William H. Clark v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D2025-0453 _____________________________ WILLIAM H. CLARK, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. J. Lee Marsh, Judge. September 9, 2026 PER CURIAM. AFFIRMED. OSTERHAUS, C.J., and ROBERTS, J., concur; NEFF, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Neff, J., concurring. I fully agree with affirmance of this appeal. I write to discuss Florida’s procedure for Anders 1 appeals. In 1974, the Florida Supreme Court, in furtherance of what it thought Anders v. California required, set aside a principle long central to Florida appellate practice and rooted in the Florida Constitution’s allocation of judicial power: that the parties frame the issues and the court decides them. Twenty-six years later, in Smith v. Robbins, 528 U.S. 259 (2000), the United States Supreme Court held that Anders merely described one constitutionally adequate procedure, but not the only one, and suggested that abandoning the party presentation principle was not required to satisfy the federal Constitution. Florida’s Anders procedure has not been updated in light of Smith. This case is a quintessential illustration of what the procedure unreasonably demands. The Appellant admitted a probation violation through an open plea, proceeded through a colloquy the trial court conducted without apparent flaw, and received a sentence within statutory bounds. Appointed appellate counsel reviewed the record, found no argument he could make in good faith, and said so in an Anders brief—yet still asked this Court to “review the propriety of the trial court’s rulings” without identifying any impropriety. Under Florida Rule of Appellate Procedure 9.140(g)(2)(A), this Court must do exactly that: search the record for arguable issues no party has raised. This mandate is jurisdictionally problematic, ethically awkward, and, after Smith, constitutionally unnecessary. In this concurring opinion, I trace the development of Florida’s Anders procedure, identify the problems it produces, and propose solutions within the Florida Supreme Court’s authority. I. The historical foundation for the Anders procedure More than sixty years ago, in Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court held that the Sixth Amendment, applicable to the States through the Fourteenth 1 Anders v. California, 386 U.S. 738 (1967). 2 Amendment, guarantees the appointment of trial counsel for indigent state felony defendants. Gideon did not arrive unheralded. The Court had previously required appointed counsel in state capital cases, Powell v. Alabama, 287 U.S. 45 (1932), and in federal felony prosecutions, Johnson v. Zerbst, 304 U.S. 458 (1938). Yet barely two decades before Gideon, the Court had surveyed the states and concluded that “in the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.” Betts v. Brady, 316 U.S. 455, 471 (1942). Gideon overruled Betts a mere twenty-one years later. If that history teaches anything relevant here, it is that no procedural framework—however entrenched—is beyond reexamination when experience reveals that it rests on a mistaken premise. The right Gideon recognized does not extend of its own force to appeals, for there is no federal constitutional right to appellate review of a criminal conviction. Ross v. Moffitt, 417 U.S. 600, 606 (1974). But when a state elects to provide appellate review, the terms on which it does so are subject to constitutional scrutiny. Griffin v. Illinois, 351 U.S. 12, 18 (1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); Evitts v. Lucey, 469 U.S. 387, 393 (1985). In a line of cases beginning with Griffin, the U.S. Supreme Court examined appellate procedural schemes under the principle that justice may not be conditioned on a criminal appellant’s ability to pay for appellate counsel. See Ross, 417 U.S. at 605–09. Although “[a]bsolute equality is not required,” Douglas v. California, 372 U.S. 353, 357 (1963), the Douglas Court held that when state criminal defendants are permitted to retain counsel for a first appeal as of right, the Fourteenth Amendment requires that indigent appellants be placed on a substantially equal footing through the appointment of counsel at the state’s expense. See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 (1988) (referring to “principle of substantial equality”). See also Ross, 417 U.S. at 611 (noting that right to appellate counsel “is more profitably considered under an equal protection analysis”). In Anders, the U.S. Supreme Court made its initial effort to ensure criminal appellants with paid counsel and those with 3 government-appointed counsel were on equivalent footing. Florida’s