FARMER
v.
STATE OF FLORIDA

Fla. 1st DCA | 2024-02-26
No. 2022-3273
Tanenbaum, J., Roberts, J., M.K. Thomas, J., Smith, J.
2024 FL 1990 Florida District Court of Appeal, First District (2024)

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Holding

A public defender's motion to withdraw from appellate representation must establish a current conflict of interest cognizable under either section 27.5303 or the Rules Regulating the Florida Bar; a conflict that existed at trial does not automatically justify withdrawal on appeal without specific factual averments showing how the conflict would materially limit appellate representation.

Headnotes

[1] A public defender's certification of conflict under section 27.5303 is insufficient to justify withdrawal from appellate representation unless the motion alleges that the…

[2] A conflict of interest that justified withdrawal from trial representation does not automatically justify withdrawal from appellate representation; the motion to withdraw…

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Key Quotes

“A criminal appeal is a different proceeding, and an imputable conflict present at a criminal trial that justifies withdrawal there does not necessarily—and certainly not automatically—translate to an imputable conflict that supports withdrawal in the ensuing appeal here.”

Establishes that conflicts at trial do not automatically carry over to appellate proceedings without independent analysis.

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Facts & Procedural History

James Farmer was represented at trial by regional conflict counsel as stand-by counsel after the public defender for the Second Judicial Circuit indic…

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Per_curiam
Per Curiam

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D22-3273 _____________________________

JAMES A. FARMER,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Wakulla County.

J. Layne Smith, Judge.

February1, 2023

ON MOTION TO WITHDRAW AS

COUNSEL FOR THE APPELLANT

TANENBAUM, J.

Appellant James Farmer represented himself at the criminal trial that led to the judgment and sentence now on review. A year earlier and just after she had been appointed to represent Farmer, the public defender for the Second Judicial Circuit (“PD2”) had indicated she had an “add on conflict” and asked that another lawyer be appointed. The trial court obliged and appointed the regional conflict counsel, and one of her assistant lawyers filed an appearance shortly thereafter. That lawyer served for the duration of the case, albeit as stand-by counsel, pursuant to a Faretta

5 withdrawal there does not necessarily—and certainly not automatically—translate to an imputable conflict that supports withdrawal in the ensuing appeal here. In circumstances where section 27.5303 does not apply, then, a motion to withdraw filed in this court must do more than simply recite the fact that there was a conflict in the trial court proceeding. The motion should either describe the APD’s personal conflict and how that conflict would materially limit her handling of the client’s criminal appeal, or it should make specific averments directed to application of one of the imputable conflicts identified in rules 4-1.7 and 4-1.9. See Schluck v. State, No. 1D22-1380, -- So. 3d --, 2023 WL 104894, at *3 (Fla. 1st DCA Jan.4, 2023) (denying motion to withdraw because it failed “to specifically assert what the conflict is that precludes the Public Defender from representing Appellant in this appeal”). Because the present motion fails to aver a factual basis for a conflict on appeal that is cognizable under the RRFB, we have no legal basis for relieving PD2 (along with her APDs) of her constitutional and statutory duty to vigorously represent Farmer in this case.

DENIED.

ROBERTS and M.K. THOMAS, 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 L. Long, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

