IN THE DISTRICT COURT OF APPEAL, SECOND DISTRICT,

LARELAND, FLORIDA

ALPHONSO GREEN,

Appellant,

Case No.: 86-14233

Division: E

Appeal No.: 91-04055 .,*b

W''

HILLSBOROUGH COUNTY'S ANSWER BRIEF

APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH

JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR

HILLSBOROUGH COUNTY

I ASSISTANT COUNTY ATT~RNEY

P.O. BOX 1110

T W A , FLORIDA 33601

(813) 272-5673

TABLE OF CONTENTS

Pase

Table of Contents.... ............................... ".........i

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

Preliminary Statement................. ........................ 1

Statement of the Case and Facts...............................2

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

Argument ...................................................... 4

I. THE TRIAL COURT WAS CORRECT IN DENYING THE

APPELLANT COURT-APPOINTED COUNSEL FOR

DISCRETIONARY REVIEW TO THE UNITED STATES

SUPREWE COURT.......................................4

A. THERE IS NO FEDERAL CONSTITUTIONAL

RIGHT TO DISCRETIONARY REVIEW TO THE UNITED

STATES SUPREME COURT............................4

B. THERE IS NO FLORIDA STATUTORY RIGHT TO

DISCRETIONARY REVIEW TO THE UNITED

STATES SUPREME COURT............................7

11, HIUSBOROUGH COUNTY DOES NOT HAVE A STATUTORY

OR CONSTITUTIONAL DUTY TO COMPENSATE MR. FRASER

FOR PREPARING MR. GREEN'S PETITION FOR CERTIORARI

TO THE U.S. SUPREME COTJRT...........................ll

Conclusion .................................................... 12

Certificate of SBrvice................................... ..... 13

TABLE OF CITATIONS

CASES Pases

Brevard County Board of County Commissioners v. Moxley,

526 So.2d 1023 (Fla. 5th DCA 1988)........................8,10

County of Dade v. Sansom,

266 So.2d 279 (Fla. 3rd DCA 1990) ........................... 12

Dade County v. Grossman, 354 So.2d 131 (Fla. 3d DCA 1978)......2

DeDartment of Hiqhway Safety v, Her edia,

520 So.2d 61 (Fla.3rd DCA 1988).............................12

Doualas v. California,

372 U . S . 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ............ 4,6

Floyd v. Parole and Probation Commission,

509 So.2d 919 (Fla. 1987) ..................................... 8

Gideon v. Wainrisht,

372 U . S . 335, 83 S.Ct. 814, 9 L.ED.2d 799 (1963)...........4,10

Graham v. State,

372 So.2d 1363 (Fla. 1979) .................................... 8

Green v. Florida, - U.S. , 112 S.Ct. 1191 (1992) ......... 11

Haaq v, State,

591 So.2d 614 (Fla. 1992) ..................................... 6

In the Interest of D.B. and D.S.,

385 So.2d 61 (Fla. 3rd DCA 1988) ............................. 12

In Re Order on Prosecution of Criminal Ameals

bv the Tenth Judicial Circuit Public Defender,

561 So.2d 1130 (Fla. 1990) ................................... 10

Makemson v. Martin County,

491 So.2d 1110 (Fla. 1986).........................*.........11

Peters v. Cox, 341 F.2d 575 (10th Cir. 1965) .................... 8

Remeta v. State, 559 So.2d 1132 (Fla. 1990) .................... 12

Ross v, M off itt ,

417 U . S . 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974)..4,5,6,7,8,11

Soncrer v. Citrus County,

462 So.2d 54 (Fla. 5th DCA 1984)..............................8

Troedel v. State,

479 So.2d 736 (Fla. 1985) .................................. 9/10

Wainricrht v . Torn a,

455 U.S. 586. 102 S.Ct. 1300. 1301. 71 L.Ed.2d 475 (1982) ..6. 7

RULES

Florida Rules of Criminal Procedure 3.850 ....................... 8

STATUTES

Section 925.035, Florida Statutes (1991) ............ 3.6.7.9.10. 11

Section 925.036, Florida Statutes (1991) ..................... 8. 11

Section 27.50, Florida Statutes (1991) ......................... 10

Section 27.53, Florida Statutes) (1991) ......................... 8

Section 27.7001, Florida Statutes (1991) ........................ 9

Section 27.702, Florida Statutes (1991) .................... 10. 12

Section 27.704, Florida Statutes (1991) ......................... 9

Chapter 85-332. Laws of Florida (1991) .......................... 9

CONSTITUTIONAL AUTHORITY

Fourteenth Amendment. United States Constitution ................ 4

Sixth Amendment. United States Constitution .................... 10

Article I. S2. Florida Constitution ............................. 6

Article I. 513. Florida Constitution ............................ 7

Article V. §3. Florida Constitution ............................. 6

PRELIMINARY STATENEN"

