Opinion
No. 1D22-3273.
02-22-2023
James A. FARMER, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary , Public Defender, and Megan L. Long , Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody , Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary , Public Defender, and Megan L. Long , Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody , Attorney General, Tallahassee, for Appellee.
Per Curiam.
On its own motion, the court withdraws the opinion docketed on February 1, 2023, and substitutes the following one in its stead.
Tanenbaum, J.
ON A MOTION TO WITHDRAW AS COUNSEL FOR THE APPELLANT
Appellant James Farmer represented himself at the criminal trial that led to the judgment and sentence now on review. A year earlier and just after she had been appointed to represent Farmer, the public defender for the Second Judicial Circuit ("PD2") had indicated she had an "add-on conflict" and asked that another lawyer be appointed. The trial court obliged and appointed the regional conflict counsel ("RCC"), and one of the assistant lawyers in the RCC office filed an appearance shortly thereafter. That lawyer served for the duration of the case, albeit as stand-by counsel, pursuant to a Faretta hearing that had been held two months before trial. Following a guilty verdict, the assistant RCC returned to full representation of Farmer at sentencing.
Once Farmer was sentenced, the assistant RCC appearing for him filed the necessary notice of appeal, directions to the clerk, statement of judicial acts to be reviewed, and a request to transcribe the proceedings at public expense. See Fla. R. App. P. 9.140(d), (f). Upon completion and transmission of the record on appeal, the assistant RCC filed with this court a designation for PD2 to handle Farmer's appeal. See § 27.511(8), Fla. Stat. (requiring PD2 to handle any felony appeal to this court "after the record on appeal is transmitted... by the office of criminal conflict and civil regional counsel which handled the trial and if requested by the regional counsel"). It is important to note here that responsibility for handling the appeal shifts back to the regional conflict counsel "[i]f the public defender certifies to the court that the public defender has a conflict consistent with the criteria prescribed in s. 27.5303 and moves to withdraw." Id. That is what PD2 ostensibly seeks to do in the motion to withdraw filed in this case by one of her assistant public defenders ("APD"), which we now address.
The motion certifies that there is a conflict under section 27.5303. Presumably, if there were averments to support this certification, it would be sufficient to trigger section 27.511(8) and require an RCC lawyer to continue representing Farmer on appeal. Section 27.511(8), though, cross-references section 27.5303 as the sole basis by which such a certification could be made. Meanwhile, section 27.5303 applies only when, "at any time during the representation of two or more defendants, a public defender determines that the interests of those accused are so adverse or hostile that" either all or none of them can "be counseled by the public defender or his or her staff without conflict of interest." § 27.5303(1)(a) Fla. Stat. (emphasis supplied); see Whitfield v. State, No. 1D22-2129, 353 So.3d 696, 697 (Fla. 1st DCA Jan. 4, 2023) (noting that the statute applies "in situations where two defendants with purportedly adverse interests are represented by the same" public defender).
In the motion at hand, the APD does not assert that she presently is tasked with simultaneously representing both Farmer and another defendant while the interests of those two clients are "so adverse or hostile" that she cannot adequately do so in a constitutionally consistent manner. Instead, the motion avers that one of PD2's lawyers at some time in the past had represented a witness who then testified for the State at Farmer's trial in the underlying proceeding now on review. There is no averment that one of PD2's lawyers would be representing the witness in a criminal proceeding currently and that at the same time one of her lawyers would be handling this appeal for Farmer. This means the criteria set out in section 27.5303 do not apply here, so PD2's certification is insufficient to invoke operation of section 27.511(8).
That leaves us with consideration of the motion to withdraw as one individually filed by the APD (as opposed to one filed on behalf of PD2 and her whole office) and based on the conflict-of-interest criteria set out in the Rules Regulating the Florida Bar ("RRFB"). See R. Regulating Fla. Bar 4-1.16(a) (setting out grounds requiring withdrawal from representation); Schluck v. State, No. 1D22-1380, ___ So. 3d ___, 2023 WL 104894, at *1 (Fla. 1st DCA Jan. 4, 2023) (reviewing motion to withdraw in accord with appellate rule 9.440 and professional conduct rule 4-1.16).
