TOBY CHAPMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Second District Court of Appeal struck appellate counsel's Anders brief and ordered merits briefing in a criminal appeal where the defendant was convicted of burglary with assault and two counts of sexual battery and sentenced to life imprisonment. The court found that counsel failed to adequately identify arguable legal issues in the record and determined that at least two issues were viable for appeal.
The court struck the Anders brief because counsel failed to identify or discuss portions of the record or legal points that might support the appeal, violating Anders procedure. The court identified at least two arguable issues: (1) whether the trial court erred in admitting Chapman's videotaped interrogation containing repeated statements of the officer's belief in his guilt when he did not testify; and (2) whether the trial court erred in admitting criminal report affidavits from prior convictions over hearsay objection at sentencing.
[1] An Anders brief is appropriate only when an appeal is wholly frivolous, meaning it lacks any legal points arguable on their merits or has no basis in law or fact.
[2] Appellate counsel must thoroughly review the trial record and research the law to identify any potentially arguable issues before filing an Anders brief.
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Join FLexlaw to unlock all legal intelligence“Appellate counsel must "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on Appeal."”
Establishes the required standard for appellate counsel before filing an Anders brief
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Join FLexlaw to unlock all legal intelligenceToby Chapman was convicted by jury of one count of burglary with assault or battery and two counts of sexual battery on a person twelve years of age o…
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ORDER STRIKING ANDERS BRIEFING AND REQUIRING MERITS BRIEFING
The appellant, Toby Chapman, was found guilty by a jury of one count of burglary with assault or battery and two counts of sexual battery on a person twelve years of age or older. He was sentenced to life in prison. His appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This brief is similar to others .that this court has received in the recent past. Thus, without intending to single out this lawyer for criticism, we use the striking of this brief as an opportunity to emphasize the narrow circumstances in which an Anders brief is appropriate under the standards set by the U:S. Supreme Court and to explain the content expected in such a brief.
*5In a short Anders brief, appellate counsel in this case represents that she “is unable to make a good faith argument that reversible error . occurred in the trial court.” This brief does not reference anything from the appellate record, which consists of more than one thousand pages, that might arguably support Mr. Chapman’s appeal. Counsel merely directs our attention to whether “the court erred in the judgment and sentence” and states in a single sentence that “it would appear that the conviction and sentence were supported by substantial competent evidence.”
Mr. Chapman filed a pro se brief in which he identifies several potential legal grounds for appeal, two of which are clearly arguable. After reviewing Mr. Chapman’s pro se brief and conducting an independent review of the lengthy record, we have identified at least two issues that are arguable on their merits, one of which encompasses the., two arguable legal grounds identified by Mr. Chapman. We thus strike the Anders briefing of both counsel and Mr. Chapman and order counsel to file merits briefing on Mr. Chapman’s behalf with the following considerations. ■
In order to ensure that criminal defendants are afforded their constitutional right to counsel, before filing an Anders or “no merits”- brief, appellate counsel must conscientiously follow the procedure for Anders appeals set forth .by the Ú.S. Supreme-.Court. Appellate counsel must “master the trial record, thoroughly research the law, and exercise judgment -in identifying the arguments that may be advanced on Appeal.” In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991) (quoting McCoy v. Court of Appeals, 486 U.S, 429, 438-39, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988)). Counsel is justified in proceeding pursuant to Anders, “only after such an evaluation has led counsel to the conclusion that the appeal is ‘wholly frivolous.’ ” Id.) Anders, 386 U.S. at 744-45, 87 S.Ct. 1396. An. appeal that is wholly frivolous is one in which there are no “legal points arguable on their merits,” Anders, 386 U.S. at 744, 87. S.Ct. 1396, or one that “lacks any basis in law or fact.”1 McCoy, 486 U.S. at 438 n. 10, 108 S.Ct. 1895. Moreover, in order to assist both the appellant in identifying issues for his pro se brief and the appellate court in its own review to determine whether the appeal is in fact wholly frivolous, appellate counsel must in its Anders brief “refet[] to anything in the record that might- arguably support the appeal.”2 Anders, 386 U.S. at 744, 87 S.Ct. 1396.