Throughout this brief, the Appellee, Board of County

Commissioners, Hillsborough County, shall be referred to as

llHillsborough County1I. The record shall be referred to by the

Symbol llR1l, followed by the page number (R. page). The Defendant,

Alphonso Green, shall be referred to as "Mr. Green". Counsel for

the Defendant, Robert Fraser, shall be referred to as "Mr. FraseP.

Citations to the Initial Brief of Appellant shall be llIB1l followed

by the page number. (IB page).

1

STATEMENT OF THE CASE AND FACTS

For purposes of this brief, Hillsborough County adopts the

Statement of the Case' and Facts contained in the Initial Brief of

the Appellant.

' Writ of Certiorari is the proper procedure to obtain review

of an order in a suit in which the County is not a party. See Dade

Countv v. Grossman, 354 So.2d 131 (Fla. 3d DCA 1978).

2

SUMMARY OF ARGUMENT

There is no Florida or Federal Constitutional right to

assistance of counsel for discretionary review to the U.S. Supreme

Court. In addition, Section 925.035, Florida Statutes (1991), does

not authorize the appointment of counsel for discretionary review.

Thus, the trial court properly denied Mr. Green's request that Mr.

Fraser be appointed to file his application for discretionary

review to the U . S . Supreme Court.

The order does not deny Mr. Green equal protection under the

Florida or Federal Constitution simply because he is an indigent

capital defendant who may have received discretionary

representation from the Tenth Circuit Public Defender. Like Mr.

Fraser, the Public Defender is motivated to represent capital

defendants out of a professional obligation to provide effective

assistance of counsel. Although the Public Defender routinely

provides such representation, this practice does not confer a

substantive right on a capital defendant, absent a constitutional

right that requires assistance of counsel. Since the record

reflects that Mr. Green received "meaningful appellate review!!

including a Petition for Certiorari to the United States Supreme

Court, he was not denied due process under the Fourteenth

Amendment.

For the foregoing reasons, the trial court correctly ruled

that Hillsborough County is not statutorily or constitutionally

obligated to compensate Mr. Fraser for filing Mr. Green's

application for discretionary review by the U . S . Supreme Court. a 3

I. THE TRIAL COURT WAS CORRECT IN DENYING THE APPELLANT COURTAPPOINTED

COUNSEL FOR DISCRETIONARY REVIEW TO THE UNITED

STATES SUPREME COURT

A. THERE IS NO FEDERAL CONSTITUTIONAL RIGHT

TO DISCRETIONARY REVIEW TO THE UNITED STATES

SUPREME COURT

In Ross v. Moffitt, 417 U . S . 600, 94 S.Ct. 2437, 2447, 41

L.Ed. 2d 341 (1974), the Supreme Court explicitly held that the

rule requiring appointment of counsel for indigent defendants on

their first appeal of right would not be extended to require

counsel for discretionary state appeals and for application for

review in the Supreme Court since such appointment is not required

under the due process and equal protection clause of the Fourteenth

Amendment. See Douqlas v. California, 372 U . S . 353, 83 S.Ct. 814,

9 L.Ed. 2d 811 (1963); Gideon v. Wainrisht, 372 U . S . 335, 83 S.Ct.

814, 9 L. Ed.2d 799 (1963).

