No.

h

IN THE DISTRICT COURT OF APPEAL

SECOND DISTRICT, STATE OF FLORIDA

ALPHONSO GREEN,

Appellant,

V.

STATE OF FLORIDA,

Appellee.

INITIAL BRIEF OF APPELLANT

Robert Fraser, Esq.

Post Office Box 3470

Brandon, Florida 33509

(813) 654-3335

Counsel for Appellant

TABLE OF CONTENTS

Page

Table of Contents..................................~....,.. i

Table of Citations...... ................................... ii

Statement of the Case and of the Baats

Statement of the Case...........................,,.... 1

Statement of the Facts................................ 2

Summary of the Argument .................................... 3

Argument ................................................... 3

THE TRIAL COURT ERRED BY DENYING AN INDIGENT

DEFENDANT REPRESEWCED BY COURT-APPOINTED COUNSEL

CERTIORARI REVIEW BY THE SUPREME COURT OF THE

UNITED STATES WEEN INDIGENT8 REPRESENTED BY THE

PUBLIC DEFENDER ROUTINELY RECEIVED IT.

Conclusion ................................................. 5

Certificate of Service ..................................... 7

TABLE OF CITATIONS

Constitutional Provisions: Page

Article I, S2, Fla. Const .................................. 3

Fourteenth Amendment ....................................... 3

statutes :

S925.035, Fla. Stats. (1990) ............................... 4

Caasa:

Green v. Florida, U.S. , 112 S.CT. 1191 (1992).. 1

Haaq v. State, 591 So.2d 614 (Fla. 1992) .................. 4

Makem son v . Martin County, 491 So.2d 1109 (Fla. 1986) ...... 5

Ross v. Moffitt, 417 U.S. 600 (1974) ....................... 2, 4

Wainriuh t v. Torna, 455 U.S. 586 (1982) .................... 2, 4

Rules:

F1a.R.Crim.P. 3.850......................................... 4

@.TATEME N!C OF THP! CAS E AND OF TE E FACT@

Statement of the Case

Defendant/Appellant Alphonso Green was indicted on two counts

of first-degree murder on October 29, 1986. Defendant was convicted

onboth counts and sentencedtodeath. TheHonorableManuelMenendez,

Jr., Circuit Court Judge, appointedRobert Fraser, Esquire, for Mr.

Green's direct appeal to the Supreme Court of Florida. (R 24) The

Supreme Court of Florida affirmed Mr. Green's convictions on appeal.

(R 5-23) It also denied Mr. Green's Motion for Rehearing (R 26).

Mr. Fraser filed a motion seeking appointment as Mr. Green's

counsel for petitioning the Supreme Court of the United States for

the writ of certiorari at public expense. (R 24-25). Judge Menendez

denied the motion. Appellant filed timely notices of appeal

from Judge Menendez' order. (R 28, 31)

(R 27)

Mr. Fraser filed the petition for the writ. It was denied by

U . S . the Supreme Court of the United States. Green v. Florida,

- I 112 S.Ct. 1191 (1992)

1

Statement of The Facts

During a hearing before Judge Menendez on September 20, 1991,

Mr. Green called Doug Connor, Esquire, an Assistant Public Defender

in the Tenth Judicial Circuit, as a witness. Mr. Connor provided

representation as an Assistant Public Defender in capital appellate

cases. He testified that his office seeks certiorari review by the

Supreme Court of the United States in every case in which the Supreme

Court of Florida affirms a death penalty. (R 40-41)

Thepolicy for seekingcertiorarireviewofeveryaffirmeddeath

penalty had been in place for as long as Mr. Connor could remember.

He was under the impression that every Public Defender's Office providing

appellate representation for death penalty cases followed the same

policy. (R 41)

Judge Menendez relied upon Wainwricrht v. Torna, 455 U . S . 586

(1982) and Ross v. Moffitt, 417 U . S . 600 (1974). (R 42) The trial

court denied the motion. (R 27, 44)

2

SUMMARY OF THE ARGUMENT

The trial court erred by refusing to continue the appointment

of Mr. Green's counsel to seek review by the Supreme Court of the

United States in light of the Public Defender's policy to seek such

review in all death penalty cases. To treat Mr. Green differently

under the circumstances of this case violated the equal protection

clause of Article I, s2, Fla. Const. No justification exists for

such disparate treatment. The trial court's denial of court-appointed

counsel for certiorari review deprives Mr. Green of the same procedure

routinely affordedhis fellow death row inmates. It also places his

attorney in a quandary since the attorney must proceed without payment

of a reasonable fee and costs or not proceed at all. Accordingly,

the trial court should have appointed Mr. Green's attorney to petition

for certiorari review.

