[*] Judge, Florida Fourth District Court of Appeal. B.A. magna cum laude, 1971, The Colorado College; J.D. with high honors, 1974, University of Florida; LL.M., 1995, University of Virginia. This Article is adapted from a thesis submitted by the author in partial fulfillment of the requirements for the degree of Master of Laws in the Judicial Process at the University of Virginia. Return to text.

[1] 386 U.S. 738, reh'g denied, 388 U.S. 924 (1967). Return to text.

[2] To gather information for this Article, a questionnaire was sent to the chief judges of state intermediate appellate and supreme courts. Responses were received from most courts. The results of the survey are contained in the appendix to this Article. Return to text.

[3] 287 U.S. 45 (1932). Return to text.

[4] Id. Return to text.

[5] See id. at 68. Return to text.

[6] 372 U.S. 335 (1963). Return to text.

[7] Id. Return to text.

[8] Id. at 344-45. Return to text.

[9] See Griffin v. Illinois, 351 U.S. 12 (1956). Return to text.

[10] Id. Return to text.

[11] Id. at 18. Return to text.

[12] Id. at 19. Return to text.

[13] Id. at 17 (citing Chambers v. Florida, 309 U.S. 227, 241 (1940)). Return to text.

[14] Id. at 19. Return to text.

[15] 357 U.S. 214 (1958). Return to text.

[16] Id. Return to text.

[17] Id. at 216. Return to text.

[18] 372 U.S. 477 (1963). Return to text.

[19] Id. Return to text.

[20] Id. at 481-82. Return to text.

[21] Id. at 481. Return to text.

[22] Id. Return to text.

[23] Id. at 482. Return to text.

[24] Lane v. Brown, 372 U.S. 477, 483 (1963). Return to text.

[25] Id. at 485. Return to text.

[26] 417 U.S. 600 (1974). Return to text.

[27] Id. at 607. Return to text.

[28] 372 U.S. 353 (1963). Return to text.

[29] Id. Return to text.

[30] Id. at 354. Return to text.

[31] Id. at 355. Return to text.

[32] Id. Return to text.

[33] Id. at 357-58. Return to text.

[34] Id. at 356. Return to text.

[35] Id. at 355-56. Return to text.

[36] Id. Return to text.

[37] Id. at 357-58. Return to text.

[38] Id. Return to text.

[39] Id. at 356. Return to text.

[40] Id. at 358 (Clark, J., dissenting). Return to text.

[41] 351 U.S. 12 (1956). Return to text.

[42] Douglas, 372 U.S. at 359 (Clark, J., dissenting). Return to text.

[43] Id. (Clark, J., dissenting). Return to text.

[44] Id. at 362 (Harlan, J., dissenting). Contending that the only constitutional basis on which California's procedure could be evaluated was whether it comported with due process, id. at 363, Justice Harlan noted that appellate review was not in itself required by the Fourteenth Amendment. Id. at 365. Thus, Justice Harlan distilled the issue as one of whether the State's rules regarding the appointment of counsel on appeal were arbitrary and unreasonable. Id. As the procedure was like that of the Court's itself in reviewing petitions for discretionary writs, Justice Harlan suggested that the Court did not see itself as being anything other than completely conscientious when reviewing the thousand pro se petitions filed with it each year; he thus rebutted the majority's argument that the California court review was no substitute for appointment of counsel. Id. at 365-66.

While the majority distinguished the procedure in Douglas from the Supreme Court's procedure on the basis that the California procedure was an appeal as of right, Justice Harlan considered that a meaningless distinction and pointed to Lane v. Brown, 372 U.S. 477 (1963), which required the presentation of a transcript on a postconviction proceeding. Id. at 366. Return to text.

[45] Id. Return to text.

[46] 417 U.S. 600 (1974). Return to text.

[47] Id. at 609. Return to text.

[48] Douglas, 372 U.S. at 357-58. Return to text.

[49] Anders v. California, 386 U.S. 738, 739, reh'g denied, 388 U.S. 924 (1967). Return to text.

[50] Id. Return to text.

[51] Id. at 740. Return to text.

[52] Id. Return to text.

[53] Id. Return to text.

[54] Id. Having lost the battle in Douglas, Justice Clark wrote the majority opinion in Anders. Return to text.