Moffitt was charged and convicted in two criminal

prosecutions. The North Carolina Court of Appeals upheld his

conviction. During the trial and appeal he was represented by the

public defender because of his indigency. Moffitt then sought

discretionary review to the North Carolina Supreme Court with

Court-appointed counsel but was informed that the state was not

required to furnish counsel for that petition. After exhausting

state remedies, he appealed the denial of counsel to the Court of

Appeals for the Fourth Circuit. The Fourth Circuit reversed the

District Court judgments and held that Moffitt was entitled to

4 a

counsel at state expense both on his petition for review to the

North Carolina Supreme Court and his petition for certiorari to the

U. S. Supreme Court. Ross v. Mogf itt, 417 U.S. at 604, 94 S.Ct. at

2440-2441, 41 L.Ed2d at 347.

Rejecting Moffitt's equal protection charge, the Supreme Court

reasoned :

At the trial stage any person hauled into

court who is too poor to hire an attorney

cannot be assured a fair trial unless counsel

is provided. By contrast, in the appeal

process, the defendant needs an attorney not

as a shield to protect him but as a sword to

upset the prior determination of guilt. The

fact that an appeal has been provided does not

mean that a state acts unfairly by refusing to

provide counsel at every stage of the way.

ROSS, 417 U.S. at 611, 94 S.Ct. at 2445, 41 L.Ed.2d at 351.

The court stated that equal protection dictates that the

indigent defendant have access to a "meaningful appeal". It

further stated that at the discretionary stage the respondent would

at least have a transcript or other record of the trial

proceedings, a brief on his behalf in the Court of Appeals setting

forth his claims of error, and in most cases, an opinion by the

appeals court deposing of the case. ROSS, 417 U . S . at 614, 94

S.Ct. at 2445, 41 L.Ed.2d at 353.

Finally, the Court concluded that under these circumstances,

an indigent defendant, supplemented with X)TO material, is far

less handicapped than the indigent defendant denied counsel on his

initial appeal as of right. - Id. The court recognized that

although a particular service might benefit an indigent defendant

does not mean that the service is constitutionally required. when

5

the defendant is given an adequate opportunity to fairly present

his claims in the appellate process. Ross, 417 U . S . at 616, 94

S.Ct. at 2444-2447, 41 L.Ed.2d at 354.

In another case, Wainricrht v. Torna, 455 U . S . 586, 587-588,

102 S.Ct. 1300, 1301, 71 L.Ed.2d 475, 477-478 (1982), because the

respondent had no constitutional right to counsel for discretionary

review to the Florida Supreme Court and did not contend otherwise,

the court held he could not be deprived of effective assistance of

counsel by his retained counsel's failure to file a timely

application. The court found that the respondent was deprived by

his counsel and not the state because the Florida Supreme Court

dismissed the untimely application. Wainrisht, 455 U.S. at 588,

102 S.Ct. at 1301, n.4, 71 L.Ed.2d at 478.

The Florida Legislature has chosen not to extend Doucrlas,

susra, to provide for appointment of counsel for a defendant who

seeks either discretionary review i n the Florida Supreme Court or

the U.S. Supreme Court. S925.035, Fla. Stat.(1991); Art. V. S3,

Florida Constitution. Furthermore, like the respondent in

Wainrisht v. Torna, Mr. Green never contended he was entitled to

counsel for discretionary review to the U.S. Supreme Court. (R 24-

25; 37-45); Art. I, S2, Florida Constitution. And, applying Ross,

Mr. Green received meaningful appellate review and was not denied

any rights secured by the Federal or State constitution.

Mr. Fraser relies on Haas v. State, 591 So.2d 614 (Fla. 1992).

However, unlike the instant case, Haaq implicated a basic guarantee

of Florida law, the right to relief through writ of habeas corpus.

6

Art. I, 513, Florida Constitution. Id. (IB 4) Under fundamental

principles of fairness, the Haaq Court was compelled to invoke the

Itmailbox rulett to allow inmates equal access to court and to avoid

a level of arbitrariness that could violate equal protection. Id.

at 617-618.

Therefore, contrary to Mr. Fraser's contention, the fact that

Mr. Green is a capital defendant and the Tenth Circuit Public

Defender has adopted a policv of filing applications for certiorari

to the U . S . Supreme Court does not create a substantive right to

assistance of counsel to be compensated by Hillsborough County.

(R 42-43) (IB 4 , 5 ) . Moreover, under the Wainrisht rationale, the

order below does not violate Mr. Green's equal protection rights

since he was without a federal or state constitutional right to

assistance of counsel.

For the foregoing reasons, the trial court's order should be

affirmed.

