Burgos v. State, 94-02373
| Decision Date | 16 February 1996 |
| Docket Number | No. 94-02373,94-02373 |
| Citation | 667 So.2d 1030 |
| Parties | 21 Fla. L. Weekly D509 Jorge BURGOS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Hillsborough County; Bob Anderson Mitcham and Donald C. Evans, Judges.
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Anne E. Sheer, Assistant Attorney General, Tampa, for Appellee.
Jorge Burgos appeals from convictions of two counts of capital sexual battery on a child less than twelve years of age. He contends that the state failed to prove that the incidents occurred before the victim's twelfth birthday and that the court erred in failing to conduct an adequate Nelson 1 inquiry. We reverse and remand for a proper Nelson inquiry and a new trial on count II of the information.
The state filed an information which charged Burgos in count I with sexual battery on Tomasa Batalla by penetration of the anus between February 15, 1976, and February 14, 1982. Count II charged union with the vagina of Batalla with his mouth during the same time frame. The victim, Burgos' niece, was twenty-eight years old at the time of trial.
Burgos made three pretrial pro se motions to discharge his court-appointed counsel. At a hearing held on the first of these motions on March 23, 1994, the following dialog took place between Burgos and the trial court:
Second of all, Mr. Hooper--I've been incarcerated for four months and I only seen Mr. Hooper twice. He came Friday, this past Friday and talked to me. And I'm not satisfied with the way he is handling my case.
THE COURT: Well, I'm sorry I wish I could appoint everybody the lawyer of their choosing, you know, but that is not possible.
Mr. Hooper is one of the finest trial lawyers that this Court has had the privilege of having worked in this division. He is an extremely skilled advocate. And it is true that he has a number of cases to handle, but that is true of any lawyer.
Any lawyer that is a good trial lawyer is going to have a lot of cases to handle. Perhaps he cannot spend as much time with you as you would possibly like for him to spend. And that in and of itself is not sufficient for me to remove him. He's a good lawyer.
THE DEFENDANT: Well, Your Honor, it's not so much the time. It's the things that we discussed on Friday as far as the handling of my case, the people that I wanted to have subpoenaed.
Everything that I told him that would help my case, he told me he wasn't going to do. In quote, end quote he told me that he didn't want to hear "no bullshit".
The trial court then denied Burgos' motion to discharge his lawyer. Burgos renewed his complaints to the trial court in hearings on May 23, 1994, and June 13, 1994. In denying these motions, the court's comments were essentially identical to those quoted above. Burgos contends that none of these three proceedings constitute an adequate Nelson inquiry. We agree.
In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the court formulated a procedure which a trial court must follow when a defendant wishes to discharge his court-appointed counsel prior to trial because of counsel's alleged incompetency. The court stated:
[T]he trial judge should make a sufficient inquiry of the defendant and his court appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not...
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Tucker v. State, 2D98-4935.
...employed by defendants to stall the inevitable. See, e.g., Harris v. State, 742 So.2d 835 (Fla. 2d DCA 1999). 8. In Burgos v. State, 667 So.2d 1030 (Fla. 2d DCA 1996), this court determined that the trial court's failure to conduct a Nelson inquiry was error which could not be deemed harmle......
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Milkey v. State
...assistance. See Jones, 658 So.2d at 125. Nelson mandates that the court make findings on this issue on the record. Burgos v. State, 667 So.2d 1030, 1032 (Fla. 2d DCA 1996). Here, it certainly behooved the court to make further inquiry regarding Milkey's complaint about This case is similar ......
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Mosley v. State, 97-1625
...cert. denied, 490 U.S. 1037, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989); Rios v. State, 696 So.2d 469 (Fla. 2d DCA 1997); Burgos v. State, 667 So.2d 1030 (Fla. 2d DCA 1996); Marshall v. State, 665 So.2d 307 (Fla. 2d DCA 1995); Kearse, supra, at 537; Williams v. State, 532 So.2d 1341 (Fla. 4th D......
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