Crosby v. State

• Decision Date: 22 March 2013
• Docket Number: No. 2D11–463.,2D11–463.
• Citation: 125 So.3d 822
• Parties: Terrick M. CROSBY, a/k/a Terrick Maurice Crosby, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

125 So.3d 822

Terrick M. CROSBY, a/k/a Terrick Maurice Crosby, Appellant,

v.STATE of Florida, Appellee.

No. 2D11–463.

District Court of Appeal of Florida,

Second District.

March 22, 2013.

Terrick M. Crosby, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Terrick Crosby appeals his judgment and sentences for dealing in stolen property and for false verification of ownership to a pawn broker following a jury trial at which he represented himself. On appeal, Mr. Crosby argues that the trial court reversibly erred in denying his pretrial motion to dismiss his trial counsel without first holding a Nelson¹ hearing, in failing to renew the offer of assistance of counsel before permitting Mr. Crosby to represent himself at trial, and in failing to properly instruct the jury under section 812.025, Florida Statutes (2009). We write to explain our decision on the first two issues and to certify conflict and questions of great public importance on the third issue.

FAILURE TO CONDUCT NELSON HEARING AND TO RENEW OFFER OF COUNSEL

On May 20, 2010, Mr. Crosby filed a motion to dismiss his trial counsel and requested a Nelson hearing. In his motion, Mr. Crosby raised numerous complaints about his counsel's performance. These complaints were mostly refuted by the record or by the attachment to Mr. Crosby's motion or were insufficient to establish reasonable cause to believe that counsel was rendering ineffective assistance. According to the trial court's docket, on May 24, 2010, the trial court denied the motion to dismiss without a hearing.

Thereafter on December 7, 2010, the day of Mr. Crosby's scheduled jury trial, Mr. Crosby filed a motion for a Faretta² hearing, asserting his right of self-representation and stating that he preferred to represent himself rather than “be misguided and mislead [sic] by [the] court[-]appointed public defender.” The trial court stopped the trial proceedings and held a Faretta hearing.³

At the hearing, the trial court asked Mr. Crosby why he wanted to represent himself, and Mr. Crosby raised several issues about counsel's performance, which the trial court addressed. Although the trial court did not make any specific findings about counsel's performance, it is clear from the trial court's comments that it found that counsel's performance was not deficient in any respect. The trial court then questioned Mr. Crosby about his ability to represent himself at trial, and it ultimately granted Mr. Crosby's request to represent himself and to permit trial counsel to remain present to assist Mr. Crosby at trial. The trial court continued the trial.

The trial ultimately took place on December 9, 2010. Before voir dire, Mr. Crosby asked to address the court. The trial court noted that Mr. Crosby was representing himself and that standby counsel was present. The trial court noted that it had already evaluated Mr. Crosby's right to represent himself and asked him if he still wished to represent himself; Mr. Crosby responded that he did. The trial court proceeded to voir dire, and Mr. Crosby represented himself throughout the trial with standby counsel present.

On appeal, Mr. Crosby argues that we must reverse his convictions and sentences and remand for a new trial because the trial court denied his motion to dismiss counsel without first holding a Nelson hearing.

The supreme court has adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for addressing a criminal defendant's request to discharge court-appointed counsel. See Hardwick v. State, 521 So.2d 1071, 1074–75 (Fla.1988). Preliminarily, the court must determine whether the defendant's request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request. Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010). If the request is unequivocal and the defendant asserts counsel's ineffective assistance as the reason for the request, the court must conduct an inquiry “ ‘to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel.’ ” Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009) (quoting Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004)). If the court determines there is no such reasonable cause, then it need not pursue further inquiry. If the defendant pursues his request to discharge counsel, the court must inform him he is not entitled to court-appointed substitute counsel and that he must represent himself. Id. If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel. Maxwell, 892 So.2d at 1102.

Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010).

