Steele v. Kehoe

• Decision Date: 20 March 1998
• Docket Number: No. 96-2212.,96-2212.
• Citation: 724 So.2d 1192
• Parties: William Stewart STEELE, Appellant, v. Terrence E. KEHOE, Appellee.
• Court: Florida District Court of Appeals

724 So.2d 1192

William Stewart STEELE, Appellant, v. Terrence E. KEHOE, Appellee.

No. 96-2212.

District Court of Appeal of Florida, Fifth District.

March 20, 1998.

William Stewart Steele, Daytona Beach, pro se.

Steven G. Mason, Law Offices of Steven G. Mason, Orlando, for Appellee.

HARRIS, J.

William Stewart Steele was convicted of the first degree murder of Andrew Salter, Jr. in 1991 and was sentenced to life in prison. He has spent much of his incarceration seeking review in one form or another. He has consistently claimed that his private attorney, the lawyer who represented him in his appeal, negligently failed to timely file a 3.850 motion on his behalf even though the attorney orally agreed to do so. Steele's attempts to file his own motion outside the time period have consistently been denied by the trial court and by this court because of the two-year filing restraint. Frankly, we did not consider a due process problem inherent in this situation. We were wrong.

Because Steele was unable to have his 3.850 motion heard, he sued his lawyer for malpractice. The trial court dismissed his complaint since Steele, because his 3.850 motion was jurisdictionally barred, was unable to prove that he was improperly convicted. Indeed, in those states that have considered the issue, it appears to be the majority view that exoneration is a prerequisite to a legal malpractice action arising from a criminal prosecution. Certainly there is logical support for this holding.¹ First, criminal procedure provides a remedy for ineffective assistance of counsel. Judicial economy will be best served if we permit the criminal court to determine the issue of ineffective assistance of counsel. If the court should determine that the attorney's representation, even if sub-par, did not affect the result of the criminal trial then a subsequent malpractice action should not lie. Second, public policy should recognize that unless a defendant is exonerated, the proximate cause of the defendant's conviction is his or her commission of a crime and not legal malpractice. Third, and most important, unless exoneration is accomplished, a legal malpractice action would be an inadequate remedy.

Under the facts of this case, the requirement of exoneration places Steele in a Catch 22 situation. Steele cannot sue his lawyer for malpractice because of the consequence of the alleged malpractice. Justice requires that some relief be provided. Therefore, the real issue before us now is what due process rights a convicted defendant has in post-conviction matters when he relies on his attorney to pursue remedies designed to prove his innocence and to obtain his freedom and the attorney fails to file within the limitation period. Such a situation highlights the inadequacy of a malpractice action when exoneration is not required. Should a criminal defendant who loses his opportunity to gain freedom and to restore his good name because of the malpractice of his lawyer be limited to civil damages? An award of money damages is an acceptable substitutionary remedy only because the law knows of no other remedy that will make the injured party whole. Money damages would never be awarded for a lost arm if the law could replace the arm. In a case such as the one before us, although money damages would be appropriate to compensate the victim for having been improperly incarcerated before the error was rectified, public policy should not recognize such damages as a substitute for an innocent person's future incarceration. It would truly be an anomaly if the civil jury awarded Steele $100,000 a year for the years that he had to remain in prison while the taxpayers of this state are required to pay the cost of incarceration for one improperly convicted. If a defendant can prove that he was improperly convicted, he should be set free. If he is denied the opportunity to offer such proof because of the malpractice of his lawyer, fundamental due process requires that he have a remedy that will address his future incarceration and not merely compensate him for improperly staying in prison.

In Lambrix v. State, 698 So.2d 247 (Fla. 1996), a case involving a claim that post-conviction counsel was ineffective in not appealing the trial judge's denial of Lambrix's request to represent himself in his original motion for post-conviction relief, our supreme court held that claims of ineffective assistance of post-conviction counsel do not present a valid basis for relief under rule 3.850.² But the court did not consider an issue such as the one before us. The Lambrix holding, since Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) was cited as authority, seems to be based on the proposition that because one is not entitled to appointed counsel in post-conviction matters, he has no right to relief if counsel is in fact appointed for him or if he obtains his own counsel and suffers a disadvantage because of his counsel's incompetence. But this ignores the difference between the right to appointed counsel and the right to counsel.³ Even if a defendant is not necessarily entitled to appointed counsel, still if one is appointed for him or if he is able to obtain his own, he should be able to rely on such counsel's at least filing within the time period.