[55] See id. at 742. Return to text.

[56] Id. (emphasis added). Return to text.

[57] Id. at 744. Return to text.

[58] Id. at 743. Return to text.

[59] Id. at 744-45. Return to text.

[60] Id. at 746 (Stewart, J., dissenting). Return to text.

[61] Douglas v. California, 372 U.S. 353, 356 (1963). Return to text.

[62] Robert Hermann, Frivolous Criminal Appeals, 47 N.Y.U. L. REV. 701, 705 (1972). Return to text.

[63] See, e.g., Note, The Right to Counsel in "Frivolous" Criminal Appeals: A Reevaluation of the Guarantees of Anders v. California, 67 TEX. L. REV. 181, 188 (1988) [hereinafter Reevaluation]. Return to text.

[64] See, e.g., Hermann, supra note 62, at 705. If counsel is constitutionally required to pursue meritless claims but not frivolous claims, there exists an ethical conflict with the prohibition against pursuing such claims under the Code of Professional Responsibility. See, e.g., Charles Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel Appointed To Pursue a Frivolous Criminal Appeal, 9 CRIM. JUST. J. 45, 51 (1986). A different view is taken in Reevaluation, supra, note 63, at 190-91. The author argues that counsel should not speculate on the likely success of an appeal but must evaluate the record more as an advocate, acknowledging the very low threshold for the determination that an appeal is meritorious under the Anders meaning. Id. Return to text.

[65] 417 U.S. 600 (1974). Return to text.

[66] Id. at 611 (citing McKane v. Durston, 153 U.S. 684 (1984)). Return to text.

[67] See id. at 610-11.

The defendant needs an attorney on appeal not as a shield to protect him against being "haled into court" by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all.
Id. Return to text.

[68] Id. Return to text.

[69] Id. at 612 (citations omitted). Return to text.

[70] Under the Ross analysis, the preparation of an Anders brief by counsel would fulfill the Equal Protection Clause. Cf. id. Return to text.

[71] 463 U.S. 745 (1980). Return to text.

[72] Id. at 751. Return to text.

[73] Id. Return to text.

[74] Id. Return to text.

[75] Anders v. California, 386 U.S. 738, 744, reh'g denied, 388 U.S. 924 (1967). Return to text.

[76] 463 U.S. 745 (1980). Return to text.

[77] 469 U.S. 387 (1985). Return to text.

[78] Id. at 394, 404. Return to text.

[79] Id. at 405. Return to text.

[80] Id. at 404. Return to text.

[81] Id. However, the Court specifically noted that the case did not require it to "decide the appropriate standards for judging claims of ineffective assistance of appellate counsel." Id. at 392. Return to text.

[82] Id. at 405. Return to text.

[83] 486 U.S. 429 (1988). Return to text.

[84] WISC. R. APP. P. 809.32(1) (emphasis added). Return to text.

[85] McCoy, 486 U.S. at 432. Return to text.

[86] Id. Return to text.

[87] Id. at 434 n.6. Return to text.

[88] Id. at 433. Return to text.

[89] Id. Return to text.

[90] Id. at 436. Return to text.

[91] Id. at 437. Return to text.

[92] Id. The Court appears to be working under a misapprehension regarding withdrawal of paid counsel. For instance, in Florida, no counsel, paid or appointed, may withdraw without permission of the court. Moreover, paid counsel would also have to recite some reason for withdrawal. See FLA. R. ADMIN. P. 2.060(i). Return to text.

[93] McCoy, 486 U.S. at 437 (citation omitted). Return to text.

[94] Id. at 438-39. Return to text.

[95] Id. at 438-39 n.10. This comment appears to be in response to criticisms that the Anders opinion attempted to draw an impossible distinction between simply "meritless" and "frivolous" cases. See., e.g., Pengilly, supra note 64; Hermann, supra note 62. Return to text.

[96] McCoy, 486 U.S. at 439. Return to text.

[97] Id. at 439-40 n.13. Return to text.

[98] Id. at 440. Return to text.

[99] Id. at 442. Return to text.

[100] Id. at 444. Return to text.