implementation of Anders began faithfully enough but quickly departed from what Anders actually required. Tracing the development of Anders in Florida reveals precisely when and how Florida’s procedure exceeded its federal constitutional obligations. A. The constitutional mandate: Anders v. California, 386 U.S. 738 (1967) Charlie Anders was convicted of felony marijuana possession in California and sought to appeal his conviction. The California District Court of Appeal appointed counsel to represent him, but after reviewing the record and consulting with Anders, his appointed attorney concluded the appeal had no merit and told the court so by letter—a bare statement of no merit—while noting that Anders wished to file his own brief. Anders’s request for substitute counsel was denied, he filed a pro se brief, the State responded, and the court of appeal affirmed his conviction after conducting its own examination of the record. Six years later, Anders sought habeas corpus relief arguing he had been deprived of counsel on appeal. When the California courts denied him relief, the U.S. Supreme Court granted certiorari. Anders, 386 U.S. at 739–41. The U.S. Supreme Court reversed, holding that California’s procedure violated the Fourteenth Amendment’s requirements of equal protection as it discriminated against indigent defendants. Writing for the majority, Justice Clark concluded that counsel’s bare no-merit letter was constitutionally deficient because it left counsel functioning as an amicus curiae—a neutral friend of the court—rather than as an active advocate for his client. 2 The majority grounded its holding in the Griffin/Douglas line of cases, 2 It is worth noting that it is the absence of adequate representation by counsel that causes the constitutional infirmity, not the lack of a reviewing court’s independent examination of the record. Indeed, the state appellate court in Anders conducted its own independent review of the record and the U.S. Supreme Court nonetheless found a constitutional violation. An appellant has no constitutional right, federally or in Florida, to counsel-like assistance from a court. 4 which had established the principle that an indigent defendant on a first appeal of right must receive, as nearly as practicable, the same advocacy that a defendant with retained counsel would receive. A no-merit letter, the Court said, gave the appellate court only a cold record to examine, provided the defendant no meaningful assistance, and denied him the substantial equality the Fourteenth Amendment demanded. Anders, 386 U.S. at 741– 44. To cure this deficiency, the Court set forth a specific procedure. When appointed counsel concludes after conscientious examination that an appeal is wholly frivolous, counsel must file a brief, not a letter, referring to anything in the record that might arguably support the appeal, and must furnish a copy to the defendant with time to raise any points of his own choosing. The court, not counsel, then examines the proceedings and decides whether the appeal is wholly frivolous. If the court finds the appeal to be frivolous, it may permit withdrawal and affirm or dismiss. If any legal point is arguable on the merits, the court must appoint counsel to argue the appeal before rendering any decision. Id. at 744–45. It is the reviewing court’s role in this process that has caused the most controversy. The Anders Court clearly imposed a duty on the reviewing court to examine “all of the proceedings.” Id. at 744. The determination the reviewing court is to make, however, is whether “the case is wholly frivolous.” Id. The Florida Supreme Court, as we shall see below, subtly changed that directive from reviewing the record to confirm frivolity to searching the record for error. B. Florida’s initial response: State v. Wooden, 246 So. 2d 755 (Fla. 1971) In what appears to be the first time the Florida Supreme Court explicitly imposed 3 the requirements of Anders, the court in 3 The court in Baggett v. Wainwright, 229 So. 2d 239, 242 (Fla. 1969), discussed Anders, but did not expressly overrule precedent to impose the obligations in Florida. 