Pullen v. State

• Decision Date: 13 September 2001
• Docket Number: No. SC00-1482.,SC00-1482.
• Parties: Gloria PULLEN, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

802 So.2d 1113

Gloria PULLEN, Petitioner, v. STATE of Florida, Respondent.

No. SC00-1482.

Supreme Court of Florida.

September 13, 2001.

Rehearing Denied November 15, 2001.

Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, FL, for Respondent.

Julianne M. Holt, Public Defender, and Marcia Perlin, Assistant Public Defender, Thirteenth Judicial Circuit, Tampa, FL, for Florida Public Defender Association, Inc., Amicus Curiae.

HARDING, J.

We have for review a decision of a district court of appeal that affects a class of state or constitutional officers. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Gloria Pullen appealed an order from the Division of Administrative Hearings authorizing her continued involuntary civil commitment under Florida's Baker Act. See §§ 394.451-394.4789, Fla. Stat. (2000). Pullen's appointed counsel from the public defender's office filed an Anders¹ brief, stating that he could discern no reversible error in the proceedings below. Despite being given the opportunity to file her own pro se brief, Pullen did not do so. The State filed a motion to dismiss the appeal, arguing that the Anders procedure does not apply to civil commitment proceedings. The First District Court of Appeal agreed and dismissed Pullen's appeal with a written opinion. See Pullen v. State, 764 So.2d 704 (Fla. 1st DCA 2000)

.

The district court concluded that because Anders procedures are grounded in the Sixth Amendment right to counsel in criminal prosecutions while Baker Act proceedings are civil in nature and the right to counsel in such proceedings arises from the due process clause, Anders is inapplicable to appeals from involuntary civil commitment orders. The First District Court noted that the Fourth District Court had reached the same conclusion as to the inapplicability of Anders procedures in termination of parental rights (TPR) proceedings. See Ostrum v. Dep't of Health & Rehabilitative Servs., 663 So.2d 1359 (Fla. 4th DCA 1995)

. The First District Court adopted the procedures outlined in Ostrum, i.e., where counsel conducts a conscientious review of the record and can find no meritorious grounds on which to appeal, counsel can move to withdraw on that basis and the court will give the pro se appellant an opportunity to file a brief; where the pro se appellant fails to do so, the case will be dismissed for failure to prosecute. See Pullen, 764 So.2d at 705.

Based on this procedure, the district court dismissed Pullen's appeal. See id.

Pullen sought review by this Court on two grounds: (1) the decision below expressly construes the due process and right to counsel provisions of the Florida and United States Constitutions; and (2) the decision expressly affects all public defenders who routinely represent indigent patients in Baker Act proceedings. See art. V, § 3(b)(3), Fla. Const. The Court granted review and heard oral argument from the parties in June 2001.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court addressed the duty of a court-appointed appellate counsel to prosecute a first appeal when the attorney has conscientiously determined that there is no merit to the indigent's appeal. The Supreme Court held that the procedure in such circumstances must ensure that the indigent defendant is furnished with counsel acting in the role of an advocate and that the appeal will be given the full consideration and resolution of the matter as is received when counsel is acting in that capacity. See id. at 743, 87 S.Ct. 1396. The Supreme Court concluded that a no-merit letter from counsel to the court does not suffice. Instead, the Supreme Court outlined the following procedure for appointed counsel to follow: if, after a conscientious examination of the case, counsel concludes that the case is wholly frivolous, counsel may request permission to withdraw; however, that request must be accompanied by a brief referring to anything in the record that might arguably support the appeal and a copy of the brief should be furnished to the indigent defendant to permit him or her to raise any points he chooses; the court then makes a full examination of the proceedings to determine whether the case is wholly frivolous; if so, it may grant counsel permission to withdraw and either dismiss the case or proceed to a decision on the merits; if the appeal is not found frivolous, the court must provide the indigent with counsel to argue the appeal. See id. at 744, 87 S.Ct. 1396; see also In re Anders Briefs, 581 So.2d 149, 151 (Fla. 1991)

(explaining Anders procedure); State v. Wooden, 246 So.2d 755, 757-58 (Fla.1971) (stating that court-appointed counsel must follow Anders procedure in order to withdraw from direct appeal which he believes to be without merit).

