of
appeal in circuit court. Mr. Harrison appealed his judgment and sentences for robbery
1
We do not identify the attorney who represented Mr. Harrison because
there is nothing in this record to suggest that the attorney did anything that was not fully
professional and effective.
-2-
with a firearm, armed carjacking, and dealing in stolen property. For the two major
offenses, he was sentenced to life in prison.2 The circuit court entered an order of
insolvency and an order appointing the public defender to represent Mr. Harrison in his
appeal to this court.
After the record had been prepared and received by this court, a private
attorney filed a notice of appearance, and the appellate public defender was allowed to
withdraw as counsel in May 2013. The record was transferred to the new attorney, who
appropriately obtained an extension of time to review the record and determine what
issues might be presented on Mr. Harrison's behalf.3
In September, the new attorney filed a motion to stay the case explaining
that "it is highly likely that the instant appeal can be resolved without a merits
determination." This court granted that motion, reminding counsel that any notice of
voluntary dismissal must be signed by Mr. Harrison. At about the same time, the new
attorney's legal assistant wrote a letter to Mr. Harrison confirming a telephone
conversation between Mr. Harrison and the attorney. A notice of voluntary dismissal
was enclosed, and the letter asked Mr. Harrison to sign and return the notice of
voluntary dismissal at his earliest convenience. The letter concludes: "As you and [the
attorney] discussed she will not file the notice unless she is unable to write a [b]rief on
2
Mr. Harrison has indicated in some of his filings that his counsel should
have challenged his life sentence for armed carjacking. Life is a legal sentence for this
offense. See § 812.133(2)(a), Fla. Stat. (2011).
3
We have reviewed this court’s record in the direct appeal, case number
2D12-5648. See Bunger v. State, 687 So. 2d 868, 868 n.1 (Fla. 2d DCA 1997) (taking
judicial notice of this court’s direct appeal records in a postconviction appeal).
-3-
your behalf." That notice of voluntary dismissal, entirely sufficient upon its face, was
filed in this court in mid-October, and this court dismissed the appeal.
We have no doubt that the new attorney fully reviewed the record in Mr.
Harrison's case and determined that there was no issue that she could brief in good
faith. As private counsel, under Florida law, she had no right to file an Anders4 brief for
Mr. Harrison.5 See Harold v. State, 450 So. 2d 910, 913-14 (Fla. 5th DCA 1984)6; see
also In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (setting forth the procedure for
appointed counsel and their indigent clients in Florida pursuant to Anders). The letter,
however, suggests that Mr. Harrison signed the notice of voluntary dismissal before his
counsel concluded that the record presented no issue of arguable merit. We do not
know what additional conversations the attorney and client may have had before the
notice of voluntary dismissal was filed. Perhaps inadvertently, the language of the legal
assistant's letter in this case opened the door to Mr. Harrison's claim that he did not
knowingly dismiss his appeal.
Because Mr. Harrison was legally indigent when this appeal commenced
and probably still was when the appeal was dismissed, this court would likely have
4
Anders v. California, 386 U.S. 738 (1967).
5
By contrast, the Second Circuit allows retained counsel to file an Anders
motion to withdraw. See United States v. Urena, 23 F.3d 707, 709 (2d Cir. 1994).
6
One California decision discusses the Harold decision and the options
available to private counsel short of filing a voluntary dismissal. See People v.
Placencia, 11 Cal. Rptr. 2d 727, 729-30 (Cal. Ct. App. 1992). It points out that it found
one instance in which an appellate court conducted a full review of a record for error
even though the defendant was represented by private counsel. Id. at 730. The court
discusses and rejects an equal protection argument that arises because indigent
appellants are entitled to the extra rights provided by Anders, while appellants who can
afford private counsel are not extended those rights. Id. at 730-31.
-4-
provided an opportunity for Mr. Harrison to seek the reappointment of the public
defender if the privately retained attorney had filed a motion to withdraw from the case.
That would at least have allowed for the public defender to file an Anders brief, if
appropriate; allowed for Mr. Harrison to file his own brief; and would have then triggered
this court’s independent review. We are not suggesting that a privately retained
counsel must always file such a motion. We merely suggest that counsel should
understand this option exists when counsel has discerned no grounds to maintain an
appeal on behalf of an indigent client.
Petition denied.
WALLACE and BLACK, JJ., Concur.
-5-