Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________ NO. 1D18-5253 _____________________ RAYMOND LAMAR DAVIS, Appellant, v. STATE OF FLORIDA, Appellee. ____________________________ On appeal from the Circuit Court for Duval County. A.C. Soud, Senior Judge. January 4, 2021 OPINION ON MOTION FOR LEAVE TO FILE AMENDED BRIEF PER CURIAM. DENIED. NORDBY and LONG, JJ., concur; and MAKAR, J. concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., concurring in denial of motion to file amended initial brief. After briefing and issuance of opinions on the merits in this case, appellate counsel for Raymond L. Davis now seeks leave to file an amended initial brief to raise an issue that was preserved and ruled upon in the trial court but not specifically included in Davis’s initial brief. Although Florida appellate courts have the authority to grant the relief sought in the interests of justice, see Rule 9.040(d), Florida Rules of Appellate Procedure (2020), and doing so would not endanger the dispassionate role that courts play in our judicial system, the decision to deny relief in this case is appropriate and does not preclude Davis from seeking relief in a post-conviction proceeding. In his initial brief, Davis asserted that the successor trial judge erred in denying his motions for continuance and mistrial, which were based on prejudicial comments and rulings the initial trial judge had made before recusing himself. As recounted in part of my concurring opinion: At the hearing [on the motion], the defense did not clearly explain the basis for why the successor judge should reevaluate the prior rulings (the trial judge was not made fully aware of the nature or specifics of the prejudicial comments) and the trial judge denied the motion without prejudice to it being raised at the close of trial. The defense also sought a new trial based on McCloud v. State, 150 So. 3d 822, 823 (Fla. 1st DCA 2014), which held that “a successor judge, who was not present at trial, could not competently assess the weight of the evidence as required to resolve Appellant’s motion for new trial.” McCloud was discussed in detail at the 2 hearing, and would appear to have relevance, but has not formed the basis for relief on appeal. 45 Fla. L. Weekly D1562 (Fla. 1st DCA June 29, 2020) (Makar, J., concurring). The gist of Davis’s argument at the hearing focused primarily on the refusal of the trial judge to grant a continuance, but the discussion of McCloud was woven in as supporting grounds for the relief sought (a new trial) arising from the assignment of a successor judge; the McCloud argument was also made (and thereby preserved) and denied, but no independent issue was presented in the initial brief on appeal. In his motion to file an amended brief, Davis seeks to assert an independent ground for reversal based on McCloud, arguing that doing so is necessary for “adequate representation in this direct appeal.” As mentioned, the issue was raised and ruled upon in the trial court. The State vigorously opposes the filing of an amended brief, cautioning our panel that by granting relief we would be departing from our “dispassionate role” as a “passive instrument[] of government” by becoming “stand-by counsel” who “sally forth each day looking for wrongs to right.” It urges that the sole remedy for appellate counsel’s failure to assert the McCloud issue initially is a habeas petition alleging the ineffectiveness of appellate counsel. To begin, the notion that appellate courts cannot grant the relief sought, or in doing so would be exceeding their proper role, is mistaken. The rules of appellate procedure specifically recognize the judicial authority to allow amendments of the type sought: Amendment. At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties. Fla. R. App. P. 9.040(d) (2020). As written, the Rule allows amendment of “any part of the proceeding” at “any time” so as to dispose of the merits of an appeal in furtherance of the “interests 3 of justice.” By its plain language, an appellate court may allow the filing of an amended initial brief, even after an opinion on the merits has issued, if doing so will further the interests of justice. Appellate courts—like the trial courts—exist to provide a means of resolving public disputes in a manner by which the citizenry is assured that justice is dispensed in a fair, thorough, and even-handed manner. They sometimes explain in their written opinions how a case might be resolved differently, or a remedy not sought implemented, even allowing for an amended appellate filing after issuance of a written opinion on the merits. Indeed, our supreme court’s handling of a 2020 judicial