Summary
noting that the statute applies "in situations where two defendants with purportedly adverse interests are represented by the same" public defender
Summary of this case from Farmer v. StateOpinion
No. 1D22-2129.
01-04-2023
Benjamin WHITFIELD, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary , Public Defender, and Megan Lynne Long , Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody , Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary , Public Defender, and Megan Lynne Long , Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody , Attorney General, Tallahassee, for Appellee.
ON MOTION TO WITHDRAW AS COUNSEL
Winokur, J.
Benjamin Whitfield's counsel in this direct appeal of a conviction filed a motion to withdraw and for appointment of separate counsel, and later an amended motion, asserting a "conflict" with Whitfield. We deny the amended motion.
I
Whitfield was represented in the trial court for a charge of felony battery by counsel from the Second Circuit Public Defender's Office. Whitfield eventually entered an open plea of no contest to the charge and was adjudicated guilty. After the adjudication, on July 11, 2022, Whitfield filed two documents: a notice of appeal, and a document titled "Motion to Withdraw Plea and Withdraw as Attorney of Record and Appoint Conflict Free Counsel." The motion seeking to withdraw plea indicated that Whitfield "has told [trial counsel] he wants to withdraw his plea based on allegations that [trial counsel] misled him regarding the maximum punishment, confused him, made promises, etc.," and asks the court to "appoint conflict free counsel to represent him at the hearing on the motion to withdraw plea...." On July 18, the court granted the motion for appointment of separate counsel, appointing the Office of Criminal Conflict and Civil Regional Counsel, First Region (CCCRC), to serve as counsel for Whitfield. The court ordered newly-appointed counsel to file a notice of appearance within ten days of the order and to certify that he or she has contacted the assistant state attorney assigned to this case and previous defense counsel, and that he or she was aware of all pending court appearance dates. The court also indicated that any further order regarding Whitfield's motion to withdraw his plea "shall be decided after briefing, argument, and hearing, as appropriate."
The record does not reflect that any counsel from CCCRC entered an appearance in this case, nor that any briefing, argument, or hearing occurred, nor that the court filed an order granting or denying the motion. All the record includes is a motion to withdraw the plea containing unspecified allegations that would be addressed by new counsel, who never entered an appearance.
Without an order disposing of the motion to withdraw plea, it seems that this appeal should be "held in abeyance until the motions are either withdrawn or resolved by the rendition of an order disposing of" the motion. Fla. R. App. P. 9.020(h)(2)(C). This discrepancy is addressed by separate order of this Court. In the meantime, we dispose of the motion to withdraw as counsel here.
In spite of the fact that the motion to withdraw the plea does not appear to have ever been disposed of, the appeal continued. The Second Circuit Public Defender's Office was designated to represent Whitfield on appeal. The appellate public defender then filed a motion seeking to withdraw from representation due to "conflict," and later filed an amended motion to withdraw. As the factual basis for the amended motion, appellate counsel points to Whitfield's "pro se motion to withdraw plea, alleging ineffective representation" by the assistant public defender from her office who represented Whitfield at trial. As the legal basis for the motion, appellate counsel argues that Whitfield's motion to withdraw his plea creates a conflict of interest "pursuant to Section 27.5303(1)(a), Fla. Stat.," which, she alleges, precludes any assistant public defender from her office from representing Whitfield in this appeal. Rather than providing additional facts that could show the nature and extent of this alleged conflict, appellate counsel asserts that her office "is precluded from revealing additional privileged and confidential client information," citing Smith v. State, 156 So.3d 1119 (Fla. 1st DCA 2015). Appellate counsel argues that her certification of conflict, standing alone, is sufficient to merit relief. We disagree.
II
Appellate counsel alleges that her motion is supported by section 27.5303, Florida Statutes, and that under it, the Public Defender "has a conflict of interest" in representing Whitfield due to his allegation that his trial attorney provided inadequate representation. Paragraph (1)(a), of this statute authorizes the Public Defender to file a motion to withdraw as counsel in situations where two defendants with purportedly adverse interests are represented by the same Public Defender's Office. See § 27.5303(1)(a), Fla. Stat.:
If, 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 they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of a conflict of interest, then the public defender shall file a motion to withdraw and move the court to appoint other counsel.
(Emphasis added.)
The statute directs the court to conduct a hearing to address the basis for the alleged conflict—but in a manner that does not require counsel to violate the attorney-client privilege. See Id. Additionally, the statute directs the court to deny the motion to withdraw "if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client." Id. In any event, it is clear that section 27.5303(1)(a) addresses withdrawal of counsel only during representation of two or more defendants when the interests of those defendants are so adverse or hostile that representation of both cannot be undertaken. Because appellate counsel cites only section 27.5303 as the basis for her motion to withdraw, and because this statute does not apply to her request, she has not alleged a valid basis for the motion.
The only case appellate counsel cites to support the motion is Smith. But Smith involved the type of conflict of interest specifically contemplated by section 27.5303(1)(a), Florida Statutes: two defendants with purportedly adverse interests represented by different attorneys from the same Public Defender's Office. See Smith, 156 So. 3d at 1121. As such, Smith does not apply. See also Beall v. State, 293 So.3d 1105, 1110 (Fla. 1st DCA 2020) (affirming denial of motion to withdraw as counsel in spite of the client's persistent claims of ineffective assistance; distinguishing Smith by noting that "the instant case does not raise the specter of the public defender's ethical duty to avoid an alleged conflict of interest with another public defender's client in the same office. Unlike the circumstances in Smith, in the present case, there was no privileged or confidential information to be protected; no ethical duty potentially breached.") (citation omitted).
In denying this motion, we do not suggest that other grounds for asserting a conflict of interest requiring appellate counsel to withdraw may not be present. See R. Regulating Fla. Bar 4-1.7; 4-1.16. Without expressing an opinion on such a motion, it does seem insufficient to claim that counsel and client have a "conflict of interest" based on the allegations set forth in the motion, especially given that the trial court has apparently not yet set a hearing on Whitfield's motion to withdraw his plea, or an order from the court disposing of such a motion. Moreover, appellate counsel's contention that the entire Office of the Public Defender must be excluded because of the allegation against trial counsel, under Rule 4-1.10 of the Rules Regulating the Florida Bar seems problematic. Even if the allegations against trial counsel represented a "conflict of interest," as that term is defined in the rules, the conflict is imputed to the remaining members of the office "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." R. Regulating Fla. Bar 4-1.10. Appellate counsel makes no attempt to show that trial counsel's alleged conflict of interest presents a significant risk of materially limiting the representation of the client by other lawyers in the Public Defender's Office. See also Schluck v. State, 1D22-1380, ___ So.3d ___, 2023 WL 104894 (Fla. 1st DCA Jan. 4, 2023).
Because the Public Defender relies on section 27.5303(1)(a) as the sole legal basis for withdrawal in this case, and because the Public Defender fails to allege facts sufficient to support that basis, we deny relief.
DENIED.
Lewis and B.L. Thomas, JJ., concur.