PATTERSON v. STATE (2024)

On Motion to Withdraw as Appellate Counsel

We deny counsel's Motion to Withdraw as Appellate Counsel filed in this case. Counsel requested to withdraw so that his client, Kizzy Gentina Patterson, can file a pro se motion for rehearing of our decision affirming her judgment and sentence. From the two-page motion, it appears that Patterson disagrees with our decision but that counsel does not see any good faith basis to move for rehearing.

A defendant has no constitutional right to appear pro se in a direct appeal. See Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (declining to recognize “a constitutional right to self-representation on direct appeal from a criminal conviction[ ]”); Lambrix v. State, 124 So. 3d 890, 899 (Fla. 2013) (noting that “a defendant's federal constitutional right to self-representation ends when he or she has been convicted[ ]”); Garcia v. Schneider, 305 So. 3d 15, 16 (Fla. 3d DCA 2019) (noting that “[a] criminal defendant's right to self-representation does not extend to appellate proceedings[ ]”); cf. Davis v. State, 789 So. 2d 978, 981 (Fla. 2001) (holding that a capital defendant in Florida has “no state constitutional right to proceed pro se in direct appeals”).

In the exercise of its discretion, an appellate court may permit a criminal defendant to proceed pro se. See Davis, 789 So. 2d at 981 (“The decision to allow a convicted defendant the ability to proceed pro se in appellate proceedings is vested in the sound discretion of the appellate court.” (citations omitted)).

Here, however, the motion does not provide us with any basis upon which we could exercise our discretion to permit a pro se filing. See, e.g., Wall v. State, 238 So. 3d 127, 145–46 (Fla. 2018) (noting that the Court granted a pro se filing in an appeal “[d]espite [its] general prohibition on pro se filings in cases such as this,” “due to the unique nature of this case as fitting within an extremely limited exception to our general prohibition[ ]”). For this reason, we reject the request.

Finally, we note that it does not appear that counsel had a duty to file a motion to withdraw merely because Patterson may have asked for it. The Fourth District addressed this matter in Dagostino v. State, 675 So. 2d 194 (Fla. 4th DCA 1996). The Dagostino court rejected the suggestion that the public defender had an obligation to withdraw from representation “where an appellant wishes to file a motion for rehearing which is not agreed to by the public defender.” 675 So. 2d at 196 n.1. This ruling is consistent with the later-decided cases of Martinez and Davis, which held that an appellant challenging a conviction has no right to self-representation.

In short, if in defense counsel's professional judgment, a motion for rehearing (or any other post-opinion motion) would be meritless, then he has no obligation to move to withdraw so as to permit the appellant to proceed pro se. But in this case, where such a motion was filed, we see no reason to grant it.

Per Curiam.

Roberts, Winokur, and Long, JJ., concur.