George v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2023-3089
_____________________________
P ARRISH A NTHONY GEORGE ,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
_____________________________
On appeal from the Circuit Court for Suwannee County.
David W. Fina, Judge.
October 14, 2026
P ER C URIAM.
Parrish Anthony George was convicted and sentenced for one
count of battery on a law enforcement officer. George did not
appeal the judgment or sentence. Months later, he filed in the
circuit court a document entitled “A Written Order Stating the
Reasons for Complaint of Misconduct.” The court treated the
document as a postconviction filing and dismissed it, finding that
it 	consisted 	of 	“conclusory 	statements 	and 	meaningless
ramblings[.]” 	Despite 	those 	findings, 	the 	court 	appointed 	the
Public Defender to represent George on appeal from the dismissal.
Counsel then filed a motion in the circuit court under Florida Rule
of Criminal Procedure 3.800(b)(2), challenging the inclusion of a
prior conviction on George’s sentencing scoresheet. The court did
not rule on the motion.

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George’s initial brief does not challenge the dismissal of his
original 	postconviction 	filing. 	Instead, 	it 	treats 	the 	later
sentencing motion as deemed denied after sixty days and seeks
review of that purported denial.
I
We first address the circuit court’s appointment of appellate
counsel. Courts are prohibited from using, directly or indirectly,
“[f]unds, 	resources, 	or 	employees 	of 	this 	state 	or 	its 	political
subdivisions . . . in appellate or collateral proceedings unless the
use is constitutionally or statutorily mandated.” § 924.051(9), Fla.
Stat. (emphasis supplied). Section 924.066(3), Florida Statutes,
makes clear that no statutory right to appointed counsel exists in
noncapital collateral proceedings: “A person in a noncapital case
who is seeking collateral review under this chapter has no right to
a court-appointed lawyer.”
Russo v. Akers, 724 So. 2d 1151 (Fla. 1998), addresses whether
appointed counsel in postconviction proceedings may nevertheless
be 	“constitutionally 	mandated.” 	According 	to 	Russo, 	when
appointment 	of 	counsel 	is 	authorized 	under 	the 	standard
established in Graham v. State, 372 So. 2d 1363 (Fla. 1979)—as
when a postconviction motion presents a substantial issue and the
proceeding is so complex that the assistance of counsel is essential
to accomplish a fair and thorough presentation of the claims—
appointment 	of 	counsel 	is 	“constitutionally 	mandated” 	and
therefore permissible under section 924.051(9). See Russo, 724 So.
2d at 1153.
Even 	so, 	Russo 	does 	not 	alter 	the 	Legislature’s 	express
prohibition on the use of state funds in postconviction proceedings
unless statutorily or constitutionally mandated. When neither
condition is satisfied, the appointment results in an expenditure of
state funds that the law does not permit. A court therefore should
not appoint postconviction counsel unless it articulates why the
appointment is legally required.
We 	have 	explained 	that 	a 	court 	should 	conduct 	an
“assessment 	of 	need” 	under 	the 	Graham 	standard 	before

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appointing postconviction appellate counsel. Westfall v. State, 348
So. 3d 4, 5 (Fla. 1st DCA 2022); see also Rowe v. State, 777 So. 2d
1088, 1089 (Fla. 2d DCA 2001) (holding that appointment of
counsel 	for 	the 	defendant’s 	postconviction 	appeal 	was 	not
constitutionally required and noting that the issues were limited
in range and simple); Gantt v. State, 714 So. 2d 1116, 1117 (Fla.
4th 	DCA 	1998) 	(noting 	that 	“counsel 	should 	not 	have 	been
appointed” in a postconviction appeal where “no issues are present,
let alone a complex one”).
Other courts have likewise emphasized the need for a judicial
determination 	that 	postconviction 	representation 	is
constitutionally mandated. See Mann v. State, 937 So. 2d 722, 729
(Fla. 3d DCA 2006) (“Unless a court makes the determination that
representation is constitutionally mandated, funds, resources, and
employees of the Public Defender’s Office may not be used directly
or indirectly in collateral proceedings of defendants not under
sentence of death.”) (emphasis supplied); Russo v. Selman, 702 So.
2d 270, 271 (Fla. 5th DCA 1997) (holding that the appointment of
the Public Defender in a postconviction proceeding “is contrary to
section 	924.066(3), 	Florida 	Statutes” 	“[a]bsent 	the 	necessary
findings” that the complexity of the proceeding requires counsel)
(emphasis 	supplied). 	We 	agree 	that 	the 	basis 	for 	such 	a
determination must be apparent from the record. “[W]hen [a trial
court] appoints postconviction appellate counsel, the appellate
court should be able to determine why the trial court concluded
that 	counsel 	was 	constitutionally 	required” 	and 	why 	the
appointment 	is 	not 	“an 	unlawful 	expenditure 	of 	state 	funds,
prohibited by section 924.051(9).” Norman v. State, 51 Fla. L.
Weekly D1006, D1007 (Fla. 1st DCA May 20, 2026) (Winokur, J.,
concurring).
Here, the circuit court appointed the Public Defender without
assessing whether this appeal warranted counsel. Nothing in the
record suggests that it did. The court had dismissed George’s
postconviction filing as frivolous in substance, and an appeal from
that order presented no complex issue or need for substantial legal
research. Accordingly, the appointment of appellate counsel was
not legally authorized.