B. THERE IS NO FLORIDA STATTJTORY RIGHT TO DISCRETIONARY

REVIEW TO THE UNITED STATES SUPREME COURT

Section 925.035, Florida Statutes (1991), governs appointment

and compensation of counsel for indigent capital defendants in

appellate proceeding. Section 925.035 does not authorize the

c i r c u i t court to appoint a public defender or appointed counsel to

represent an indigent capital defendant on discretionary review to

the U.S. Supreme Court. Neither does Section 925.035 impose a duty

on appointed counsel to represent an indigent capital defendant on

7

discretionary review to the U . S . Supreme Court. 5925.035(5).

If there is no constitutional right, ROSS, Supra, or statutory

right to assistance of counsel for discretionary review, the court

can not assess attorney fees against the county. See Peters v.

Cox, 341 F.2d 575 (10th Cir. 1965). For example, in Sonser v.

Citrus county, Florida, 462 So.2d 54 (Fla. 5th DCA 1984), the

District Court affirmedthe circuit court's decisionthata defense

attorney who filed a motion to vacate the death penalty and

appealed the denial of that motion was not entitled to an

assessment of attorney fees and costs against citrus county. The

Court held that nothing in the governing statutes authorized the

imposition of attorney fees on a county for the representation of

a criminal defendant in a post-conviction collateral proceeding.

Nevertheless, in Brevard County Board of County Commissioners

v. Moxlev. 526 So.2d 1023, 1024 (Fla. 5th DCA 1988) the District

Court limited Sonqer and affirmed the trial court's appointment of

counsel to represent the defendant in his 3.850 proceeding. The

Court held, "to apply Sonqer would cause S27.53, S925.035 and

S925.036 to be unconstitutional as applied and, under the facts of

the instant case, would violate the defendant's equal protection

rights under the Florida and Federal Constitution.Il - Id.

Even the U.S. Supreme Court in Ross recognized that although

there is no absolute right to counsel in collateral relief

proceedings, the circumstances of a particular case may require

appointment of counsel. See also Graham v. State, 372 So.2d 1363

8

(Fla. 1979); Flovd v. Parole and Probation Commission, 509 So.2d

919, 920 (Fla. 1987)(Indigent defendants are not entitled to

counsel in all parole revocation proceedings. If counsel is

furnished in all proceedings, the decision should be made by the

legislature.)

In Troedel v. State, 479 So.2d 736, 737 (Fla. 1985), the

Supreme Court rejected an indigent capital defendant's argument

that Chapter 85-332, Laws of Florida Creating the Office of Capital

Collateral Representative, conferred a right to collateral

representation that will be denied without a stay of execution to

allow more time to prepare collateral challenges to the judgments

and sentences. The court held that chapter 85-332 provided a state

policy of providing legal assistance for collateral representation

but did not add anything to the substantive law or constitutional

rights of indigent capital defendants. Id.

In the instant case, Mr. Doug Conner, Assistant Public

Defender, Tenth Judicial Circuit, testified that his office

routinely files a petition for certiorari to the U . S . Supreme Court

when the Florida Supreme Court affirms a judgment and Sentence of

death. He also testified that funds for discretionary review

representation are provided by the State. (R 40-41) 55925.035,

27.501 Fla. Stat. Mr. Fraser, therefore, asserts that the trial

court's order violates Mr. Green's rights under the Equal

Protection Clause. (R 43)

There is no authority which mandates the Public Defender to

provide discretionary review representation to indigent capital

9

defendants. (R 43-44) Apparently, the Public Defender's routine

filing of such applications is a state policy motivated by the

Public Defender's ethical duty to provide effective assistance of

counsel at every stage of the appellate process. (R 40-41; 43-44)

Sixth Amendment, U. S. Constitution; See also SS27.702, 27.704,

Florida Statutes (1991).

Applying Troedel, Hillsborough County contends that the Public

Defender's policy of conferring a benefit did not confer a

statutory or constitutional right on Mr. Green. Moreover, unlike

the capital defendant in Brevard County v. Moxlev, who the trial

court determined had a constitutional right to counsel, apart from

his equal protection claim, Mr. Green never contended that he had

a constitutional right to assistance of counsel.

