THOMAS WARREN HALSEY vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: July 21, 2023
• Docket: 22-0083
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

THOMAS WARREN HALSEY,

Appellant,

v. Case No. 5D22-83 LT Case No. 2014-CF-726 STATE OF FLORIDA,

Appellee. _______________________________/

Decision filed July 21, 2023

3.850 Appeal from the Circuit Court for Lake County, James R. Baxley, Judge.

Thomas Warren Halsey, Lake Butler, pro se.

Ashley Moody, Attorney General, Tallahassee, and Alyssa M. Williams, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED.

WALLIS and MACIVER, JJ., concur.

EISNAUGLE, J., concurs in part and dissents in part, with opinion. Case No. 5D22-83 LT Case No. 2014-CF-000726

EISNAUGLE, J., concurring in part, dissenting in part.

I conclude that the trial court erred in denying Appellant’s motions for

appointment of counsel as they relate to one of his claims. I would therefore

reverse the postconviction court’s denial of Appellant’s claim that trial

counsel was ineffective for failing to retain a child psychologist to testify at

trial. I would otherwise affirm. See Woodward v. State, 992 So. 2d 391, 394

(Fla. 1st DCA 2008) (reversing only those claims requiring appointment of

counsel).

Florida’s courts consider a list of factors when ruling on a motion for

appointment of postconviction counsel, including: “the adversary nature of

the proceeding, the complexity of the proceeding, the complexity of the

claims presented, the defendant’s apparent level of intelligence and

education, the need for an evidentiary hearing, and the need for substantial

legal research.” Fla. R. Crim. P. 3.850(f)(7); see also Graham v. State, 372

So. 2d 1363, 1366 (Fla. 1979). In Graham, our supreme court explained:

The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner’s claims. Of course, doubts should be resolved in favor of the indigent petitioner when a

2 question of the need for counsel is presented. Each case must be decided in the light of the Fifth Amendment due process requirements. . . .

Id. at 1365 (quoting Hooks v. State, 253 So. 2d 424, 426 (Fla. 1971)).

Although “an evidentiary hearing does not automatically require

appointment of counsel,” when a postconviction court sets an evidentiary

hearing, it “implies that three of the four elements are involved.” Williams v.

State, 472 So. 2d 738, 740 (Fla. 1985) (emphasis added). Thus, while

Williams does not say that these three factors always establish a movant’s

right to counsel when an evidentiary hearing is granted, they are certainly in

play.

In his motions for appointment of counsel, Appellant alleged, inter alia,

that (1) he is unfamiliar with the law governing postconviction proceedings

and a prison law clerk has drafted all of Appellant’s motions, (2) Appellant “is

currently being held at a special prison for mentally ill prisoners, and is

unable to competently litigate these proceedings,” (3) the issues raised in the

motion “are complex and require the presentation of expert witnesses . . .

[which is] beyond the [Appellant’s] ability because of his incarceration,” and

(4) Appellant is undergoing chemotherapy and is totally blind in his right eye

and two-thirds blind in his left eye.

3 Finally, at the evidentiary hearing, Appellant failed to produce the

expert witness needed to prove his claim, and the transcript of the hearing

further confirms that Appellant often either did not understand what he

needed to prove or that he was substantially ineffective in his cross-

examination of the only witness to testify—his trial counsel. Cf. Williams,

472 So. 2d at 740 (“Williams failed to produce the kinds of expert witnesses

which may have been helpful in proving his claim . . . .”); Witherspoon v.

State, 634 So. 2d 208, 209 (Fla. 4th DCA 1994) (“[A]n effective cross-

examination may have developed that counsel’s own problems with the

federal government interfered with his representation of appellant.”).

I find Williams controlling. In short, as in Williams, the unique

allegations in the motions and Appellant’s performance at the evidentiary

hearing created substantial doubt about Appellant’s ability to fairly litigate his

claim without counsel. See, e.g., Jones v. State, 324 So. 3d 51, 53–54 (Fla.

5th DCA 2021) (“[T]he [c]ourt before which the proceedings are pending

must determine the need for counsel and resolve any doubts in favor of the

appointment of counsel for the defendant.” (quoting Graham v. State, 372

So. 2d 1363, 1365 (Fla. 1979))). I would therefore reverse the postconviction

court’s denial of this claim and remand for further proceedings.