[101] In State v. Causey, 503 So. 2d 321 (Fla. 1987), decided the year before McCoy, the Florida Supreme Court expressly informed appellate courts that their duty under Anders was to review the record for unraised error. The court specifically rejected the State's contention that the appellate court's only obligation was to assess the merit of the points raised in appointed counsel's Anders brief. Return to text.

[102] 488 U.S. 75 (1988). Return to text.

[103] Id. Return to text.

[104] Id. at 77. Return to text.

[105] Id. at 78. Return to text.

[106] Id. at 79. Return to text.

[107] Id. Return to text.

[108] Id. at 81. Return to text.

[109] Id. Return to text.

[110] Id. at 82. Return to text.

[111] Id. at 83 n.10. Return to text.

[112] Id. at 84. Return to text.

[113] Id. Return to text.

[114] Id. at 85 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Return to text.

[115] Id. at 86. Return to text.

[116] See id. at 89. Return to text.

[117] Id. at 91 (Rehnquist, J., dissenting). Return to text.

[118] Id. at 89 (Rehnquist, J., dissenting). Return to text.

[119] Id. at 91. Return to text.

[120] 287 U.S. 45 (1932). Return to text.

[121] See id. Return to text.

[122] See Smith v. Murray, 477 U.S. 527 (1986). Return to text.

[123] Id. Return to text.

[124] Id. Return to text.

[125] Id. at 529-30. Return to text.

[126] Id. at 530. Return to text.

[127] Id. at 530-31. Return to text.

[128] Id. at 531. Return to text.

[129] Id. at 531-32. Return to text.

[130] Id. at 534. Return to text.

[131] Ross v. Moffitt, 417 U.S. 600 (1974). Return to text.

[132] See generally state court survey responses summarized in appendix. Return to text.

[133] 466 S.W.2d 681 (Mo. 1971). Return to text.

[134] Id. at 683-84 (citations omitted). Return to text.

[135] Id. at 684. Return to text.

[136] Id. Return to text.

[137] McClendon v. People, 481 P.2d 715, 718 (Co. 1971) (en banc). In the opinion, the court set forth the ABA standards that it adopted for pursuing appeals:

The Special Committee of the American Bar Association, in formulating the Standards of Criminal Justice relating to Criminal Appeals and to The Prosecution Function and The Defense Function, gave full recognition to the points raised in Anders v. California, Supra, and at the same time defined the obligations of defense counsel in representing a defendant on appeal when the case is without merit. The Criminal Appeals Standards provide as follows:
3.2 Counsel on appeal (b) Counsel should not seek to withdraw from a case because of his determination that the appeal lacks merit. (i) Counsel should give his client his best professional estimate of the quality of the case and should endeavor to persuade the client to abandon a wholly frivolous appeal, or to eliminate particular contentions that are lacking in any substance. (ii) If the client wishes to proceed, it is better for counsel to present the case, so long as his advocacy does not involve deception or misleading of the court. After preparing and filing a brief, on behalf of the client, counsel may appropriately suggest that the case be submitted on briefs. (c) Unexplained, general requests by appellants for dismissal of their assigned counsel should be viewed with disfavor. Id. (citing ABA STANDARDS, CRIMINAL APPEALS 73-74).
The Standards also provide:

8.3 Counsel on appeal[] (a) Trial counsel, whether retained or appointed by the court, should conduct the appeal if the defendant elects to avail himself of that right unless new counsel is substituted by the defendant or the appropriate court. (b) Appellate counsel should not seek to withdraw from a case solely on the basis of his own determination that the appeal lacks merit. Id. (citing ABA STANDARDS: THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION 293). Return to text.

[138] Dixon v. State, 284 N.E.2d 102 (Ind. Ct. App. 1972), overruled on other grounds, Music v. State, 489 N.E.2d 949 (Ind. 1986); Hendrixson v. State, 316 N.E.2d 451 (Ind. Ct. App. 1974). Return to text.

[139] 568 P.2d 1213 (Idaho 1977). Return to text.

[140] Id. at 1214. Return to text.

[141] Id. Return to text.

[142] Id. Return to text.

[143] Id. Return to text.

[144] Id. at 1215. Return to text.

[145] See State v. Hoisington, 657 P.2d 17 (Idaho 1983); IDAHO R. APP. P. 35. Return to text.

[146] See Hoisington, 657 P.2d at 17; IDAHO R. APP. P. 35. Return to text.

