Garcia v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ELIEZER GARCIA, )
)
Appellant, )
)
v. ) Case No. 2D15-54
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
)
ARTEZ HOOKER, )
)
Appellant, )
)
v. ) Case No. 2D15-403
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)
)
CHRISTOPHER NEFF, )
)
Appellant, )
)
v. ) Case No. 2D15-409
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________)

Opinion filed May 1, 2015.
Appeals from the Circuit Court for
Pinellas County; Joseph A. Bulone,
Thane B. Covert, and Philip J.
Federico, Judges.

Kelly McCabe of Doyle & McCabe,
LLC, Pinellas Park, for Appellants
Eliezer Garcia and Christopher Neff.

Kelly McCabe of Doyle & McCabe,
LLC, Pinellas Park (withdrew); Robert H.
Dillinger, Public Defender, Clearwater,
for Appellant Artez Hooker.

Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.

ORDER IMPOSING SANCTIONS ON APPELLANTS' COUNSEL

ALTENBERND, Judge.

We write this published order to resolve numerous orders to show cause

issued to Kelly McCabe, the attorney who attempted to commence criminal appeals on

behalf of the three named appellants in the above-styled proceedings. It is apparent

that Ms. McCabe is unfamiliar with some of the basic terminology and concepts

associated with the commencement of an appeal. She seems unable to comply with

the requirements of Florida Rule of Appellate Procedure 9.140(d), which addresses the

process by which a trial counsel commences an appeal and thereafter successfully

withdraws after appellate counsel has been appointed. She seems, at best, indifferent

to the requirement that the notice of appeal be accompanied by a filing fee or, if

applicable, an order or certificate of indigency. She does not seem to grasp that an

order to appear to show cause why sanctions should not be imposed is an exceptional

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order. Instead, she apparently believes it is appropriate to file a last minute "response"

explaining that she cannot attend the event because it conflicts with a trial and

suggesting that this court reschedule a hearing on sanctions sometime in the next two

months on a day when she is not in trial.

Although we are called upon to determine an appropriate sanction in this

case, this court is far more concerned with assuring that the appellants, all of whom are

in prison, receive timely appellate review handled by competent counsel. Thus, this

order will attempt to place those appeals on track to be resolved.

We hope that Ms. McCabe's failure to comply with our orders reflects

more on her lack of training and her limited competence as an appellate attorney and

less on any intent to willfully disobey this court. Accordingly, in lieu of a more penal

sanction and in hopes of preventing repetition of these events, this court orders Ms.

McCabe to self-report to the Sixth Judicial Circuit's Professionalism Implementation

Panel requesting that it appoint an "intermediary" to assist in providing her with access

to an attorney who can privately train and mentor her in the process of filing notices of

appeal and obtaining orders of withdrawal in criminal cases. See Re: Professionalism

Comm. and Standards of Prof'l Courtesy, Admin. Order No. 2013-075 PA/PI-CIR (Fla.

6th Cir. Ct. Nov. 12, 2013). Within ninety days from the date of this order, Ms. McCabe

shall provide proof to this court that she has received this mentoring and is fully

prepared to properly file notices of appeal in compliance with the applicable rules.

The attempt to file a belated appeal for Mr. Neff raises additional concerns

that may be far more serious. This court is not well-equipped to handle those concerns.

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We describe our records in his cases and leave any further investigation into that matter

to the trial court and The Florida Bar.1

Garcia v. State

In Garcia, case number 2D15-54, Attorney McCabe filed a notice of

appeal on December 29, 2014, appealing "the ruling of the Motion to Suppress, said

hearing being rendered on June 6, 2014." On January 9, 2015, this court entered three

orders to show cause in Mr. Garcia's case. In the first order, we stated:

Appellant shall show cause within fifteen days why
this appeal should not be dismissed for lack of jurisdiction.
The notice of appeal recites that appellant intends to appeal
the denial of a motion to suppress, which is not an
appealable order. If this appeal is in fact one from a
judgment and sentence, appellant shall file an amended
notice of appeal, copy to this court, and this filing will
discharge appellant's obligation under this order.

