LoRusso v. State

339 So.3d 454

Michael Anthony LORUSSO, Appellant,

v.STATE of Florida, Appellee.

No. 2D21-1325

District Court of Appeal of Florida, Second District.

May 13, 2022

Howard L. Dimmig, II, Public Defender, and Stephen M. Grogoza, Special Assistant Public Defender, Bartow, for Appellant.

Michael LoRusso, pro se.

Ashley Moody, Attorney General, Tallahassee, for Appellee.

BLACK, Judge.

Counsel for Michael Anthony LoRusso filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Anders Briefs , 581 So. 2d 149 (Fla. 1991), asserting that after a thorough review of the record he had found no issues of arguable merit in this appeal from LoRusso's judgment and sentence for aggravated stalking. Following our review of the complete record, we affirm the judgment and sentence without comment; however, we write to address a reoccurring concern in Anders cases before this court.

"In order to ensure that criminal defendants are afforded their constitutional right to counsel, before filing an Anders or 'no merits' brief, appellate counsel must conscientiously follow the procedure for Anders appeals set forth by the U.S. Supreme Court." Chapman v. State , 186 So. 3d 3, 5 (Fla. 2d DCA 2015). Those procedures require, among other things, that appellate counsel "master the trial record." Id. (quoting In re Anders Briefs , 581 So. 2d at 151 ). Mastery of the record may require that counsel "move to supplement the record if the designations to the court reporter" would not allow for review of the complete record. See Prettyman v. State , 951 So. 2d 27, 29 (Fla. 5th DCA 2007).

In Anders proceedings, the appellate court is also required to conduct an examination of the record. Id. Our review of the record as initially provided to the court in this case revealed that it was incomplete; in fact, after issuing the first of three orders directing that the record on appeal be supplemented, it was confirmed that nine transcripts had not been included in the record transmitted to this court.

Following supplementation, this court reviewed the complete record. However, the initial absence of transcripts, including the transcript from the hearing at which LoRusso was first permitted to represent himself, causes us to question whether and how counsel could have asserted that the trial record had been conscientiously examined and that no issues of arguable merit had been found. Cf. Anders , 386 U.S. at 744, 87 S.Ct. 1396 (stating that when counsel "finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court"). That is, in the absence of a complete record, it is apparent that counsel could not have complied with the procedures set forth by the U.S. Supreme Court. Likewise, "fair and meaningful appellate review" by this court, which is the intention of Anders proceedings wherein counsel has submitted a brief stating that "no reversible error even worthy of a good faith argument" has been found, can only occur when the record on appeal is complete. See State v. Causey , 503 So. 2d 321, 322 (Fla. 1987) ; see also Diego Mateo v. State , 320 So. 3d 982, 983 (Fla. 2d DCA 2021) (Lucas, J., concurring) (...