On this front, the APD does not assert that there is a conflict because "there is a substantial risk that the representation of" Farmer in this appeal "will be materially limited ... by a personal interest of the" APD. R. Regulating Fla. Bar 4-1.7(a)(2). She instead seeks relief on behalf of PD2's entire office, so any conflict supporting withdrawal would have to be based on imputation. See R. Regulating Fla. Bar 4-1.10 ("While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 ... unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm." (emphasis supplied)).
As we already noted, the motion does not suggest that the witness at Farmer's trial is a current client. Rule 4-1.9 of the RRFB, in turn, governs conflicts of interest relating to a former client. Because Farmer would be the current client, operation of this rule would be from the perspective of the only former client identified in the motion: the witness. By operation of rule 4-1.10, rule 4-1.9 would prohibit an APD in PD2's office from handling Farmer's appeal if that representation were "in the same or a substantially related matter" and Farmer's "interests are materially adverse to the interests of the" the witness. R. Regulating Fla. Bar 4-1.9(a). There is no indication that an APD from the office had represented the witness in connection with the same or related criminal conduct for which Farmer was charged, and the motion does not explain how Farmer's interests in this appeal would be "materially adverse" to the witness's interests. Nothing on the face of the motion supports an imputable conflict under rule 4-1.9.
Under the same rule, an APD in the office could not "use information relating to the representation [of the former client] to [his] disadvantage" and could not "reveal information relating to the representation" of the former client. R. Regulating Fla. Bar 4-1.9(b)-(c). The motion does not suggest—and we do not see how it could in any event—that these restrictions would impede the constitutionally mandated level of appellate representation.
Even if PD2 were currently representing the witness, though, there would be no basis for an imputable conflict under rule 4-1.7 either. The motion does not explain how representation of Farmer on appeal would "be directly adverse to" the present representation of the witness. R. Regulating Fla. Bar 4-1.7(a)(1). Indeed, there is no suggestion an APD from the office currently is representing that witness in a related appeal, such that a legal argument to be made on behalf of Farmer, if successful, would undermine a legal argument being made on behalf of the witness. The motion also does not suggest that "there is a substantial risk" an APD's representation of Farmer in this appeal "will be materially limited by" the APD's "responsibilities to another client, a former client or a third person." Id. (a)(2).
As we highlighted above in the text from rule 4-1.10, a "personal interest" conflict is not imputable to PD2's entire office unless it significantly risks limiting representation of the client by the other APDs in the office in a material way. The APD making the present motion does not assert that she has a personal-interest conflict at all, let alone one of such magnitude that it could be imputed to all her fellow APDs.
The fact that PD2 was permitted to withdraw in the trial court based on a conflict is not relevant to our consideration of the present motion. A criminal appeal is a different proceeding. An imputable conflict extant at a criminal trial that justifies withdrawal there does not ineluctably translate into an imputable conflict that supports withdrawal in the ensuing appeal here. In circumstances where section 27.5303 does not apply, then, a motion to withdraw filed in this court must do more than simply recite the fact that there was a conflict in the trial court proceeding. The motion should either describe the APD's personal conflict and how that conflict would materially limit her handling of the client's criminal appeal, or it should make specific averments directed to application of one of the imputable conflicts identified in rules 4-1.7 and 4-1.9. See Schluck v. State, No. 1D22-1380, ___ So. 3d ___, ___, 2023 WL 104894, at *3 (Fla. 1st DCA Jan. 4, 2023) (denying motion to withdraw because it failed "to specifically assert what the conflict is that precludes the Public Defender from representing Appellant in this appeal"). Because the present motion fails to aver a factual basis for a conflict on appeal that is cognizable under the RRFB, we have no legal basis for relieving PD2 (along with her APDs) of her constitutional and statutory duty to vigorously represent Farmer in this case.
DENIED.
Roberts and M.K. Thomas, JJ., concur.