5 State v. Wooden expressly receded from prior precedent, specifically Frizzell v. State, 238 So. 2d 67 (Fla. 1970), which had advised that court-appointed counsel need not appeal a case counsel determines has no merit. The Court held that Anders had rendered that position constitutionally untenable, and that appointed counsel cannot simply refuse to appeal. At a minimum, counsel must advise the court of counsel’s conclusion that the appeal is frivolous, file a brief referring to anything in the record that might arguably support the appeal, furnish a copy to the defendant, and allow the court to make its own independent determination of whether the appeal is wholly frivolous. Wooden, 246 So. 2d at 757–58. From that point forward, the Anders minimum requirements operated as binding constitutional obligations on appointed appellate counsel in Florida. C. Florida expands the mandate: State v. Davis, 290 So. 2d 30 (Fla. 1974) Following Wooden’s incorporation of the Anders minimum requirements as obligations on appointed counsel, the Florida Supreme Court’s opinion in State v. Davis extended the Anders doctrine further. For the first time, it imposed an affirmative duty on the district courts of appeal themselves to identify error. Id. at 33 (“It is still the appellate court’s duty to review the record, sua sponte, to determine whether or not, in its opinion there has been error committed.”). In commanding this subtle expansion of Anders, the court placed the district courts of appeal in a role that sits in tension with fundamental appellate principles and jurisdictional requirements under the Florida Constitution. Notably, the decision was four to three, but the minority did not issue a written dissent. Davis was convicted of robbery in Hillsborough County and sentenced to ten years. His appointed public defender filed an Anders brief concluding there was no arguable support for the appeal. Despite that concession, the Second District Court of Appeal independently reviewed the record, identified a significant Williams 4 rule violation—the State had introduced evidence of a 4 Williams v. State, 110 So. 2d 654 (Fla. 1959). 6 separate robbery that had no relevant bearing on the charged offense—and reversed and remanded for a new trial. The State petitioned for certiorari to the Florida Supreme Court, arguing the Second District had improperly considered an issue not argued in the Anders brief, in conflict with Florida’s well-established rule that unargued assignments of error are deemed abandoned. Davis, 290 So. 2d at 30–33. The Florida Supreme Court affirmed the Second District and used the occasion to establish two principles of lasting importance to Florida Anders practice. First, it held that when an Anders brief is filed, Florida’s general “not argued equals abandoned” rule of appellate practice must yield to the federal constitutional mandate of Anders. Davis, 290 So. 2d at 32–33. The Court read Anders as placing an affirmative duty on the appellate court to review the record sua sponte, not merely to evaluate what counsel identified, but to conduct its own full examination of the proceedings to determine whether any error occurred. Second, and critically, the Court expressly receded from all prior Florida decisions— including Tracey v. State, 130 So. 2d 605 (Fla. 1961) and Redditt v. State, 84 So. 2d 317 (Fla. 1955), and every other case embodying the abandonment rule—to the extent they conflicted with the Anders mandate, but only in the limited context of Anders briefs filed by state-appointed counsel for indigent defendants. Davis, 290 So. 2d at 33. The tension created by Davis is significant. By requiring appellate courts to search the record sua sponte for unraised errors, the Court placed district courts of appeal in the role of advocate for one party. This function is at odds with the judicial neutrality demanded by the Florida Code of Judicial Conduct and foundational principles of judicial comportment. State v. Steele, 348 So. 2d 398, 401 (Fla. 3d DCA 1977) (“It is the established law of this State that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.”) (emphasis 7 added). Further, the process created tension with the constitutional requirement under article V of the Florida Constitution that judicial power be invoked by an argued controversy between adverse parties. See Terry v. State, 421 So. 3d 872, 873 (Fla. 2d DCA 2025) (Moe, J., concurring) (“Simply looking at the dates, one wonders how the text of article V, section 4 could have been originally understood in the 1950s to grant district courts of appeal a form of judicial power that does not seem to have been acknowledged in Florida until 1991 when In re Anders Briefs was decided.”). Ultimately, the Florida Supreme Court understood Anders as something more than an evaluative review of the record to determine frivolity. The Davis Court read Anders as imposing an independent investigative obligation on the reviewing court to seek error. The distinction is not semantic. Review and search may traverse the same pages, but they differ in object and in beneficiary. A frivolity review audits counsel’s advocacy, while a sua sponte error search performs it—for one party. The