The First District Court of Appeal has held that a trial court should not appoint postconviction appellate counsel unless it articulates why the appointment is legally required, and that the basis must be apparent from the record. It affirmed.
Parrish Anthony George was convicted in Suwannee County of battery on a law enforcement officer and did not appeal. Months later he filed a document that the circuit court treated as a postconviction motion and dismissed as “conclusory statements and meaningless ramblings[.]” The court nevertheless appointed the Public Defender for the appeal. Appointed counsel then filed a Rule 3.800(b)(2) motion challenging a prior conviction on the scoresheet, which the court never ruled on.
The First District explained that section 924.051(9), Florida Statutes, bars the use of state funds in “appellate or collateral proceedings unless the use is constitutionally or statutorily mandated,” and that section 924.066(3) gives a noncapital postconviction litigant no right to appointed counsel. Under Russo v. Akers, 724 So. 2d 1151 (Fla. 1998), appointment is permissible when the Graham standard is met, but “Russo does not alter the Legislature’s express prohibition on the use of state funds in postconviction proceedings unless statutorily or constitutionally mandated.” Here the circuit court “appointed the Public Defender without assessing whether this appeal warranted counsel,” and “the appointment of appellate counsel was not legally authorized.”
On the merits, the court held the Rule 3.800(b)(2) motion “was unauthorized” because that rule, quoting Cooper v. State, 919 So. 2d 516, 519 (Fla. 1st DCA 2005), “was designed for use only in a direct appeal from the sentence at issue,” and that there was no ruling on the motion to review. Judge Winokur concurred, writing that he would go further and that Public Defenders “have no express statutory authority to represent defendants in postconviction proceedings.”
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Citation: George v. State, No. 1D2023-3089 (Fla. 1st DCA Oct. 14, 2026) (Ray and M.K. Thomas, JJ., concurring; Winokur, J., concurring with opinion).
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