Johnson v. State

• Decision Date: 18 March 2009
• Docket Number: No. 4D08-3090.,4D08-3090.
• Citation: 6 So.3d 1262
• Parties: Christopher JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

6 So.3d 1262

Christopher JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 4D08-3090.

District Court of Appeal of Florida, Fourth District.

March 18, 2009.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Philip J. Massa, Regional Conflict Counsel, Fourth Region, Marrett Willis Hanna, Assistant Regional Conflict Counsel, and Cynthia L. Comras, Assistant Regional Conflict Counsel, West Palm Beach.

Bill McCollum, Attorney General, Tallahassee, Celia Terenzio, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, J.

Who shall represent the indigent defendant on his direct appeal?

The appellate Public Defender (PD) says she has a conflict because she already represents the co-defendant on his appeal, convicted for the same crimes.¹ She points out that the trial court permitted the Public Defender there to withdraw from representing this defendant because of the same conflict. She also argues that the Regional Conflict Counsel² has no standing to object to a PD motion for leave to withdraw when the motion certifies conflict.

On the other hand, the RCC (through his assistant) objects to allowing the PD to withdraw. He argues that in a 2007 law³ "the Legislature intended to revise the previous system to correct unnecessary spending." He contends that the PD has the primary responsibility to represent criminal defendants, not the RCC, and that the Legislature did not intend for the PD to "transfer all of [her] typical responsibilities, leaving the elected Public Defender with only nominal duties." He further argues that "while it may be true that a lawyer may not be able to juggle multiple cases, in this instance there are or were 38 appellate attorneys employed by the Office of Public Defender with a limited case load per month." He submits that his office is "a safety net, not a dumping zone." As to standing, he contends that his office is constitutional and publicly funded, thereby giving him "direct standing" to object to this motion to withdraw.

The issue raised by these proceedings is now being frequently presented in motion practice before this court. The RCC (again, through his assistant) appears to be routinely demanding evidentiary hearings whenever the PD asserts a conflict in this court and moves to withdraw. Initially, motion panels of this court began relinquishing jurisdiction to the trial court to hold inquiries into the basis for the PD's conflict. After such a relinquishment in this case, however, the PD personally filed a motion to renew her request to withdraw on conflict grounds and requested oral argument to address the general problems raised by such relinquishment. We granted her request and heard extended argument from both the PD and the Assistant RCC. Based on that argument and the written motions and objections of these counsel, we now proceed to decide the issue.

Co-defendants Johnson and Mayfield were charged with serious felonies in the 17th Circuit.⁴ Because of conflict in representing both defendants, the 17th Circuit PD was replaced with private counsel paid by the State to represent defendant Johnson. Both defendants were found guilty and filed appeals to this court.

The 15th Circuit PD represents all indigent defendants on appeal from their convictions in any of the circuit courts within this district.⁵ In this case, the 15th Circuit PD has moved to withdraw from representing defendant Johnson in this appeal on the grounds that she is currently also representing defendant Mayfield in his appeal from a conviction in the same case below. The PD claims a direct conflict here arising from representing multiple defendants in a criminal case with antagonistic interests.

The PD's motion was captioned as "unopposed" and stated that the Assistant Attorney General assigned to this case had authorized movant to represent that she "agrees to this motion." The PD's motion made no assertion as to whether RCC had any position on withdrawal but did certify service of the motion to RCC.

RCC objected. Before the PD might have responded to that objection, we remanded the motion and objection to the trial court "to determine whether conflict exists and, if so, to appoint counsel." Prompted by our later order for a status report on the matter, the PD filed this renewed motion to withdraw and for the appointment of RCC.

The renewed motion calls our attention to the multiple cases in this district in which this issue has been raised. The PD further argues that the obvious difficulties inherent in representing co-defendants eliminates any need for fact-finding in the trial court. She further points out that the trial judge thought the interests of the co-defendants antagonistic, requiring separate counsel. Hence the existence of true conflict ought to be accepted by this court without further inquiry for such appeals involving the same defendants.

We described RCC's arguments in the opening paragraphs. Procedurally, he also argues that the 15th Circuit PD waived any of these contentions by failing to respond to his objection to the initial motion to withdraw.⁶ Substantively, his principal argument is that the statute creating the new RCC system contemplates a determination by this court as to whether a true conflict exists.

The PD relies on our decision in Turner v. State, 611 So.2d 12 (Fla. 4th DCA 1992). There the PD had moved to withdraw in the trial court because of conflict, which the trial court granted and appointed special counsel. Defendant moved for the appointment of special counsel on appeal. Palm Beach County objected, citing concerns about the burden of the expense for special counsel.

In holding that the County had no standing to object, we relied on In re Order of Prosecution of Criminal Appeals, 561 So.2d 1130 (Fla.1990). In that case the supreme court held that Counties need not be allowed to respond to PD motions for leave to withdraw because of conflict.⁷ As to the merits, we noted that the PD had asserted that the conflict continues to exist. Based on the assertion of the PD, we said: "Thus the issue of conflict is not extinguished, as the appeal is merely a continuation of the original proceedings." 611 So.2d at 13. We held that the defendant is also entitled to conflict-free counsel for the same case on appeal.

Turner was based on Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Barclay v. Wainwright, 444 So.2d 956 (Fla.1984). In Holloway, the Supreme Court reversed a conviction because a state trial court refused to appoint substitute counsel where counsel representing three defendants in a criminal trial certified that the defendants had antagonistic interests. In finding the trial court's refusal a violation of the Sixth Amendment right to effective assistance of counsel, the Court explained:

"[M]ost courts have held that an attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. In so holding, the courts have acknowledged and given effect to several interrelated considerations. An `attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.' Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. Finally, attorneys are officers of the court, and `when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.'" [e.s.]

435 U.S. at 485-86, 98 S.Ct. 1173. In rejecting the State's objections to withdrawal, the Court explained:

"The State argues, however, that to credit [defense counsel's] representations to the trial court would be tantamount to transferring to defense counsel the authority of the trial judge to rule on the existence or risk of a conflict and to appoint separate counsel. In the State's view, the ultimate decision on those matters must remain with the trial judge; otherwise unscrupulous defense attorneys might abuse their `authority,' presumably for purposes of delay or obstruction of the orderly conduct of the trial."

"The State has an obvious interest in avoiding such abuses. But our holding does not undermine that interest. When an untimely motion for separate counsel is made for dilatory purposes, our holding does not impair the trial court's ability to deal with counsel who resort to such tactics. Nor does our holding preclude a trial court from exploring the adequacy of the basis of defense counsel's representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client. In this case the trial court simply failed to take adequate steps in response to the repeated motions, objections, and representations made to it, and no prospect of dilatory practices was present to justify that failure." [e.s., c.o.]

435 U.S. at 486-87, 98 S.Ct. 1173. Holloway alone would seem to dispose of RCC's arguments. Barclay did not rely on Holloway but holds that conflict with appellate counsel representing multiple defendants is a violation of the Sixth Amendment right to counsel.

RCC bases its objection to withdrawal on the statutes created by the Legislature in 2007. The supreme court has explained the purpose of these new statutes thus: "rather than appointing private counsel from a registry list, the new system mandates that [RCC] be appointed first." Crist v. Fla. Ass'n of Crim. Defense Lawyers Inc., 978 So.2d 134, 138 (Fla.2008). RCC cites two subsections setting out statements of general legislative intent but does not rely on any specific prescriptive provision.⁸

General statements of legislative intent have little power to change substantive directives stated plainly in...