constitutional right at stake has always been the right to counsel, not the right to a court acting as counsel. Davis conflated the two, assigning Florida’s district courts of appeal the advocate’s function while borrowing the vocabulary of the auditor’s. 5 At the time, it was a plausible reading of Anders. However, subsequent federal caselaw shows it was an unnecessary disruption to the sovereign structure of Florida law. D. Florida entrenches the expansion: State v. Causey, 503 So. 2d 321 (Fla. 1987) Thirteen years later, in State v. Causey, the Florida Supreme Court built directly on the foundation laid in Wooden and Davis. It used the occasion of a certified question from the First District 5 As one member of this court has observed, Anders, properly understood, only “requires the appellate court to review the record to determine that it agrees with counsel’s assessment that an appeal would be wholly frivolous.” Rosier v. State, 276 So. 3d 403, 414–15 (Fla. 1st DCA 2019) (en banc) (Winokur, J., concurring). 8 Court of Appeal to consolidate and expand Florida’s requirements for appellate court review of Anders cases. The core holding of Davis—that an appellate court receiving an Anders brief has an affirmative duty to review the record for error—was expressly reaffirmed in Causey. The Florida Supreme Court reiterated that Anders mandated independent judicial review, and that this duty could not be satisfied by a cursory examination limited only to errors counsel had already flagged. In doing so, Causey expressly disapproved Stokes v. State, 485 So. 2d 875 (Fla. 1st DCA 1986), which had held that Anders required no more than review of errors counsel or the appellant had already identified. That position, the Court held, was irreconcilable with Anders. Causey, 503 So. 2d at 322–23. On the scope of required review, Causey struck a purported middle position. The Court declined to read Davis and Anders as mandating a fine-tooth-comb examination designed to uncover the most remote or unlikely error. But it established a firm floor: at minimum, the appellate court must examine the record to the extent necessary to discover any errors apparent on the face of the record. Going further, the Court adopted Judge Barfield’s dissenting position in Stokes as the better policy—that the appellate court should review the entire record in every Anders case, whether or not the defendant files a pro se brief. Causey, 503 So. 2d at 322–23. The Court stated, “While courts should not assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.” Id. 6 Causey then added a procedural requirement that Davis had not addressed: once the court’s independent review identifies any legal point arguable on the merits, it must, before deciding that 6 The admonition refutes itself. A court cannot ensure that reversible error is not “ignored” without searching for it, and a court cannot search for error on a party’s behalf without assuming the role the same sentence forbids. Causey prohibited the role in one clause and commanded the function in the next. The dilemma dissolves only under the conception Causey declined to adopt: the court as auditor of counsel’s work, not performer of it. 9 issue, afford both the appellant and the State the opportunity to submit briefs on the court-identified issue. The Court read Anders’s directive to “afford the indigent the assistance of counsel to argue the appeal” as requiring genuine adversarial briefing from both sides, not merely appointment of counsel as a formality. The First District’s reversal of Causey’s conviction without ordering any briefing was therefore itself error, and the Florida Supreme Court quashed it and remanded. Causey, 503 So. 2d at 323. In sum, Causey consolidated the Davis requirements into three distinct duties that Florida district courts of appeal must perform in every Anders case: first, conduct a meaningful independent review of the entire record, going beyond what counsel identified; second, identify any errors apparent on the face of that record regardless of whether any party raised them; and third, if any arguable issue is found, order briefing from both parties before rendering a decision on that issue. These three duties, taken together, became the operational definition of Florida’s Anders review obligation and formed the direct foundation for what was later codified in Fla. R. App. P. 9.140(g)(2). E. Retreating from strict adherence to Anders: McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988) At the time the Florida Supreme Court was entrenching its understanding of Anders, the U.S. Supreme Court was gradually going in the opposite direction—pulling back from any