JACKSON v. STATE (2025)

Affirmed.

I agree that we should affirm the order on appeal. I write separately to address a matter that occurred in this case: the appointment of counsel for a postconviction movant on appeal. My reading of the applicable statutes and cases leads me to conclude that courts have very limited authority, if any, to appoint publicly funded counsel to represent persons appealing orders denying postconviction relief. Trial courts should only appoint postconviction appellate counsel consistent with these limitations, and appellate courts should not hesitate to enforce these limitations when they have been ignored.

I

Jackson filed a motion for postconviction relief raising various claims, including claims of ineffective assistance of trial counsel. The trial court granted an evidentiary hearing and appointed the Public Defender, First Judicial Circuit (PD1) to represent Jackson at the hearing. PD1 moved to withdraw because it had represented Jackson at trial. The trial court granted this motion and appointed the Office of Criminal Conflict and Regional Counsel, First Region (CCCRC) to represent Jackson. The trial court eventually denied postconviction relief.

The trial court then appointed CCCRC to represent Jackson on appeal. CCCRC then filed, in this court, a designation of the Public Defender, Second Judicial Circuit (PD2), to handle the appeal, purportedly under section 27.51(4), Florida Statutes.

But CCCRC did not have statutory authority to represent Jackson in this appeal. Section 27.511(5)(g), Florida Statutes, permits CCCRC to represent postconviction movants in some circumstances, but that does not extend to appeals of orders denying such postconviction motions. See § 27.511(5)(f), Fla. Stat. (permitting CCCRC to represent indigent persons on appeal in certain specific cases, which does not include postconviction cases).

Because CCCRC lacked statutory authority to represent Jackson in this appeal, it did not have the authority to “designate” PD2 as appellate counsel. Section 27.511(8), Florida Statutes, allows CCCRC to designate a public defender to handle “appeals authorized pursuant to paragraph (5)(f),” but as stated, paragraph (5)(f) does not authorize CCCRC representation in this appeal. Accordingly, we struck the designation, struck the initial brief already filed by PD2, and relieved PD2 of any further participation in this case.

Because the trial court filed neither an order permitting CCCRC to withdraw, nor an order appointing PD2 to represent Jackson, the order appointing CCCRC for this appeal remained in effect. We then ordered CCCRC to identify its authority to represent Jackson in this appeal. CCCRC conceded that it lacked statutory authority to represent Jackson and moved to withdraw, which we granted.¹ In its response, CCCRC asked us to “provide some guidance for future cases.” This opinion is meant to do so.

II

A survey of the history of the right to appointed counsel in postconviction proceedings exposes issues with the manner that counsel for postconviction appeals is generally appointed.

Right to Appointed Counsel Provided by the Sixth Amendment

The Sixth Amendment, through the Fourteenth Amendment, requires a State to appoint counsel for an indigent defendant facing a felony prosecution. See Gideon v. Wainwright, 372 U.S. 335 (1963). However, the right to appointed counsel provided by the Sixth Amendment does not extend beyond trial. See Martinez v. Ct. of Appeal of California, Fourth App. Dist., 528 U.S. 152, 159–60 (2000) (recognizing that the Sixth Amendment rights are “strictly” “rights that are available in preparation for trial and at the trial itself”). The Sixth Amendment, for instance, does not provide any right to appointed counsel on appeal; to the extent that right does exist, it flows from the Fourteenth Amendment's due- process requirement. See Douglas v. California, 372 U.S. 353 (1963) (identifying the Fourteenth Amendment—not the Sixth— as the source of any right to appointed counsel on appeal).

Similarly, the Sixth Amendment does not provide a right to court-appointed counsel for postconviction proceedings. See Arbelaez v. State, 898 So. 2d 25, 42 (Fla. 2005) (recognizing that the Sixth Amendment right to appointed counsel does not extend to postconviction proceedings because it is not a critical stage of the prosecution). Nor does the Sixth Amendment provide any right to appointed counsel in a postconviction appeal. See Smith v. State, 956 So. 2d 494, 495 (Fla. 1st DCA 2007) (affirming that “no Sixth Amendment right to counsel exists in appeals of orders denying post-conviction relief”).

