Holt v. Keetley

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

          Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Samantha L. Ward, Judge.

          Julianne M. Holt, Public Defender, and Jennifer Spradley and John Morrison, Assistant Public Defenders, Tampa, for Petitioner.

          Lyann Goudie of Goudie & Kohn, P.A., Tampa, and Wade Whidden, Tampa, for Respondent Michael Edward Keetley.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Respondent State of Florida.

          ROTHSTEIN-YOUAKIM, JUDGE.

         Julianne M. Holt, the Public Defender for the Thirteenth Judicial Circuit (the Public Defender), petitions for a writ of certiorari quashing the circuit court's order appointing her office to represent Michael Edward Keetley in criminal case number 10-CF-0018429. Because the Public Defender failed to preserve the arguments that she now raises and, in any event, has wholly failed to make the threshold jurisdictional showing of material injury, we dismiss the petition.

         On December 16, 2010, Keetley was indicted on two counts of murder in the first degree (premeditated) and four counts of attempted murder in the first degree. On that date, private attorney Ariel Garcia filed a notice of appearance on Keetley's behalf. Thereafter, the clerk determined that Keetley was indigent and appointed the Public Defender to represent him, but Keetley declined her services.

         In 2011, the State filed its notice of intent to seek the death penalty, and private attorney Lyann Goudie filed a notice of appearance on Keetley's behalf. Less than a year later, private attorney Paul Carr officially appeared on Keetley's behalf although he had been representing Keetley since December 2010. Attorney Garcia later withdrew, and another private attorney also came and went.

         In October 2014, Attorney Goudie moved to have Keetley declared indigent for costs pursuant to section 27.52(5), Florida Statutes (2014).^[1] The trial court granted the motion. All along, Keetley's parents had been footing the bill for private counsel and had already incurred approximately $200, 000 in fees with respect to Attorney Goudie and Attorney Carr.

         Attorney Goudie subsequently filed an ex parte motion to appoint a third attorney as penalty-phase counsel. The Public Defender personally appeared at the August 19, 2015, hearing on this motion, and the Justice Administrative Commission (JAC) appeared telephonically.^[2] Although present, the Public Defender declined to comment on the motion, while the JAC generally argued in opposition to the appointment of a third attorney at state expense. The trial court orally denied the motion at the hearing. With respect to the appointment of the Public Defender, the court explained that its decision was "based on the plain reading of the rules and statutes relating to this that prohibit appointment when a Defendant . . . is being represented by retained counsel."

         In May 2016, Keetley, through Attorney Goudie, moved for the trial court to declare Florida's amended death penalty statute unconstitutional in light of Hurst v. Florida, 136 S.Ct. 616 (2016). The trial court granted the motion, and the State sought certiorari review in this court. The Public Defender represented Keetley in that certiorari proceeding.^[3]

         On July 8, 2016 (during the pendency of the certiorari proceeding), the trial court entered an order of substitution of counsel that relieved Attorney Carr from further responsibility and substituted Attorney Goudie as lead counsel. That same day, Attorney Goudie filed a second motion to appoint penalty-phase counsel, requesting cocounsel on the grounds that it is "standard practice in death penalty cases, for a defendant to be represented by at least two lawyers" and that she did not feel that she could "prepare for both first phase motions and trial and competently and effectively prepare motions, conduct hearings and arguments on the penalty phase issues." Attorney Goudie asserted in her motion that the JAC had informed her that the Public Defender "typically, in these situations, . . . cites the Statute, the commentary[, ] and case law to refuse appointment, " at which point the court will "turn[] to JAC." She contended, however, that the trial court was not precluded from appointing the Public Defender to represent Keetley in the penalty phase.

         At the hearing on this motion, the JAC appeared telephonically and opposed the appointment of a second attorney for the same reasons that it had previously opposed the appointment of a third and also because the death penalty seemed to be off the table in light of Hurst. The record does not indicate that anyone appeared on behalf of the Public Defender. The trial court denied the motion in light ...