strict obligations placed on reviewing courts in the several states and clarifying the role of government-appointed counsel. McCoy was convicted of abduction and sexual assault in Wisconsin and sentenced to twelve years. His appointed appellate counsel studied the case, concluded the appeal was wholly frivolous, and gave McCoy three options: dismiss the appeal voluntarily, proceed pro se, or allow counsel to file a brief presenting the strongest available arguments while also advising the court of counsel’s conclusion that the appeal was frivolous. Id. at 431–32. McCoy chose the third option. Counsel then filed what the Court described as a “schizophrenic” brief. The brief simultaneously advanced four arguments for reversal and declared 10 those same arguments wholly without merit, while seeking leave to withdraw. Id. at 432. Critically, the brief did not comply with Wisconsin’s Rule 809.32(1), which required an Anders brief to include not only references to anything in the record that might arguably support the appeal, as Anders mandated, but also a discussion of why those issues lacked merit. McCoy, 486 U.S. at 430–31. The Wisconsin court struck the brief and ordered a conforming one. Counsel refused, challenged the rule’s constitutionality, and the Wisconsin Supreme Court upheld it. Id. at 432–33. The U.S. Supreme Court affirmed. In McCoy, the U.S. Supreme Court clarified several foundational principles of the Anders doctrine that had remained somewhat uncertain in the two decades since Anders was decided. Most importantly, it articulated the clearest statement yet of what the Anders brief is actually for. The brief, the Court explained, is not a substitute for an advocate’s merits brief; it is a device designed to serve two specific functions: first, to assure the appellate court that counsel has conducted a diligent and thorough review of the record; and second, to assist the court in making the critical determination of whether the appeal is truly so frivolous that counsel should be permitted to withdraw. McCoy, 486 U.S. at 438–39. The brief gives the indigent defendant what a non- indigent defendant can purchase—a thorough record review and identification of any arguable issues—and nothing more. Id. at 439. The Court also used McCoy to define with precision the standard of diligence required of appointed counsel before filing an Anders brief. Every advocate, whether retained or appointed, must master the trial record, thoroughly research the law, and exercise judgment in identifying arguments that might be advanced on appeal, resolving all doubts and ambiguous legal questions in the client’s favor. McCoy, 486 U.S. at 438, 444. Only after that full evaluation leads counsel to conclude the appeal is wholly frivolous—meaning it lacks any basis in law or fact—is withdrawal justified. Id. at 438–39 n.10. This, the Court said, is “the central teaching of Anders.” McCoy, 486 U.S. at 439. On the constitutionality of Wisconsin’s discussion requirement, the Court held it was entirely consistent with 11 Anders. Requiring counsel to explain why the identified issues lack merit simply takes the Anders requirement one step further. It gives the court additional assurance that counsel was diligent, may forestall some withdrawal motions altogether by forcing counsel to confront weaknesses in their frivolousness conclusion, and helps the court evaluate the soundness of counsel’s judgment. McCoy, 486 U.S. at 442. It does not put counsel in the role of amicus curiae or adversary, does not deny effective assistance of counsel, and does not implicate the Sixth or Fourteenth Amendments any more than the withdrawal motion Anders already permitted. Id. at 443. Once the court is satisfied that counsel was diligent and the appeal is frivolous, federal constitutional concerns are fully satisfied and the case may be disposed of under state law. Id. at 444. If the court instead finds nonfrivolous issues, it must appoint counsel and order a full merits brief before deciding anything. Id. F. The assistance of counsel, not the court: Penson v. Ohio, 488 U.S. 75 (1988) Penson v. Ohio is perhaps the starkest illustration of the reason for the Anders process. As the historical overview so far makes clear, the constitutional right at issue is the representation by counsel on appeal. The constitutional infirmity flows from counsel’s actions, not from the court’s review of counsel’s actions. As both Anders and Penson demonstrate, even if a reviewing court does its own review, a violation still occurs because counsel has not performed adequately. Thus, the foundational requirement of the Anders process is that counsel provide the reviewing court