Finkelstein v. State

• Citation: 574 So.2d 1164,16 Fla. L. Weekly 413
• Decision Date: 06 February 1991
• Docket Number: No. 90-2964,90-2964
• Parties: 16 Fla. L. Weekly 413 Howard L. FINKELSTEIN, Chief Assistant Public Defender, 17th Judicial Circuit, in and for Broward County, Florida, The Honorable Alan H. Schreiber, Public Defender, 17th Judicial Circuit, in and for Broward County, Florida, and John Fogelman, Petitioners, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 1164

574 So.2d 1164

16 Fla. L. Weekly 413

Howard L. FINKELSTEIN, Chief Assistant Public Defender, 17th Judicial Circuit, in and for Broward County, Florida, The Honorable Alan H. Schreiber, Public Defender, 17th Judicial Circuit, in and for Broward County, Florida, and John Fogelman, Petitioners, v. STATE of Florida, Respondent.

No. 90-2964.

District Court of Appeal of Florida,

Fourth District.

Feb. 6, 1991.

Alan H. Schreiber, Public Defender, Steven Michaelson and Diane M. Cuddihy, Asst. Public Defenders, Fort Lauderdale, for petitioners.

Annabelle Whiting Hall (Licensed to practice law in the State of Nev.) (Not licensed to practice law in the State of Fla.), Reno, Nev., and Michael J. Wrubel, Fort Lauderdale, as amicus curiae, on behalf of Nat. Ass'n of Crim. Defense Lawyers and Broward County Crim. Defense Attys. Ass'n.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

Petitioners Howard Finkelstein, Alan H. Schreiber, public defender of Broward County and John Fogelman, defendant in a pending criminal prosecution, sought certiorari review and relief from a trial court ruling removing the court appointed public defender and appointing a substitute special public defender. This court sua sponte removes Judge Robert Carney as the named respondent and substitutes in his place the State of Florida. Also, we grant the petition and quash the trial court order removing the public defender.

Petitioner Fogelman was arrested on December 20, 1989 and the public defender was appointed to represent him on January 10, 1990. The State filed an information charging Fogelman in one case with two counts of armed robbery, attempted armed sexual battery, attempted armed robbery and aggravated assault. In a separate case number, Fogelman was charged with two counts of armed sexual battery, attempted sexual battery, armed kidnapping, armed robbery, aggravated battery and carrying a concealed weapon. The cases were assigned to Chief Assistant Public Defender Howard Finkelstein. After conducting discovery, the defense on May 2, 1990 filed a notice of objection to "Williams Rule" and a motion to suppress physical evidence, statements and identification.

On August 1, 1990, the public defender's office filed a "Notice of Insanity at Time of Offense." A motion to determine Fogelman's competency was filed and noticed for hearing on August 21, 1990. The trial court advised Public Defender Finkelstein that it would not hold a competency hearing on this date, as it was a time for brief motion calendar hearings only. Finkelstein reiterated his request for an evidentiary hearing and advised the court that a hearing date was set on his motions to suppress and his "Williams Rule" motion for October 4, 1990, with trial scheduled for October 8, 1990. Accordingly, the trial court reset the competency hearing for Friday, September 28, 1990.

On September 12 and September 26, 1990, Public Defender Finkelstein filed Amended Notices of Insanity at Time of Offense. On September 28, 1990, a competency hearing commenced. Finkelstein brought forward witnesses, a Dr. Lynn Rich and Dr. Seligson. Dr. Rich testified that Fogelman was incompetent to stand trial. The State did not call live witnesses, but advised that it would rely on their reports. The trial court indicated that that was inadmissible hearsay and that it would require live testimony. The hearing was scheduled for continuation on October 30, 1990.

On October 2, 1990, trial Judge Carney held a status conference hearing, where he announced that trial would be rescheduled to November 19, 1990. Public Defender Finkelstein moved to continue the hearing on the motion to suppress and "Williams Rule" motion until after the competency issue was determined by the court. Finkelstein argued that he could not go forward with the motion to suppress and "Williams Rule" motion as the defendant has a right to be present at all material stages of the proceedings and that his present mental state rendered him "absent." Judge Carney denied the motion.

