NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FIL ED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT GARY BELIVEAU, ) ) Appellant, ) ) v. ) Case No. 2D13-2993 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed August 8, 2014. Appeal from the Circuit Court for Polk County; Dennis P. Maloney, Judge. Ita M. Neymotin, R egional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, for Appellant. Gary Beliveau, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge. Gary Beliveau appeals the trial c ourt's order denying his pos tconviction motion after an evidentiary heari ng. We affirm that order. We take this opportunity to emphasize that the appointment of appellate counsel for postcon viction proceedings is- 2 - not a matter of right. When dec iding whether to appoint postco nviction appellate counsel, trial courts should be gu ided by the due process consi derations described in Graham v. State, 372 So. 2d 1363 (Fla. 1979). See Gantt v. Sta te, 714 So. 2d 1116, 1117 (Fla. 4th DCA 1998). We also use this case as an opportunity to announce a change i n procedure affecting the handling of postconviction appeals when appointed appellate counsel can find no arguable issue to brief. This court has be en permitting counsel to file Anders 1 briefs in these cases. After an Anders brief has been filed, we have followed procedures similar to th e Anders procedures applicable to direct appeals of judgments and sentences. As expl ained in this opinion, we will now follow procedures comparable to those used in the First and Fourth Districts. 2 I. THIS CASE Mr. Beliveau was convicted in 2008 of attempted felony murder with a weapon, burglary wit h an aggravated battery , and robbery with a n aggravated battery. The charges arose from a crimi nal episode during which he stole an automobile from its owner. The owner was injured dur ing the episode. The weapon f or purposes of the felony murder charge and the deadl y weapon for purposes of aggr avated battery was the automobile. He is serving conc urrent life sentences as a p rison releasee reoffender for the attempted felony murder and the burglary, and a thirty- year term of imprisonment for the robbery.