appointment is a recent example, and one that relied on Rule 9.040(d). In that case, the supreme court initially issued a written opinion denying the remedy sought by the petitioner, explaining that “the only legally appropriate and available remedy” was one that was not sought. See Thompson v. DeSantis, 301 So. 3d 180, 187 (Fla. 2020). Twelve days later, the supreme court allowed the petitioner to file an amended petition based on Rule 9.040(d) seeking “the legally appropriate and available remedy.” Thompson v. DeSantis, No. SC20-985, 2020 WL 5362111, at *1 (Fla. Sept. 8, 2020) (recognizing that “[w]hat is new is Thompson’s requested relief”). In allowing amendment to the petition, the court stated its purpose was to allow the court “to dispose of [petitioner’s] claims on the merits.” Id. at *2. Three days later, the court issued another written opinion, this one granting the amended petition and imposing the “legally appropriate and available remedy” identified in its initial written opinion. Thompson v. DeSantis, No. SC20-985, 2020 WL 5494603, at *1 (Fla. Sept. 11, 2020). In doing so, it is doubtful that our supreme court believed it was departing from its “dispassionate role” as a “passive instrument[] of government” by becoming “stand-by counsel” for the petitioner. Perhaps DeSantis should be put aside as akin to a judicial equivalent of Bush v. Gore, 531 U.S. 98 (2000), and limited to its circumstances; or because it was an original proceeding. But that would ignore the appellate rule, 9.040(d), upon which the supreme court relied, which states the principle that the judicial power extends to amendment of any part of an appellate proceeding at any time in the interests of justice so that an appeal can be 4 disposed of “on their merits,” an admonition that extends to criminal appeals, such as this one. Whether to grant relief and allow an amended initial brief after a merits opinion has issued, however, is a discretionary act infused with consideration of whether the interests of justice would be furthered and the impact on judicial management and efficiency. Justice doesn’t spontaneously happen; it requires the effective use of scarce judicial resources in administering a public system of resolving disputes and upholding legal principles. Due to limited resources, the demand for justice likely outstrips its supply. For this reason, liberality in amendment must narrow and be limited as a case progresses to finality because devoting judicial resources to one case necessarily makes those resources unavailable for others; plus, rules like 9.040(d) do not exist to reward a lack of diligence or a failure to comply with other rules such as those regarding the timeliness and content of appellate briefs. The question of what standard to apply in deciding whether to allow amendment in this case is unclear but is informed, in part, by what errors an appellate court may correct on its own; if a court can independently correct certain types of errors it stands to reason that it can correct similar errors brought to its attention after briefing and a merits opinion. In criminal cases, where the constitutionally protected liberty interest of the defendant is at its apex, appellate courts have historically had the inherent power to not only correct prejudicial errors brought to their attention by the litigants, but also to correct fundamental errors that were not. This remedial power has a deep lineage in the federal and state judicial systems. In federal courts, the “plain error” doctrine, which traces back to the late 1890s, reflects the judicial power to correct errors “absolutely vital” to a defendant’s case. See Wiborg v. United States, 163 U.S. 632, 658–59 (1896) (“And, although this question was not properly raised, yet if a plain error was committed in a matter so absolutely vital to defendants, we feel ourselves at liberty to correct it. . . . [W]e may properly take notice of what we believe to be a plain error, although it was not duly excepted.”); see also United States v. Atkinson, 297 U.S. 157, 160 (1936) (“In 5 exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.”) (emphasis added). Rule 52(b) of the Federal Rules of Criminal Procedure codified this federal judicial power in 1944, restating the long-standing judicial doctrine. See Fed. R. Crim. P. 52(b) (“Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). Likewise, Florida’s appellate courts are empowered to review criminal cases to correct prejudicial errors brought to their attention and to also prevent a gross injustice that appears in the record of an appellate case regardless of whether the prejudicial error was raised and preserved. The