[147] 291 N.W.2d 735 (N.D. 1980). Return to text.

[148] Id. at 737. Return to text.

[149] Id. at 736. Return to text.

[150] Id. Return to text.

[151] Id. Return to text.

[152] Id. at 737. Return to text.

[153] Id. Return to text.

[154] Id. at 738. Return to text.

[155] Id. Return to text.

[156] Id. Return to text.

[157] Id. at 739. Return to text.

[158] Commonwealth v. Moffett, 418 N.E.2d 585 (Mass. 1981). Return to text.

[159] Id. at 590. Return to text.

[160] Id. at 590-91. Return to text.

[161] 360 F.2d 844 (D.C. Cir. 1966). Return to text.

[162] Moffett, 418 N.E.2d at 591 (quoting Johnson, 360 F.2d at 846) (Burger, J., concurring)). Return to text.

[163] Id. at 591-92. Return to text.

[164] See Huguley v. State, 324 S.E.2d 729 (Ga. 1985). Return to text.

[165] Id. The Georgia Court of Appeals adopted Huguley in Fields v. State, 376 S.E.2d 912 (Ga. Ct. App. 1988). Return to text.

[166] Huguley, 324 S.E.2d at 731. Return to text.

[167] Killingsworth v. State, 490 So. 2d 849 (Miss. 1986) (en banc). Return to text.

[168] Id. at 851. Return to text.

[169] Id. Return to text.

[170] Id. Return to text.

[171] Id. Return to text.

[172] Id. at 851-52. Return to text.

[173] See State v. Horine, 669 P.2d 797 (Or. App. 1983). Return to text.

[174] Id. at 801. Return to text.

[175] Id. Return to text.

[176] Id. at 802-03. Return to text.

[177] Id. at 803. Return to text.

[178] Id. (emphasis added). Return to text.

[179] Id. at 803-04. Return to text.

[180] Id. at 804. Return to text.

[181] Id. Return to text.

[182] 417 U.S. 600 (1974). Return to text.

[183] Horine, 669 P.2d at 804. Return to text.

[184] Id. Return to text.

[185] Id. at 805. Return to text.

[186] Id. at 806. Return to text.

[187] Id. Return to text.

[188] 814 P.2d 1069 (Or. 1991). Return to text.

[189] 486 U.S. 429 (1988). Return to text.

[190] 488 U.S. 75 (1988). Return to text.

[191] Balfour, 814 P.2d at 1076. Return to text.

[192] Id. at 1079. Return to text.

[193] Id. Return to text.

[194] Id. at 1080. Return to text.

[195] Id. Return to text.

[196] Id. Return to text.

[197] Id. at 1081. Return to text.

[198] Id. Return to text.

[199] Id. Return to text.

[200] Id. at 1079-80. The holdings of State v. Balfour were incorporated into Rule 5.90, Oregon Rules of Appellate Procedure:

(1) If counsel appointed by the court to represent an indigent defendant in a criminal case on direct appeal has thoroughly reviewed the record and discussed the case with trial counsel and the client, and has determined that there are no meritorious issues on appeal, counsel shall file a brief with two sections:

(a) Section A of the brief shall contain a statement of the case, including a statement of facts, sufficient to apprise the court of the jurisdictional basis for the appeal and shall be signed by counsel.

(b) Section B of the brief shall contain any claim of error requested by the client and shall be signed by the client. Section B shall attempt to state the claim [and any argument in support of the claim] as nearly as practicable in the manner that the client seeks, in proper appellate brief form.

(2) A case in which appellant's brief is prepared and filed under this rule shall be submitted without oral argument, unless otherwise ordered by the court.

OR. R. APP. P. 5.90. Return to text.

[201] Balfour, 814 P.2d at 1081. Return to text.

[202] Chief Judge William L. Richardson, Oregon Court of Appeals, notes: "The reality is that nearly all of the Balfour briefs disclose a lack of any meritorious issues. The briefs, even the supplemental part filed by the defendant individually, follow a format that is almost a rote presentation." Letter from William L. Richardson, Chief Judge, Oregon Court of Appeal, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (Jan. 19, 1995) (on file with author). Nevertheless, based on conferences he has had with various public defender groups, Judge Richardson expresses confidence in their diligence in performing their responsibilities under Balfour. Id. He further reports that of 2,654 total criminal filings in 1994, 504, or 18.9%, were Balfour briefs. Id. Return to text.