Right to Appointed Counsel on Direct Appeal Provided by the Due Process Clause of the Fourteenth Amendment

Indeed, the United States Constitution does not “require States to create appellate review in the first place.” Smith v. Robbins, 528 U.S. 259, 270, n.5 (2000); see also Amends. to the Fla. Rules of App. Proc., 696 So. 2d 1103, 1104 (Fla. 1996) (noting that “there is no federal constitutional right of criminal defendants to a direct appeal”). Nonetheless, if a state provides a right to appeal, then an indigent defendant has a right to state-appointed counsel on appeal. See Douglas; see also Evitts v. Lucey, 469 U.S. 387, 393 (1985) (noting that “the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors,” but “if a State has created appellate courts as ‘an integral part of the ․ system for finally adjudicating the guilt or innocence of a defendant,’ [then] the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution” (citations omitted)).

Again, Douglas holds that the right to appointed counsel on appeal flows from the Fourteenth Amendment, not the Sixth. In that case, the State provided an appeal to criminal defendants as a matter of right by statute but provided court-appointed appellate counsel only when the appellate court determined that the case had merit. Id., 372 U.S. at 354–56. The Court found that this procedure violated the Fourteenth Amendment because a wealthy defendant always enjoyed the benefit of appellate counsel whereas an indigent defendant did not. See Douglas, 372 U.S. at 357–58.

Similarly, the Supreme Court of Florida has found that the state Constitution includes a right to appeal a conviction. See Amends. to the Fla. Rules of App. Proc., 696 So. 2d at 1104. (construing article V, section 4(b) to contain “a constitutional protection of the right to appeal”). Since a Florida defendant has a constitutional right to appeal, if indigent he has a right to appointed counsel for that appeal, pursuant to Douglas.

Right to Appointment of Postconviction Counsel

In the wake of Douglas, our supreme court held that, in certain cases, due process requires the appointment of counsel in postconviction proceedings. State v. Weeks, 166 So. 2d 892 (Fla. 1964). While recognizing “no absolute organic right to the assistance of counsel at a hearing on a [postconviction] motion or an appeal from an adverse ruling thereon,” the Weeks court held that the decision whether to appoint counsel in these cases “must be decided in the light of Fifth Amendment due process requirements[.]” Id. at 897. In other words, it must be determined “whether under the circumstances the assistance of counsel is essential to accomplish a fair and thorough presentation of the prisoner's claims.” Id. at 897. In reaching this conclusion, the court relied heavily on the analysis in Douglas setting forth a right to appointed counsel required by due process.

It is unclear why Weeks found a right to appointed counsel in the Due Process Clause of the Fifth Amendment rather than the Due Process Clause of the Fourteenth Amendment, as set forth in Douglas. Nonetheless, the two clauses are often construed as identical. See generally Walker v. R.J. Reynolds Tobacco Co., 734 F.3d 1278, 1286–87 (11th Cir. 2013) (finding that the “analysis is the same under either clause because ‘the reaches of the [Due Process Clauses of the] Fourteenth and Fifth Amendments are coextensive’ ” (citation omitted)).

Still, in 1972, our supreme court adopted Florida Rule of Criminal Procedure 3.111, which authorized the appointment of counsel “to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including postconviction proceedings and appeals therefrom[.]” In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 79 (Fla. 1972) (emphasis supplied).

And in Graham v. State, 372 So. 2d 1363 (Fla. 1979), the court addressed the appointment of postconviction counsel again, this time in a death penalty case. The court acknowledged that appointment of postconviction counsel is “discretionary” and that the duty to appoint counsel is not “absolute,” but set forth “important elements” that a court should consider in determining whether appointment of postconviction counsel was “required”: “[t]he adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research.” Id. at 1366.² In reaching this conclusion, the court relied on its previous decision in Weeks for support. Id. at 1365–66.

In spite of these rulings from our supreme court, eight years after Graham the United States Supreme Court squarely rejected an argument that the Due Process Clause requires the appointment of postconviction counsel. Pennsylvania v. Finley, 481 U.S. 551 (1987). This was true even when the postconviction movant had been sentenced to death. Murray v. Giarratano, 492 U.S. 1 (1989).

No Statutory Right to Appointment of Postconviction Counsel for Non-Capital Defendants in Florida

In 1996, the Florida Legislature acted on this matter. It enacted section 924.066(3), Florida Statutes, which specified that “[a] person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer.” Ch. 96-248, § 6, Laws of Fla. The Legislature also enacted what is now section 924.051(9), Florida Statutes, which prohibited the direct or indirect use of “[f]unds, resources, or employees of this state or its political subdivisions ․ in appellate or collateral proceedings unless the use is constitutionally or statutorily mandated.” Ch. 96-248, § 4; Ch. 2000-3, § 19, Laws of Fla. In short, not only did the Legislature clarify the absence of a right to appointed postconviction counsel in non-capital cases, but explicitly prohibited it unless constitutionally (or statutorily) required.