Footnotes
1 Under the same rule, an APD in the office could not “use information relating to the representation [of the former client] to [his] disadvantage” and could not “reveal information relating to the representation” of the former client. R. Regulating Fla. Bar 4- 1.9(b)–(c). The motion does not suggest—and we do not see how it could in any event—that these restrictions would impede the constitutionally mandated level of appellate representation. 2 As we just highlighted, a “personal interest” conflict is not imputable under rule 4-1.10, and the APD making the present motion does not assert that she has one.
2 hearing two months before trial. Following a guilty verdict, the lawyer returned to full representation of Farmer at sentencing. Once Farmer was sentenced, the assistant conflict counsel appearing for him filed the necessary notice of appeal, directions to the clerk, statement of judicial acts to be reviewed, and a request to transcribe the proceedings at public expense. See Fla. R. App. P. 9.140(d), (f). Upon completion and transmission of the record on appeal, the assistant conflict counsel filed with this court a designation of PD2 to handle Farmer’s appeal. See § 27.511(8), Fla. Stat. (requiring PD2 to handle any felony appeal to this court “after the record on appeal is transmitted . . . by the office of criminal conflict and civil regional counsel which handled the trial and if requested by the regional counsel”). It is important to note here that responsibility for handling the appeal shifts back to the regional conflict counsel “[i]f the public defender certifies to the court that the public defender has a conflict consistent with the criteria prescribed in s. 27.5303 and moves to withdraw.” Id. That is what PD2 has attempted to do in the motion to withdraw filed in this case by one of her assistant public defenders (“APD”), which we now address. The motion certifies that there is a conflict under section 27.5303. Presumably, if there were averments to support this certification, it would be sufficient to trigger section 27.511(8) and require regional conflict counsel to continue representing Farmer on appeal. Section 27.511(8), though, cross-references section 27.5303 as the sole basis by which such a certification could be made. Meanwhile, section 27.5303 applies only when, “at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that” either all or none of them can “be counseled by the public defender or his or her staff without conflict of interest.” § 27.5303(1)(a) Fla. Stat. (emphasis supplied); see Whitfield v. State, No. 1D22-2129, -- So. 3d --, 2023 WL 28152, at *2 (Fla. 1st DCA Jan. 4, 2023) (noting that the statute applies “in situations where two defendants with purportedly adverse interests are represented by the same” public defender). In the motion at hand, the APD does not assert that she presently is tasked with simultaneously representing both Farmer
3 and another defendant while the interests of those two clients are “so adverse or hostile” that she cannot adequately do so in a constitutionally consistent manner. Instead, the motion avers that one of PD2’s lawyers at some time in the past had represented a witness who then testified for the State at Farmer’s trial in the underlying case on review. There is no averment that one of PD2’s lawyers would be representing the witness in a criminal proceeding currently and that at the same time one of her lawyers would be handling this appeal for Farmer. This means the criteria set out in section 27.5303 do not apply here, so PD2’s certification is insufficient to invoke operation of section 27.511(8). This leaves us with consideration of the motion to withdraw as one filed by the APD individually based on the conflict-ofinterest criteria set out in the Rules Regulating the Florida Bar (“RRFB”). See R. Regulating Fla. Bar 4-1.16(a) (setting out grounds requiring withdrawal from representation); Schluck v. State, No. 1D22-1380, -- So. 3d --, 2023 WL 104894, at *1 (Fla. 1st DCA Jan. 4, 2023) (reviewing motion to withdraw in accord with appellate rule 9.440 and professional conduct rule 4-1.16). On this front, the APD does not assert that there is a conflict because “there is a substantial risk that the representation of” Farmer in this appeal “will be materially limited . . . by a personal interest of the” APD. R. Regulating Fla. Bar 4-1.7(a)(2). She instead seeks relief on behalf of PD2’s entire office, so any conflict supporting withdrawal would have to be based on imputation. See R. Regulating Fla. Bar 4-1.10 (“While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 . . . unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.” (emphasis supplied)). As we already noted, the motion does not suggest that the witness at Farmer’s trial is a current client, and rule 4-1.9 of the RRFB governs conflicts of interest relating to a former client. Because Farmer would be the current client, operation of this rule would be from the perspective of the former client: the witness. By operation of rule 4-1.10, rule 4-1.9 in turn prohibits an APD in
4 PD2’s office from handling Farmer’s appeal if that representation is “in the same or a substantially related matter” and Farmer’s “interests are materially adverse to the interests of the former client,” the witness. R. Regulating Fla. Bar 4-1.9(a).1 There is no indication that an APD from the office had represented the witness in connection with the same or related criminal conduct for which Farmer was charged, and the motion does not explain how Farmer’s interests in this appeal would be “materially adverse” to the witness’s interests. Nothing on the face of the motion supports an imputable conflict under rule 4-1.9. Even if PD2 were currently representing the witness, though, we see no basis for an imputable conflict under rule 4-1.7 either. The motion does not explain how representation of Farmer on appeal would “be directly adverse to” the present representation of the witness. R. Regulating Fla. Bar 4-1.7(a)(1). Indeed, there is no suggestion an APD from the office currently is representing that witness in a related appeal, such that a legal argument to be made on behalf of Farmer, if successful, would undermine a legal argument being made on behalf of the witness. The motion also does not suggest that “there is a substantial risk” an APD’s representation of Farmer in this appeal “will be materially limited by” the APD’s “responsibilities to another client, a former client or a third person.” Id. (a)(2).2 That PD2 was permitted to withdraw in the trial court based on a conflict is not relevant to our consideration of the present motion. A criminal appeal is a different proceeding, and an imputable conflict present at a criminal trial that justifies

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