In the second order, we stated:

Appellant shall show cause within fifteen days why
this appeal should not be dismissed as untimely. If untimely,
and through no fault of appellant, counsel may file a motion
in this case number for a belated appeal, observing all the
requirements of Florida Rule of Appellate Procedure
9.141(c), including the submission of an affidavit or sworn
pleading by counsel with first-hand knowledge of the facts
giving rise to the application for a belated appeal.

In the third order, we stated:

This appeal has been filed without a filing fee required
by section 35.22(3), Florida Statutes (2012).
The attorney for appellant shall forward the required
$300.00 filing fee or, if applicable, an order of the circuit
court, or a certificate of indigency from the circuit court clerk,

1
A copy of the opinion is being furnished to The Florida Bar for such action
as it may deem appropriate.

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 finding appellant insolvent to this court within twenty days
from the date of this order.
If this court does not receive any of the above within
the prescribed time, this appeal may be subject to dismissal
without further notice and appellant's counsel may risk
sanctions if this directive is ignored.

Ms. McCabe did not respond to any of these orders. Accordingly, on

February 4, 2015, this court ordered Attorney McCabe to respond to the show cause

orders of January 9, 2015, within ten days or to face possible sanctions.

Having received no response from Ms. McCabe by mid-March in this case

and in the other two cases described later in this opinion, we issued an order to appear

before the court at the beginning of oral arguments on Tuesday, April 7, 2015, to show

cause why sanctions should not be imposed for her failure to comply with the orders.

This order was delivered by certified mail and received by Ms. McCabe on March 26,

two weeks before the scheduled hearing.

On April 1, Ms. McCabe filed an amended notice of appeal. It states the

defendant is appealing "the Denial of the the [sic] dispositive Motion to Suppress, said

hearing being rendered on June 6, 2014. The issue was preserved for appeal and the

final judgment and sentence was entered on December 23, 2014." Thus, presumably,

case number 2D15-54 is a timely appeal of judgments and sentences that were

rendered in late December.2 She also filed a brief response, apologizing but

demonstrating some confusion about the necessary contents of a notice of appeal.

On Thursday, April 2, before the three-day holiday weekend, Ms. McCabe

filed a second "response." It informs the court that she "has a felony jury trial scheduled

2
The Department of Corrections' website reflects that Mr. Garcia is serving
five sentences, all of which are approximately ten years in length and were entered on
December 23, 2014.

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to begin on April 7, 2015[,] in Pinellas County and therefore, will be unable to attend."

Attaching documents to prove that the trial was scheduled, she explains: "If the Court

wishes to reschedule the Court date I have attached my trial calendar for the next two

months as Exhibit B." Following a suggestion from the clerk of this court, late on the

Monday before the hearing Ms. McCabe filed an emergency motion to continue the

court appearance.

We do not know what steps Ms. McCabe took or could have taken in the

trial court to obtain a few-hour delay in the trial so that she could appear in this court,

but we assume that the trial was already scheduled and on Ms. McCabe's calendar

when she received the order to show cause on March 26.

On April 9, 2015, she paid the $300 filing fee in this court. Ms. McCabe's

amended notice of appeal filed April 6, 2015, prompts us to discharge the two orders to

show cause entered on January 9, 2015. She is still counsel of record in this case. We

are unaware of any order appointing a public defender. By separate order, this court

will address the steps necessary to assure a brief is filed in this case. We note that a

brief would already have been filed if she had followed the rules of procedure.

Hooker v. State

In Hooker, case number 2D15-403, Ms. McCabe filed a notice of appeal

on November 10, 2014, appealing the judgment and sentence rendered on November

7, 2014. From our limited record, it appears that Mr. Hooker was convicted of first-

degree murder and sentenced to life imprisonment following a jury trial. The notice of

appeal contained the appropriate information, but the appeal was filed without a filing

fee or an order or certificate of indigency. For some reason, the clerk of the circuit court

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did not transmit this notice of appeal to this court until January 26, 2015. On January

29, 2015, this court issued an order concerning the filing fee that is comparable to the

order issued in Mr. Garcia's case.

