CHARLES EDWARD MOSLEY, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

GARRETT, Judge.

The Public Defender, Fifteenth Judicial Circuit of Florida, seeks to withdraw as counsel on appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We note, contrary to Rule 9.140, Florida Rules of Appellate Procedure, trial counsel was permitted to withdraw without filing a statement of judicial acts.

This court has examined the record to the extent necessary to discover any errors apparent on the face of the record. State v. Causey, 503 So. 2d 321, 322 (Fla.1987). Such examination has revealed that during the lunch break between the swearing of the jury and opening arguments, the trial judge and the prosecutor discussed whether the jury should see the victim brought into the courtroom in the company of deputies. Defense counsel was present, but did not participate in an after lunch discussion which ended when the trial judge concluded, “My feeling is whether he is incarcerated is irrelevant. So I’ll allow him to be [brought in so the jury does not see the accompanying deputies]....” Defense counsel did not object nor did he attempt to cross-examine as to the victim’s own pending criminal charges. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Lee v. State, 318 So. 2d 431 (Fla. 4th DCA 1975). The case hinged on whether the jury believed the victim's or appellant’s version of the shooting.

Without addressing the merits of any resulting argument, we deny the public defender’s motion to withdraw and direct him to brief the issue of whether fundamental error occurred when defense counsel failed to make proper objection or inquiry concerning the prosecuting witness’ possible bias or self-interest.

MOTION DENIED WITH DIRECTIONS TO THE PUBLIC DEFENDER TO FILE ITS INITIAL BRIEF WITHIN THIRTY DAYS HEREOF. POLEN, J., concurs.

WARNER, J., dissents with opinion.

WARNER, Judge,

dissenting.

I respectfully dissent because the record is insufficient to demonstrate that the appellant was deprived of his constitutional right to confront witnesses.

The record reveals that after the lunch recess the state attorney announced that there were no pending criminal charges against the victim. Appellant’s counsel did not question this and never followed up by asking any questions to impeach the witness regarding any prior record or pending charges. Thus, the record is simply insufficient to determine whether the appellant was denied his right to impeach the witness.

Therefore, finding no other errors, I would grant the motion to withdraw and affirm the conviction and sentence. This of course would not preclude the appellant from applying for post-conviction relief based upon ineffective assistance of counsel. Such a proceeding would permit appellant to lay the evidentiary predicate, if any, to show that the victim could have been impeached based upon prior convictions or pending charges against him.