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II
Turning to the issue raised in this appeal, George’s sole
argument concerns the rule 3.800(b)(2) motion filed by appointed
counsel. That motion was unauthorized. Rule 3.800(b)(2) “was
designed for use only in a direct appeal from the sentence at issue.”
Cooper v. State, 919 So. 2d 516, 519 (Fla. 1st DCA 2005) (citation
omitted). “The rule was not meant to be used in connection with
an appeal from a postconviction order.” Id.
George seeks to avoid that problem by asking us to “treat” the
motion as if it had been filed under Florida Rule of Criminal
Procedure 3.800(a). That suggestion has three flaws. First, counsel
identifies 	no 	authority 	permitting 	court-appointed 	appellate
counsel to file a rule 3.800(a) motion in the circuit court while this
postconviction appeal was pending. Second, counsel was appointed
for 	the 	limited 	purpose 	of 	representing 	George 	in 	his
postconviction appeal, not to initiate additional postconviction
proceedings in the trial court. Indeed, the circuit court had denied
a request for trial-level postconviction counsel. And third, even if
appellate counsel could file a rule 3.800(a) motion while this appeal
was pending, the circuit court never ruled on it. Unlike a motion
properly filed under rule 3.800(b)(2), a rule 3.800(a) motion is not
“deemed denied” merely because the court fails to rule within a
prescribed period. See Fla. R. Crim. P. 3.800(b)(2)(B). Accordingly,
there is no order disposing of a rule 3.800(a) motion for us to
review.
III
In sum, the only issue George asks us to decide arises from an
unauthorized motion filed by counsel whose appointment was
itself unauthorized. The circuit court never ruled on that motion,
so there is no order for us to review. The order properly before us
should therefore be affirmed.
A FFIRMED.
R AY and M.K. THOMAS, JJ., concur; W INOKUR , J., concurs with
opinion.

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_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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W INOKUR , J., concurring.
I agree fully with the majority opinion. In particular, I agree
that appointment of counsel in this postconviction appeal was
unauthorized, but I would go further than the majority, consistent
with my opinion in Jackson v. State, 407 So. 3d 508, 514 (Fla. 1st
DCA 2025) (Winokur, J., concurring). As the majority recognizes,
we 	are 	prohibited 	from 	using, 	directly 	or 	indirectly, 	“[f]unds,
resources, or employees of this state or its political subdivisions . . .
in 	appellate 	or 	collateral 	proceedings 	unless 	the 	use 	is
constitutionally or statutorily mandated.” § 924.051(9), Fla. Stat.
The Supreme Court of the United States has held that the United
States 	Constitution 	does 	not 	provide 	any 	right 	to 	counsel 	in
postconviction proceedings. See Pennsylvania v. Finley, 481 U.S.
551 (1987). Moreover, no Florida court has held that the Florida
Constitution contains a right to appointed postconviction counsel.
As the majority opinion recognizes, a non-capital postconviction
appellant 	has 	no 	statutory 	right 	to 	appointed 	counsel. 	See
§ 924.066(3), Fla. Stat. And finally, Public Defenders have no
express 	statutory 	authority 	to 	represent 	defendants 	in
postconviction proceedings. See Williams v. State, 99 So. 3d 593,
595 (Fla. 2d DCA 2012) (recognizing that “[t]he duties of public
defenders, as enumerated in section 27.51, Florida Statutes (2008),
do not include postconviction representation”); but see Russo v.
Akers, 701 So. 2d 366, 367 (Fla. 5th DCA 1997), approved, Russo
v. Akers, 724 So. 2d 1151 (Fla. 1998) (finding that “representation
of indigent defendants who seek to vacate a felony conviction falls
within the duties of the Public Defender listed in Chapter 27[,]”
but failing to indicate any provision of “Chapter 27” that suggests
that the duties of a Public Defender include representation of
indigent defendants who seek to vacate a felony conviction).

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I recognize that Russo permits appointment of postconviction
counsel in some circumstances, but I believe that Russo “is based
on an assessment of federal constitutional rights that the Supreme
Court of the United States has rejected[.]” Norman v. State, 51 Fla.
L. Weekly D1006, 1007 (Fla. 1st DCA May 20, 2026) (Winokur, J.,
concurring). Nonetheless, I agree that the majority’s conclusion
that a trial court should articulate its reasons for determining that
appointment of postconviction counsel is constitutionally required,
and that this conclusion is consistent with Russo.
_____________________________
Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.
James 	Uthmeier, 	Attorney 	General, 	and 	Darcy 	Townsend,
Assistant Attorney General, Tallahassee, for Appellee.