As to whether appointment is “constitutionally mandated,” neither Weeks nor Graham held that an indigent defendant had a constitutional right to appointed postconviction counsel. Indeed, both acknowledge “no absolute right” to appointed counsel. Graham, 372 So. 2d at 1365; Weeks, 166 So. 2d at 896. Instead, the cases merely suggested that counsel should be appointed if the circumstances warranted it.

Conflict Between Statutes and Florida Supreme Court Cases

These legislative actions created a conflict between Chapter 924—which stated that a non-capital postconviction movant has no right to appointed counsel—and the supreme court's decisions in Weeks and Graham—which state that appointment of counsel may be required in some cases. To resolve that conflict, the supreme court held that section 924.066(3) “does not preclude the appointment of counsel when constitutionally mandated under Weeks and Graham.” Russo v. Akers, 724 So. 2d 1151, 1153 (Fla. 1998). Presumably, the court in Russo considered the rulings in Weeks and Graham that appointment may be “required” in some cases as equivalent to a ruling that appointment is “constitutionally mandated” in those cases. Russo did not establish any right to appointment of postconviction counsel, it explicitly held that such right had been set forth in Weeks and Graham.

In reaching this conclusion, the Russo court did not address any conflict between Weeks and Graham and the United States Supreme Court's decisions in Finley and Giarrantano. That is, Weeks and Graham both found that the federal Constitution may require the appointment of postconviction counsel, whereas Finley and Giarrantano explicitly rejected that claim. And while our supreme court has suggested that the federal Constitution supports its view, it has never held that the Florida Constitution contains a separate right to appointment of postconviction counsel.

2013 Amendment to Rule 3.850

In 2013, our supreme court amended Florida Rule of Criminal Procedure 3.850, adding a provision regarding the appointment of counsel:

The court may appoint counsel to represent the defendant under this rule. The factors to be considered by the court in making this determination include: the adversary nature of the proceeding, the complexity of the proceeding, the complexity of the claims presented, the defendant's apparent level of intelligence and education, the need for an evidentiary hearing, and the need for substantial legal research.

In re Amends. to Fla. Rules of Crim. Proc. & Fla. Rules of App. Proc., 132 So. 3d 734, 749 (Fla. 2013); see also Fla. R. Crim. P. 3.850(f)(7). The provision, however, does not suggest that a postconviction movant ever has a constitutional right to appointed counsel. Rather, it simply recognizes a court's authority to appoint counsel and provides factors for the court to consider in making such an appointment.

III

This history can be distilled to this: the United States Supreme Court has ruled that the federal Constitution does not provide any right to appointed postconviction counsel, the Florida Supreme Court has never ruled that the state Constitution provides any right to appointed postconviction counsel, and the Legislature has specified that there is no statutory right to appointed postconviction counsel. And not only is there no statutory right to appointed postconviction counsel, but the statutes prohibit us from using state resources (such as for appointment of counsel) when, as here, such use is not constitutionally or statutorily required. The conclusion I draw is that we are in fact prohibited from providing postconviction counsel in non-capital cases.³

Despite its specific statutory authority to represent postconviction movants, this conclusion seems to apply to representation by CCCRC as well. The applicable statute permits representation only when “necessary to protect a person's due process rights,” but as stated, no due process right to appointed representation in postconviction exists. § 27.511(5)(g), Fla. Stat.

I recognize that our supreme court, in Russo, addressed these matters and concluded that the statutes permit appointment of postconviction counsel “when constitutionally mandated under Weeks and Graham.” Russo, 724 So. 2d 1153. But in my view, this analysis fails to account for the fact that the constitutional right recognized by Weeks and Graham was a federal right, which was flatly rejected by the United States Supreme Court in Finley and Giarrantano. In short, appointment is never “constitutionally mandated.”

