George v. State · No. 1D2023-3089 (Fla. 1st DCA) · Decided October 14, 2026
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A trial court should not appoint postconviction appellate counsel unless it articulates why the appointment is legally required, and the basis for that determination must be apparent from the record, the First District Court of Appeal has held. Finding that the circuit court appointed the Public Defender without making that assessment, the court said the appointment was “not legally authorized,” declined to review a sentencing motion that the appointed lawyer had filed, and affirmed.
What Happened
Parrish Anthony George was convicted and sentenced in Suwannee County for one count of battery on a law enforcement officer. He 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. Appointed 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. George’s initial brief does not challenge the dismissal of his original filing. Instead, it treats the later sentencing motion as deemed denied after sixty days and seeks review of that purported denial.
What the Court Held
The court first addressed the appointment of appellate counsel. Section 924.051(9), Florida Statutes, prohibits using “[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.” Section 924.066(3) provides that “[a] person in a noncapital case who is seeking collateral review under this chapter has no right to a court-appointed lawyer.”
The court then turned to Russo v. Akers, 724 So. 2d 1151 (Fla. 1998), which addresses whether appointed counsel in postconviction proceedings may nevertheless be “constitutionally mandated.” Under Russo, when appointment is authorized under the standard 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 counsel’s assistance is essential to a fair and thorough presentation of the claims, the appointment is constitutionally mandated and therefore permissible under section 924.051(9). “Even so,” the court wrote, “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.”
The court noted that it had previously said a court should conduct an “assessment of need” under the Graham standard before appointing postconviction appellate counsel, citing Westfall v. State, 348 So. 3d 4, 5 (Fla. 1st DCA 2022). It also cited decisions from other districts emphasizing the need for a judicial determination that postconviction representation is constitutionally mandated, including Mann v. State, 937 So. 2d 722, 729 (Fla. 3d DCA 2006), and Russo v. Selman, 702 So. 2d 270, 271 (Fla. 5th DCA 1997). “We agree that the basis for such a determination must be apparent from the record,” the court wrote.
Applying that rule, the court found that “the circuit court appointed the Public Defender without assessing whether this appeal warranted counsel. Nothing in the record suggests that it did.” The circuit court had dismissed George’s 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.”
On the issue George did raise, the court held that the rule 3.800(b)(2) motion “was unauthorized.” The rule “was designed for use only in a direct appeal from the sentence at issue,” the court wrote, quoting Cooper v. State, 919 So. 2d 516, 519 (Fla. 1st DCA 2005), and “was not meant to be used in connection with an appeal from a postconviction order.”
George asked the court to treat the motion as if it had been filed under rule 3.800(a). The court identified three flaws. First, counsel identified no authority permitting court-appointed appellate counsel to file a rule 3.800(a) motion in the circuit court while the 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. Third, even if counsel could have filed such a motion, the circuit court never ruled on it, and unlike a motion properly filed under rule 3.800(b)(2), a rule 3.800(a) motion is not “deemed denied” when the court fails to rule. “[T]here is no order disposing of a rule 3.800(a) motion for us to review,” the court wrote. It affirmed the order properly before it.
Judges Ray and M.K. Thomas concurred.
The Concurrence
Judge Winokur agreed with the majority but would go further, consistent with Judge Winokur’s concurrence in Jackson v. State, 407 So. 3d 508, 514 (Fla. 1st DCA 2025). Judge Winokur wrote that the U.S. Constitution provides no right to counsel in postconviction proceedings, citing Pennsylvania v. Finley, 481 U.S. 551 (1987); that “no Florida court has held that the Florida Constitution contains a right to appointed postconviction counsel”; that a noncapital postconviction appellant has no statutory right to appointed counsel under section 924.066(3); and that Public Defenders “have no express statutory authority to represent defendants in postconviction proceedings,” citing Williams v. State, 99 So. 3d 593, 595 (Fla. 2d DCA 2012). Judge Winokur acknowledged Russo permits appointment of postconviction counsel in some circumstances but wrote that, in the judge’s view, Russo “is based on an assessment of federal constitutional rights that the Supreme Court of the United States has rejected[.]” Even so, Judge Winokur agreed with the majority that a trial court should articulate its reasons for determining that appointment is constitutionally required, and that this conclusion is consistent with Russo.
Why It Matters
The decision ties the use of state-funded counsel in postconviction appeals to an explicit finding in the record. Where the record does not show that the circuit court assessed whether the appeal warranted counsel, the First District held the appointment “not legally authorized.” The opinion is not final until disposition of any timely and authorized motion under Florida Rules of Appellate Procedure 9.330 or 9.331.
The Opinion
Download the full opinion (PDF)
| Court | First District Court of Appeal |
| Case No. | 1D2023-3089 |
| Lower Court | Circuit Court, Suwannee County (Judge David W. Fina) |
| Opinion by | Per curiam (Judges Ray and M.K. Thomas concurring; Judge Winokur concurring with opinion) |
| Decided | October 14, 2026 |
| Result | Affirmed |