Leone v. State

233 So.2d 404 (1970)

John J. LEONE, Appellant,

v.

STATE of Florida, Appellee.

No. 69-194.

District Court of Appeal of Florida, Second District.

March 25, 1970.

Walter R. Talley, Public Defender, and D. Turner Matthews, Asst. Public Defender, Bradenton, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Morton J. Hanlon, Asst. Atty. Gen., Lakeland, for appellee.

ORDER

PIERCE, Judge.

Whereas, appellant John J. Leone was, on October 31, 1966, informed against in the Lee County Circuit Court for escape from lawful custody while serving a sentence pursuant to a previous conviction for a criminal offense, to which information the said Leone in open Court on February 6, 1967, attended by his appointed counsel, the Assistant Public Defender of said Court, waived arraignment and entered a plea of guilty to said offense of escape so charged, and was thereupon sentenced to a term of one year imprisonment in the State Prison, and

Whereas, on March 18, 1969, the said Leone filed in the trial Court his motion to vacate and set aside said sentence on the sole ground that the statute making escape from lawful custody a criminal offense, F.S. § 944.40, F.S.A., was unconstitutional, and

Whereas, on March 20, 1969, said motion to vacate aforesaid was denied by the trial Court, pursuant to which said Leone, on April 2, 1969, filed his notice of appeal to this Court from said order, and *405 Whereas, this is Leone's first appeal in said conviction case, and

Whereas, the local Public Defender, duly appointed by the trial Court to represent Leone on this appeal, has filed brief in this Court wherein he disagrees with Leone as to the validity of said statute and states that "there is nothing in the record which might arguably support the appeal, and * * * therefore respectfully submits that this is a frivolous appeal and asks to withdraw as Attorney of Record in this matter", citing Anders v. State of California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 , and

Whereas, Anders prescribes a suggested procedural formula in such situation, which we herewith endeavor to follow in principle;

Now therefore, it is ordered that said Public Defender furnish to appellant Leone at his present place of imprisonment, by certified, return-receipt mail, a copy of his said brief, and thereupon file in this Court a certificate of service of said copy upon Leone and Leone's acceptance thereof, showing the date of such delivery to Leone, and

It is further ordered that Leone will have thirty days after the date of his receipt of said copy of brief, as shown on the return-receipt aforesaid, within which to file in this Court his own brief in his behalf raising any points that he chooses, upon which filing this Court will thereupon determine whether this appeal is wholly frivolous or contains any colorably arguable points, and make such order as may be then appropriate; and

It is further ordered that the Public Defender's aforesaid motion to withdraw as counsel be held in abeyance pending further proceedings as stated.

It is so ordered.

HOBSON, C.J., and McNULTY, J., concur.