with a basis from which to conduct its frivolity review. When appointed counsel fails to provide the reviewing court with anything of substance, the process fails to fulfill its purpose. Penson was convicted of several serious crimes in Ohio and sentenced to eighteen to twenty-eight years. His appointed appellate counsel filed a document captioned “Certification of Meritless Appeal and Motion”—a bare, conclusory statement reciting that counsel had reviewed the record, found no reversible error, and would not file a brief, accompanied by a request to withdraw. Id. at 77–78. The Ohio Court of Appeals granted the motion, gave Penson thirty days to file a pro se brief, and then 12 conducted its own independent record review. Id. at 78. The court found the certification “highly questionable,” identified “several arguable claims,” found actual plain error on one count, and reversed that conviction, while simultaneously concluding that Penson had “suffered no prejudice” from counsel’s abandonment because the court had reviewed the record itself and had the benefit of his codefendants’ counsel’s briefs. Id. at 79. The U.S. Supreme Court reversed, identifying three distinct constitutional errors. First, the withdrawal motion should never have been granted because counsel’s certification was nothing more than the bare no- merit statement Anders had condemned. The document referred to nothing in the record that might arguably support the appeal and gave the court no basis to evaluate whether counsel had actually conducted a diligent search. Id. at 81–82. Second, the court erred in granting withdrawal before conducting its own independent record examination to determine whether counsel’s frivolousness conclusion was sound, a precondition Anders and McCoy had both required. Id. at 82–83. Third, and most fundamentally, once the court determined that the record supported several arguable claims, it was constitutionally required to appoint new counsel before deciding those issues. Id. at 83–84. At that point the Anders exception to the Douglas right to counsel ceased to exist. There was no longer any basis for proceeding without representation. The court’s decision to resolve those issues itself, without an advocate for Penson, deprived him of the constitutional right Douglas guaranteed. The Court emphatically rejected Ohio’s argument that the error was harmless or that Penson suffered no Strickland 7 prejudice. Penson, 488 U.S. at 85–88. Where a defendant is left entirely without counsel at a critical stage of appellate proceedings, prejudice is legally presumed. The harmless error analysis has no application, and the court’s own review of the record is no substitute for the single-minded advocacy to which every criminal appellant is constitutionally entitled. Id. at 88. Importantly for present purposes, Penson also confirmed what 7 Strickland v. Washington, 466 U.S. 668 (1984). 13 McCoy had described as the court’s evaluative role: the Anders brief “assists the court” in determining whether counsel was diligent and whether the appeal is truly frivolous. Id. at 81–82. As the Penson Court noted, “Counsel’s failure to file such a brief left the Ohio court without an adequate basis for determining that he had performed his duty carefully to search the case for arguable error and also deprived the court of the assistance of an advocate in its own review of the cold record on appeal.” Id. at 82. When counsel provides no such tools, as in Penson, the entire prophylactic framework collapses. G. Florida adheres to its expansive reading of Anders: In re Anders Briefs, 581 So. 2d 149 (Fla. 1991) In re Anders Briefs arose from three consolidated cases, each involving indigent defendants whose appointed counsel filed Anders briefs conceding no reversible error in the conviction or plea proceedings but identifying minor sentencing issues such as improperly imposed costs or guideline departure errors. In each case, the State moved to strike the Anders portion of the brief and to preclude the defendant from filing a pro se brief, contending that once counsel identifies any arguable issue the Anders procedure is unavailable entirely. The First District rejected the State’s position, allowed the defendants to proceed under Anders, and certified a question of great public importance to the Florida Supreme Court. In re Anders Briefs, 581 So. 2d at 150–52. The Court used the occasion to do two things. First, it consolidated and restated the full Anders procedural framework as it stood in Florida after Davis and Causey: counsel must master the record, thoroughly research the law, and conclude the appeal is wholly frivolous before moving to