Fields v. State
Decision Date | 05 December 1988 |
Docket Number | No. 76721,76721 |
Citation | 189 Ga.App. 532,376 S.E.2d 912 |
Parties | FIELDS v. The STATE. |
Court | Georgia Court of Appeals |
Hobart M. Hind, Dist. Atty., for appellee.
Willie F. Fields, appellant, brings this appeal from his conviction of possession of cocaine with intent to distribute. His appointed counsel has filed a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In accordance with Anders, counsel has filed a motion containing a brief in which he found no appealable error or anything which he considered arguably could support an appeal and has provided a copy of such brief to appellant. In addition, as required by Bethay v. State, 237 Ga. 625, 229 S.E.2d 406 (1976), we have thoroughly examined the record and transcript to determine independently if there are any meritorious errors of law. We are in agreement with appellate counsel that the points raised are not meritorious, and our examination discloses no error of any substance. Therefore, this court has granted counsel's motion to withdraw.
James Thurman, an Albany, Georgia police officer, received information from a reliable confidential informant that a tall black male dressed in beige pants, shirt and shoes, with a brim hat, would be selling cocaine at a designated location. Four police officers in an unmarked police car went to that location and saw the appellant, dressed in beige pants, shoes, shirt and a brown straw hat. The officers pulled over by defendant and he dropped a handkerchief and started to walk away. He was detained by one officer and another officer retrieved the abandoned handkerchief. The handkerchief contained a matchbox containing suspected "rock cocaine." The officer described the suspected substance as seven $10 pieces of rock cocaine, ten larger $25 pieces, and nine $50 pieces. A forensic chemist from the Georgia Crime Laboratory confirmed that the suspected substance was indeed cocaine. Three officers saw appellant drop the handkerchief and attempt to walk away. Appellant denies he dropped a handkerchief. He said he was drinking brandy and threw the bottle cap on the ground. He never saw a handkerchief and no officer picked up a handkerchief from the ground by his feet. The jury chose to believe the officers.
The evidence adduced at trial was sufficient to enable any rational trier of fact to find the existence of the offense alleged, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Further, our independent examination of the record and transcript has revealed no error of law requiring reversal.
Upon consideration of the procedure required to be followed by Anders, supra, and Bethay, supra, this court has determined that justice is best served by the procedure adopted by the Georgia Supreme Court. Huguley v. State, 253 Ga. 709, 710, 324 S.E.2d 729 (1985).
JUDGMENT AFFIRMED.
An appointed counsel is obviously in a categorically different position from a retained counsel in deciding whether to pursue the representation of a criminal defendant on appeal. If retained counsel determines, in the exercise of his best professional judgment, that there are no arguably meritorious grounds for the appeal, he can simply advise his client of that fact, tell him he does not believe he can help him, and decline to undertake the representation. A court-appointed counsel, on the other hand, is stuck with the case unless and until he is relieved by the court.
Ethical Consideration 7-4 of the Code of Professional Responsibility specifies that "a lawyer is not justified in asserting a position in litigation that is frivolous." 252 Ga. at 618. Ethical Consideration 7-5 specifies that a lawyer "may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position." Id. (Emphasis supplied.) Thus, by depriving appointed attorneys of any method by which they can withdraw from a criminal appeal for which they can discern no arguably meritorious grounds, we are in effect forcing them to engage in unethical conduct.
The argument that Anders motions force us to do too much work is, I believe, a specious one. A properly prepared Anders brief should provide the court with as much guidance in reviewing the record and transcript as would a properly prepared brief in any other appeal. In Simpson v. State, 183 Ga.App. 377, 378, 359 S.E.2d 13 (1987), we denied an Anders motion based, in part, on the inadequacy of the supporting brief, stating: Perhaps we simply have not insisted on strict compliance with the Anders procedure in this regard.
If we require appointed counsel in criminal cases to pursue appeals which they believe to be frivolous, the first straw at which they will grasp will undoubtedly be the so-called "general grounds." In that event, there is absolutely no guarantee that we will not be placed in the same position that the Georgia Supreme Court sought to avoid in Huguley v. State, 253 Ga. 709, 324 S.E.2d 729 (1985)--i.e., having to undertake an examination of "the entire ... transcript with very little assistance from counsel who is in a far better position to perceive error than is an appellate court looking at a cold record."
Based on these considerations, I respectfully dissent to this court's decision to eliminate any procedure by which an appointed counsel may withdraw from a criminal appeal which he believes is lacking in arguable merit. I concur, however, in the court's decision to grant the Anders motion at issue in this case.
I am authorized to state that Presiding Judge DEEN and Judge BENHAM join in this opinion.
The majority decides today that not only will we deny this Anders motion, but that this court will no longer recognize Anders motions in any case. While I agree with the court's denial of this Anders motion, I am substantially less confident in the majority's approach to all future Anders motions; therefore, I dissent to raise a voice of caution.
Our present approach to Anders motions is set out in Bethay v. State, 237 Ga. 625, 229 S.E.2d 406 (1976):
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