[203] State v. Cigic, 639 A.2d 251 (N.H. 1994). In responding to the survey conducted in connection with this Article, the Clerk of the New Hampshire Supreme Court stated that for years the public defender of New Hampshire had a policy of not filing Anders briefs. It was only in 1993 that the appellate defender asked the court whether it would follow Anders or the "Idaho rule." Letter from Howard J. Zibel, Clerk of Court, New Hampshire Supreme Court, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 7, 1994) (on file with author). Return to text.

[204] Cigic, 639 A.2d at 254. Return to text.

[205] Id. Return to text.

[206] HAWAII APPELLATE HANDBOOK 8-6 (1988). Return to text.

[207] Letter from Mary Beck Briscoe, Chief Judge, Kansas Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 1, 1994) (on file with author). Return to text.

[208] Letter from Robert C. Murphy, Chief Judge, Maryland Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 9, 1994) (on file with author). Return to text.

[209] Letter from Judge Herman D. Michels, Presiding Judge for Administration, Superior Court of New Jersey, Appellate Division, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 8, 1994) (on file with author). Return to text.

[210] Survey response from Clerk of the Alaska Court of Appeals to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (Jan. 24, 1995) (on file with author). Return to text.

[211] Letter from William C. Hastings, Chief Justice, Supreme Court of Nebraska, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 3, 1994) (on file with author). Chief Judge Richard D. Sievers of the Nebraska Court of Appeals reports that in the two years since the inception of that court, he recalls only two Anders briefs being filed. He attributes this in part to the attorneys' knowledge that Nebraska applies the plain error doctrine. Thus, attorneys can make arguments and count on the court to address what they miss. Survey response from Richard D. Sievers, Chief Judge, Nebraska Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 3, 1994) (on file with author). Return to text.

[212] Survey response from Jan Hansen, Clerk, Alaska Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (Jan. 24, 1995); Survey response from Daniel Wathen, Judge, Maine Supreme Judicial Court, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 9, 1994); Survey response from Tennessee Court of Criminal Appeals to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 20, 1994) (recalling the filing of only one in the last 15 years); Survey response from Ohio Eleventh District Court of Appeal to Martha C. Warner, Judge, Florida Fourth District Court of Appeal; Survey response from Vermont Supreme Court to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 17, 1994); Survey response from Margaret L. Workman, Justice, West Virginia Supreme Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 9, 1994); Survey response from Wyoming Supreme Court to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 14, 1994); Letter from Chief Judge Paul H. Anderson, Minnesota Court of Appeals, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 15, 1994) (Judge Anderson indicated that Minnesota does not have Anders briefs because of its centralized public defender system: "[A]ll convicted felons are provided counsel for appeal, without involvement of the court in the process of evaluating the merits.") (all foregoing survey responses and letters on file with author). Return to text.

[213] 600 P.2d 1071 (Cal. 1979) (en banc). Return to text.

[214] Id. at 1074. Return to text.

[215] Id. Return to text.

[216] Id. at 1074-75. Return to text.

[217] Id. at 1074. Return to text.

[218] Id. at 1075. Return to text.

[219] Id. Return to text.

[220] Id. at 1077 (Clark, J., dissenting). Return to text.

[221] Id. (Clark, J., dissenting). Wende was decided ten years before Penson v. Ohio, 488 U.S. 75 (1988), which clearly requires the court to raise issues revealed in its review of the record. Return to text.

[222] See survey results summarized in appendix. Return to text.

[223] Rule 4-3(j), Rules of the Arkansas Supreme Court and Court of Appeals, requires that a brief accompanying a request to withdraw on the grounds that the appeal is without merit

shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court.

ARK. R. APP. P. 4-3(j). This type of detail, not required in routine briefs, probably deters the filing of Anders briefs. Return to text.

[224] DEL. SUP. CT. R. 26(c); IOWA R. APP. P. 104; MICH. Ct. R. 7.211(C)(5); R. OKLA. CT. CRIM. APP. 3.6(B); State v. Benjamin, 573 So. 2d 528 (La. Ct. App. 1990), approved in State v. Robinson, 590 So. 2d 1185 (La. 1992) (per curiam); State v. Williams, 406 S.E.2d 357 (S.C. 1991) (order setting forth procedure for processing Anders briefs under the South Carolina appellate court rules); WISC. R. APP. P. 809.32. Return to text.

