Logan v. State

• Citation: 846 So.2d 472
• Decision Date: 17 April 2003
• Docket Number: No. SC02-1649, No. SC02-1664.
• Parties: Arthur Joseph LOGAN, Petitioner, v. STATE of Florida, Respondent. Levy Riggins, Petitioner, v. State of Florida, Respondent.
• Court: United States State Supreme Court of Florida

846 So.2d 472

Arthur Joseph LOGAN, Petitioner, v. STATE of Florida, Respondent.

Levy Riggins, Petitioner, v. State of Florida, Respondent.

Nos. SC02-1649, SC02-1664.

Supreme Court of Florida.

April 17, 2003.

Arthur Joseph Logan, pro se, St. Augustine, and Levy Riggins, pro se, Miami, for Petitioners.

No Appearance, for Respondent.

PER CURIAM.

Petitioner Arthur Joseph Logan has filed a petition for a writ of habeas corpus, see art. V, § 3(b)(9), Fla. Const., challenging the trial court's denial of both his pro se motion to dismiss the charges against him and his pro se motion for bond reduction in two pending criminal cases, in which it is clear he is being represented by counsel. Petitioner Levy Riggins has filed a petition for a writ of prohibition, see art. V, § 3(b)(9), Fla. Const., challenging the trial court's denial of his pro se motion for speedy trial discharge, filed in a pending criminal case, in which it is also clear he is being represented by counsel. We consolidate these cases for purposes of this opinion and, for the reasons expressed below, dismiss the petitions on the grounds that petitioners have no right to simultaneously represent themselves and be represented by counsel relative to the pending charges against them.¹ In Davis v. State, 789 So.2d 978, 979-80 (Fla.2001), this Court announced the policy "that we will not accept pro se filings in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief from appellants on direct appeal of a death sentence." We premised this policy on the fact that a criminal defendant does not have a federal constitutional right to self-representation on an initial appeal of right, see id. at 980 (citing Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597, (2000)), and our conclusion that "in Florida there is no state constitutional right to proceed pro se in direct appeals in capital cases." Id. at 981.

We acknowledged in Davis that "[t]he decision to allow a convicted defendant the ability to proceed pro se in appellate proceedings is vested in the sound discretion of the appellate court." Id. However, we also noted the necessity for curtailing, as a matter of policy, the pro se activity of defendants in direct appeals in capital cases, because we were seeing an increase in pro se filings in such cases. See id. Thus, we determined in Davis that "[p]ro se filings in direct appeals [in] capital cases in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief [would] be docketed and then stricken." Id.

The subject cases are representative of a similar problem this Court is having with regard to defendants in pending noncapital criminal cases. This Court has recently seen an increase in the number of these noncapital criminal defendants filing pro se petitions for extraordinary relief in this Court, asking this Court to grant them relief, either in the form of immediate release pending trial or absolute discharge from prosecution, while their cases are still pending in the trial court. What is clear in both the subject cases and other similar cases that have been filed with increasing regularity in this Court, is that the petitioners are represented by counsel in their pending criminal cases, and nothing in their petitions indicates that they have sought, or will be seeking, to discharge counsel in those proceedings. In these circumstances, the law on self-representation is clear.

More than twenty years ago, this Court explained that the Sixth Amendment to the United States Constitution, as interpreted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), does not "guarantee that the accused can make his own defense personally and have the assistance of counsel." State v. Tait, 387 So.2d 338, 339-40 (Fla.1980). Likewise, article I, section 16 of the Florida Constitution does not "embody a right of one accused of crime to representation both by counsel and by himself." Id. at 340; see also Mora v. State, 814 So.2d 322, 328 (Fla.)