Regardless of the shortcomings of Weeks, Graham, and Russo, I note that those cases all involve appointment of counsel for postconviction trial proceedings, rather than for appeal. The standards they set do not necessarily apply in the appeal context. See, e.g., Rowe v. State, 777 So. 2d 1088, 1089 (Fla. 2d DCA 2001) (recognizing the distinction between postconviction trial proceedings and appeals in the appointment context). Nonetheless, Weeks at least mentioned the applicability of its rule to appellate proceedings. See Weeks, 166 So. 2d at 897. See also Fla. R. Crim. P. 3.111(b)(2) (stating that counsel may be provided to indigent persons in “postconviction proceedings and appeals therefrom”).

If we are to continue the practice of permitting trial courts to appoint counsel in postconviction appeals in spite of these issues, they should recognize the limited authority, even under Russo, they have to appoint postconviction counsel. We are statutorily prohibited from appointing counsel unless constitutionally mandated. § 924.051(9), Fla. Stat. In light of this limitation and the questionable conclusion that appointment is ever constitutionally required, no court should appoint counsel unless it concludes specifically that the standards for appointment set forth in Graham have been met.

This court used a similar approach in Westfall v. State, 348 So. 3d 4 (Fla. 1st DCA 2022). In addressing a motion to withdraw as postconviction appellate counsel filed by CCCRC, we noted that neither counsel nor the trial court had addressed “[t]he assessment of need for appellate counsel” under the standards enunciated in Graham before appointing appellate counsel. Id. at 5. Applying those standards ourselves, we found that appellate counsel was not required and permitted CCCRC to withdraw. Id.

Given these unusual circumstances, I agree that appointment of postconviction counsel requires an explicit “assessment of need” under the Graham standards. I also agree that appellate courts should not hesitate to strike an appointment if no such assessment was made. C.f., Beliveau v. State, 144 So. 3d 634, 637 n.4 (Fla. 2d DCA 2014) (noting that appointment of counsel in postconviction appeals is “a procedural issue over which the trial court and this court have concurrent jurisdiction” and that appellate courts have “supervisory control” over orders appointing appellate counsel).

As for CCCRC, I note again that its statutory prohibition against representing a postconviction movant on appeal is explicit. § 27.511(5)(f), (g), Fla. Stat. One could argue that permitting postconviction appellate representation by CCCRC is nonetheless required to preserve the statute's constitutionality, similar to the way the supreme court in Russo treated Public Defenders, even though they do not possess explicit statutory authority to represent postconviction movants. See Williams v. State, 99 So. 3d 593 (Fla. 2d DCA 2012) (recognizing that “[t]he duties of public defenders, as enumerated in section 27.51, Florida Statutes (2008), do not include postconviction representation”).

However, I would not treat CCCRC the same way. CCCRC's statutory authority to represent postconviction movants at trial makes it clear that the Legislature was aware of the requirements of Weeks, Graham, and Russo when it authorized CCCRC representation of postconviction movants, in that the statute permits representation at trial only when “necessary to protect a person's due process rights.” § 27.511(5)(g), Fla. Stat. Despite this recognition, the Legislature chose not to authorize CCCRC representation in a postconviction appeal. While appointment of postconviction appellate counsel can arguably be required by Russo, it appears to me that CCCRC cannot provide that representation.

IV

In summary, I conclude that no proper authority exists to authorize appointment of postconviction counsel, either at trial or on appeal. I recognize that this view is contrary to Russo, but I respectfully submit that Russo did not take controlling United States Supreme Court precedent into account. But to the extent that such a right does exist, I believe that the applicable statutes call for trial courts to indicate explicitly that appointment is required by the standards set forth in Graham rather than to grant these requests with no analysis, and that appellate courts should strike appointment if they do not. Finally, I conclude that CCCRC does not have the authority to represent postconviction movants on appeal, irrespective of Russo.

In this case, we were correct to strike the designation of PD2 and to grant CCCRC's motion to withdraw. With these observations, I concur with the opinion of the court to affirm.

FOOTNOTES

1.   This order left Jackson without counsel in this appeal. But because PD2 had already briefed this appeal before we struck their designation and brief, we treated the stricken PD2 brief as Jackson's brief for this appeal.

2.   In 1985, after Graham was decided, a statutory requirement for collateral representation in capital cases was enacted. Ch. 85-332, Laws of Fla. But at the time Graham was decided, appointment of postconviction counsel, even for death-row inmates, was discretionary.

3.   This conclusion, of course, does not exclude the appointment of pro bono counsel.

Per Curiam.

Osterhaus, C.J., and Lewis, J., concur; Winokur, J., concurs with opinion.