withdraw; the motion must be accompanied by a brief referring to every arguable legal point; the indigent litigant must be given the opportunity to file a pro se brief; and the appellate court must conduct a full and independent review of the entire face of the record in search of arguable issues even if the indigent criminal appellant files nothing. In re Anders Briefs, 581 So. 2d at 150–51. Second, the Court drew a line that Anders itself had never addressed—distinguishing between minor sentencing issues and 14 substantial ones for purposes of determining when the Anders procedure remains available. The Court held that counsel may raise minor sentencing errors such as improperly imposed costs in an Anders brief without forfeiting the defendant’s right to Anders review, including the right to file a pro se brief and the court’s independent record examination. Id. at 152. However, where counsel raises substantial sentencing errors of any kind, the Anders procedure is inappropriate. Those issues are sufficiently meritorious to require full adversarial presentation with the assistance of counsel, meaning a standard merits brief must be filed instead. Despite the U.S. Supreme Court’s then-recent reaffirmation in McCoy that reviewing courts are to make a frivolity determination, and appointed counsel are to search for arguable error, the Florida Supreme Court continued to insist that district courts of appeal take on the role of counsel. H. The Anders procedure is one option among many: Smith v. Robbins, 528 U.S. 259 (2000) Robbins was convicted of second-degree murder and grand theft in California. His appointed appellate counsel concluded the appeal was frivolous and filed a brief complying with California’s Wende 8 procedure. This was a post-Anders procedure under which counsel summarizes the procedural and factual history of the case with record citations, attests to having reviewed the record and informed the client, and requests that the court independently examine the record for arguable issues, without explicitly stating the appeal is frivolous or moving to withdraw. The California Court of Appeal, after its own review, affirmed. Robbins sought federal habeas relief, arguing his counsel’s Wende brief failed to comply with Anders because it did not refer to anything in the record that might arguably support the appeal. Both the federal district court and the Ninth Circuit Court of Appeals agreed, treating the Anders procedure as the exclusive constitutionally permissible method for handling frivolous indigent appeals. The Supreme Court reversed. 8 People v. Wende, 25 Cal. 3d 436, 600 P.2d 1071 (1979). 15  The Court’s most significant contribution in Smith was its authoritative resolution of a question left open by Anders, McCoy, and Penson: whether the procedure described in the final section of Anders was constitutionally mandatory or merely one acceptable method among others. The Court held unambiguously that Anders “is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith, 528 U.S. at 276. The procedure described in Anders was characterized as a “prophylactic framework,” id. at 273 (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)), not an independent constitutional command. States are free to craft different procedures, so long as those procedures afford indigent defendants adequate and effective appellate review—meaning the procedure must reasonably ensure that an indigent’s appeal is resolved in a way related to its merit. Id. at 276–77. Another significant contribution of Smith was its implicit approval of a procedure under which the reviewing court examines only the issues counsel identified as potentially arguable. As stated in its discussion of McCoy, “[I]t appears that in the McCoy scheme counsel discussed—and the appellate court reviewed—only the parts of the record cited by counsel in support of the ‘arguable’ issues he raised.” Id. at 283. Smith’s approving description of the McCoy scheme strongly suggests that mere review of the issues raised by counsel through the McCoy procedure affords constitutionally adequate review. By contrast, the Florida Supreme Court’s reading of Anders to require a sua sponte, independent review of the entire record 9 was—and remains— 9 While one may contend that Rule 9.140(g)(2)(A) requires review only of the “face of the record,” no authority defines where that face begins and ends. Causey fixed a floor of “errors apparent on the face of the record,” then adopted review of “the entire record” in the next paragraph. 503 So. 2d at 322–23. In re Anders Briefs directs “a full and independent review of the record to discover any arguable issues apparent on the face of the record.” 