Bowen v. State

Decision Date29 May 1996
Docket NumberNos. 93-03918,94-01076,s. 93-03918
Citation677 So.2d 863
Parties21 Fla. L. Weekly D1311 Jimmy Dell BOWEN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals
EN BANC

FRANK, Judge.

Jimmy Dell Bowen, convicted of second degree murder with a firearm, attempted first degree murder, and carrying a concealed weapon, has appealed on several grounds. We reverse because the trial court denied Bowen's request to represent himself, a right conferred by the Sixth Amendment to the Constitution of the United States. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The record discloses that Bowen informed the trial court of his conflict and dissatisfaction with the public defender's office. His complaints were essentially expressions of general unhappiness with the attorney assigned to represent him and Bowen stated that he preferred to represent himself. The trial court questioned him to ascertain whether he was knowingly and intelligently waiving his right to counsel. Thus, the trial court inquired into his education and experience in criminal proceedings. It elicited that he had graduated from high school and had worked in a law library in a state prison for two years, and had represented himself in two criminal proceedings. The trial court, however, concluded that Bowen was not "competent" to represent himself:

He has not had a charge of this nature that carries a minimum mandatory penalty of twenty-five years in the Florida State Prison, which he didn't even know.

He's had two forays in the legal system representing himself, one of which apparently he wound up in the Illinois State Prison.

The other one I personally have to check the records to find out. You know, he claims that he got off that case, but I don't think he's competent, based on his high school diploma, to represent himself in a case of this nature.

The trial court properly undertook its Faretta function but it improperly denied Bowen self-representation because of its belief that he was not competent to provide his own defense. Notwithstanding that the trial court did not express a basis for its determination that Bowen was not "competent" to fulfill self-representation, there is no doubt that it focused exclusively upon whether Bowen could provide himself with a substantively qualitative defense--a fair trial.

"The 'competent' language in Faretta is directed at the 'knowing and voluntary' nature of the defendant's choice, not at the ability of the defendant to mount a successful defense." Peters v. Gunn, 33 F.3d 1190, 1192 (9th Cir.1994). See also United States v. McKinley, 58 F.3d 1475 (10th Cir.1995). The trial court's error derived from its failure to recognize the controlling distinction between Bowen's technical competency to self-represent and his competence to understand the "significance and consequences of [his] decision.... See Faretta v. California, supra, 422 U.S., at 835, 95 S.Ct. at 2541." Godinez v. Moran, 509 U.S. 389, 399-402, n. 12, 113 S.Ct. 2680, 2687, n. 12, 125 L.Ed.2d 321 (1993). "Indeed, the Supreme Court's decision in Godinez explicitly forbids any attempt to measure a defendant's competency to waive the right to counsel by evaluating his ability to represent himself." United States v. Arlt, 41 F.3d 516, 518 (9th Cir.1994). In sum, the conclusion reached by the trial court cannot survive the Faretta strictures.

The trial court may not force a lawyer upon the defendant. "It is the defendant ... who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' " Faretta, 422 U.S. at 834, 95 S.Ct. at 2540-41 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (Brennan, J., concurring)). Here, the trial court followed the path our courts created when pre-Faretta jurisprudence was imported into our post-Faretta decisions. It is beyond question from the record before us that Bowen waived his right to counsel voluntarily and intelligently. He was educated, competent, and uncoerced. Once the trial court determined that he had made an uncoerced election, and he had been informed of the perils of self-representation, Bowen had a Sixth Amendment right to proceed without counsel. Faretta. Thus, today we must recede from that line of cases infected by our earlier, but now erroneous, perception of the right to self-representation. Concern with the ability of a self-representing defendant to conduct a "fair trial" plays no part in the Sixth Amendment right to self-representation.

In Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA1967), rev'd on other grounds, 216 So.2d 749 (Fla.1968), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969), the Fourth District considered, pre-Faretta, the constitutionality of the denial of a defendant's motion to conduct his own defense, and followed the precedent from federal and Florida courts holding that to force counsel upon the accused would infringe upon constitutional rights. The Cappetta court concluded:

[T]his court holds to the general rule that in the absence of unusual circumstances an accused who is mentally competent and sui juris has the right to conduct his own defense without the aid of counsel.

