Barnes v. State, 91-0636
| Decision Date | 13 November 1991 |
| Docket Number | No. 91-0636,91-0636 |
| Citation | 588 So.2d 1076 |
| Parties | Clifford BARNES, Appellant, v. STATE of Florida, Appellee. 588 So.2d 1076, 16 Fla. L. Week. D2855 |
| Court | Florida District Court of Appeals |
Jeffrey H. Garland of Carbia, Kirschner & Garland, P.A., Fort Pierce, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee.
Clifford Barnes (Barnes) appeals the judgment adjudicating him guilty of indirect criminal contempt. We reverse.
Barnes, an assistant Public Defender, was found guilty of indirect criminal contempt by the trial court for wilfully failing to make himself available to participate as co-counsel in a criminal trial. However, Barnes had never appeared in court on the case, had never signed any pleadings in the case, and had never assisted the attorney of record, the assigned Public Defender, Lucky Osho (Osho), in preparation of the case.
Osho, apparently lacking self-confidence and doubting his ability to try the case, had asked Barnes to attend the criminal trial with him. Although Barnes felt Osho was very capable of trying the case, Barnes agreed to informally help Osho in a limited fashion, so long as his own schedule permitted. However, Barnes was never assigned the case nor did he have any responsibility to prepare for or participate in the trial. When the case was set for trial, Osho so advised Barnes, but Barnes had a conflict. Pursuant to Barnes' suggestion, Osho asked the trial court for a continuance based on several grounds, including the grounds that Barnes had a conflict and could not attend the trial on the scheduled date. Unfortunately, Osho's representation to the trial court about Barnes' anticipated role in the case did not accurately reflect what Barnes had agreed to do. In our view, it is Osho's misrepresentation about Barnes' anticipated role in the trial that fostered the confusion and misunderstanding that evolved during the course of the case. Although Barnes was subsequently made aware that the trial court had denied the continuance in spite of his conflict, it is unrefuted that Barnes was never told by anyone, including Osho, that Barnes had been specifically ordered by the trial court to personally appear in court for trial. Furthermore, no written order was entered by the trial judge directing Barnes to appear in court.
Once Barnes learned the continuance had been denied, he advised Osho that he could not attend the trial on the scheduled date and suggested that Osho seek another continuance on the grounds that Barnes was unavailable for trial. But it is unrebutted that Barnes and Osho also agreed that if the trial court denied the continuance, then Osho should try the case himself or ask another attorney to help him. For whatever reason, Osho decided to only seek another continuance of the trial, which was granted, on the grounds that he could not give effective assistance of counsel without the assistance of his co-counsel, Clifford Barnes, and that Barnes was unavailable for trial. Thus, Osho, without Barnes' knowledge or approval, disregarded his agreement with Barnes to try the case himself or seek the assistance of another attorney if the trial court denied the continuance.
Although we sympathize with the trial judge's frustration caused...
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