WASHINGTON

v.

STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D22-2358 _____________________________

MARKAS BRIAN WASHINGTON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Escambia County. Jennie Kinsey, Judge.

January 11, 2023

ON PUBLIC DEFENDER DESIGNATION AND MOTION TO REFUSE

DESIGNATION

PER CURIAM.

We strike the designation filed on November 4, 2022, by the public defender for the First Judicial Circuit (“PD1”), and the motion to refuse designation filed November 7, 2022, by the public defender for the Second Judicial Circuit (“PD2”). We write to address this frequently occurring problem arising in our court. For a while, PD2 has been filing refusal motions, seeking reappointment of the local public defender to coordinate preparation of a record on appeal where PD2 considers the previous preparation inadequate.

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Section 27.51(4), Florida Statutes, designates certain public defenders to “handle all circuit court and county court appeals” within a specified appellate district. Our district is covered by PD2. § 27.51(4)(a), Fla. Stat. Pursuant to this statute, PD1 filed a designation of PD2 in this case. PD2 responded with a motion to refuse that designation. According to PD2, even though the record on appeal had been transmitted, no trial transcripts had been designated. Fixing this omission, according to PD2, is not her responsibility. PD2 contends that perfection of the record is the designating public defender’s job and asks that this court “reappoint” PD1 “to oversee the electronic transmission of the relevant transcripts” and “to answer any client questions.”

The dispute between the two public defenders appears to originate with the trial court’s improvident grant of appointed, private trial counsel’s motion to withdraw before confirming that he had completed the tasks listed in rule 9.140(d)(1). The appellant had been declared indigent for the purpose of appointing publicly funded counsel, so the expenditure of public funds of course would be required to prepare transcripts for the appeal. The appellant’s trial counsel, David Sellers, nevertheless sought to withdraw prior to completing “a statement of judicial acts to be reviewed” and “designations to the approved court reporter or approved transcriptionist” for transcripts “of those portions of the proceedings necessary to support” review of those judicial acts. Fla. R. App. P. 9.140(d)(1)(B), (D). Rule 9.140(d)(1) instructs that “[t]he attorney of record for a defendant shall not be relieved of any professional duties, or be permitted to withdraw as defense counsel of record” until these tasks are completed, “except with approval of the lower tribunal on good cause shown on written motion.” Sellers did not offer any good cause in his motion to withdraw to excuse him from these responsibilities.

PD1 took over for Sellers after the trial court permitted him to withdraw. A couple months later, PD1 sought to pass representation of the appellant to PD2 pursuant to section 27.51(4), Florida Statutes, without taking any steps to have the appellant’s trial transcribed or otherwise to address trial counsel’s non-compliance with rule 9.140(d)(1). We recognize that the circumstances here and in other similar cases are outside the control of public defenders like PD2. But a motion to refuse

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designation is not a proper motion in this court. Designation is a matter of concern between the public defenders and not one for this court. All we need is a notice of appearance from counsel who will be representing the appellant in this case.

Both the designation and the motion to refuse designation are STRICKEN. Pursuant to rule 9.600(b), the trial court is permitted to oversee the following matters:

• PD1 shall consult with trial counsel Sellers, and within 10 days, file a statement of judicial acts to be reviewed and a commensurate designation of proceedings to be transcribed, consistent with the requirements of rules 9.140(d)(1)(B) and (D) and 9.140(f)(2);

• Matters ancillary to these requirements, which shall be subject to the process and time periods set out in rules 9.140(f)(2) and 9.200(b);

• Transmission to this court’s clerk by the trial court clerk of a supplemental record containing the designated transcripts within 20 days of receipt of the transcripts.

FILINGS STRICKEN.

OSTERHAUS, TANENBAUM, and LONG, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Jessica J. Yeary, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.

Bruce A. Miller, Public Defender, and Janette M. Richardson, Assistant Public Defender, Pensacola, for Appellant.

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Ashley Moody, Attorney General, Tallahassee, for Appellee.