[A] defendant is not entitled to a Nelson hearing “where a defendant presents general complaints about defense counsel's trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002); see also Sexton v. State, 775 So.2d 923, 931 (Fla.2000) (holding that the defendant was not entitled to a Nelson hearing when he “was merely noting his disagreement with his attorney's trial strategy ... and was not asserting a sufficient basis to support a contention that his attorney was incompetent”).

McLean v. State, 29 So.3d 1045, 1050–51 (Fla.2010) (alteration in original). “Similarly, a trial court does not err in failing to conduct a Nelson inquiry where the defendant merely expresses dissatisfaction with his attorney.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002); see also Penn v. State, 51 So.3d 622, 623 (Fla. 2d DCA 2011) (“[G]eneral allegations of dissatisfaction by a defendant are not enough to trigger the need for a full Nelson hearing.”); Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009) (noting same). But “a trial court's failure to conduct any preliminary Nelson inquiry in response to a defendant's wishes to discharge court-appointed counsel is a structural defect constituting reversible error.” Milkey, 16 So.3d at 174;see also Torres, 42 So.3d at 912 (“[A] court's failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply.”); Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010) (noting same). We review the adequacy of a trial court's Nelson inquiry for an abuse of discretion, and, “[g]enerally, the trial court's ruling may also be reviewed to determine whether [any] error was harmless.” Torres, 42 So.3d at 912.

Here, Mr. Crosby's allegations in his motion to dismiss about his counsel's performance were either refuted by the record or by the attachment to Mr. Crosby's motion or were insufficient to establish reasonable cause to believe that counsel was rendering ineffective assistance. But as this court observed in Jackson, the trial court must make a preliminary inquiry into a request to discharge counsel by “ascertain[ing] from the defendant whether the request is unequivocal and to explore the reasons behind the request.” 33 So.3d at 835. Depending on the defendant's answer, further inquiry may be necessary.

In this case, after the trial court summarily denied Mr. Crosby's motion to dismiss counsel, Mr. Crosby persisted in his request to discharge counsel and sought to represent himself by filing a motion for a Faretta hearing. At the subsequent Faretta hearing, the trial court asked Mr. Crosby why he wished to represent himself, and Mr. Crosby again asserted counsel's deficient performance. The trial court rejected the allegations that counsel's performance was deficient and proceeded to inquire about Mr. Crosby's ability to represent himself. Thus the trial court cured its error in failing to make an initial Nelson inquiry before denying the motion to dismiss. The court ultimately performed a preliminary Nelson inquiry and addressed Mr. Crosby's allegations of deficient performance before addressing his request to represent himself at trial at the Faretta hearing. Accordingly, Mr. Crosby has not established reversible error based upon his argument that the trial court failed to conduct a Nelson hearing.

Mr. Crosby further argues that after granting Mr. Crosby's request for self-representation, the trial court reversibly erred in failing to renew the offer of counsel before trial. Florida Rule of Criminal Procedure 3.111(d)(5) provides that “[i]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” “The need to renew an offer of assistance of counsel is not dependent on the time between an initial offer and a subsequent critical stage, but rather is dependent on whether there are any intervening critical stages.” Monte v. State, 51 So.3d 1196, 1200 (Fla. 4th DCA 2011), review dismissed as improvidently granted,103 So.3d 864 (Fla.2012). “[I]n situations where a defendant has properly waived the right to counsel, a trial court may proceed with the stage where counsel was waived without further offer of counsel.” Knight v. State, 770 So.2d 663, 669 (Fla.2000).

Here, Mr. Crosby's waiver of his right to counsel at the December 7, 2010, hearing concerned the trial stage of the proceedings. Thus the trial court was not required to renew the offer of counsel to Mr. Crosby at the start of the trial. See McCarthy v. State, 731 So.2d 778, 780 (Fla. 4th DCA 1999); Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988). Accordingly, Mr. Crosby has not established reversible error based upon the trial court's failure to renew the offer of counsel before voir dire or the evidentiary portion of the trial.

FAILURE TO PROPERLY INSTRUCT THE JURY UNDER SECTION 812.025

In an amended information filed on November...