ANTHONY WHITFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Whitfield, representing himself pro se, sought to file a supplemental brief to raise an issue his appellate counsel declined to raise, claiming the counsel's refusal was ineffective assistance. The court denied the motion, holding that defendants have no constitutional right to simultaneous representation by both counsel and pro se participation on appeal.
A defendant has no constitutional right to corepresentation by both appointed counsel and pro se participation on appeal. The orderly progress of the appeal will not be served by allowing such dual representation in the absence of compelling reasons.
[1] A defendant represented by counsel on appeal cannot simultaneously participate in or represent himself on appeal.
[2] An orderly appeal and the administration of justice are not served by allowing corepresentation by a defendant who is represented by counsel, absent compelling reasons.
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Join FLexlaw to unlock all legal intelligence“Although a defendant has the right to consult with his counsel during trial, he has no right to participate or represent himself on appeal when he is simultaneously represented by counsel.”
Establishes the core holding that dual representation is not permitted on appeal
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Join FLexlaw to unlock all legal intelligenceAppellant Whitfield was convicted and appointed appellate counsel. He requested that counsel raise the issue of the trial court's failure to instruct …
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PER CURIAM.
Appellant has filed a pro se motion requesting leave to file a supplemental brief. He alleges he requested his appellate counsel to raise, as an issue on appeal, the failure of the trial court to instruct the jury on the lesser included offense of attempted possession of cocaine. According to appellant, counsel was of the opinion that raising the issue would be “futile”, and the initial brief reflects that the issue has not been raised.
Of course indigent defendants are entitled to appointed counsel on direct appeal of a conviction. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967). Defendants also have a constitutional right to waive representation by counsel in certain circumstances. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, there is no constitutional right of an accused to representation both by counsel and by himself. State v. Tait, 387 So. 2d 338 (Fla.1980). Although a defendant has the right to consult with his counsel during trial, he has no right to participate or represent himself on appeal when he is simultaneously represented by counsel. Hooks v. State, 253 So. 2d 424 (Fla.1971). In the absence of compelling reasons, the orderly progress of an appeal and the concomitant administration of justice will not be served by allowing corepresentation by a defendant who is represented by counsel. Powell v. State, 206 So. 2d 47 (Fla. 4th DCA 1968). See also Florida Rule of Judicial Administration 2.060(d).
Here, appellant’s counsel has apparently made the professional determination that the issue appellant seeks to raise would be frivolous. There are many reasons why this determination may or may not be correct. If the issue is viable, appellant’s remedy, as he recognizes in his motion, lies in collateral proceedings alleging ineffective assistance of appellate counsel. At this time, we do not rule on the viability of the proposed issue. We do find that appellant has failed to present compelling circumstances warranting an exception to the rule that corepresentation will not be permitted.
Accordingly, appellant’s pro se motion to file a supplemental brief is denied.
JOANOS, ZEHMER and WIGGINTON, JJ., concur. ON MOTION TO CERTIFY QUESTION
PER CURIAM.
AFFIRMED. We certify the following question as being one of great public importance:
Is the habitual offender statute, section 775.084, Florida Statutes, still operative for the purpose of extending the statutory maximum permissible penalty to be imposed under the sentencing guidelines?
ERVIN, JOANOS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Elisha Gilbert v. Singletary, 632 So. 2d 1104 (Fla. 4th DCA 1994)…heard at this time while his appeal remains pending. Furthermore, a party may not be simultaneously represented by counsel and yet file pro se pleadings or petitions in the same case. State v. Tait, 387 So. 2d 338 (Fla.1980); Whitfield .v. State, 517 So. 2d 23 (Fla. 1st DCA 1987), rev. denied, 525 So. 2d 881 (Fla. 1988), citing Hooks v. State, 253 So. 2d 424 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972). For these reasons, we deny the petition for writ of habeas corpus, w…
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Duke v. State, 578 So. 2d 744 (Fla. 1st DCA 1991)…l furnished by the state throughout this proceeding, appellant’s request for permission to file his own pro se motions and arguments is the equivalent of a request for a second appeal. Appellant’s motion is therefore denied. See, Whitfield v. State, 517 So. 2d 23 (Fla. 1st DCA 1987); Smith v. State, 444 So. 2d 542 (Fla. 1st DCA 1984); and Sheppard v. State, 391 So. 2d 346 (Fla. 5th DCA 1980). NIMMONS and ZEHMER, JJ., concur.…
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Tucker v. State, 562 So. 2d 415 (Fla. 1st DCA 1990)…sed. “When the accused is represented by counsel, affording him the privilege of addressing the court or the jury in person is a matter for the sound discretion of the court.” State v. Tait, 387 So. 2d 338, 340 (Fla.1980). Accord Whitfield v. State, 517 So. 2d 23 (Fla. 1st DCA 1987), review denied, 525 So. 2d 881 (Fla.1988); Powell v. State, 206 So. 2d 47 (Fla. 4th DCA 1968). Tucker’s judgement and sentence are AFFIRMED without prejudice to his right to seek relief pursuant to Florida Rule of Criminal Proc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Swenson v. Bosler, 386 U.S. 258 (U.S. 1967)
- State v. Tait, 387 So. 2d 338 (Fla. 1980)
- Hooks v. State, 253 So. 2d 424 (Fla. 1971)
- Malvina N. Fried v. Sorrel Rose Bollet, 206 So. 2d 47 (Fla. 4th DCA 1967)