The reason that no attorney is required in post-conviction matters, according to Justice O'Connor's concurring opinion in Murray, is that post-conviction proceedings are civil in nature and are not a part of the criminal process itself. But, as Justice O'Connor observed, it is a civil action designed to overturn a presumptively valid criminal judgment. Therefore she suggests that the states should be given considerable discretion in assuring that those imprisoned in their jails obtain meaningful access to the judicial process.⁴ Access that will permit only money damages for unjustified future incarceration is simply not meaningful. If a prisoner is denied the opportunity to challenge his conviction under an appropriate rule only because of the negligence of his attorney, then due process requires a belated filing procedure similar to that allowed in belated appeals.⁵ The sole issue in such a case would be whether counsel was, in fact, employed for the purpose of filing a post-conviction motion but failed to do so in a timely manner. If so, then, as in a belated appeal, the motion should be heard.

Obviously, if a 3.850 motion which would have proved that Mr. Steele was wrongfully convicted was not timely filed, then he has been disadvantaged by ineffective assistance of counsel. However, there would be no ineffective assistance of counsel in not filing the motion if it would have been unsuccessful in any event. The question is whether we should require that the validity of the claims in the 3.850 motion be determined by the criminal trial court (if possible, the same judge that heard the case) by way of a belated hearing on the motion, or if we should relegate that obligation to a civil trial jury. If we leave the issue to a civil jury, not only will there be a due process concern because a civil jury's decision will have no effect on the defendant's continuing incarceration, but judicial economy, convenience and consistency will also suffer.

We recognize that should the supreme court agree with our position the effectiveness of the two year limitation applicable to 3.850 motions when attorneys are involved will be brought into question. However, few 3.850 motions are filed by attorneys. Further, should an attorney abuse the 3.850 process by not filing or improperly filing such motion in order to extend the time for consideration, severe penalties should follow.

We affirm the dismissal of the civil action. Were it not for Lambrix, we would remand the case to the trial court with instructions to transfer it to the criminal division for a hearing on whether Mr. Kehoe undertook to represent Mr. Steele in the post-conviction process and, if he did, to hold a belated hearing on the claims in Mr. Steele's 3.850 motion. If Mr. Steele were able to show at such hearing that he was improperly convicted, then not only should his conviction be set aside but he would also have a civil claim for damages against Mr. Kehoe. If Mr. Steele were unable to show that Mr. Kehoe agreed to represent him or that his conviction should be set aside, then not only should he remain in prison but his civil action against Mr. Kehoe would be barred.

Because of the importance of this issue, we stay the mandate herein and certify the following issue to the supreme court:

UNDER THE FACTS OF THIS CASE, IS IT APPROPRIATE TO ORDER A BELATED HEARING IN ORDER TO DETERMINE WHETHER THE ATTORNEY WAS IN FACT RETAINED TO FILE A POST-CONVICTION MOTION AND, IF SO, TO DETERMINE THE VALIDITY OF THE ISSUES THAT DEFENDANT ASSERTS SHOULD HAVE BEEN RAISED IN SUCH MOTION?

W. SHARP, J., concurs and concurs specially, with opinion.

GRIFFIN, C.J., dissents with opinion.

W. SHARP, Judge, concurring specially.

I concur with Judge Harris' majority opinion. It appears to me to be both impractical and unrealistic to relegate a convicted defendant solely to a civil malpractice suit against his attorney if that attorney (as we must assume in this case) wrongfully failed to file a timely motion for post-conviction relief on that defendant's behalf, thereby causing the defendant to be barred from seeking collateral relief. What price can be put on one's freedom for one day, much less years? How, in a civil court, can a convicted defendant prove to a jury that he or she would have been able to overturn a conviction, had the collateral attack been timely filed? The difficulties are manifold.

Both the United States Supreme Court and the Florida Supreme Court have held that there is no Sixth Amendment right to an attorney in state post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)

; State v. Weeks, 166 So.2d...