State v. Herzig, 36603

• Decision Date: 27 March 1968
• Docket Number: No. 36603,36603
• Parties: STATE of Florida, Petitioner, v. Carl William HERZIG, Respondent.
• Court: Florida Supreme Court

Page 619

208 So.2d 619

STATE of Florida, Petitioner, v. Carl William HERZIG, Respondent.

No. 36603.

Supreme Court of Florida.

March 27, 1968.

Earl Faircloth, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.

W. D. Frederick, Jr., Public Defender and William B. Barnett, Asst. Public Defender, for respondent.

ROBERTS, Justice.

This is a review by conflict certiorari of the District Court of Appeal, Fourth District, 200 So.2d 632, which denied a motion of the Public Defender for permission to withdraw from further representation of one William Herzig on appeal from a judgment of conviction of armed robbery.

The motion set forth that, in the opinion of the Public Defender, further prosecution of the appeal would constitute trifling with the integrity of the court, and would be a breach of the professional ethics of counsel. In reviewing and thereupon denying the motion for withdrawal the appellate court adopted a method of review set forth in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), wherein the counsel wishing to withdraw must accompany his request by a brief referring to anything in the record that might arguably support the appeal, furnish the indigent a copy and allow time to raise any points that he chooses, and then await the court's decision on whether the case is wholly frivolous. If any arguable merit is found by the court then the indigent must be afforded counsel to argue the appeal. We agree.

Accordingly, we affirm the District Court insofar as its denial of the motion to withdraw is concerned. However, jurisdiction of this case was sought and granted on obiter dicta as follows:

'Subsequently, in a case presenting the same issue as Weeks (State v. Weeks, Fla.1964, 166 So.2d 892), the United States Supreme Court in a per curiam opinion reversed by merely citing Douglas v. People of the State of California, supra. (Douglas v. People of the State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811) Hollingshead v. Wainwright, 1966 (Fla., 177 So.2d 477), 384 U.S. 31, 86 S.Ct. 1284, 16 L.Ed.2d 333 (Fla., 188 So.2d 788; 194 So.2d 577). As a result it would appear that now any indigent found guilty of a felony in a trial court is entitled, as a matter of right, to counsel not only on direct appeal but also on appeal from a denial of post-conviction relief. By analogy this right to counsel would seem to exist on an appeal from a denial of relief by petition for habeas corpus.'

The quoted portion of the appellate decision is in conflict with our decision in Weeks, supra, is not supported by Douglas v. California, supra, and is not a logical sequel to Hollingshead v. Wainwright, supra.

In Weeks, supra, we held that there is no absolute organic right to the assistance of counsel in an appeal from a denial on a collateral attack under Criminal Procedure Rule 1, F.S. ch. 924 Appendix, although the District Court may, in the interest of justice, determine whether under the factual situation then under review the prisoner should have the assistance of counsel. In Douglas v. People of the State of California, supra, the federal court held that an indigent was entitled to counsel on a direct appeal, stating,

'We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the First appeal, granted as a matter of right to rich and poor alike * * * from a criminal conviction.'

In Hollingshead, supra, after a denial of a petition for writ of habeas corpus by this court the Supreme Court of the United States reversed, citing Douglas, supra. On remand this court appointed a commissioner to investigate the contention that petitioner 'had been denied due process of law by the trial court in refusing to furnish him counsel after Petitioner repeatedly requested him to do so for the purpose of Direct appeal to review the conviction, judgment and sentence * * *' (Emphasis added). Upon consideration of the commissioner's report this court found that 'due process of law requires that the Petitioner be afforded a full appellate review of his conviction, judgment and sentence' and further noted 'We do not overlook the well established rule that ordinarily habeas corpus is not available as an alternate or substitute for an appeal. However, * * * the instant circumstances demand that the Petitioner be afforded a full appellate review, the ordinary or orderly procedure therefor not having been afforded in this cause.'

Ordinarily, relief will not be granted in cases where it plainly appears that the granting of such relief will result in great public expense, confusion and disorder and will produce an injury to the public which outweights the individual right of the complainant to have the relief he seeks. Cabello v. State Attorney, Fla. (Fla.1967) 203 So.2d 165. Appointment of counsel as a matter of right for indigents in appeals from an adverse ruling in Collateral assaults on his conviction and sentence fall within this category.

We therefore adhere to our previous holding that there is no absolute right to counsel from a denial of post-conviction relief but that each case must be decided in the light of the Fifth Amendment due process requirements which generally would involve a decision as to whether under the circumstances the assistance of counsel is essential to accomplish a fair and thorough presentation of the prisoner's claims.

Accordingly, that part of the opinion of the District Court of Appeal labeled as obiter dicta and quoted herein is expunged, and that portion of the District Court judgment which denies the motion of the Public Defender for permission to withdraw as counsel is approved.

The conflicting portion of the opinion under review having been expunged, the writ of certiorari heretofore issued is discharged.

It is so ordered.

CALDWELL, C.J., and DREW and ADAMS, JJ., concur.

THORNAL, J., concurs in conclusion discharging writ.

ERVIN, J., concurs in part and dissents in part with Opinion.

THOMAS, J., dissents.

ERVIN, Justice (concurring in part and dissenting in part):

I concur in that part of the Court's opinion affirming the District Court's denial of the motion for withdrawal. I must register a dissent, however, insofar as today's decision reaffirms without exception the principle announced in State v. Weeks, 166 So.2d 892 (Fla.1964).

In Weeks, this Court was of the view that an indigent prisoner was not entitled to the assistance of counsel as a matter of right upon an appeal from an adverse ruling on any motion brought under Criminal Procedure Rule 1. The principle announced in Weeks and reaffirmed today is that the assistance of counsel on appeal is only required where, under the particular circumstances, such assistance is deemed by the court essential to accomplish a fair and thorough presentation of the prisoner's claims. I am constrained to dissent insofar as this flexible and discretionary standard includes an appellate proceeding where the merits of a properly raised claim for relief are reviewed for The first time.

Both the Weeks decision and the majority opinion herein have considered the decision of the Supreme Court of the United States in Douglas v. People of the State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and have found it to be inapplicable to collateral proceedings. I believe that these decisions have too narrowly applied the rationale of Douglas.

The sweeping rationale of the Douglas decision is that a state cannot refuse to provide counsel for an indigent for the purpose of directly appealing a criminal conviction when such refusal would amount to an 'invidious discrimination.' Applying this rationale to the facts before it, the Supreme Court of the United States concluded:

'(W)here the merits of The one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.' 372 U.S. at 357, 83 S.Ct. at 816. (Emphasis in text.)

In reaching this conclusion the Court noted:

'We are not here concerned with the problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the First appeal, granted as a matter of right to rich and poor alike * * * from a criminal conviction. * * *' 372 U.S. at 556, 83 S.Ct. at 816. (Emphasis in ...