In a recent opinion, the Supreme Court explained that the procedure outlined in Anders is not mandatory upon the states. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)

(holding that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals). The Supreme Court explained that states may craft variations of the Anders procedure "so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal." Id. at 276-77, 120 S.Ct. 746. In Robbins, the Supreme Court concluded that California's Wende² procedure, which diverged from the Anders procedure, meets this standard. See id. at 279, 120 S.Ct. 746. In making this determination, the Court noted four ways in which alternative procedures have been judged inadequate: (1) if the procedure does not require either counsel or the appellate court to determine that the appeal is frivolous, but merely that the defendant is unlikely to prevail on appeal; (2) if the procedure permits an appellate court to allow counsel to withdraw and thereafter decide the appeal without appointing new counsel; (3) if the procedure permits counsel to file a no-merit letter stating only the "bare conclusion" that the appeal has no merit; and (4) if the procedure only provides for one tier of review. See id. at 761-62.

Thus, while the Supreme Court will permit variations on Anders in the criminal context, the procedures still must protect the defendant's right to appellate counsel. In a criminal context, a "no-merit" letter and withdrawal, such as the procedure used in the instant case, would clearly not be sufficient. See id.

Thus, the real issue here is what procedure is required in the context of a civil appeal. The process to which an individual is entitled "depends on the extent to which [the] individual will be `condemned to suffer grievous loss.' The question is not merely the `weight' of the individual's interest, but whether the nature of the interest is one within the contemplation of the `liberty or property' language of the Fourteenth Amendment." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (addressing the applicability of due process to parole revocation proceedings).

Clearly, an individual who faces involuntary commitment to a mental health facility has a liberty interest at stake. Accordingly, this Court has held that "[t]he subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. By significant stages we mean all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subject's liberty." In re Beverly, 342 So.2d 481, 489 (Fla. 1977) (citation omitted); accord Jones v. State, 611 So.2d 577, 579 (Fla. 1st DCA 1992)

.

In reaching the decision in the instant case, the district court relied upon the decision of the Fourth District Court in Ostrum, which involved an appeal following the termination of parental rights. See663 So.2d at 1360. After Ostrum's attorney filed a motion to withdraw accompanied by an Anders brief, the Department of Health and Rehabilitative Services filed a motion to dismiss the appeal based upon the Anders brief and the court's policy of expeditiously resolving cases involving the interests of children. See id. at 1361. The Fourth District Court granted the attorney's motion to withdraw and summarily affirmed the termination of parental rights order. See id. at 1361-62. The district court explained that the Anders procedures do not apply to appeals from termination of parental rights proceedings for the following reasons: (1) the right to counsel in Anders is based on the Sixth Amendment right to counsel in criminal proceedings, while the right to counsel in civil TPR proceedings is derived from the constitutional guarantee of due process; (2) applying the full panoply of Anders procedures would delay proceedings to determine the future of the children who are the subject of the TPR proceedings; (3) Anders requires the appellate court to leave its neutral role and serve as advocate for the party whose counsel seeks to withdraw; and (4) the appellant can file a pro se brief after counsel files the motion to withdraw. See id. at 1361.

Citing the first reason in Ostrum, the district court in the instant case concluded that Anders is not applicable to Baker Act appeals because they are not criminal in nature and the right of counsel in such proceedings is derived from the constitutional right to due process rather than the Sixth Amendment right to counsel protected by Anders. See Pullen, 764 So.2d at 705

. The district court adopted the Ostrum procedure in appeals from involuntary civil commitments under the Baker Act. See id. Thus, under the procedure adopted by t...