[225] In Ohio, the first, second, fourth, sixth, and seventh districts all report having local procedures to govern the handling of Anders briefs. See appendix. The rest of the districts responding do not indicate that any formalized procedure has been instituted. The Alabama Court of Criminal Appeals adopted an internal procedure for handling Anders briefs in April 1992. Several Texas appellate courts have internal rules. See, e.g., Order of the Ninth District of Texas at Beaumont (Oct. 28, 1993). Other Texas districts have incorporated procedures in written opinions. See Johnson v. State, 885 S.W.2d 641 (Tex. Ct. App. 1994). The Texas courts that have set forth briefing requirements generally insist that the briefs include an analysis of every pretrial motion and every objection made by the defense and overruled by the court, as well as every objection made by the State and sustained by the court. See, e.g., Order of the Ninth District of Texas, supra. At least one court noted that defense counsel argue that because of the detail required in the brief, it is more expeditious to prepare and file a regular brief. Survey response from Charles Reynold, Chief Justice, Court of Appeals for the Seventh District of Texas, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (Jan. 11, 1995) (on file with author). The local rules of Texas are based on the brief requirements set forth in High v. State, 573 S.W.2d 807, 813 (Tex. Ct. App. 1978). Return to text.

[226] Letter from Marilyn Beuttenmuller, Clerk, Florida Fourth District Court of Appeal, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 10, 1994) (on file with author). Return to text.

[227] Survey response from Florida Fifth District Court of Appeal to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 7, 1994) (on file with author). Return to text.

[228] In Texas, the second, seventh, tenth, eleventh, and fourteenth districts report Anders briefs in 5% or fewer of their criminal cases; the first, eighth, ninth, and thirteenth, between 5-10%; and the sixth and fifth, between 10-15%. On the other hand, Ohio's twelve districts are more closely grouped; they report generally from less than 1% to 5% in Anders filings. Only the second district in Texas reports as great a number as 16% in Anders appeals. Similarly disproportionate, the First Appellate District of Illinois reports that 31% of the filings are Anders cases, while the rest of the Illinois appellate courts report that less than 11% are Anders cases. See appendix. Return to text.

[229] Survey response from South Carolina Supreme Court to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June, 6, 1994) (on file with author). Return to text.

[230] The "assigned" judge in the author's court means the first judge to review the case and write the opinion, if the judges agree to issue one. Return to text.

[231] Minor sentencing errors have been raised and corrected by the court pursuant to Anders. Return to text.

[232] See, e.g., Causey v. State, 484 So. 2d 1263 (Fla. 1st DCA 1986), wherein the court reversed the conviction of a defendant after its independent review of the record in conformance with Anders revealed that the trial court had refused to allow Causey's counsel to impeach the State's main witness on cross-examination. The court certified a question to the supreme court, which then quashed the opinion because the district court had reversed without giving either party an opportunity to brief the issue. Return to text.

[233] See generally appendix. Return to text.

[234] See, e.g., appendix (survey responses from the Texas and Ohio courts of appeal). Return to text.

[235] See, e.g., appendix (survey responses from Louisiana Fourth District Court of Appeal, Nebraska Court of Appeals, North Carolina Court of Appeals, Virginia Court of Appeals). Return to text.

[236] See, e.g., appendix (survey responses from Ohio and Texas courts of appeal). Return to text.

[237] PRACTICE BOOK 952-956 (Conn. 1994). Return to text.

[238] Id. Return to text.

[239] Id. If the presiding judge is the judge who heard the case, then another judge is appointed to review the record. Id. Return to text.

[240] Id. Return to text.

[241] Id. 4053. Return to text.

[242] 357 U.S 214 (1958). Return to text.

[243] Commissioners are lawyers hired by the court to decide motions, screen appeals, and oversee the training of judicial law clerks. WASH. R. APP. CT. ADMIN. 16. Return to text.

[244] Id. 18.3(a)(2). Return to text.

[245] Id. 18.14(a). Return to text.

[246] Id. 18.14(d). Return to text.

