TONY RAY PALEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that an Anders brief is inappropriate when a meritorious legal issue, such as the imposition of costs without notice, is raised.
The Public Defender filed an Anders brief and motion to withdraw, but raised a meritorious issue regarding the imposition of costs on the appellant wi…
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W. SHARP, Judge.
In this ease, the Public Defender filed a brief in purported compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and also filed a motion to withdraw from further representation of the appellant. However, the Public Defender raised in the Anders brief a meritorious legal issue — a claim that the trial court imposed costs on the appellant without notice or a meaningful opportunity to object. The appeal therefore is not wholly frivolous and is not properly presented as an Anders appeal.
Anders held that where court-appointed appellate counsel finds an appeal in a criminal case to be wholly frivolous he should so advise the appellate court and request permission to withdraw. Only if the appellate court, after a full examination of all the proceedings, finds any legal points arguable on their merits (and therefore not frivolous), must it afford the indigent appellant the assistance of counsel to argue the appeal. It is inappropriate for counsel to argue that an appeal is completely without merit and at the same time to submit that the trial court committed an error which requires corrective action by this Court.
We disagree with the position of the First District in Coupe v. State, 564 So. 2d 1199 (Fla. 1st DCA 1990), that an appellant has a “right” to the Anders procedure in cases where the appeal is not wholly frivolous. Therefore, we deny the Public Defender’s motion to withdraw, and we direct the appellee to file a supplemental answer brief within fourteen days after issuance of this opinion, addressing the issue of costs.
IT IS SO ORDERED.
GOSHORN and DIAMANTIS, JJ., concur.
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In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)…inor sentencing errors are raised in “no merit” briefs; but the Anders procedure is not appropriate where counsel raise substantial sentencing errors of any kind. We note that the Fifth District Court reached a contrary conclusion in Palen v. State, 574 So. 2d 269 (Fla. 5th DCA 1991), holding that the issue of improperly imposed costs may not be raised in Anders briefs. We disapprove Palen for the reasons expressed above. Accordingly, we approve Coupe as modified by our opinion, and we remand for proceedings…1 / 2
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Palen v. State, 588 So. 2d 974 (Fla. 1991)…BARKETT, Justice. We review Palen v. State, 574 So. 2d 269 (Fla. 5th DCA 1991), based on direct and express conflict with Coupe v. State, 564 So. 2d 1199 (Fla. 1st DCA 1990), approved as modified sub nom. In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla.1991).* We quash the decision belo…
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Williams v. State, 580 So. 2d 328 (Fla. 5th DCA 1991)…PETERSON, Judge. This case began with the filing of an Anders brief, and because the brief raised an issue as to the improper assessment of costs at the sentencing hearing, we followed the procedure described in Polen v. State, 574 So. 2d 269 (Fla. 5th DCA 1991), denied the public defender’s motion to withdraw, and ordered the state to file a supplemental answer brief addressing the issue of costs. The trial court imposed a statutorily mandated cost pursuant to section 27.3455, and app…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Coupe v. State, 564 So. 2d 1199 (Fla. 1st DCA 1990)