Compo v. State

• Decision Date: 14 April 1993
• Docket Number: 92-03520 and 92-03321,Nos. 92-01077,s. 92-01077
• Citation: 617 So.2d 362
• Parties: 18 Fla. L. Weekly D1003 James R. COMPO, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. James R. COMPO, Appellee.
• Court: Florida District Court of Appeals

Page 362

617 So.2d 362

18 Fla. L. Weekly D1003

James R. COMPO, Appellant, v. STATE of Florida, Appellee.

STATE of Florida, Appellant, v. James R. COMPO, Appellee.

Nos. 92-01077, 92-03520 and 92-03321.

District Court of Appeal of Florida Second District.

April 14, 1993.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for James R. Compo.

James R. Compo, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee; William I. Munsey and Peggy A. Quince, Asst. Attys. Gen., Tampa for the State.

PER CURIAM.

ORDER ON MOTION TO WITHDRAW AND OTHER PENDING MOTIONS

The Public Defender, Tenth Judicial Circuit, has moved to withdraw as counsel for James R. Compo in three separate cases.

I. The Nature of the Appeals Involved.

Appeal 92-01077 involves two separate circuit court cases. In case number 86-3 Compo was on probation for dealing in stolen property; in case number 90-168 he was charged with four counts of fraudulent use of a credit card and four counts of petit theft. On April 16, 1991, Compo appeared before the circuit court and entered pleas of no contest to the 1990 charges and to violation of the 1986 probationary term. The court imposed a split sentence May 20, 1991. The appeal was initiated by Compo's pro se "motion for direct appeal of unlawful conviction." This document, which we have treated as a notice of appeal, was timely filed. ¹ The public defender was appointed to represent Compo, and a brief has been filed on his behalf.

Appeal 92-03321 involves a different circuit court case, number 92-296. Here Compo was charged with burglary of a structure and possession of burglary tools. He was tried and convicted in August, 1992, whereupon the circuit court granted a motion for new trial. When the state appealed this order, the public defender was appointed to represent Compo as appellee. No briefs are on file; the state's motion for extension of time is pending.

Finally, appeal 92-03520 also involves circuit court case number 90-168. While the earlier appeal was pending, Compo apparently served out the incarcerative portion of his split sentence and began probation. On August 17, 1992, he appeared before the circuit court to answer charges of violation of probation, based on the felony offenses that are the subject of appeal 92-03321. Compo admitted the violation and was resentenced to prison. His trial attorney filed a timely notice of appeal and the public defender was appointed. No briefs are on file.

II. Previous Attempts to Remove the Public Defender.

In the months since his appeals were filed Compo has inundated this court with pro se pleadings. Most of these motions were addressed by orders entered January 12 and February 4, 1993.

The January order denied various, relatively innocuous "motions to amend belated appeals." ² Compo also moved "to dismiss all appeals filed by [the public defender] as frivolous." In this motion Compo expressed dissatisfaction with the brief filed by that office. ³ Ordinarily, the policy of this court is to deny such motions. Where a criminal defendant is represented by the public defender or other counsel, it is left to the attorney's judgment which issues to present. On occasion the client, his or her expectations of release often unrealistic, is not pleased with counsel's efforts. Some seek to file supplemental pro se briefs, ⁴ or demand the appointment of substitute counsel. However, the constitutional right to effective counsel does not require that defendant be allowed to serve as co-counsel; Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979); or that he or she may demand or reject a specific attorney. Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983). If appellate counsel's performance is identifiably deficient, the defendant has a remedy by way of habeas corpus. Johnson v. Wainwright, 463 So.2d 207 (Fla.1985). Based on these considerations, we refused to dismiss Compo's public defender or strike the brief that he had already filed.

The February 4 order addressed another series of pro se filings. The first, a "motion to direct appeal of probation violation," apparently refers to the circuit court proceedings occurring after this appeal was initiated. Since that adjudication and sentence also were appealed, the motion is moot. A second motion to dismiss the public defender was denied for the same reason as before. Finally, Compo's "motion to have probable cause determination hearing because of criminal acts committed by [the public defender]" was treated as a scandalous pleading and stricken. The February 4 order concludes, "It appearing that appellant is represented by counsel in this case, the clerk is directed to accept no further pro se documents unless otherwise ordered by this court."

