Ojeda v. Moore, 3D99-3092.

• Court: Florida District Court of Appeals
• Writing for the Court: COPE, J.
• Citation: Ojeda v. Moore, 805 So.2d 812 (Fla. App. 2000)
• Decision Date: 10 May 2000
• Docket Number: No. 3D99-3092.,3D99-3092.
• Parties: Michael OJEDA, Petitioner, v. Michael W. MOORE, Secretary, of Florida Dept. of Corrections, Respondent.

805 So.2d 812

Michael OJEDA, Petitioner, v. Michael W. MOORE, Secretary, of Florida Dept. of Corrections, Respondent.

No. 3D99-3092.

District Court of Appeal of Florida, Third District.

May 10, 2000.

Bennett H. Brummer, Public Defender, and Suzanne M. Froix, Assistant Public Defender, for petitioner.

Robert A. Butterworth, Attorney General, and Jill K. Traina, Assistant Attorney General, for respondent.

Before SCHWARTZ, C.J., and COPE, and SHEVIN, JJ.

COPE, J.

Michael Ojeda petitions for a belated appeal. See Fla. R.App. 9.140(j). We grant the petition.

After his conviction of armed burglary and unlawful possession of a firearm, defendant's privately retained counsel initiated an appeal in this court. Thereafter, counsel filed a motion to dismiss the direct appeal, reciting that counsel had thoroughly researched all potential issues for direct appeal and could find no meritorious ground for appeal. Counsel requested that the appeal be dismissed, without prejudice to the defendant to pursue collateral relief under Florida Rule of Criminal Procedure 3.850. This court treated the motion as a notice of voluntary dismissal, and dismissed the appeal.

Thereafter defendant filed this petition for belated appeal, stating under oath that counsel had not advised him of his intention to abandon the appeal, and that he only learned of the voluntary dismissal after the fact. The petition was supported as well by the affidavit of defendant's mother, who had acted on her son's behalf in retaining, and paying, counsel.

This court on its own motion appointed the public defender to represent the defendant. The public defender argues that the defendant is entitled to a belated appeal, while the State opposes such relief. We conclude that the public defender is correct and that defendant is entitled to a belated appeal.

Defendant's counsel in this case was privately retained, not court-appointed. Where appellate counsel is court-appointed and decides that the appeal would be wholly frivolous, counsel follows the procedure outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), see also Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), and files a so-called Anders brief. In that situation, the defendant is also given the opportunity to file a pro se statement of points and authorities in support of the appeal.

However, where counsel is privately retained (the situation now before us), the requirements of Anders v. California do not apply, and privately retained counsel is not required to file an Anders brief. Instead, the procedural alternatives are as follows:

[I]f private counsel determines that he cannot ethically and properly present his client's appeal, he has the option to either 1) secure his client's permission to dismiss the appeal, after fully disclosing to his client his opinion as to the merits of the appeal; 2) advise his client to obtain other counsel, meanwhile taking such steps as are reasonably necessary to avoid foreseeable prejudice to the rights of the client; or 3) move to withdraw from the case, refunding any portion of a pre-paid fee which has not yet been earned. The paying client then is free to seek other counsel who can argue his cause.

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