1 Anders v. California , 386 U.S. 738 (1967).

2 The policy change announced in this opinion was approved by the entire court at a regular monthly c onference in June 2014.- 3 - Mr. Beliveau filed a notice of appeal from his judgments and s entences in 2008. His attorney filed a motion to correct a sentencing erro r pursuant to Florida Rule of Criminal Procedure 3.800(b)(2 ) and later filed an Anders bri ef. Thereafter in June 2009, Mr. Beliveau filed a volunt ary dismissal of his appeal wi thout filing a pro se brief. See Beliveau v. State, 9 So . 3d 623 (Fla. 2d DCA 2009). In March 2010, he filed a moti on for postconviction relief pur suant to Florida Rule of Criminal Proc edure 3.850. In the motion he rai sed three grounds: (1) that his attorney had been ineffe ctive for failing to call the victim's physicians as witnesses to testify that her bro ken ankle did not occur during the car theft; (2) that his attorney should have prevented t he victim from testifying conce rning her medical treatment; and (3) that his atto rney should have filed a postco nviction motion requesting a new trial because of a violati on of the sequestration rule. The trial court summarily rejected ground (2) in a nonappealab le order with attachments d emonstrating that the victim's medical condition was not a significant issue in the c ase because the battery was an aggravated battery due to t he use of the vehicle as a we apon, not due to the victim's injuries. The court c oncluded that the limited testim ony concerning her treatment was either relevant to prove the battery or harmless in the overall context of the trial. The trial court then ordered an evidentiary hearing on the two remaining grounds. The court appointed counsel to represent Mr. Beliveau . Several witnesses testified at the evidentiary hear ing, including Mr. Beliveau an d his trial counsel. The court denied relief following this hearing, and Mr. Beliveau fi led a notice of appeal.- 4 - When the notice of appeal was fil ed, Mr. Beliveau's postconvic tion counsel sent a letter to the trial cour t enclosing an order of insolven cy that included language appointing the Public Defender for the Tenth Judicial Circuit t o represent Mr. Beliveau on appeal. There is no separate motion for appointment of appe llate counsel in our record, and the letter makes no l egal showing to justify such a ppointment. It is likely that postconviction counsel be lieved that Mr. Beliveau was enti tled to counsel merely on a showing of his insolvency. The order requiring the appointm ent of counsel was signed by a judge who had handled no part of the earlier proceedings. Judge Malo ney, who had presided over the postconviction hearing , undoubtedly would not have sig ned the order because he would have known that the all egedly ineffective trial counse l was a Public Defender for the Tenth Judicial Circu it. Due to this conflict, that off ice could not represent Mr. Beliveau on appeal. After the order of appointment was entered , the Public Defender moved to withdraw, and the court ultimately appointed the Offic e of Criminal Conflict and Civil Regional Counsel to represent Mr. Beliveau. In October 2013, the appointed c ounsel filed an Anders brief w ith this court and the standard motion to withdraw that accompanies such a brief. This court issued its standard order, which provides the defendant with an opportunity to file his own pro se brief. Mr. Beliveau filed his pro se brief raising three issues. This court has reviewed the br iefing and the record. We have found no issue that merits relief or further review by this court. Acco rdingly, we affirm the order on appeal. II. APPOINTMENT OF APPELLATE COUNSEL FOR POSTCONVICTION PROCEEDINGS- 5 - It is well established that t he appointment of counsel to rep resent indigent defendants in postconviction proceedings relating to noncapital cases, including appellate proceedings, is not a sta tutory or constitutional rig ht. See § 924.066(3), Fla. Stat. (2013); Gantt, 714 So. 2d at 1116-17. "The question to b e asked in a case of this nature is whether the assistance of counsel is essential to acc omplish a fair and thorough presentation of the petitioner's claims." Schneelock v. State, 665 So. 2d 1063, 1063 (Fla. 4th DCA 1995) (citing Hooks v. State, 253 So. 2d 424 , 426 (Fla. 1971)). Thus, a court's decision to appoi nt counsel is based on individ ualized due process considerations, not on any cons titutional right that applies ac ross the board to a group of defendants. In the trial court, the factor s used to determine whether to appoint counsel in postconviction cases are listed in rule 3.850(f)(7). 3 The factors in the rule derive from Graham, 372 So. 2d 1363. Under Graham v. State, 372 So. 2d 1363 (Fla. 1979), in deciding whether to appoi nt counsel for an indigent defendant filing a postconviction motion, the trial court should consider: (1) the adver sary nature of the proceeding; (2) its complexity ; (3) the need for an ev identiary hearing; and (4) the need for subst antial legal research.

3 The factors in the rule are s omewhat broader than those listed in Graham. Rule 3.850 (f)(7) states: Appointment of Counsel. The court may appoint counsel to represent the defendant under this rule. The factors to be considered by the court in making this determination include: the adversary nature of the proceeding, the complexity of t he proceeding, the complexity of the claims presented, the defendant's apparent level of intelligence and education, t he need for an evidentiary hearing, and the need for subs tantial legal research.- 6 - Ware v. State, 111 So. 3d 257 , 260 (Fla. 1st DCA 2013). This court has previously obs erved that the Graham factors ar e not a perfect fit when making a discr etionary decisi on to appoint app ellate counsel for a postconviction appeal. See Rowe v. State , 777 So. 2d 1088, 1089 (Fl a. 2d DCA 2001). The due process considerations i mportant at the appellate level are simply different from those at the trial level. C ertainly, the complexity of th e case and the need for substantial legal research should play a role in deciding wheth er counsel should be appointed for appeal. If the appeal inv olves a novel question or an unresolved issue that is likely to create prec edent affecting other defendants, counsel may be appropriate. The defendant's quest ionable mental competence, i lliteracy, or limited English language skill s may add to the equation when other fact ors exist. Without limiting the due process factors that a trial court mi ght consider in the appointment of counsel, we hold that a case-specific determ ination is necessary. Thus, the appellant should file a m otion in the trial court req uesting the appointment of counsel and explaining the reas ons why due process consideratio ns warrant the appointment. In a case such as Mr. Beliveau's, where trial cou nsel has been appointed, it is entirely appropriate for t hat counsel to file both the no tice of appeal and the motion for appointment of appellate counsel. Recognizing the limitati ons of pro se litigants, this court concludes that when making this decision, it is appropria te for the trial court to consider case-specific due proc ess factors in addition to any a lleged by the defendant. 4