[247] "If the arguable points are fairly established in the record, then new counsel is appointed. If the arguable points arise following the filing of the Anders brief, for example [such as from the absence of a transcript of a portion of the proceedings], then counsel is asked to re-brief the matter." Letter from Philip J. Thompson, Chief Judge, State of Washington Court of Appeals, Division III, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (Jan. 11, 1995) (on file with author). Return to text.

[248] WASH. R. APP. CT. ADMIN. 18.14(h). Return to text.

[249] Lynn Pickard, New Mexico Summary Disposition Procedure, PARASCOPE, Spring 1987, at 1. Return to text.

[250] Id. Return to text.

[251] Id. Return to text.

[252] N.M. R. APP. P. 12-208. The docketing statement has similarities to the English notice of appeal. Return to text.

[253] Id. Return to text.

[254] Id. Return to text.

[255] Id. Return to text.

[256] Id. Return to text.

[257] Id. Return to text.

[258] Pickard, supra note 249, at 1. Under this system, although three judges constitute a quorum for an opinion, one judge is assigned to all calendaring decisions. Id. at 2. This position rotates every three months. Along with staff attorneys, this judge makes all initial decisions on the summary calendar. Id. Each case is reviewed by a staff attorney, who makes a recommendation as to whether the case should be placed on a nonsummary calendar or be treated under summary disposition procedure. Id. If summary disposition is recommended, the staff attorney will draft the opinion (calendar notice) for the judge. Id. After memoranda in opposition are filed, the staff attorney again reviews the opinion and suggests changes. Id. If the staff attorney recommends no changes and the calendaring judge agrees, then two other judges are assigned to the case to review and sign the final opinion. Id. at 3. Pickard reports that the summary disposition procedure requires from 10 to 40 hours of judge and staff time to complete per case, as opposed to 100 to 140 hours for nonsummary dispositions. Id. Return to text.

[259] See, e.g., State v. Ibarra, 864 P.2d 302, 303-304 (N.M. Ct. App. 1993), cert. denied, 115 S. Ct. 1116 (1995).

[J]udicial notice of the records of this Court will also show that indigents are allowed access to the transcripts during the summary calendar process in many situations. This happens in judicial districts which routinely duplicate the audio tapes or produce computer-assisted transcripts in sufficient time to allow their use at this stage. When necessary, this Court has requested the tape monitor or court reporter to specifically make such records available during the calendaring process. Such express allowance by this Court usually turns on an allegation of a good-faith inability to recall some matter related to the issues raised on appeal. As a general rule, the only time the Court does not allow access to the transcript is when significant extra time is requested and the sole allegation is that it is necessary to sort through the transcript for unidentified error.

Id. See also State v. Sheldon, 791 P.2d 479, 480 (N.M. Ct. App.), cert. denied, 498 U.S. 969 (1990) ("It has long been recognized by this court that the appellate rules do not allow appellate counsel to pick through the record for possible error."). Return to text.

[260] See, e.g., Ibarra, 864 P.2d at 303. Return to text.

[261] Id. Return to text.

[262] Id. at 305. Return to text.

[263] Id. Return to text.

[264] Id. at 306. Return to text.

[265] CARRINGTON ET AL., JUSTICE ON APPEAL 85 (1976). Return to text.

[266] Id. Return to text.

[267] Id. Return to text.

[268] Id. Return to text.

[269] Id. Return to text.

[270] Id. Return to text.

[271] Id. Return to text.

[272] Id. at 89. Return to text.

[273] Id. at 90. Return to text.

[274] 10 U.S.C. 866(c) (1988). Return to text.

[275] Id.; United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Return to text.

[276] Grostefon, 12 M.J. at 435.

Appellate defense counsel has the obligation to assign all arguable issues, but he is not required to raise issues that, in his professional opinion, are frivolous. But he is, after all, an advocate, and if he errs, it should be on the side of raising the issues. There can be little harm in this practice since the Court of Military Review has the mandatory responsibility to read the entire record and independently arrive at a decision that the findings and sentence are correct in law and fact. Hence raising an issue that counsel does not think is meritorious would, at worst, signal the Court of Military Review to consider the record in light of that issue. If the accused urges an issue which appellate counsel believes would be counter effective to the accused's case, they should so inform the accused and seek to have him withdraw it. If he refuses, they may still ethically list the issue for consideration of the appellate court without further briefing.

