Mayolo v. State, 97-3231
| Decision Date | 15 July 1998 |
| Docket Number | No. 97-3231,97-3231 |
| Citation | 714 So.2d 1124 |
| Parties | 23 Fla. L. Weekly D1663 David MAYOLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, and David Mayolo, Immokalee, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Barbra Amron Weisberg, Assistant Attorney General, West Palm Beach, for appellee.
In this appeal of an order denying postconviction relief after evidentiary hearing, for which counsel was appointed, the public defender has moved to withdraw as appellate counsel and filed a supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Herzig, 208 So.2d 619 (Fla.1968). The authority for appointing counsel to handle postconviction matters stems from the due process clause of the Fifth Amendment of the United States Constitution, not the Sixth Amendment right to counsel. See Schneelock v. State, 665 So.2d 1063 (Fla. 4th DCA 1995), rev. denied, 672 So.2d 543 (Fla.1996); Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979). Accordingly, it is not necessary to follow the procedure set forth in Anders before seeking to withdraw from appeals of orders denying postconviction relief. See generally Ostrum v. Department of Health and Rehabilitative Servs. of Fla., 663 So.2d 1359 (Fla. 4th DCA 1995) ().
We reverse the denial only as it pertains to the failure to give Appellant notice and an opportunity to contest the assessment of public defender fees imposed pursuant to section 27.56, Florida Statutes (1993). 1 The state was unable to refute Appellant's allegation that he was not given such notice and opportunity, the giving of which is mandatory. See § 27.56(7), Fla. Stat. (1993); Fla. R.Crim. P. 3.720(d). We remand for the trial court to give Appellant thirty days in which to contest the amount of the fees; if he does so, the fees must be stricken, but they may be reimposed based on the trial court's findings following a fee hearing. See, e.g., Basham v. State, 695 So.2d 887 (Fla. 2d DCA 1997).
1 This provision was renumbered as ...
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Jones v. State , 4D10–4785.
...has no federal constitutional due process or equal protection right to counsel in postconviction proceedings); Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998) (recognizing that a postconviction movant has no Sixth Amendment right to appointed counsel). A postconviction movant stan......
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Beliveau v. State
...announced in 1998 that it was not necessary for counsel to file Anders briefs in postconviction appeals. See Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998). In Medrano v. State, 795 So.2d 1009, 1010 (Fla. 4th DCA 2001), it announced that it would henceforth strike such briefs. In......
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Grange v. State, 4D14–1864.
...prisoner has no federal constitutional due process or equal protection right to counsel in postconviction proceedings); Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998) (recognizing that a postconviction movant has no Sixth Amendment right to appointed counsel). A postconviction mo......
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Medrano v. State, 4D00-2722.
...(Fla. 4th DCA 1999). Finally, we point out that an Anders brief is not necessary in rule 3.850 full appeals. See Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998). However, the public defender having filed a brief in this case, we deny the motion to withdraw. Henceforth, we will str......