4 The Florida Rules of Appellate P rocedure do not expressly state whether or how this court should review o rders granting or denying appo intment of counsel. As a matter of practice, this court treats the appointment of coun sel in postconviction appeals as a procedural issue over which the trial court and th is court have concurrent jurisdiction. See Fla. R. App. 9 .600(a). Administratively, th e motions are filed and- 7 - III. REVIEW IN ANDERS-LIKE POSTCONVICTION CASES The Fourth District announced in 1998 that it was not necessar y for counsel to file Anders briefs in postconviction appeals. See M ayolo v. State, 714 So. 2d 1124, 1124 (Fla. 4th DCA 1998) . In Medrano v. State, 795 So. 2 d 1009, 1010 (Fla. 4th DCA 2001), it announced that it woul d henceforth strike such br iefs. In 2007, the First District adopted the same procedur e. See Smith v. State, 956 S o. 2d 494, 495 (Fla. 1st DCA 2007). This court has continued to acc ept Anders briefs, arguably mor e as a matter of inertia than establishe d policy. Appellate public de fenders are familiar with that process, and it is undoubtedly comforting for an attorney who is committed to professionalism at least to atte mpt to describe issues that mig ht warrant attention from the court. Our major concern wit h continuing the process of accepting And ers briefs is the implicit agreement on t he part of the court to conduct a n independent review of the record in search of issues that might have merit. That rev iew is required in direct appeals of judgments and sentence s, where defendants have a Six th Amendment right to counsel, but no constitutional provision requires this court to perform the review in a postconviction case, where decisi ons on appointing appellate co unsel derive from individualized due process concer ns. As a practical matter, th e review consumes valuable judicial resources while rarely revealing an issue tha t results in any benefit for

addressed in the trial court. T he order may then be reviewed b y motion in this court under the supervisory control pr ovided in rule 9.600(a).- 8 - the defendant. We conclude that there is no justification for this court to perform such a review as a matter of c ourse in these cases. In cases involving termination of parental rights, where paren ts have a due process right to counsel, this court has implemented procedures permitting the appointed counsel to file a "suffi cient" motion to withdraw, fo llowing which the parent is given a reasonable time in whic h to file a pro se brief. See T .R. v. Dep't of Children and Families, 779 So. 2d 292, 294 (F la. 2d DCA 1998). We conclude that a similar procedure can be applied to t hese postconviction appeals. Accordingly, if counsel concludes that he or she cannot sign a nd file a merits brief in good faith in a postconviction appeal, counsel shall file a motion to withdraw. That motion should no t be a barebones motion, but ra ther should contain content demonstrating that couns el has fulfilled his or her obl igation to the client but is unable, in good faith, to demonstrat e the existence of an argua ble issue. If counsel wishes, the motion, like an Anders brief, may contain a descrip tion of the facts and potential issues that counsel has considered and rejected. Upon the filing of a sufficien t motion to withdraw, this court will enter an order providing the defendant wit h the opportunity to file a pr o se brief within forty-five days. The order will grant only a conditional withdrawal of co unsel; counsel will remain of record so that he can still be called upon to serve if his s ervices are needed. Cf. Fla. R. Crim. P. 9.140(d)(2) (provi ding for conditional withdrawal o f defense counsel in direct appeals). If a pro se brief is filed, this court will review t he case on the issues presented in that brief. If the defendant fa ils to file a brief, the cas e will be dismissed.- 9 - These new procedures will take e ffect on the date that mandate issues in this case. They will apply to a ll cases in which briefs would otherwise be due on or after that date. Any Anders brief fil ed in a postconviction appeal a fter that date will be stricken by this court. Cases i n which Anders briefs have alre ady been filed will be processed by this court under the prior procedures. 5

WALLACE and SLEET, JJ., Concur.

5 The Public Defender for the Tenth Judicial Circuit, whose offic e handles the majority of postconviction appeals in which counsel are app ointed, is not of record in this case. We recognize its potential interest in this decisio n and expressly authorize it to file a comment during the per iod for rehearing addressing se ctions II and III of this opinion.