Id. (citation omitted). Return to text.

[277] Survey response from William S. Fulton, Jr., Judicial Advisor, U.S. Army Court of Criminal Appeals (formerly named Army Court of Military Review), Court of Military Review, Falls Church, Virginia, to Martha C. Warner, Judge, Florida Fourth District Court of Appeal (June 14, 1994) (on file with author). Return to text.

[278] Circuit Court Criminal Dispositions, Office of the State Courts Administrator (Jan. 12, 1995). This figure comprises all types of dispositions, including dismissals. Therefore, the number of dispositions that might generate a right to appeal would be smaller than the number reported. Return to text.

[279] REPORT ON FILINGS FROM THE FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA (on file with author). Return to text.

[280] In Justice on Appeal, Professors Carrington, Meador, and Rosenberg present a variation on the Court of Military Criminal Appeals procedure. They propose the creation of a nonjudicial Criminal Review Office, which would undertake routine administrative review of all criminal convictions in which no appeal is taken. See CARRINGTON ET AL., supra note 265, at 94-96. It would have the authority to identify errors of substance that should be addressed by the appellate court and would have the authority to certify those issues to the court even though an appeal has not been taken. Id. In order to encourage indigent appellants to refrain from appealing where their appeals lack substantial merit, the authors argue that indigent appellants should be required to undertake the same cost/benefit analysis that the nonindigent appellant makes. Id. That is, the indigent should be required to weigh the likelihood of success on appeal against the expenditure of funds on a transcript and a lawyer to pursue the appeal. Under this system, the indigent would be paid a certain amount of money if the appeal were foregone. However, if he took the money, then no appeal or collateral matter could be pursued at public expense, although the authors would allow the indigent defendant to pursue either the appeal or collateral matters at his own expense. Id. Furthermore, the indigent would know that his case would be reviewed by the Criminal Review Office, which could certify issues to the appellate court if it found that a substantial error had been committed. Id.

It is hard to justify what would be a substantial expense to the government not only to provide what the authors acknowledge would be politically unpopular payments to indigent defendants but also to set up an office of criminal review. In addition, when this suggestion was made in 1976, pro se litigation by criminal defendants was uncommon, whereas today pro se litigants are numerous and persistent. Indeed, they pose, in this author's view, a more significant depletion of appellate court time on issues involving no merit than do Anders litigants. Return to text.

[281] The Florida Supreme Court has determined that where only minor sentencing issues are raised, the Anders review process still applies. In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1987). Failure to follow the habitual offender statute would most likely not be considered a minor issue, except that in the above case, our court had already decided the identical issue against the position of the appellant. In the brief on appeal, the appointed attorney merely asked for our court to certify the question to the supreme court for review. As to the former case, whether restitution was proper may be a minor issue when the appellant has been sentenced to life in prison. Return to text.

[282] State v. Rolax, 702 P.2d 1185, 1189 (Wash. 1985) (quoting Millers Cas. Ins. Co. v. Briggs, 665 P.2d 887, 891 (Wash. 1983)). Similarly, Massachusetts has defined a frivolous appeal as one that "not merely lack[s] merit, but would not have a prayer of a chance." Pires v. Commonwealth, 370 N.E.2d 1365, 1371 (Mass. 1977). Return to text.

[283] Treat v. State ex rel. Mitton, 163 So. 883, 883-84 (Fla. 1935). Return to text.

[284] See MEADOR ET AL., APPELLATE COURTS: STRUCTURE, FUNCTION, PROCESSES & PERSONNEL 791 (1994). Return to text.

[285] Id. Return to text.

[286] Id. Return to text.

[287] "Gain time" is a deduction from a sentence to reward appropriate behavior on the part of the prisoner. See, e.g., FLA. STAT. 944.275 (1995). Return to text.

[288] See McClendon v. People, 481 P.2d 715 (Co. 1971) (en banc). Return to text.

[289] See, e.g., FLA. R. APP. P. 9.210(b)(3). Return to text.

[290] 466 U.S. 668 (1984). Return to text.

[291] 488 U.S. 75, 89 (1988) (Rehnquist, J., dissenting). Return to text.