("[T]here is no constitutional right for hybrid representation at trial."), cert. denied, ___ U.S. ____, 123 S.Ct. 603, 154 L.Ed.2d 526 (2002). Thus, as the Fifth District Court of Appeal succinctly stated in Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980),² shortly after this Court decided Tait, "[t]he defendant, under appropriate circumstances, has the constitutional right to waive counsel and represent himself. The defendant has no right, however, to partially represent himself and, at the same time, be partially represented by counsel." Id. at 347 (citations omitted).³

Because the extraordinary writ proceedings at issue in the subject cases are essentially an appellate component of the pending criminal proceedings, in which petitioners are represented by counsel,⁴ petitioners' attorneys retain their status as counsel for the petitioners in this Court unless others are duly appointed or substituted. See Fla. R.App. P. 9.360(b) (providing that "[a]ttorneys ... in the lower tribunal shall retain their status in the [appellate] court unless others are duly appointed or substituted"). Consequently, the petitions in the subject cases cannot be entertained on the merits as they were filed pro se and have not been adopted by counsel. See Carlisle v. State, 773 So.2d 647, 648 (Fla. 5th DCA 2000)

(striking pro se petition for writ of mandamus seeking to compel circuit court to rule on petitioner's pro se motion for reconsideration of the denial of a portion of the petitioner's motion for postconviction relief because petitioner had been represented in the postconviction relief proceedings by court-appointed counsel, and, under rule 9.360(b), counsel retained his status as counsel in the appellate court unless others were duly appointed or substituted); see also Martin v. Bieluch, 786 So.2d 1229, 1230 (Fla. 4th DCA 2001) (dismissing pro se petition for writ of habeas corpus claiming entitlement to immediate release from confinement because the allegations in the petition demonstrated that the petitioner was represented by counsel in the trial court proceedings); Lewis, 766 So.2d at 289 ("[I]t is true that, generally, pleadings filed by a criminal defendant who is represented by counsel are treated as a nullity.").

Only when a pro se criminal defendant is affirmatively seeking to discharge his or her court-appointed attorney have the courts of this state not viewed the pro se pleading in which the request to discharge is made as unauthorized and a "nullity." See Lewis, 766 So.2d at 289 ("The courts have carved out an exception [to the rule that pleadings filed by a criminal defendant represented by counsel are treated as a nullity] permitting a criminal defendant who is represented by counsel to file a pro se motion seeking discharge of that counsel."). The Fourth District Court of Appeal in Graves v. State, 642 So.2d 142, 143-44 (Fla. 4th DCA 1994), explained why this limited exception to the "nullity" rule was necessary to effectuate the holding in Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973), approved of in Hardwick v. State, 521 So.2d 1071, 1074 (Fla. 1988)

.

In Nelson, the Fourth District held that "where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge." Nelson, 274 So.2d at 258. The Fourth District further held that "[i]f incompetency of counsel is assigned by the defendant as the reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant." Id. at 258-59. Finally, the Fourth District stated that "[i]f reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense." Id. at 259.

The Fourth District in Graves explained that it would make no sense, and would ultimately result in more judicial labor being expended on the case than would otherwise be necessary, to enforce the "nullity" rule in those circumstances where a criminal defendant sought pro se to avail himself of the protections of Nelson:

In the first place, if the claim is that the appointed lawyer is not doing the lawyer's assigned job, one might wonder how that failure would ever come to light and be appropriately remedied if the person who is suffering from this inadequacy is not permitted to do so. Simply ignoring a pretrial assertion of ineffectiveness of counsel means that the claim is left to be taken up in post conviction relief proceedings. The supposed rule that all pro se filings by represented defendants are a nullity thus makes no sense, at least in the circumstance of ineffective assistance of counsel, and may lead to a manifest injustice. It will almost surely result in a frequent squandering of public resources on wasted trials that have to be repeated.

In any event, the supposed nullity rule is contrary to Nelson. That decision makes no exception for pro se charges of ineffectiveness. Indeed it appears to have contemplated that it would be the defendant himself who would "make it appear." Nothing in Nelson requires that such charges be raised only by appointed counsel or they will be treated as a nullity. Nor is there anything inherent in the Sixth Amendment basis for Nelson that requires a trial court to treat as nonexistent all papers filed pro se by a represented defendant in the pretrial phase.

Aside from the

...