Davis v. State, 1D18-5253

309 So.3d 318 (Mem)

Raymond Lamar DAVIS, Appellant,

v.STATE of Florida, Appellee.

NO. 1D18-5253

District Court of Appeal of Florida, First District.

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.

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 hearing, and would appear to have relevance, but has not formed the basis for relief on appeal.

45 Fla. L. Weekly D1562, 309 So.3d 241 (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 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, 121 S.Ct. 525, 148 L.Ed.2d 388 (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 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...