204 So.2d at 917 (emphasis supplied). The Fourth District, however, enumerated the "unusual circumstances" to be considered:

whether the accused by reason of age, mental derangement, lack of knowledge, or education, or inexperience in criminal procedure would be deprived of a fair trial if allowed to conduct his own defense, or in any case, where the complexity of the crime was such that in the interest of justice legal representation was necessary. The right of an accused to represent himself without assistance of counsel is not so absolute that it must be recognized when to do so would jeopardize a fair trial on the issues.

204 So.2d at 918.

In Robinson v. State, 368 So.2d 674 (Fla. 1st DCA 1979), the First District followed Faretta in requiring the trial court to inquire whether the defendant was making a knowing, intelligent, and voluntary decision. The First District, citing Cappetta, emphasized the special circumstance of deprivation of a fair trial, even though that specific inquiry is not a part of the Faretta standards in assessing the right of self-representation. Our court subsequently in Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983), relied upon both Cappetta and Robinson for the "special circumstances" test, and then in Matthews v. State, 584 So.2d 1105 (Fla. 2d DCA 1991), we perpetuated the necessity for a more stringent examination of the defendant by referring to Williams. Most recently, in Jones v. State, 658 So.2d 122 (Fla. 2d DCA 1995), the specially concurring opinion identified those circumstances that trial courts could follow in resolving self-representation issues, including the considerations set forth in Matthews and Williams.

We emphasize, without reservation, that we do not intend to suggest that the trial court should not delve into those matters that have been labelled "special circumstances." In fact, Faretta requires that the defendant's age, education, mental status, and experience with criminal proceedings be subjects of inquiry. See Taylor v. State, 605 So.2d 958 (Fla. 2d DCA 1992). Those factors, however, bear exclusively on whether the defendant has made a knowing and intelligent waiver and not whether the defendant's responses would indicate exposure to an unfair trial. Florida Rule of Criminal Procedure 3.111(d)(3) specifically lists the factors in its implementation of the Faretta decision. See State v. Young, 626 So.2d 655 (Fla.1993); Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir.1986). In short, once the trial court has reached a determination that the defendant's self-representation decision meets the Faretta standards, the Sixth Amendment right may not be subordinated to anticipated pragmatic concerns associated with the convenient operation of the courtroom, delay in the process and the maintenance of the customary flow of courtroom events. Obviously, if courtroom environment reaches the point where it becomes insufferable, the assistance of counsel can be imposed upon the self-represented defendant.

We are quick to acknowledge at this juncture in our review process that more often than not the criminal defendant will not possess the skill to conduct a trial as neatly and competently as appointed counsel. In McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the Supreme Court commented in dicta that Faretta "held that an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol." 1 465 U.S. at 172-73, 104 S.Ct. at 948. We, no differently than the United States Court of Appeals for the Ninth Circuit, "merely interpret McKaskle as permitting denials of the Faretta right to an accused who is unable to abide by rules of courtroom procedure, just as the right may be denied to those who are unwilling so to do." Savage v. Estelle, 924 F.2d 1459, 1466 (9th Cir.1990), cert. denied, 501 U.S. 1255, 111 S.Ct. 2900, 115 L.Ed.2d 1064 (1991). 2 We do not perceive McKaskle to mean that the Supreme Court has expanded the elemental Faretta concept to include the notion of "able and willing to abide by rules of procedure and courtroom protocol" as additional standards governing a trial court's implementation of the Sixth Amendment's right of self-representation. Mo...

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  • Marquardt v. State
    • United States
    • Florida Supreme Court
    • 22 Enero 2015
    ...the trial as neatly and competently as an attorney, this does not circumscribe the right of self-representation. Bowen v. State, 677 So.2d 863, 866 (Fla. 2d DCA 1996), app'd, 698 So.2d 248 (Fla.1997). At the same time, the authority and power of the trial court to control the courtroom is n......
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    • 28 Diciembre 2018
    ...if he or she so chooses, to sit mute and mount no defense at all." (citations omitted) (footnote omitted) (quoting Bowen v. State , 677 So.2d 863, 864 (Fla. 2d DCA 1996) ).16 We have reviewed the record and conclude that sufficient evidence exists to support the six convictions of first-deg......
  • Ippolito v. State
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    ...She is a criminal defendant, untrained in the law, who has invoked her constitutional right to self-representation. See Bowen v. State, 677 So.2d 863 (Fla. 2d DCA 1996). Ms. Mokdad's conduct is comparable to that of the defendant in In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (......
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