Harrison v. State ( 2015 )


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  •                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 December 23, 2015.
    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 brief arguing that his convictions
    for robbery with a firearm and dealing in stolen property violate the prohibitions against
    double jeopardy and are fundamental error. We deny Mr. Harrison's petition because
    he cannot demonstrate that his appellate counsel's failure to raise this issue 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)); State v. Zanger, 
    572 So. 2d 1379
    , 1380 (Fla.
    1991) (holding that convictions for robbery and dealing in stolen property do not violate
    the prohibitions against double jeopardy). However, we write to question what may be
    one appellate attorney's practice of inducing her clients to file a notice of voluntary
    dismissal to avoid filing a brief pursuant to In re Anders Briefs, 
    581 So. 2d 149
    , 151 (Fla.
    1991).
    Mr. Harrison attached to his petition a letter from his appellate attorney's
    legal assistant. This letter references a telephone conversation between Mr. Harrison
    and the attorney and instructs Mr. Harrison to sign and return an enclosed notice of
    voluntary dismissal. 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 your behalf. Thank you for
    your attention in this matter."
    This court's records reveal that Mr. Harrison was represented by a public
    defender at his trial and that the public defender was appointed to represent him in his
    direct appeal. After the record was filed in this court, the public defender withdrew, and
    Mr. Harrison's private appellate counsel filed a notice of appearance. The public
    defender forwarded the record on appeal to the new private counsel who filed the notice
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    of voluntary dismissal. Nothing in this court's record or in the attachments to Mr.
    Harrison's petition indicates why that attorney would be "unable" to "write" Mr.
    Harrison's initial brief.
    While an appellate attorney may have a strategic reason for advising a
    client to dismiss his or her criminal appeal in certain circumstances,1 an inability to write
    an initial brief is not a strategic decision. If an attorney is physically unable to write a
    brief, he or she should arrange for able counsel to be appointed or retained. If the
    inability is the attorney's failure to recognize an issue of arguable merit, the attorney is
    required to follow the procedures outlined by the United States Supreme Court in
    Anders v. California, 
    386 U.S. 738
     (1967). See In re Order of First Dist. Ct. of App.
    Regarding Brief Filed in Forrester v. State, 
    556 So. 2d 1114
    , 1116 (Fla. 1990) ("The
    Anders brief must evidence a complete and careful review of the record in order to
    support counsel's representation that the appeal is wholly frivolous.").
    The Anders procedure was developed to protect the Sixth and Fourteenth
    Amendment rights of every criminal defendant to vigorous representation of counsel in
    the first appeal of right. Penson v. Ohio, 
    488 U.S. 75
    , 83-84 (1988). Had Mr. Harrison's
    appellate counsel filed an Anders brief, this court would have "assume[d] the
    responsibility of conducting a full and independent review of the record to discover any
    arguable issues apparent on the face of the record." See In re Anders Briefs, 
    581 So. 1
    For example, if an appellant's conduct subsequent to conviction provides
    grounds for the State to agree to a sentence reduction or modification that would result
    in the appellant's immediate release, an appellate attorney might have a strategic
    reason to advise the appellant to file a notice of voluntary dismissal in the appellate
    court so that the trial court would have jurisdiction to consider a motion for sentence
    reduction or modification filed under Florida Rule of Criminal Procedure 3.800(c).
    Similarly, in certain circumstances, an appellant may choose to forego an appeal to
    immediately pursue a claim that must be raised in a motion filed under rule 3.850.
    -3-
    2d at 151. If this court had determined that "the record supports any arguable claims,"
    we would have stricken the Anders brief and ordered Mr. Harrison's appellate counsel to
    file a merits brief.2 
    Id.
     But by filing a notice of voluntary dismissal, Mr. Harrison waived
    these protections. Mr. Harrison has no right to similar protections in postconviction
    proceedings. Rather, a postconviction litigant generally has no right to the assistance of
    counsel, and the litigant has the burden to plead a facially sufficient claim upon which
    relief can be granted before the postconviction court reviews the record to determine
    whether he or she may be entitled to relief.
    While Mr. Harrison's appellate counsel might have had a reasonable
    strategic reason for inducing him to waive these protections, the brief letter from the
    assistant does not reflect it. Although we do not so hold today, it is at least conceivable
    that in rare instances an appellate counsel's advice to voluntarily dismiss an appeal
    when an Anders brief should be filed could constitute ineffective assistance of counsel.
    In the future, this appellate attorney may want to consider whether a voluntary dismissal
    is truly in a client's best interests and, if so, document the reasoning in any
    correspondence to the client related to a voluntary dismissal.
    Petition denied.
    WALLACE and BLACK, JJ., Concur.
    2
    See, e.g., Chapman v. State, 40 Fla. L. Weekly D1597 (Fla. 2d DCA
    July 10, 2015).
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