Davis v. State
| Decision Date | 12 July 2001 |
| Docket Number | No. SC00-313.,SC00-313. |
| Citation | 789 So.2d 978 |
| Parties | Adam DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
Robert A. Butterworth, Attorney General, and Candance Sabella, Assistant Attorney General, Tampa, FL, for Appellee.
We have on appeal a first-degree murder conviction and attendant death sentence. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Appellant Adam Davis has filed with this Court a pro se motion to dismiss his appellate counsel. We strike the pro se filing.
We issue this interlocutory opinion in order to state this Court's procedure in respect to pro se filings of papers in direct appeals of capital cases. We hold 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.
Robert F. Moeller, an assistant public defender, is representing appellant on the appeal of Davis's conviction for capital murder and death sentence. On January 11, 2001, Davis filed in this Court a pro se "Motion to Dismiss Counsel." In that motion, Davis alleges that his appellate counsel is ineffective in not pursuing the appeal with sufficient due diligence and in failing to keep Davis notified of the status of the appeal. In his pro se motion, Davis further alleges that appellate counsel's ineffectiveness is depriving Davis of due process and equal protection under the federal and Florida constitutions.
At the time Davis filed his pro se motion, appellate counsel was preparing to file the initial brief in this matter. As a direct result of Davis's pro se filing, appellate counsel did not file the initial brief. Instead, appellate counsel filed a motion for an extension of time, arguing that appellate counsel should not file the initial brief in this matter while Davis's pro se discharge motion was pending.1 The issue before us is whether we will accept Davis's pro se filing even though he is represented by counsel.
The issue of whether a defendant has a federal constitutional right of self-representation at trial was decided in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the United States Supreme Court held that implicit in the Sixth Amendment was the right to defend oneself at trial under certain circumstances. See id. at 836, 95 S.Ct. 2525. However, the extension of this implicit right to appellate proceedings occurring as a matter of right has been debated for the last quarter century. Compare Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993)
(), with United States v. Gillis, 773 F.2d 549, 560 (4th Cir.1985) ().
The Supreme Court recently clarified that a convicted defendant does not have a federal constitutional right of self-representation on an initial appeal of right. See Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000)
. At issue in Martinez was a California appellate court's denial of appellant Martinez's pro se motion to discharge his appellate counsel and proceed pro se. See id. at 155, 120 S.Ct. 684. The Court affirmed the California court, explaining that the rationale underlying the Faretta decision, and hence the Sixth Amendment itself, did not apply to appellate proceedings. See id. at 160-61, 120 S.Ct. 684. The Court then indicated that if there is any such right of self-representation in appellate proceedings, such a right would have to be grounded in the Due Process Clause. See id. at 161, 120 S.Ct. 684. The Court then dismissed that notion, writing, "we are entirely unpersuaded that the risk of either disloyalty or suspicion of disloyalty is a sufficient concern to conclude that a constitutional right of self-representation is a necessary component of a fair appellate proceeding." Id.
The Court in Martinez left to the States the ability to find a right of self-representation on appeal under the state constitution. See Martinez, 528 U.S. at 163,
120 S.Ct. 684. The Court commented:
Our holding is, of course, narrow. It does not preclude the States from recognizing such a right under their own constitutions. Its impact on the law will be minimal, because a lay appellant's rights to participate in appellate proceedings have long been limited by the well-established conclusions that [appellant] has no right to be present during appellate proceedings, or to present oral argument. Meanwhile the rules governing appeals in California, and presumably those in other States as well, seem to protect the ability of indigent litigants to make pro se filings. In requiring Martinez, under these circumstances, to accept against his will a state-appointed attorney, the California courts have not deprived him of a constitutional right.
Martinez, 528 U.S. at 163-64, 120 S.Ct. 684 (citations omitted). Regarding the existence of such a state constitutional right, we previously have rejected requests by appellants sentenced to death to conduct their own direct appeal and, in doing so, implicitly acknowledged that no such right exists in Florida. See Klokoc v. State, 589 So.2d 219, 221-22 (Fla.1991)
. We make that practice explicit today, holding that in Florida there is no state constitutional right to proceed pro se in direct appeals in capital cases.
An appellant has a right to effective assistance of appellate counsel in a direct appeal of a capital case and has an opportunity to present claims of appellate counsel's ineffectiveness in state habeas corpus proceedings. See, e.g., Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000)
(). We conclude that under our procedures, any claim concerning the effectiveness of appellate counsel must be advanced through the habeas corpus proceeding and not by pro se filings in the direct appeal.2
The 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. See 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). Also vested in the sound discretion of an appellate court is the decision whether to accept pro se filings. See Hill v. State, 656 So.2d 1271, 1272 (Fla.1995). We have in isolated instances exercised our discretion to accept pro se filings in direct appeal cases where the represented appellant has been sentenced to death. See id. (); Klokoc v. State, 589 So.2d at 221-22 (). However, those occasions occurred prior to the Supreme Court's holding in Martinez. We presently are receiving an increase in pro se filings in direct appeals in capital cases and find that it is appropriate to announce a consistent procedure in these cases. Pro se filings in direct appeals of capital cases in which there are claims of ineffective assistance of appellate counsel, requests to dismiss appellate counsel, or which supplement bases for relief will be docketed and then...
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