Appointed counsel in conflict cases are not employees of the

Public Defender's Office but are officers of the court who are

compensated by the county when a constitutional or statutory right

requires assistance of counsel. SS925.035, 27.50, Fla. Stat.; &g

also In Re Order on Prosecution of Criminal Appeals bv the Tenth

Judicial Circuit Public Defender, 561 So.2d 1130, 1136 (Fla. 1990).

Furthermore, Section 925.035 does not authorize the

appointment of counsel for discretionary review because the

Legislature intended to limit the financial burden on counties for

indigent capital appeals. Neither does Sub-section 925.035(6), a

catch-all provision, provide compensation for discretionary

10

review. Therefore, the Legislature should decide if counties

should provide counsel to indigent capital defendants for

discretionary review.

0

Accordingly, Judge Menendez properly followed the dictates of

Section 925.035, ROSS, sux)ra, and Wainrictht, suDra, in denying Mr.

Green's motion to appoint counsel for discretionary review to the

U . S . Supreme Court. As a matter of law, Mr. Fraser's appointment

and Mr. Green's right to assistance of counsel terminated when the

Florida Supreme Court affirmed his judgment and sentence of death.

Green v. Florida, - U . S . 112 S.Ct. 1191 (1992).

For the foregoing reasons, this court should affirm the order

below.

11. HILLSBOROUGH COUNTY DOES NOT HAVE A STATUTORY OR

CONSTITUTIONAL DUTY TO COMPENSATE MR. =SEX FOR

PREPARING MR. GREEN'S PmITION FOR CERTIORARI TO

"HE U.S. SUPREME COURT

Mr. Fraser seeks compensation under Makemson v. Martin Countv,

464 So.2d 1281, 491 So.2d 1109, 1110 (Fla. 1986) (Section 925.036

is unconstitutional when it is applied to limit the court's

inherent power to ensure adequate representation of counsel and

thereby exceed the statutory fee limit in a capital case). (IB 7)

Unlike Makemson's appointment, Mr. Frasers's representation was not

authorized because Judge Menendez was not statutorily or

constitutionally authorized to appoint him. - Id. Theref ore

Makemson and Section 935.036, Florida Statutes are not applicable.

* Capital Collateral Representation and executive clemency are

funded by the State.

11

But see, Remeta v. State, 559 So.2d 1132, 1135, Note 4, (Fla.

1990)(Makemson was extended to executive clemency proceedings since

Florida provides a statutory right to counsel. §925.035(4), Fla.

Stat. J. McDonald, dissent: 'Ithe court did not conclude that

there is a constitutional right to counsel in clemency

proceedings@@. )

The common law did not ensure the poor a right to counsel.

- See Countv of Dade v. Sansom, 266 So.2d 279 (Fla. 3d DCA 1990). It

was the professional obligation of the American and English lawyer

to accept an appointment to represent an indigent defendant without

compensation. See also In the Interest of D.B. and D . S . , 385 So.2d

83, 91-93 (Fla. 1980).

As an officer of the court and as an ethical duty to Mr.

Green, Mr. Fraser, filed the application with full knowledge that

Judge Menendez denied his appointment because Mr. Green did not

have a constitutional or statutory right to assistance of counsel.

Accordingly, under principles of appellate review, the instant

appeal is moot.3 See Department of Hicrhwav Safety

y. Heredia, 520 So.2d 61 (Fla. 3d DCA 1988).

0

(R 24-25; 27)

In conclusion, since the record clearly reflects that

Hillsborough County met its statutory obligation to provide Mr.

Green effective assistance of counsel the trial court's order

should be affirmed. (R 27)

See s27.702, Fla. Stat. (1991), "Representation by the

capital collateral representatives shall commence upon termination

of direct appellate proceedings in state or federal courts ... II

12

CERTIFICATE OF SERVICE

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

ANSWER BRIEF has been furnished by U.S. Mail t h i s 25th day of

August to ROBERT FRASER, ESQUIRE, P. 0. Box 3470, Brandon, Florida

33509 and BOB LANDRY, ESQUIRE, THE OFFICE OF THE ATTORNEY GENERAL,

2002 North Lois Avenue, Suite 700, Tampa, Florida 33607.

post Office BOX 1110

Tampa, Florida 33601

Bar No. 0803065

(813) 272-5670

13