JOHN J. LEONE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leone appeals his conviction for escape from lawful custody while serving a sentence, challenging the constitutionality of the statute making such escape a criminal offense. The appellate court, following the Anders procedure, allows Leone thirty days to file his own brief after receiving the Public Defender's brief and determines whether any colorably arguable points exist on appeal.
The court does not reach the merits but instead applies the Anders procedure to determine whether the appeal contains any colorably arguable points, ordering Leone to be provided the Public Defender's brief and given thirty days to file his own brief raising any points he chooses.
[1] An appeal may be deemed frivolous if appointed counsel believes there are no arguable points to support it and seeks to withdraw.
[2] When appointed counsel seeks to withdraw from an appeal due to its frivolous nature, the court must ensure the appellant receives a copy of counsel's brief.
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Join FLexlaw to unlock all legal intelligence“there is nothing in the record which might arguably support the appeal”
The Public Defender's finding that no colorable arguments exist in support of Leone's challenge to the escape statute's constitutionality.
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Join FLexlaw to unlock all legal intelligenceLeone was charged with escape from lawful custody while serving a sentence pursuant to a previous criminal conviction. On February 6, 1967, he appeare…
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ORDER
Whereas, appellant John J. Leone was, on October 31, 1966, informed against in the Lee County Circuit Court, for escape from lawful custody while serving a sentence pursuant to a previous conviction for a criminal offense, to which information the said Leone in open Court on February 6, 1967, attended by his appointed counsel, the Assistant Public Defender of said Court, waived arraignment and entered a plea of guilty to said offense of escape so charged, and was thereupon sentenced to a term of one year imprisonment in the State Prison, and
Whereas, on March 18, 1969, the said Leone filed in the trial Court his motion to vacate and set aside said sentence on the sole ground that the statute making escape from lawful custody a criminal offense, F.S. § 944.40, F.S.A., was unconstitutional, and
Whereas, on March 20, 1969, said motion to vacate aforesaid was denied by the trial Court, pursuant to which said Leone, on April 2, 1969, filed his notice of appeal to this Court from said order, and
*405Whereas, this is Leone’s first appeal in said conviction case, and
Whereas, the local Public Defender, duly appointed by the trial Court to represent Leone on this appeal, has filed brief in this Court wherein he disagrees with Leone as to the validity of said statute and states that “there is nothing in the record which might arguably support the appeal, and * * * therefore respectfully submits that this is a frivolous appeal and asks to withdraw as Attorney of Record in this matter”, citing Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and
Whereas, Anders prescribes a suggested procedural formula in such situation, which we herewith endeavor to follow in principle;
Now therefore, it is ordered that said Public Defender furnish to appellant Leone at his present place of imprisonment, by certified, return-receipt mail, a copy of his said brief, and thereupon file in this Court a certificate of service of said copy upon Leone and Leone’s acceptance thereof, showing the date of such delivery to Leone, and
It is further ordered that Leone will have thirty days after the date of his receipt of said copy of brief, as shown on the return-receipt aforesaid, within which to file in this Court his own brief in his behalf raising any points that he chooses, upon which filing this Court will thereupon determine whether this appeal is wholly frivolous or contains any colorably arguable points, and make such order as may be then appropriate; and
It is further ordered' that the Public Defender’s aforesaid motion to withdraw as counsel be held in abeyance pending further proceedings as stated.
It is so ordered.
HOBSON, C. J., and McNULTY, J., concur.
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Hooks v. State, 253 So. 2d 424 (Fla. 1971)…e.” (386 U.S. pp. 744-745, 87 S.Ct. p. 1400, 18 L.Ed.2d pp. 498-499). The principles enunciated in Anders v. California, supra, have been applied by the District Court of Appeal. Schuler v. State, 229 So. 2d 667 (Fla.App.1st, 1969); Leone v. State, 233 So. 2d 404 (Fla.App.2d, 1970); Daniels v. State, 233 So. 2d 405 (Fla.App. 2d, 1970). Under our appellate procedure the District Court of Appeal grants a full appeal and considers every phase of the record. This is the first appeal within the concept of Anders…
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Leiseder v. State, 265 So. 2d 547 (Fla. 2d DCA 1972)…PER CURIAM. Appellant, Herbert Leiseder, was charged by way of information with embezzlement of state funds. He entered a plea of guilty and was sentenced to one year imprisonment. Our Order in Leone v. State, Fla.App.1970, 233 So. 2d 404, has been complied with and appellant has failed to file any additional matters for this court’s consideration. After an examination of the record and other matters contained in this appeal and no error having been shown, the judgment and sentence i…
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Franklin v. State, 252 So. 2d 385 (Fla. 2d DCA 1971)…PER CURIAM. Affirmed. See Leone v. State, Fla.App. 1970, 233 So. 2d 404; Daniels v. State, Fla.App.1970, 233 So. 2d 405. PIERCE, C. J., and LILES and MANN, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)