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

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT

TOBY CHAPMAN,                                 )
                                              )
             Appellant,                       )
                                              )
v.                                            )     Case No. 2D14-2799
                                              )
STATE OF FLORIDA,                             )
                                              )
             Appellee.                        )
                                              )

Opinion filed July 10, 2015.

Appeal from the Circuit Court for Highlands
County; Anthony R. Ritenour, Acting Circuit
Judge.

Howard L. Dimmig, II, Public Defender,
and Jamie Spivey, Assistant Public
Defender, Bartow, for Appellant.

Toby Chapman, pro se.

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


                     ORDER STRIKING ANDERS BRIEFING AND
                         REQUIRING MERITS BRIEFING

ALTENBERND, Judge.

             The appellant, Toby Chapman, was found guilty by a jury of one count of

burglary with assault or battery and two counts of sexual battery on a person twelve

years of age or older. He was sentenced to life in prison. His appellate counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). This brief is similar to

others that this court has received in the recent past. Thus, without intending to single

out this lawyer for criticism, we use the striking of this brief as an opportunity to

emphasize the narrow circumstances in which an Anders brief is appropriate under the

standards set by the U.S. Supreme Court and to explain the content expected in such a

brief.

              In a short Anders brief, appellate counsel in this case represents that she

"is unable to make a good faith argument that reversible error occurred in the trial

court." This brief does not reference anything from the appellate record, which consists

of more than one thousand pages, that might arguably support Mr. Chapman's appeal.

Counsel merely directs our attention to whether "the court erred in the judgment and

sentence" and states in a single sentence that "it would appear that the conviction and

sentence were supported by substantial competent evidence."

              Mr. Chapman filed a pro se brief in which he identifies several potential

legal grounds for appeal, two of which are clearly arguable. After reviewing Mr.

Chapman's pro se brief and conducting an independent review of the lengthy record, we

have identified at least two issues that are arguable on their merits, one of which

encompasses the two arguable legal grounds identified by Mr. Chapman. We thus

strike the Anders briefing of both counsel and Mr. Chapman and order counsel to file

merits briefing on Mr. Chapman's behalf with the following considerations.

              In order to ensure that criminal defendants are afforded their constitutional

right to counsel, before filing an Anders or "no merits" brief, appellate counsel must

conscientiously follow the procedure for Anders appeals set forth by the U.S. Supreme




                                             -2-
Court. Appellate counsel must "master the trial record, thoroughly research the law,

and exercise judgment in identifying the arguments that may be advanced on Appeal."

In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991) (quoting McCoy v. Court of

Appeals, 486 U.S. 429, 438-39 (1988)). Counsel is justified in proceeding pursuant to

Anders "only after such an evaluation has led counsel to the conclusion that the appeal

is 'wholly frivolous.' " Id.; Anders, 386 U.S. at 744-45. An appeal that is wholly frivolous

is one in which there are no "legal points arguable on their merits," Anders, 386 U.S. at

744, or one that "lacks any basis in law or fact."1 McCoy, 486 U.S. at 438 n.10.

Moreover, in order to assist both the appellant in identifying issues for his pro se brief

and the appellate court in its own review to determine whether the appeal is in fact




              1
                 Judge Martha Warner's thesis on the difficulties presented by Anders
appeals provides a helpful discussion on the difference between a wholly frivolous
appeal appropriate for Anders and one that contains at least some arguable issue. See
Martha C. Warner, Anders in the Fifty States: Some Appellants' Equal Protection Is
More Equal Than Others', 23 Fla. St. U.L. Rev. 625, 663-64 (1996). Judge Warner
points out that the Supreme Court of Florida long ago provided a comprehensive
definition of a frivolous appeal, albeit not in the context of Anders cases, which helps
illustrate how rarely an appeal will warrant Anders briefing:

                               A frivolous appeal is not merely one that is
              likely to be unsuccessful. It is one that is so readily
              recognizable as devoid of merit on the face of the record that
              there is little, if any, prospect whatsoever that it can ever
              succeed. . . . It must be one so clearly untenable, or the
              insufficiency of which is so manifest on a bare inspection of
              the record and assignments of error, that its character may
              be determined without argument or research. An appeal is
              not frivolous where a substantial justiciable question can be
              spelled out of it, or from any part of it, even though such
              question is unlikely to be decided other than as the lower
              court decided it, i.e., against appellant or plaintiff in error.

Id. at 664 (quoting Treat v. State ex rel. Mitton, 163 So. 883, 883-84 (Fla. 1935)).


                                            -3-
wholly frivolous, appellate counsel must in its Anders brief "refer[] to anything in the

record that might arguably support the appeal."2 Anders, 386 U.S. at 744.

              Counsel's representation in this case that she "is unable to make a good

faith argument that reversible error occurred in the trial court" seems to this court to

place the bar somewhat higher than that intended by the guidance in Anders. Perhaps

the standard could be better represented by the statement that counsel has "thoroughly

reviewed the record and has located no legal point that can be argued in good faith on

its merits or that is not wholly frivolous." Unlike in some Anders appeals we have seen

recently, counsel, to her credit, provides a relatively thorough recitation of the record in

her brief. However, an Anders brief submitted in an appeal with a record of this size

that does not identify or discuss portions of the record or legal points that might

arguably support the client's appeal falls short of satisfying the procedure under Anders

and counsel's obligation to the client and this court.




              2
               The Eleventh Circuit's order in United States v. Blackwell, 767 F.2d 1486
(11th Cir. 1985), provides worthwhile guidance on this aspect of Anders and its
importance. There, the court explained:

                              If the Anders procedure is to work . . . the
              lawyer filing the Anders brief must, to the extent possible,
              remain in his role as advocate; at this stage of proceeding it
              is not for the lawyer to act as an unbiased judge of the merit
              of particular grounds for appeal. He or she is required to set
              out any irregularities in the trial process or other potential
              error which, although in his judgment not a basis for
              appellate relief, might, in the judgment of his client or
              another counselor or the court, be arguably meritorious.
              This is done in order that these potential claims not be
              overlooked. The objective of these potential claims is for the
              court's determination, not the advocate's.

Id. at 1487-88 (emphasis in original).


                                            -4-
              As previously stated, after reviewing Mr. Chapman's pro se brief and after

conducting our own review of the record, we have identified at least two issues that are

arguable on their merits, one of which was raised by Mr. Chapman in his pro se brief.

The first issue is whether it was fundamental error for the trial court to allow the State to

admit the videotaped interrogation of Mr. Chapman in its case-in-chief when Mr.

Chapman did not testify at trial; his statements during the interrogation contain few, if

any, admissions; and the recording included repeated statements of the interrogating

officer's belief in Mr. Chapman's guilt. The second issue is whether it was error for the

trial court at sentencing to admit criminal report affidavits from Mr. Chapman's prior

convictions over Mr. Chapman's hearsay objection. This court's identification of the

above-stated issues of arguable merit is not intended to limit counsel from raising any

other legal issues supporting Mr. Chapman's appeal.

              The Anders brief and Mr. Chapman's pro se brief are stricken. Counsel

for Mr. Chapman shall file an initial merits brief within thirty days of the issuance of this

order.




KELLY and LUCAS, JJ., Concur.




                                             -5-