581 So. 2d at 151. There, the face limits the findings, not the search. As a result of this ambiguity, each judge affords the record whatever review he or she deems fit. 16 beyond what the U.S. Supreme Court deems necessary to uphold an indigent defendant’s rights. The Court validated California’s Wende procedure as constitutionally adequate, finding it superior to procedures previously condemned and at least comparable to those previously approved. It also noted, candidly, that Anders itself had faced “consistent and severe criticism,” including the tension between requiring counsel to identify arguable issues while simultaneously declaring the appeal wholly frivolous, and the ethical conflict inherent in asking counsel to act against the client’s interests. Id. at 281–82. See also Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection Is More Equal Than Others’, 23 Fla. St. U. L. Rev. 625 (1996). Wende, by not requiring counsel to explicitly characterize the appeal as frivolous or identify specific arguable issues, represented California’s good-faith effort to mitigate those problems. Smith, 528 U.S. at 281. _____________________________ Smith crystallized a significant and widening divergence between how the U.S. Supreme Court has understood the Anders doctrine over time and how the Florida Supreme Court has historically treated it. The U.S. Supreme Court’s trajectory across Anders (1967), McCoy (1988), Penson (1988), and Smith (2000) reflects a court that has increasingly pulled back from treating the Anders procedure as a rigid constitutional mandate. Anders set out a procedure that was not central to its holding. Smith, 528 U.S. at 276 (“[W]e hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.”). McCoy validated a state variation that went beyond Anders in some respects while arguably providing less effective advocacy in others. Penson reaffirmed the role of appointed counsel (search for error) and the role of the reviewing court (frivolity review). And Smith drew the logical conclusion from all of this: the Anders procedure is a prophylactic suggestion, not a constitutional straitjacket, and states have wide latitude to craft superior alternatives. The Court explicitly recognized the federalism principle that states should serve as “laboratories” for crafting solutions to difficult policy problems. Smith, 528 U.S. at 17 275–76. Most importantly, the Court never specifically required a reviewing court to seek error on behalf of an appellant. This was confirmed in Smith. Florida, by contrast, has moved precisely in the opposite direction. Rather than recognizing the flexibility Smith confirmed, the Florida Supreme Court’s decisions in Davis (1974), Causey (1987), and In re Anders Briefs (1991) progressively expanded and rigidified the Anders procedure—adding the sua sponte record review requirement, mandating adversarial briefing on court- identified issues, and codifying the entire framework in Rule 9.140(g)(2). Florida has demanded of its district courts of appeal more than Anders requires and more than Smith confirmed the U.S. Constitution compels, all to the detriment of faithful adherence to our own Constitution. 10 The Florida Supreme Court has never revisited 11 its Anders jurisprudence in light of Smith, leaving Florida with one of the 10 The Florida Supreme Court acknowledged in 2003 that it had not reevaluated its Anders procedure in light of Smith. N.S.H. v. Florida Dep’t of Children & Family Servs., 843 So. 2d 898, 901 (Fla. 2003). It has not done so in the twenty-three years since that acknowledgment. Justice Lewis, who would have gone the other way and extended Anders-type protections to termination proceedings, nonetheless allowed that the procedure itself was ripe for reconsideration: “If it is the Anders process itself that should be reconsidered, then so be it, and I would agree.” Id. at 908 (Lewis, J., concurring in result only). 11 By this, I mean the court has not revisited Anders in the criminal context in its jurisprudence. Remarkably, the Florida Supreme Court imposed the Anders framework on counsel assigned to cases involving involuntary civil commitments under the Baker Act. Pullen v. State, 802 So. 2d 1113 (Fla. 2001). In a partial dissent to the application of the Anders framework to Baker Act proceedings, Justice Pariente stated, “Indeed, I have substantial doubts about the necessity of our current Anders procedure in the criminal context. I have never understood the logic of requiring appellate courts to provide a heightened review for those appeals that are the least meritorious by placing on the 18 most expansive and constitutionally unnecessary