*6Counsel’s representation in this ease that she “is unable to make a good faith argument that reversible error occurred in the trial court” seems to this court to place the bar somewhat higher than that intended by the guidance in An-ders. Perhaps the standard could be better represented by the statement that counsel has “thoroughly reviewed the record and has located no legal point that can be argued in good faith on its merits or that is not wholly frivolous.” Unlike in some Anders appeals we have seén recently, counsel, to her credit, provides a relatively thorough recitation of the record in her brief. However, an Anders brief submitted in an appeal with a record of this size that does not identify or discuss portions of the record or legal points that might arguably support the client’s appeal falls short of satisfying the procedure under Anders and counsel’s obligation to the client and this court.
As previously stated, after reviewing Mr. Chapman’s pro se brief and after conducting our own review of the record, we have identified at least two issues that are arguable on their merits, one of which was raised by Mr. Chapman in his pro se brief. The first issue is whether it was fundamental error for the trial court' to allow the State to admit the videotaped interrogation of Mr. Chapman in its casein-chief when Mr. Chapman did not testify at trial; his statements during the interrogation contain few, if any, admissions; and the recording included repeated statements of the interrogating officer’s belief in Mr. Chapman’s guilt. The second issue is whether it was error for the trial court, at sentencing to admit criminal report affidavits from Mr. Chapman’s prior convictions over Mr. Chapman’s hearsay objection. This court’s identification of the above-stated issues of arguable merit is not intended to limit counsel from raising any other legal issues supporting Mr. Chapman’s appeal.
The Anders brief and Mr. Chapman’s pro se brief are stricken. Counsel for Mr. Chapman shall file an initial merits brief within thirty days of the issuance of this order.
KELLY and LUCAS, JJ., Concur.
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Mateo v. State, 310 So. 3d 970 (Fla. 2d DCA 2021)…in the case. (Emphasis added.) I am not sure what measurement counsel may have had in mind by qualifying "reversible error" with the word "significant," but I know that is not the standard under this procedure. As we explained in Chapman v. State, 186 So. 3d 3, 5 (Fla. 2d DCA 2015): In order to ensure that criminal defendants are afforded their constitutional right to counsel, before filing an Anders or "no merits" brief, appellate counsel must - 5 - conscientiously follow the procedure for Anders appeal…
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Redmon v. State, 211 So. 3d 306 (Fla. 1st DCA 2017)…First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So. 2d 1114, 1116 (Fla. 1990) (agreeing with district court that “appellate counsel’s original brief failed to meet the minimum requirements of Anders”); Chapman v. State, 186 So. 3d 3, 6 (Fla. 2d DCA 2015) (indicating that counsel’s brief “[fell] short of satisfying the procedure under An-ders”). It is critical, though, that counsel diligently follow the requirements because the Anders brief “serves the valuable purpose of assist…
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Norris Hubbard, JR. v. State, 248 So. 3d 177 (Fla. 2d DCA 2018)…on the sale and five years' imprisonment for the possession. The trial court designated him a habitual felony 1We note that counsel's representation imposes a higher standard than that contemplated by the Court in Anders. See Chapman v. State, 186 So. 3d 3, 6 (Fla. 2d DCA 2015) ("Counsel's representation in this case that she 'is unable to make a good faith argument that reversible error occurred in the trial court' seems to this court to place the bar somewhat higher than that intended by the guid…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- McCOY v. Court OF Appeals OF Wis., 486 U.S. 429 (U.S. 1988)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Treat v. State, 121 Fla. 509 (Fla. 1935)
- United States v. Blackwell, 767 F.2d 1486 (11th Cir. 1985)