latter is a long-standing and inherent judicial power, one the Legislature has codified, 1 and which flows directly from the judicial branch’s “unrenunciable judicial duty” to correct fundamental errors an appellate court has independently discovered. See, e.g., Hendricks v. State, 34 So. 3d 819, 828 (Fla. 1st DCA 2010) (“Despite Appellant’s failure to argue fundamental error, we consider whether the purported error is of a fundamental nature because it is an appellate court’s ‘unrenunciable judicial duty’ to correct fundamental error even if it is not raised.”) (citation omitted). It is impossible to imagine an American judicial system that lacked a process for dispensing justice in criminal cases where a fundamental error is obvious; stated differently, imagine an American judicial system that required appellate courts to ignore prejudicial errors so obvious that public confidence in our courts would be undermined. 1 See § 924.051(3), Fla. Stat. (2020) (“An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.”). 6 Moreover, as a part of the appellate review process, judges, staff attorneys, and law clerks engage in independent legal research—not to act as “stand-by counsel” on behalf of one party or the other—but to assure that the submissions and representations of the parties’ lawyers are accurate; that relevant statutes, cases, and rules have not been overlooked; and that the resolution of legal issues and the disposition of each case is warranted. The Anders 2 process is an example of where appellate courts act as a “stand-by counsel” of sorts to ensure no manifest injustice is overlooked. In addition, appellate courts on a regular basis ask for supplemental briefing on matters beyond what has been presented in the parties’ briefs, sometimes based on the State’s failures or apparent waiver of issues 3 and sometimes on matters the defense may have overlooked. See State v. Causey, 503 So. 2d 321, 323 (Fla. 1987) (applying Anders to “allow both the appellant and the state to submit briefs on issues that the court has found in its independent review to be arguable on the merits”). These supplemental briefs are an accepted and useful part of a judicial process whose purpose is to produce thorough review and just results. All this said, the discretion of an intermediate appellate court in a direct criminal appeal is not unlimited and must necessarily accommodate a significant degree of deference to the matters the appellate lawyers present for our resolution, subject to Anders review and correction of fundamental errors. And amended initial briefs after a merits opinion has issued must be infrequent exceptions, not the rule, lest the appellate process become unmanageable. For this reason, claims of inadequate appellate counsel are handled primarily in collateral proceedings; absent some blatant incompetency or fundamental error on the face of the record, a panel in a direct criminal appeal generally does not 2 Anders v. State, 386 U.S. 738 (1967). 3 See, e.g., Coleman v. State, 45 Fla. L. Weekly D2149 (Fla. 1st DCA Sept. 14, 2020) (State initially conceded that defendant preserved his claim, thereby waiving a preservation argument, but was nonetheless allowed to file a supplemental brief changing its position). 7 provide relief for what might appear to be a potential shortcoming in a criminal defendant’s appellate representation. This does not mean a panel cannot allow supplemental briefings, or even an amended appellate brief if the panel chooses to do so, thereby avoiding the inevitability of an ensuing ineffectiveness of appellate counsel claim. The interests of judicial administration, however, counsel against allowing amended briefs after an initial written decision on the merits has issued, permitting them where the prospects of a fundamental error or a manifest injustice are shown. In other words, the type of error to be corrected via an amended initial brief after a decision is issued must be closely akin to a fundamental error for which the “interests of justice” under Rule 9.040(d) would be best served. Here, Davis does not allege that his counsel’s oversight amounts to a fundamental error or that the failure to raise the McCloud issue, one that is colorable, is unmistakably an appellate misstep that should be corrected now versus in a collateral proceeding in which a fuller factual development can be made. Though a close question, I concur in denying an amended initial brief under the present circumstances. _____________________________ Wayne F. Henderson, St. Augustine, for Appellant. Ashley Moody, Attorney General, and Adam Wilson, Assistant Attorney General, Tallahassee, for Appellee. 8