No. 80,520

VS *

STATE OF FLORIDA, Appellee.

[June 1 0 , 19931

PER CURIAM.

Alphonso Green, who is under a sentence of death, appeal::

the trial court s denial of h i s court-appointed counsel s rwp.?z.?";

to be appointed Green's appellate counsel a t county expensc ft.>x

petitioning the United States Supreme Court for certiorari a.f7:.?:~ 'I

Green s conviction and death sentence were af f irrned by t h i . s C:;JW,',

in Green v. State, 583 So. 2d 647 (Pia.. XY91), cert. denic.c:,,- '.::;

S . Ct.. 1 1 9 1 , 1 1 7 L. Ed. 26 432 (1992). We have jurisdictic)2-

We reverse, finding that the trial court's ruling denies

this death-penalty defendant equal protection under article 1,

section 2, of the Florida Constitution.

Green, an indigent defendant, was convicted of two counts

of first-degree murder and was sentenced to death in the C i r c u i t

Court of the Thirteenth Judicial Circuit in Hillsborough Countyr

Florida. The record reflects that, on appeal, Green was

initially represented by the Public Defender of t h e Tenth

I Judicial Circuit. Due to an excessive caseload, the Tenth

sentence, court-appointed counsel filed a motion requesting to be

appointed Green's appellate counsel and to incur costs for the

purpose of filing a petition for certiorari to the United States

Supreme Court. Hillsborough County objected and the trial judge

denied the motion. Counsel sought relief from the trial court's

Even though the trial judge denied the motion and request

for compensation, Green's court-appointed counsel timely filed 5

The public defender's office for the Tenth J u d i c i a l Circuit is

responsible for all indigent-defendant appeals in the geographic

area of the Second District Court of Appeal. This includes the

§ 27.51(4)(b), Fla. Stat. (1991).

petition for certiorari in the United States Supreme Courtr whiclz

denied the petition. Green v. Florida, 112 S. Ct. 1191, 117

L. E d . 2d 432 (1992). Although the United States Supreme Court's

denial of Green's petition renders the issue moot, we choose t c ~

review the trial court's decision as the issue is likely to

recur. See Holly v. Auld, 450 So. 2d 217 (Fla, 1984).

At the hearing on the motion in question, Hillsborough

County objected to being required to pay for Green's

representation on the grounds that there is no constitutional

right to counsel when seeking discretionary review to the U n i t e d

States Supreme Court, relying principally on Ross v. Moffitt, 43-7

U . S . 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). Green's

court-appointed counsel presented the testimony of an assistant

public defender for the Tenth Judicial Circuit, who testified

that, to his knowledge, his office seeks certiorari review in tho

United States Supreme Court in every case in which the defendant

public defender "that

expressed his belief that all offices of the

handle capital appeals have the same policy.

an indigent capital defendant who might have

y because Green is

discretionary representation from the Tenth Circuit Public

Defender, the county is not obligated to pay for such

counsel, like the public defender, is motivated to represmt the

defendant out of an ethical obligation to provide effective

assistance of counsel and that., although the public defender

routinely provides such representation, this practice does not

confer a substantive right on a capital defendant that requires

that Green is not entitled to this type of discretionary

representation and that Ross v. Moffitt controls.

Green asserts that denying his appointed appellate counsel

t h e opportunity to petition the United States Supreme Court for

certiorari, when other similarly situated defendants represented

by the Tenth Circuit public defender's office would receive sceh

counsel, violates the equal protection and access to the cour-ts

provisions of article I, sections 2 and 21, of the Florida

Constitution. We find it significant that, in this case, the

Tenth Circuit public defender moved to withdraw from represent!-ng

Green "because of the excessive workload in the capital appeals

division of the public defender's o f f i c e . " The Tenth C i r c u i t

public defender requested t h a t the t r i a l judge use his "broad

involved" and allow the public defender to withdraw as appellate

counsel because his office was delinquent in filing the briefs in

this case and could not timely represent Green. The trial judge

granted the request and appointed private counsel to represent

Green at Hillsborough County's expense.

In State ex rel. Smith v, B r u m e r , 426 So. 26 532 (Fls.

1 9 8 2 ) , cert. denied, 464 U . S . 823, 104 S . Ct. 9 0 , 78 L. Ed. 26 97

( 1 9 8 3 ) , we addressed the responsibility of public defenders in

that the public defenders had no authority to file a civil class

action in federal court as a tactical move on behalf of the

defendants they represented, we stated:

This does nat mean, however, that stateappointed

representation and seek federal relief on an

"individual" basis. A lawyer's professional

however, our view that a state court could not

mandate this action.

- Id. at 5 3 3 .

The record reflects that the Tenth Circuit public

defender's office has a policy of filing a petition for

certiorari to the United States Supreme Court on behalf of each

death penalty defendant it represents after a defendant's death

sentence has been affirmed by the Supreme Court of Florida. To

deny Green's appointed counsel's request for compensation for

would have petitioned the United States Supreme Court had Green

been represented by the public defender's office, injects a level

of arbitrariness that undermines the equal protection of the laws

2 and 21, of the Florida Constitution. - See Graham v. State, 372

So. 2d 1363 (Fla. 1 9 7 9 ) .

We conclude that, where a defendant is represented by

court-appointed counsel and is sentenced to death, the court-

appointed counsel must have the same professional independence *LO

seek federal relief on an individual basis as the public defender

whom court-appointed counsel replaces and must be compensated

accordingly. To hold otherwise would deny Green the equal

protection of the laws under t h e circumstances presented in this

record. Accordingly, the trial court's order is reversed and

this cause remanded with instructions that the t r i a l court

determine the appropriate compensation for appointed counsel':;

services in petitioning for certiorari in the United States

Supreme Court on Green's behalf.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and.

HARDING, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF