Dagostino v. State

• Decision Date: 29 May 1996
• Docket Number: No. 94-2453,94-2453
• Citation: Dagostino v. State, 675 So.2d 194 (Fla. App. 1996)
• Parties: 21 Fla. L. Weekly D1264 John A. DAGOSTINO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 194

675 So.2d 194

21 Fla. L. Weekly D1264

John A. DAGOSTINO, Appellant, v.STATE of Florida, Appellee.

No. 94-2453.

District Court of Appeal of Florida Fourth District.

May 29, 1996.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

WARNER, Judge.

We withdraw our previously issued opinion and substitute the following in its place.

We affirm the appellant's convictions and sentences.However, we write to address appellant's attorney's motion for leave to file a supplemental initial brief, which we deny.Appellant's attorney has simply requested that we accept appellant's pro se brief as a supplemental brief.We have previously denied the appellant's pro se motion to file the same brief.

An indigent criminal defendant is entitled to be represented on appeal by counsel when the appeal is as of right.SeeDouglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811(1963).Moreover, the assistance of counsel must be effective assistance of counsel.Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987(1983).However, an attorney is not required to raise every nonfrivolous issue requested by the client."Neither Anders [Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) ] nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points."Jones, 463 U.S. at 751, 103 S.Ct. at 3312.Compelling counsel to raise every nonfrivolous issue that the client directs "seriously undermines the ability of counsel to present the client's case in accord with counsel's professional evaluation."Id.

When a case is appealed and the defendant is represented by counsel, the defendant does not have an absolute right to participate and represent himself on appeal.This is a matter that is within the discretion of the appellate court.Hooks v. State, 253 So.2d 424, 427(Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587(1972);Powell v. State, 206 So.2d 47(Fla. 4th DCA1968);Bennett v. State, 389 So.2d 1225(Fla. 5th DCA1980).In Bennett, the court denied the appellant's motion to dismiss his court-appointed counsel.The public defender did not oppose the motion and contended that appellant had an absolute right to represent himself, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975).The fifth district disagreed.It noted that had the appellant requested the right to represent himself from the outset and demonstrated his ability to do so, Faretta might require a different result.Bennett, 389 So.2d at 1225.But where he had received the benefit of representation of counsel, there is no duty on the court to permit him to represent himself, nor a corresponding duty of the public defender to withdraw, simply on request of the defendant."A criminal appellant cannot have his appointed counsel discharged at his whim, especially after the appellant's work has been done and the case is about ready for disposition."¹Id. at 1226.

We recognize counsel's wish to accommodate the client by filing a motion to includethe appellant's pro se brief.Nevertheless, if we are to continue to rely on the professional judgment of the attorneys of the public defender's office and to resolve these appeals in some orderly process, we also must caution that the filing of pro se briefs after the public defender has briefed the case does not aid in that process, even with the attorney's consent.In Cave v. State, 476 So.2d 180(Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993(1986), the court stated:

[T]he attention of counsel in this case and others appearing before this Court is invited to Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987(1983), and the authorities cited therein on the professional duty of appellate counsel to winnow out weaker arguments in order to concentrate on key issues.We have noted an increasing...