WILLIE BUSH, APPELLANT,
v.
STATE OF FLORIDA AND PHILLIP J. MASSA, APPELLEES
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Willie Bush sought a writ of mandamus to compel his appellate counsel to provide a copy of his record on appeal. The trial court denied the petition after counsel testified he no longer possessed the records due to office relocation, and the appellate court affirmed, noting that Bush could seek alternate relief including postconviction motions.
The court affirmed the denial of mandamus because the trial court properly found that Massa could not produce records he did not possess, though the affirmance was without prejudice to allow Bush to seek alternate relief such as postconviction motions.
[1] A writ of mandamus may be used to compel a specially-appointed appellate counsel, as an agent of the state, to furnish a former client with a copy of the record on appeal…
[2] Mandamus relief is unavailable when the requested records are no longer possessed by the party from whom they are sought.
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Join FLexlaw to unlock all legal intelligence“as an agent of the state, Bush's specially-appointed public defender could be compelled by mandamus to turn over his former client's records and transcripts prepared at the public's expense”
Establishes the general principle that mandamus can compel counsel to provide records, but this principle is limited by whether counsel actually possesses the records.
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Join FLexlaw to unlock all legal intelligenceBush was convicted of robbery with a firearm on February 18, 2003, and appointed counsel Massa represented him on appeal. This court affirmed Bush's c…
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STEVENSON, J.
Willie Bush appeals the denial of his petition for writ of mandamus seeking to compel his specially-appointed appellate counsel, Philip J. Massa, to furnish him with a copy of his record on appeal. Because the trial court accepted Massa’s testimony that he no longer held the records, we affirm.
A jury found Bush guilty of robbery with a firearm on February 18, 2003. The trial court appointed Massa to represent Bush on appeal. This court affirmed Bush’s judgment and sentence without opinion and the mandate issued on July 28, 2004. Bush alleges that he did not learn of this court’s affirmance until over one year later. He alleges Massa never informed him of the status of his direct appeal, and that despite his indigent status, Massa failed to provide him with a copy of his record as requested. Bush filed his first petition for writ of mandamus in the trial court on April 27, 2006, seeking to compel appellate counsel to provide the record, and the trial court summarily denied relief. This court reversed and remanded explaining that, as an agent of the state, Bush’s specially-appointed public defender could be compelled by mandamus to turn over his former client’s records and transcripts prepared at the public’s expense. Bush v. State, 947 So. 2d 685, 685-86 (Fla. 4th DCA 2007) (citing Ramos v. State, 757 So. 2d 616 (Fla. 3d DCA 2000)) (“Bush I”). On remand, pursuant to Bush I, Massa explained that he had relocated his office and misplaced Bush’s record. The trial court issued an order explaining that relief could not be granted because Massa could not produce what he did not possess. This appeal followed.
We affirm the denial of mandamus without prejudice for appellant to seek alternate relief in the trial court, including but not limited to, filing a motion for postcon-viction relief, possibly triggering his right to a free copy of his record. See Cassoday v. State, 237 So. 2d 146, 147-48 (Fla.1970) (holding that defendant must demonstrate a need before the court is required to furnish his transcripts); Dorch v. State, 483 So. 2d 851, 852 (Fla. 1st DCA 1986) (holding that appellant’s request for his record and transcripts for use in preparation of a postconviction motion was premature, and appellant should do the best he can from his recollection of the trial).
Affirmed.
POLEN and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cassoday v. State, 237 So. 2d 146 (Fla. 1970)
- Norvel L. Dorch v. State, 483 So. 2d 851 (Fla. 1st DCA 1986)
- Efrain Ramos v. State, 757 So. 2d 616 (Fla. 3d DCA 2000)
- Bush v. State, 947 So. 2d 685 (Fla. 4th DCA 2007)