On February 6, 2015, the order was returned to the court. The order was

remailed to Ms. McCabe; however, on February 18, 2015, it was returned for the

second time. The clerk's office subsequently contacted Ms. McCabe's office, informed

the office of the fee issue, and confirmed the address, which was correctly listed in our

system. Ms. McCabe's office acknowledged that they were aware of the outstanding

fee issue. The order of January 29, 2015, was again mailed to Ms. McCabe. When this

court received nothing from Ms. McCabe by mid-March, we issued the order to show

cause discussed earlier in this opinion.

Prompted by our order to appear, Ms. McCabe finally obtained the

appointment of the public defender five months after filing the notice.

Neff v. State

In Neff, case number 2D15-409, Ms. McCabe filed a "notice of belated

appeal" on December 29, 2014, appealing "the ruling of the Motion to Suppress, said

hearing being rendered on April 12, 2013." The rules of procedure do not authorize the

filing of a "belated" appeal notice. On January 28, 2015, this court issued an order,

similar to the second order in Mr. Garcia's case, pointing Ms. McCabe to the procedures

used for belated appeals. On March 9, 2015, when this court had not received any

response to our January order, we issued an order requiring Ms. McCabe to comply

with the order of January 28, 2015, within five days or face possible sanctions. When

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this court received no response to this order, we included this case in the order to

appear for April 7.

On April 2, Ms. McCabe filed a response in Mr. Neff's case stating:

Counsel has filed a Voluntary Dismissal as there was no
stipulation and/or determination as to the dispositive nature
of the Defendant's Motion to Suppress at the Defendant's
Plea hearing. Counsel would also state that at the Motion to
Suppress hearing the dispositive nature was discussed and
the State did not agree that the Motion to Suppress was
dispositive in nature. Counsel has sent a letter to Appellant
explaining this and has also explained what other options
that Appellant has in regards to his case. Counsel has
requested to set up a phone conference with the Appellant to
also explain it.

The response was in fact accompanied by a "notice of voluntary dismissal

of appeal." This document was not signed by Mr. Neff or served on him. Fortunately, it

is ineffective to dismiss his appeal, as this court alone among the intermediate appellate

courts in Florida requires the client's written concurrence to accompany a notice of

voluntary dismissal filed by counsel in criminal cases. Assuming that Mr. Neff did not in

fact reserve the right to appeal an adverse ruling on a dispositive motion to suppress,

his issues on appeal may be limited, but he could still appeal his judgments and

sentences if he can establish the right to a belated appeal.

We doubt that Mr. Neff will authorize Ms. McCabe to file a voluntary

dismissal. In mid-September of 2014, Mr. Neff filed a "notice of inquiry" with this court

concerning his appeal of a judgment and sentence entered in late August. He attached

a document that appears to be a notice of appeal for his case that represents that it was

served on the Attorney General on September 4, 2013, and signed by Ms. McCabe.

We responded to his inquiry explaining that no such appeal existed in our records and

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gave him guidance in the event he wished to pursue a belated appeal. Mr. Neff

attempted pro se to obtain a belated appeal by filing a petition in early December 2014

seeking review of the judgment and sentence that he apparently thought that Ms.

McCabe had appealed. This court docketed his petition for belated appeal with a new

appellate case number, i.e., case number 2D14-5504. Attached to his petition was

another copy of the errant notice of appeal and a letter from Ms. McCabe's law firm

claiming that Ms. McCabe "has your brief on her laptop" and indicating that Ms. McCabe

needed a $3000 retainer. We dismissed that petition when Mr. Neff did not obey our

order to serve his petition on the Attorney General. Mr. Neff filed a timely motion for

reconsideration. By separate order, we have granted Mr. Neff's motion for

reconsideration and petition for belated appeal in case number 2D14-5504. Thus, Mr.

Neff will now receive review of his judgments and sentences, but that appeal will

proceed under a new appellate case number assigned by the clerk of this court.

Accordingly, we hereby dismiss the appeal in case number 2D15-409.

Within ninety days from the date of this order, Ms. McCabe shall deliver a

letter to the clerk of this court by certified mail containing a sworn statement that she

has self-reported to the Sixth Judicial Circuit's Professionalism Implementation Panel,

has obtained a mentor to assist her in properly filing notices of appeal, and has

successfully learned the proper procedures. The sworn statement shall provide the

name and address of the mentor who assisted her.

SLEET and SALARIO, JJ., Concur.

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