H. TOAL, C.J.
was sentenced to death on October 22, 2003. The case is now
before this Court on direct appeal. Joseph Savitz and Robert
M. Dudek, of the Office of Appellate Defense, serve as
counsel for appellant. They served and filed the initial
brief on February 22, 2005.
now moves to proceed pro se, arguing the warden and
appellate counsel are acting to deny him access to the
courts. He maintains he does not want the assistance of
attorneys from the Office of Appellate Defense and that he
"rejected" them prior to their filing the initial
brief and continues to reject them and any action they take
on appellant's behalf. In support of his request to
proceed pro se, appellant contends S.C. Code Ann.
§ 16-3-25(D) states that, "Both the defendant and
the State shall have the right to submit briefs within the
time provided by the court and to present oral arguments to
of return, appellate counsel take the position that the Court
should not allow self-representation on direct appeal. They
assert that while a pro se defendant who mishandles
a trial harms only himself, a pro se defendant who
mishandles a direct appeal damages the criminal justice
system as a whole. Finally, appellate counsel argue that even
if the Court allows self-representation on appeal from a
criminal conviction, it should require the appellant to
exercise that option before appellate counsel files the
initial brief and designation of matter.
State has filed a return in which it argues there is no
federal constitutional right to self-representation on direct
appeal and this State has not recognized such a right under
its own constitution, see Martinez v. Court of Appeal of
California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597
(2000), although it acknowledges that the Court has noted it
is questionable whether Art. I, § 14 of the South
Carolina Constitution applies to appellate matters. Foster
v. State, 298 S.C. 306, 379 S.E.2d 907 (1989). The State
argues that constitutional provision applies only to trials
and not appellate proceedings.
State argues further that appellant has the assistance of two
very experienced capital appeals litigators and they have
already filed a brief in this matter. The State contends it
is simply too late to stop the process, go back to the
beginning and allow submission of new substantive arguments
simply because appellant is not satisfied with the issues
raised by appellate counsel. The State maintains appellate
counsel are entitled to make a reasonable choice not to raise
every non-frivolous issue requested by appellant, see
Jones v. Barnes, 436 U.S. 745, 103 S.Ct. 3308, 77
L.Ed.2d 987 (1983), and any mistake they make in determining
viable issues for briefing can be resolved on post-conviction
relief instead of by way of a pro se brief on direct
of reply, appellant maintains Mr. Savitz is incompetent and
ineffective. He points to Mr. Savitz's failure to raise
any guilt phase errors or constitutional errors in the
initial brief. Appellant contends the record clearly reflects
that during the pre-trial and guilt phase, appellant sought
"instant relief or release" based on Fourth
Amendment violations and a lack of evidence. He claims these
two issues are the most significant and meritorious and
should have been raised in the initial brief. Appellant
maintains he cannot raise the insufficiency of the evidence
on post-conviction relief.
Court has repeatedly held, pursuant to Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975), that a criminal defendant may waive the right to
counsel and proceed pro se at trial. State v.
Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999); State
v. Stuckey, 333 S.C. 56, 508 S.E.2d 564 (1998);
State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998);
State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997);
State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991);
State v. Dixon, 269 S.C. 107, 236 S.E.2d 419 (1977).
However, we have never addressed whether a criminal defendant
has the same right on appeal.
Martinez, supra, the United States Supreme
Court held that the rationale underlying the Faretta
decision, including reliance on the Sixth Amendment, did not
apply to appellate proceedings. The Court also found no right
of self-representation under the Due Process Clause.
Accordingly, a right of self-representation on appeal must be
grounded in the state constitution, if at all. The majority
of the states that have addressed this issue following
Martinez have found there is no state constitutional
right to self-representation on appeal.
I, § 16 of the Florida Constitution states the
In all criminal prosecutions the accused shall, upon demand,
be informed of the nature and cause of the accusation, and
shall be furnished a copy of the charges, and shall have the
right to have compulsory process for witnesses, to confront
at trial adverse witnesses, to be heard in person, by counsel
or both, and to have a speedy and public trial by impartial
jury in the county where the crime was committed.
Florida Supreme Court found, despite this language, which is
very similar to Art. I, § 14 of the South Carolina
Constitution, that in Florida there is no state
constitutional right to proceed pro se on direct
appeal, although the appellate court may, in its discretion,
allow an appellant to proceed pro se. Davis v.
State, 789 So.2d 978 (Fla. 2001). The New Hampshire
Supreme Court has also determined its state constitution
provides no due process right to a defendant to proceed
pro se on appeal. State v. Thomas, 840 A.2d
803 (N.H. 2003). Appellate courts in Arkansas, Texas and
Washington have also held, in reliance upon
Martinez, that an appellant in a criminal case does
not have the right to proceed pro se on direct
appeal in those states. Fudge v. State, 19 S.W.3d 22
(Ark. 2000); Cormier v. State, 85 S.W.3d 496 (Tex.
App. 2002); State v. Watson, 2000 WL 339179 (Wash.
Alabama Supreme Court held that while the Alabama
Constitution does not provide any basis for recognizing a
right to self-representation on appeal,  certain statutes, when
read together, give an appellant in a criminal case a
statutory right to do so. Ex parte Scudder, 789 So.2d
837 (Ala. 2001).
states had determined prior to the decision in
Martinez that there is no constitutional right to
self-representation on appeal from a criminal conviction. In
Blandino v. State, 914 P.2d 624 (Nev. 1996), the
Supreme Court of Nevada held that the Sixth Amendment only
applies to trials and does not support the existence of a
right to self-representation on ...