
    John Paul HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 72-551.
    District Court of Appeal of Florida, Second District.
    July 20, 1973.
    
      Walter R. Talley, Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   LILES, Judge.

This case was originally assigned to me in November, 1972, with oral argument waived. The public defender filed notice of appeal following a jury trial in which appellant was convicted of robbery. Appellant’s counsel, relying on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed.2d 493 (1967), urged that there was nothing “which would arguably support an appeal.” As is customary, I reviewed the record and determined that there was no reversible error, either fundamental or otherwise, upon which a reversal could be based. I therefore recommended per cur-iam affirmance.

Judge McNulty subsequently concurred in that conclusion and Judge Mann has finally concurred specially. It is to the special concurring opinion that I address my remarks. Judge Mann contends that in the trial the legality of the jury selection in Hillsborough County was challenged. This, of course, was not preserved as a point on appeal. He advises us that there is another case from Hillsborough County now before the Supreme Court of Florida contesting the system of jury selection as being unlawful. The record does not support this fact and I am not disposed to take judicial notice of what may or may not be pending before the supreme court. Neither am I persuaded in advance that the appellant should file for an appellate review pursuant to Baggett v. Wainwright, Fla. 1969, 229 So.2d 239.

It is not incumbent upon this court to advise appellants what and when they may appeal. I am not at this point predisposed to guarantee Hamilton an appeal under Baggett, supra. While it is true that Baggett provides for a full appeal when the State has in some manner thwarted a full appeal, it does not hold that every reversible error is fundamental nor does it hold that more than one full appeal is mandatory. The facts of Bag-gett, under a close examination, support a full appeal by a convicted defendant that has not previously had such an appeal. It speaks generally to that type of appellant, i. e., one not having previously had his case reviewed by an appellate court. It relies on Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, and other cases, for the proposition that an indigent defendant is constitutionally entitled to a stat,e-appointed counsel for the purpose of directly appealing a conviction. The Douglas decision applies retroactively to secure state-appointed counsel for appeal.

Whether or not the Supreme Court of Florida ultimately holds that the jury system is unlawful in Hillsborough County is pure conjecture, nor can I at this point hold that such a decision would be retroactive. But assuming that they may make such finding, I do not in this opinion concur that Baggett would afford appellant another full review by this court. To remain silent on the concurring opinion by Judge Mann might indicate that I, in some way, agree to the conclusion reached by him in that opinion.

Affirmed.

McNULTY, J„ concurs.

MANN, C. J., concurs specially.

MANN, Chief Judge

(concurring specially) .

I concur in affirmance on the present record. I would point out, however, that in the trial court Hamilton’s counsel challenged the legality of jury selection in Hills-borough County. His appellate counsel did not pursue this question. However, it is being pursued in another case arising out of Hillsborough County, and if in that case the Supreme Court declares Hillsborough County juries to have been selected in an unlawful manner, Hamilton should then file for appellate review of this question pursuant to Baggett v. Wainwright, Fla.1969, 229 So.2d 239.

After the foregoing paragraph was written, Judge Liles wrote a full opinion to which I should respond with a fuller account of my reasoning.

Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, forbids our acting on a case in which arguable issues appear and are not argued by appointed counsel. I dissented at this threshold stage of consideration in Carmen v. State, Fla.App.1973, Case No. 72-235, opinion filed April 27, 1973, not yet published. Carmen’s arguable claim was peculiar to his case. In several other cases I have concurred specially on the ground which prompts my concurrence in Hamilton’s case: the arguable claim is elsewhere being argued, and the taxpayers are not needlessly burdened with the cost of reproducing a record in each of the cases arising out of Hillsborough County in which a challenge to the jury panel was made on the ground that the jury list is unconstitutionally compiled. This challenge rests upon State v. Silva, Fla.1972, 259 So.2d 153, and cases therein cited. See also Alexander v. Louisiana, 1972, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536. I do not consider it a trivial question. Once it has been raised in good faith, I think Hamilton’s trial counsel, diligent in perfecting the record below, rendered arguable in this court the correctness of the denial of his motion. Were I not certain that the matter is being pursued I would be compelled by Anders to dissent. I am advised, as Judge Liles was not, because he did not sit on the panel, that we had granted a stay in another case in this court until this question was resolved in the Supreme Court. The case in the Supreme Court, mentioned in my first paragraph, has been dismissed, but the one in this court remains. I think it an appropriate vehicle for the presentation of the claim that the jury was unconstitutionally selected. So must the Public Defender in Hillsborough County, because we have had a number of cases in which the motion is made and denied, with passing reference to the applicability of the question to a number of cases arising there.

To me it makes sense to determine the matter in a single case and apply it to all, so I concur with the brief caveat that our duty under Anders seems discharged on this condition. Otherwise there is no way of fulfilling our constitutional duty in a common sense way.

If others may have been misled by my brief first paragraph, I would make it clear that there is no error on the present record, fundamental or otherwise. There was none in Anders, and the Supreme Court of California was reversed for resolving the case without considering arguable merit in the appellant’s claim. I mentioned Baggett because I believe strongly that state judges should not leave loose ends lying around for federal judges to pick up, and I thought it prudent to suggest Baggett as an avenue of review open to Hamilton in the event his jury challenge is found to have merit.

As to fundamental error, I made no reference to it and intended none. We need not cross the bridge until we come to it, but a delayed appeal under Baggett is the same as any direct appeal in the scope of error reached by it. Nor did I intend to suggest that Hamilton is guaranteed an appeal by this court. He is guaranteed a right to appellate review by the Constitution, and so far that right is not fully complied with by our performance of duty. My reading of Anders persuades me that he should get it here, if arguable merit should come out of the collateral proceedings I referred to.

I quite agree that no more than one full appeal is mandatory. I simply cannot view as a full appeal one which leaves unargued a point which is being argued in good faith in this court, which is still an open question, and arguable on the face of the record before us.

As to retroactivity, that is a question irrelevant to this case. Hamilton’s trial counsel timely raised the issue, and his appellate counsel should have, but didn’t. It was treated with economy of time in the trial court, for sensible reasons. If my simple caveat were not based upon common sense and sound constitutional doctrine, fundamental error is the only type Hamilton could assert later. That makes it all the more clear to me that proper treatment of Hamilton’s appeal here is required by Anders.

My concurrence remains limited as stated.  