Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, In re

• Decision Date: 15 February 1990
• Docket Number: No. 74166,74166
• Parties: 15 Fla. L. Weekly S71 . STATE. Supreme Court of Florida
• Court: Florida Supreme Court

Page 1114

556 So.2d 1114

15 Fla. L. Weekly S71

In re ORDER OF the FIRST DISTRICT COURT OF APPEAL REGARDING BRIEF FILED IN FORRESTER V. STATE.

No. 74166.

Supreme Court of Florida.

Feb. 15, 1990.

Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for petitioner Kenneth A. Forrester.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Director, Crim. Appeals, and James W. Rogers, Asst. Atty. Gen., Tallahassee, for respondent State of Fla.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, amicus curiae for Florida Public Defender Ass'n, Inc.

McDONALD, Justice.

We review Forrester v. State, 542 So.2d 1358 (Fla. 1st DCA 1989), in which the district court ordered appellate counsel to provide supplemental briefs in an Anders situation. ¹ We have jurisdiction because the district court's decision expressly affects a class of constitutional officers. Art. V, § 3(b)(3), Fla. Const. We approve the district court's requiring supplemental briefs as being within the inherent powers of the court. However, we quash the part of the opinion imposing specific practice requirements on counsel in Anders cases.

Kenneth Forrester was charged with possession of cocaine and marijuana, based upon evidence found during a warrantless search of his automobile. The trial court denied his motion to suppress that evidence and Forrester pled nolo contendere to both charges, reserving the right to appeal the suppression issue. Forrester's appellate counsel filed an Anders brief, indicating his opinion that the appeal was frivolous and totally without merit. ²

The district court, not satisfied that counsel's brief complied with the dictates of Anders, ³ ordered counsel to file a supplemental brief on the issue of " 'whether, in the context of a non-consensual, warrantless search, a canine alert, without more, constitutes probable cause.' " Forrester, 542 So.2d at 1359. In response the assistant public defender filed a motion to clarify or to appoint other counsel, explaining the perceived ethical problems that compliance with the court's order would create. The district court granted that motion and entered an opinion discussing its interpretation of the requirements for a proper Anders brief.

The public defender argues that the district court's requiring additional briefing of the probable cause issue is improper under Anders and forces counsel to argue the case against his client. According to the public defender, such a practice shifts the role of appointed counsel from an advocate for the client to an amicus for the court and unconstitutionally infringes upon a defendant's right to effective assistance of counsel, as guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 16 of the Florida Constitution. We disagree.

Clearly, any court possesses the authority to require supplemental briefs from counsel on any issue where confusion or doubt remains. Nothing in the Anders procedure undermines this inherent power of the courts. We recognize appointed counsel's compelling obligation to promote effectively and vigorously the client's cause. However, counsel also maintains an obligation to the court to assist in rendering informed and just decisions. These obligations are not irreconcilable. Rather, the very purpose of the Anders procedure is to allow counsel to respect both of these important responsibilities concurrently. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 351, 102 L.Ed.2d 300 (1988); McCoy v. Court of Appeals, 486 U.S. 429, 108 S.Ct. 1895, 1903, 100 L.Ed.2d 440 (1988).

We agree with the district court that appellate counsel's original brief failed to meet the minimum requirements of Anders. See Penson, 109 S.Ct. at 350; Smith v. State, 496 So.2d 971, 973 (Fla. 1st DCA 1986). ⁴ One of the fundamental points of Anders and its progeny is that, even though counsel finds no merit in the appeal, he or she must present to the court any argument that would reasonably support the appellant's theory and must point out anything in the record which might arguably justify the appeal. Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Smith, 496 So.2d at 974. The Anders brief must evidence a complete and careful review of the record in order to support counsel's representation that the appeal is wholly frivolous.

A careful review of the record, combined with a complete discussion of any possible points of merit to the appeal, serves the interests of both the client and the court. The attorney's advocacy role is maintained, and the court is alerted to points of possible merit upon which it can focus its independent review of the record. The supplemental briefs ordered by the district court would not constitute "briefing the case against the client," as the public defender suggests.

In addition the public defender asserts that under Penson the district court should have appointed other counsel to represent Forrester after receiving the Anders brief from appellate counsel. This contention misinterprets Penson, which held that when a court allows appointed counsel to withdraw and later determines that issues of merit exist new counsel must be appointed. Penson, 109 S.Ct. at 351. Regardless, the question is clearly premature in this case because the district court has yet to determine whether Forrester's appeal is frivolous.

We are less supportive, however, of the district court's attempt to establish specific practice requirements for appellate counsel in Anders situations. The court held that

a brief that fails to make any reasonable argument in support of the designated judicial acts ... must contain a representation in the brief that appellate counsel has discussed the designated acts with trial counsel and has also communicated with the defendant, together with the statement that trial counsel agrees that the designations present wholly frivolous issues. If appellate counsel is unable to acquire the concurrence of trial counsel in such conclusion, then he or she must include as well a satisfactory explanation of why such concurrence could not be obtained. We consider it essential that an Anders brief which contains a representation that the appeal is wholly frivolous or without merit shall contain also the above representation of appellate counsel's having communicated with trial counsel.

Forrester, 542 So.2d at 1361 (emphasis in original, footnote omitted).

The public defender, joined by the attorney general, argues that these requirements are improper Anders procedure and constitute unwarranted regulation of appointed counsels' method of practice. They also contend that such mandatory disclosures force counsel to violate the attorney client privilege and rule 4-1.6, Rules Regulating The Florida Bar. We find nothing in Anders, or any other discussion of this issue, which supports such inflexible and intrusive requirements. However, principles of effective advocacy suggest that appellate counsel should, whenever possible, communicate with trial counsel. The advantages of gaining the input of someone familiar with the details of the record should be obvious. ⁵

In conclusion, we agree that an appellate court can order supplemental briefs in any case...