ARGUMENT

THE TRIAL COURT ERRED BY DENYING AN INDIGENT DEFENDANT

REPRESENTED BY COURT-APPOINTED COUNSEL CERTIORARI REVIEW

BY THE SUPREME COURT OF THE UNITED STATES WHEN INDIGENTS

REPRESENTED BY TEE PUBLIC DEFENDER ROUTINELY RECEIVED IT.

The trial court denied Alphonso Green the services of court-appointed

counsel for seeking certiorari review by the Supreme Court of the

United States of his murder convictions and death penalties. Unlike

the argument raised by Hillsborough County and evidently accepted

by the trial court, Mr. Green's entitlement to court-appointed counsel

for certiorari reviewdoes not necessarily implicate the due process

clause of the Fourteenth Amendment. Instead, it involves a common-sense

application of the equal protection clause of Article I, 52, Fla.

Const.

3

As observed in Haaa v. State, 591 So.2d 614, 617 (Fla. 1992),

all persons have a right of equal access to the courts and equal protection

of the laws. Haaq involved the application of the "mailbox rule"

tothe filing of petitions for post-conviction relief under F1a.R.Crim.P.

3.850. The Supreme Court of Florida found that the even-handed

administration of justice required the '#mailbox rule" to control the

filing date of such petitions to avoid happenstance denial of review

when petitions were not timely received by clerks.

The same reasoning applies here, No reason exists for capital

defendants representedby a PublicDefenderto obtain certiorari review

while capital defendants represented by a substitute for the Public

Defender are denied it.

Appellee Hillsborough County relied on two cases in persuading

the trial court that Mr. Green was not entitled to court-appointed

counsel, Wainwriqht v. Torna, 455 U . S . 586 (1982) and Ross v. Moff itt,

417 U.S. 600 (1974). Both cases hold that a convicted Defendant has

no constitutional right to counsel for seeking discretionary review

by the Supreme Court of the United States, RO$i, or the Supreme Court

of Florida, Torna. Neither case applies here, where an indigent Defendant

sought court-appointed counsel for discretionary reviewwhile indigent

Defendants represented by the Public Defender routinely and automatically

received it. (R 41)

Hillsborough County did not raise the application of S925.035,

Fla. Stats. (1990). It controls the appointment of Public Defenders

and court-appointed counsel in capitalcases. It makes no provision

for seeking certiorari review by the Supreme Court of the United States.

4

R

Since Public Defenders routinely seek certiorari review, though, a

construction of the statute to prohibit payment of court-appointed

counsel violates the basic tenet of equal protection -- that all persons

similarly situated be treated alike. State v. Lee, 356 So.2d 276,

279 (Fla. 1978)

Whether viewed in a constitutional or statutory context, the

trial court manifestly failed to treat Mr. Green like those of his

brethren convicted of first-degree murder and sentenced to death.

The result leaves attorney and client facing two unattractive alternatives.

First, no petition for the writ of certiorari will be filed in

the Supreme Court of the United States, depriving the Defendant of

the same review probably obtained by an adjacent death row inmate.

Second, if court-appointed counsel files a petition for the writ of

certiorari, he or she must do so without expectation of recovering

a fee or costs, violating the holding of Makemson v. Martin Countv,

491 So.2d 1109 (Fla. 1986). Makemsoq , 491 So.2d at 1115, held that

an attorney who represents the indigent aczused should not be **compensated

in an amount which is confiscatory of his or her time, energy and

talents. It Nor should the appointed attorney be required to turn his

or her back on those clients facing the death penalty.

CONCLUSION

For the foregoing reasons, Appellant Alphonso Green moves this

Honorable Court to reverse the order denying him representation by

court-appointed counsel for certiorari review by the Supreme Court

of the United States and to remand the case to the trial court for

a hearing on fees and costs.

5

CERTIFICATE OF EIERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

has been sent by U . S . Mail to Angela B. Wright, Esquire, Assistant

CountyAttorney, Office oftheCountyAttorney, 725 East Kennedy Blvd.,

3rd Floor, Tampa, Florida 33602 and the Off ice of the Attorney General,

2002 North Lois Avenue, Suite 700, Tampa, Florida 33607, on this

hOBERT FRAWR, ESQUIRE

Post Office Box 3470

Brandon, Florida 33509-3470

(813) 654-3335

6