Since the last order, panels of this court have reviewed several pro se motions and directed that they not be docketed. The tone of these documents reflects an escalating viciousness and some employ the most vulgar language imaginable. Had comments such as these been uttered before a trial judge, a citation for contempt of court would have been virtually inevitable. See, e.g., Ricci v. State, 549 So.2d 1186 (Fla. 2d DCA 1989); Butler v. State, 330 So.2d 244 (Fla. 2d DCA), cert. denied, 429 U.S. 863, 97 S.Ct. 168, 50 L.Ed.2d 142 (1976). Accompanying these filings are ancillary documents, such as Florida Bar complaint forms and letters of inquiry to the Attorney General, raising essentially the same complaint about the public defender's "unauthorized" representation.

III. Basis for Appointing the Public Defender.

In many of his pro se pleadings Compo has contended that the public defender does not represent him "except by fraud." Such allegations usually deserve no comment. However, it may be that Compo, under the unusual circumstances of this case, was unaware the public defender was to have prosecuted his appeal.

When initially arrested, Compo, who had been adjudged insolvent, asked for and received court-appointed counsel. Although the standardized order of appointment contains an optional check-off for counsel "in the event an appeal is taken," the trial court did not make such appointment at that time. After the local public defender withdrew for conflict of interest, a private attorney represented Compo at the plea and sentencing but did not file a notice of appeal. There is no indication he was asked to do so.

Upon receipt of Compo's pro se notice, this court, because of his indigent status, reappointed the public defender. ⁵ Neither this order nor subsequent correspondence was served on Compo personally. ⁶ The four-page "motion for direct appeal" in appeal 92-01077 does not include a request for appellate counsel. Such a request is made in the two other appeals, but by trial counsel rather than Compo himself. We have no way of determining whether trial counsel acted pursuant to instructions from Compo, or whether he merely assumed Compo would want an appellate attorney for the two appeals. Therefore, even discounting the benefits of hindsight, we have no firm basis for concluding that Compo actually wants to be represented by counsel in these appeals. If he does not, then all orders appointing the public defender should be reconsidered.

IV. The Public Defender's Motion to Withdraw.

Independent of Compo's pro se efforts, the public defender has filed identical motions in the three appeals. These request "immediate withdrawal from representation" and allude to "actions" taken by Compo "which place the undersigned in an adversarial position with Mr. Compo making further representation ethically impossible." No other details are provided in the motions themselves. However, items unashamedly submitted to this court by Compo himself offer clues as to what may have transpired.

Compo, like any other criminal defendant, is entitled to representation by counsel free from conflicts of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Barclay v. Wainwright, 444 So.2d 956 (Fla.1984). We can conceive of circumstances in which an attorney does not feel free to specify the exact nature of the conflict without risking additional prejudice to the client. We therefore find no basis for requiring a more specific motion on the part of the public defender. On the other hand, we are troubled by the possibility that a dissatisfied defendant can conduct himself in such a way to inflate a nonexistent conflict into a real one--thereby engineering his own "reward."

Re-examining Compo's pleadings, we find no specific request for a particular attorney or for any attorney. Instead, in at least one of his communications with the public defender, Compo demands that his appellate records be sent directly to him. We construe this as a manifestation of Compo's intent to represent himself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The mere fact Compo may wish to handle his own appeal does not automatically entitle him to do so. At the trial level, the court is not obliged to grant every request for self-representation. There are instances in which acquiescence in such requests is likely to result in manifest injustice. Williams v. State, supra; Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), rev'd in part, 216 So.2d 749 (Fla.1968), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969). Similarly, appellate courts considering requests for self-representation take into account the likelihood of injustice to or intransigence by the pro se litigant. See, e.g., Blanton v. State, 561 So.2d 587 (Fla. 2d DCA 1989).

In the present case we have some doubt, based on the pleadings before us thus far, that self-representation is in Compo's best interests. Putting aside his conspicuous usage of obscenities, it seems evident that he does not appreciate the often limited scope of appellate review. However, the fact...