NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

VINCENT HARRISON, ) ) Petitioner, ) ) v. ) Case No. 2D15-2436 ) STATE OF FLORIDA, ) ) Respondent. ) ) Opinion filed December 23, 2015. Petition Alleging Ineffective Assistance of Appellate Counsel. Hillsborough County; Chet A. Tharpe, Judge. Vincent Harrison, pro se.

ALTENBERND, Judge.

In his timely petition filed under Florida Rule of Appellate P rocedure 9.141(d), Mr. Harrison alleges t hat his private appellate couns el was ineffective for advising him to sign a notice of voluntary dismissal and then f iling it for him after she

determined that she was unable to write a brief on his behalf. Mr. Harrison contends that his appellate counsel should have instead filed a brief ar guing that his convictions for robbery with a firearm and dealing in stolen property viola te the prohibitions against-2- double jeopardy and are fundamental error. We deny Mr. Harriso n's petition because

he cannot demonstrate that his a ppellate counsel's failure to r aise this issue in his direct appeal prejudiced him. See Rutherford v. Moore, 774 So. 2d 637 , 643 (Fla. 2000) ("If a legal issue 'would in all probability have been found to be wit hout merit' had counsel raised the issue on direct appeal, the failure of appellate cou nsel to raise the meritless issue will not render appellate co unsel's performance ineffecti ve.") (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)); State v. Zanger, 572 So. 2d 1379, 1380 (Fla. 1991) (holding that convictions for robbery and dealing in stol en property do not violate the prohibitions against double jeopardy). However, we write t o question what may be one appellate attorney's practic e of inducing her clients to fi le a notice of voluntary dismissal to avoid filing a brief pursuant to In re Anders Brie fs, 581 So. 2d 149, 151 (Fla. 1991). Mr. Harrison attached to his petition a letter from his appell ate attorney's legal assistant. This letter references a telephone conversati on between Mr. Harrison and the attorney and instructs Mr. Harrison to sign and return an enclosed notice of voluntary dismissal. The letter concludes: "As you and [the a ttorney] discussed she will not file the notice unless she is unable to write a [b]rief on your behalf. Thank you for your attention in this matter." This court's records reveal that Mr. Harrison was represented by a public defender at his trial and that the public defender was appointe d to represent him in his direct appeal. After the record was filed in this court, the p ublic defender withdrew, and Mr. Harrison's private appellate counsel filed a notice of appe arance. The public defender forwarded the record on appeal to the new private coun sel who filed the notice-3- of voluntary dismissal. Nothing in this court's record or in t he attachments to Mr. Harrison's petition indicates why that attorney would be "unabl e" to "write" Mr.

Harrison's initial brief. While an appellate attorney may have a strategic reason for ad vising a client to dismiss his or her criminal appeal in certain circums tances, 1 an inability to write an initial brief is not a strategic decision. If an attorney i s physically unable to write a brief, he or she should arrange for able counsel to be appointe d or retained. If the inability is the attorney's failu re to recognize an issue of ar guable merit, the attorney is required to follow the procedures outlined by the United States Supreme Court in Anders v. California, 386 U.S. 738 (1967). See In re Order of First Dist. Ct. of App. Regarding Brief Filed in Forrester v. State, 556 So. 2d 1114, 1 116 (Fla. 1990) ("The Anders brief must evidence a complete and careful review of the record in order to support counsel's representation that the appeal is wholly friv olous."). The Anders procedure was developed to protect the Sixth and Fo urteenth Amendment rights of every criminal defendant to vigorous repres entation of counsel in the first appeal of right. Pens on v. Ohio, 488 U.S. 75, 83-84 (1988). Had Mr. Harrison's appellate counsel filed an Anders brief, this court would have "assume[d] the responsibility of conducting a full and independent review of t he record to discover any arguable issues apparent on the face of the record." See In re Anders Briefs, 581 So.

1 For example, if an appellant's conduct subsequent to conviction provides grounds for the State to agree to a sentence reduction or modif ication that would result in the appellant's immediate release, an appellate attorney mig ht have a strategic reason to advise the appellant to file a notice of voluntary di smissal in the appellate court so that the trial court w ould have jurisdiction to consid er a motion for sentence reduction or modification filed under Florida Rule of Criminal Procedure 3.800(c). Similarly, in certain circumstances, an appellant may choose to forego an appeal to immediately pursue a claim that must be raised in a motion file d under rule 3.850.-4- 2d at 151. If this court had determined that "the record suppo rts any arguable claims,"

we would have stricken the Anders brief and ordered Mr. Harriso n's appellate counsel to

file a merits brief. 2 Id. But by filing a notice of voluntary dismissal, Mr. Harr ison waived these protections. Mr. Harrison has no right to similar protec tions in postconviction proceedings. Rather, a postconv iction litigant generally has n o right to the assistance of counsel, and the litigant has the burden to plead a facially su fficient claim upon which relief can be granted before the postconviction court reviews t he record to determine whether he or she may be entitled to relief. While Mr. Harrison's appellate c ounsel might have had a reasona ble strategic reason for inducing him to waive these protections, t he brief letter from the assistant does not reflect it. Although we do not so hold toda y, it is at least conceivable that in rare instances an appellate counsel's advice to volunta rily dismiss an appeal

when an Anders brief should be filed could constitute ineffecti ve assistance of counsel. In the future, this appellate attorney may want to consider whe ther a voluntary dismissal is truly in a client's best interests and, if so, document the reasoning in any correspondence to the client related to a voluntary dismissal.

Petition denied.

WALLACE and BLACK, JJ., Concur.

2 See, e.g., Chapman v. State, 40 Fla. L. Weekly D1597 (Fla. 2d D CA July 10, 2015).