'WHAT ARE MY CHANCES ON APPEAL?': COMPARING FULL APPELLATE DECISIONS TO PER CURIAM AFFIRMANCES.

• Author: Gosney, Steven N.
• Position: Florida

"And as penalty for your crimes, you are sentenced to spend the rest of your life in prison" a judge proclaims from a perch high above the defendant. "You have the right to appeal. If you cannot afford a lawyer, one will be appointed for you." These last words from the sentencing judge ring in the ears of the defendant as the last glimmer of hope for freedom. Wide-eyed, the defendant turns to the lawyer and asks, "What are my chances on appeal?" All criminal appeals in Florida begin this way--with the criminal conviction, the sentencing, and then that important question. But what is the realistic answer?

1. BACKGROUND: CRIMINAL APPEALS IN FLORIDA

   Criminal appeals are probably much the same everywhere in the United States, but because both state laws and local rules can differ, I begin with an overview of the process in Florida. When a convicted person requests an appeal by filing a notice of appeal, the appellate phase of the criminal process begins. (1) Most often, the appeal lands in one of Florida's five District Courts of Appeal. (2) The District Courts of Appeal have jurisdiction over appeals from the felony trial courts and juvenile courts, (3) whereas death sentences are directly appealed to the Florida Supreme Court. (4) While death cases attract the most media attention, (5) the vast majority of criminal appeals are resolved in the District Courts. (6) To illustrate, there were 388 adults on Florida's death row at the end of the 2015-2016 fiscal year, (7) while there were 99,119 incarcerated on felony charges (8) and 86,739 serving on felony probation. (9) As for inmate admissions, there were 30,289 offenders admitted into Florida's prison system in fiscal 2015-2016. (10) Additionally, 138 juveniles were incarcerated in Florida during that same period, (11) 112 juveniles were placed on probation, (12) and 4,339 juveniles were placed in some sort of residential-commitment program. (13) This means that of the 190,835 persons in Florida on some sort of felony sentence, approximately 99.8 percent of defendants' direct-appeal rights were to the District Courts of Appeal rather than to the Florida Supreme Court. Thus, the District Courts of Appeal are ultimately the essential appellate reviewer for the vast majority of criminal cases in Florida. (14) Of course, not all criminal sentences with appellate rights are actually appealed. (15) In fact, only a small percentage of convicted criminals actually exercise their appellate rights. (16)

   Once a notice of appeal is filed, the lawyers gather written transcriptions of the various proceedings in the trial court to create a record on appeal. (17) This would include transcripts of any plea hearing or trial, the sentencing hearing, and any other motion hearings that were held by the trial court. (18) Combined with these transcripts is the complete copy of the clerk's file. (19) This would contain, for example, copies of the charging documents, written motions, and written court orders. (20) Once these items are gathered, the appellate attorney can begin a review of the record. Note that at this point, nothing may be added to or deleted from the record on appeal--what exists in the record exists, and what does not may not be added later. (21) This places a great burden on trial attorneys to preserve the record by placing copies of relevant documents into evidence and specifically objecting to issues that might be legally problematic.

   Once the entire record has been assembled, the appellate counsel must "master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal." (22) The appellate attorney then crafts the initial brief, which outlines any problems with the process from the lower court, and advocates for any legal relief that would be proper. (23)

   When an initial brief raises meritorious issues that need to be addressed on appeal, it is commonly referred to as a merit brief. A lawyer appointed to represent an indigent defendant on appeal might find, however, that the record does not reveal a meritorious issue, and would end up preparing what is known as an Anders brief instead. (24) In that situation, the lawyer