On October 4, 1990, Finkelstein was present at court but advised he was not ready to proceed with the pretrial motions until after defendant's competency was determined. Nonetheless, the trial court acknowledged the presence of the necessary witnesses for the hearing on the pretrial motions and directed Finkelstein to proceed. Judge Carney agreed to defer ruling on the motions until he determined the competency hearing, but said that he would not continue the hearing until after the competency hearing was completed. Finkelstein then moved to withdraw his motions without prejudice to raise them later in the case. He asked that this withdrawal be acknowledged as being without prejudice to his client's fourth amendment rights. Judge Carney denied the motion. The State then indicated that it did not believe that it was its burden to proceed with witnesses and defense counsel, Finkelstein, reiterated his position that he could not proceed until final determination of his client's competency. Specifically, he said the motion to suppress involved a warrantless stop and that defendant would have to testify to it. He again requested continuance, which was denied. The following exchange took place between Public Defender Finkelstein and Judge Carney:

THE COURT: At this point then the best I can say, counsel, is whether you agree or disagree with the ruling; and so that we'll make it very, very clear, whether you agree or disagree with the ruling you are certainly entitled to disagree with the ruling.

If you disagree with the ruling your option when you disagree with the ruling is to take it to the appellate court. If I'm incorrect you have full appellate remedies.

Taking and [sic] approach that if you don't rule the way I want I'm not going to play in the Court's view does not effectively represent your client. And in the Court's view I believe the appellate courts have issued not only is it improper under the attorney's code and improper for an attorney to do that and may subject an attorney to bar violations for so doing, in the Court's view it's improper here.

There are remedies you have, remedies if I'm wrong you have a full palanopy [sic] of remedies that you can choose from to have an appellate court say I'm wrong and have the matter determined.

To say I'm not going to play, I'm not going to call witnesses, I'm going to give up my client's right to be heard on motions because I personally disagree with the Court's ruling, in the Court's view is just simply flat wrong.

If that's your case, if that's what you seek to do, then it's the Court's ruling at this point first that the defendant having failed to carry his burden, his motion to suppress is denied.

And number two, I'm going to direct that the Bar Association take a look at this and determine whether or not counsel has acted properly and competently and abided by the rules of court which require that even though he disagrees with the ruling he abide by it and play by the same rules everybody else plays by.

At any rate, I'll direct the Bar Association review it, give you a transcript of what has been had and motion to suppress on all counts is denied.

That's the end of argument.

MS. SEILER: I believe there's one other motion pending before the Court. There are objections about "Williams Rule." What would the Court be doing about that?

THE COURT: I'll tell you what I'm going to do. I'm going to reverse. At this point I'm going to direct that Mr. Finkelstein be removed from the case. You are no longer the attorney of record on the case.

If you give me my special PD list I'll point special PD. I'm still going to take action with Bar Association on it. I'll appoint new attorney so the defendant's rights are not jeopardized at this point and he does not forego his rights on the motion because the attorney chooses not to do it. I'll appoint another attorney to represent him.

THE DEFENDANT: I don't want another attorney.

THE COURT: I'm not going to leave Mr. Finkelstein on the case.

Appoint Ed Salantrie on both cases.

MS. SEILER: Your Honor, before we recess, before we take the defendant away, as far as there is an objection to the "Williams Rule" we have--

THE COURT: I'm not going to rule on it at this point. I want him represented by competent counsel on that. I'm not going to--I'll readdress the issues on the motion to suppress and I'll readdress the issues--

The trial court order dated November 2, 1990, nunc pro tunc to its October 4, 1990 oral ruling, essentially reflects what the court did in the exchange quoted earlier. The opinion includes Judge Carney's statement that:

Mr. Finkelstein's repeated refusal to proceed not only denied his client his Sixth Amendment right to counsel, but also violated Mr. Finkelstein's obligation as a lawyer to zealously represent his client within the bounds of the law ....

The Court has the obligation to insure that an accused has a right to competent counsel. Where counsel's performance falls below that standard the Court has the inherent authority and the duty to remove that counsel and to appoint competent substitute counsel.

Petitioners argue that this ruling constitutes a departure from the essential requirements of law. We agree.

Although an indigent does not have the right to demand that a court appoint particular defense counsel, the substitution of counsel once appointed falls under the trial court's reasonable discretion. Abuse of the trial court's discretion has been found in several cases, such as McKinnon v. State, 526 P.2d 18 (Alaska 1974) (overruled on other grounds, Kvasnikoff v. State, 535 P.2d 464 (Alaska 1975)), where the court held that a trial judge's removal of a public defender, over counsel's and defendant's protest, based on the judge's belief that counsel was unprepared, constituted a deprivation of the defendant's fundamental...