   must, to the extent possible, remain in his role as advocate; at this stage of proceeding it is not for the lawyer to act as an unbiased judge of the merit of particular grounds for appeal. He or she is required to set out any irregularities in the trial process or other potential error which, although in his judgment not a basis for appellate relief, might, in the judgment of his client or another counselor or the court, be arguably meritorious. This is done in order that these potential claims not be overlooked. (25) The appointed lawyer (such as a public defender) also has a concomitant duty to the court of honesty and candor, and to refrain from advancing frivolous arguments. (26) In many criminal cases, the trial courts function correctly and there are no identifiable legal errors present in the record. (27) If, after such an evaluation, court-appointed counsel is led to the conclusion that the appeal is frivolous, (28) the public defender is placed in a conflict of ethical duties because court-appointed lawyers may not argue against their clients. (29) The solution to this dilemma is for the court-appointed lawyer to file an Anders brief (as opposed to a merit brief) and move to withdraw. (30) An Anders brief contains a complete factual and procedural summary of the case, an identification of any possible issues raised in the case, and a recitation of the law that the lawyer is relying on to resolve the issues raised. (31) Note the difference here between appointed-public-defender appeals and private-lawyer criminal appeals. A private lawyer on a criminal case, when confronted with the same ethical dilemma, can resolve the issue by refusing to file a meritless initial brief and terminating the client-attorney relationship. (32) An appointed public defender has no such escape hatch, thus the need for the Anders brief. (33)

   After the parties have fully briefed the case, and after reviewing the record and reading the briefs from the parties, the District Court of Appeal decides the case by issuing a written opinion. This decision can take three forms: a formal written opinion, a citation opinion, or a per curiam affirmed (the PCA). (34) These three forms will be discussed in turn below. Of them, the formal written opinion must be broken down further because, as will become apparent, all written opinions are not equal in the eyes of a criminal appellant. Note that Florida's appellate system allows the PCA, and also has an absolute prohibition on Supreme Court jurisdiction if there is no opinion below. (35)

2. ISSUES UNDERLYING THE ANSWER TO THE CHANCES-ON-APPEAL QUESTION

   Almost all criminal appellants in Florida ask their appellate lawyers about their chances at appeal. In order to answer that question, the lawyer must understand the way in which District Courts of Appeal resolve questions. There are several different types of written opinions in Florida, and not all are equally significant for the average litigant. Some opinions that are counted as written opinions by the District Courts of Appeal for statistical purposes are actually quite meaningless to the average criminal appellant and are in fact only procedural orders. For the purposes of this paper, then, only direct criminal appeals will be counted.

   The District Courts of Appeal often count post-conviction motion appeals as written opinions when answering the chances-on-appeal question. (36) But these should not be counted towards any percentage calculation of written opinions that underlies the answer because post-conviction orders occur only after the initial appeal is finished. Most often, these post-conviction motions are the result of a denial of a formal hearing by the lower court. (37) Orders from the District Court of Appeal on denial of hearing on post-conviction motion result only in remands to the trial courts for hearing. (38) Orders of this type are procedural in nature only. They should, then, not be counted as meaningful written opinions because that would result in double counting of a single appellant's case. Consider, for example, the fact that many criminal defendants accuse their trial lawyers of ineffectiveness. (39) This is usually handled through a motion under Rule 3.850. (40) Often, a trial court will deny Rule 3.850 motions without a hearing, overlooking the reality that ineffective-assistance claims can require a hearing. (41) Many written opinions issued by District Courts of Appeal are in fact orders for trial courts to provide defendants with evidentiary hearings on their ineffective-assistance claims. (42) These written opinions provide for more process but are generally not substantive in that they do not afford defendants real appellate relief from their sentences, just further opportunity for presenting evidence related to their ineffective-assistance claims.

   Many written opinions are in fact orders granting defendants belated appeals. In answering the criminal appellant's posing of the chances-on-appeal question, these cases should also not be counted. The District Courts of Appeal routinely and properly grant petitions for belated appeal. (43) These orders should not be counted as meaningful written opinions because they are in fact only ministerial waivers of court rules that allow appellants to file initial briefs. They do not actually review the substance of appeals, or grant any kind of substantive relief. Further, any belated appeal will show up in the Court records a second time when the appellant completes the substantive initial brief. Therefore, counting the court's response to the initial petition for belated appeal as a meaningful written opinion would result in double counting. While it is important for defendants who inadvertently miss deadlines to be...