Flaherty v. State, 4D15–4777

• Citation: 221 So.3d 633
• Decision Date: 10 May 2017
• Docket Number: No. 4D15–4777,4D15–4777
• Parties: Brian Kelly FLAHERTY, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

221 So.3d 633

Brian Kelly FLAHERTY, Appellant,
v.
STATE of Florida, Appellee.

No. 4D15–4777

District Court of Appeal of Florida, Fourth District.

[May 10, 2017]

221 So.3d 634

Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Levine, J.

In this case, we are confronted with facts that are highly unusual to say the least. In this case, an assistant state attorney assigned to appellant's case filed a criminal information, offered appellant a plea deal, and provided discovery. Later in the same exact case, under circumstances not fully developed in this record, the very same prosecutor became appellant's defense attorney at trial. Only after appellant was convicted, but before sentencing, did appellant bring this apparent conflict situation to the attention of the trial court.

Thus, we are confronted with the following issue: does the fact that appellant's defense attorney was originally the prosecutor on the very same case require a reversal. We decline to adopt a "per se" rule, and find that although this factual situation presents, at least facially, a situation prompting possible ethical concerns, that nonetheless, we must make a determination on a case-by-case basis of whether appellant's counsel labored under an actual conflict of interest. As to the present case, we find that the record before us does not support a finding that any potential conflict adversely affected trial counsel's performance. Thus, we affirm.

Appellant was charged by criminal information with burglary of a dwelling, third-degree grand theft, dealing in stolen property, and several counts of giving false information to a pawnbroker.¹ This criminal information and a subsequent amended information were signed by an assistant state attorney. This particular prosecutor also signed several filings on behalf of the state, including a demand for notice of alibi, three supplemental answers to appellant's request for discovery, and finally, a conditional plea offer of fifteen years in prison. This prosecutor appeared in court on behalf of the state on this case for two hearings. Appellant apparently was not at either of the two hearings, which included a calendar call.

This prosecutor stopped appearing on behalf of the state on April 18, 2014, when another prosecutor began submitting filings on behalf of the state. On April 16, 2015, previous private counsel withdrew from representing appellant, and the very same prosecutor, now a former prosecutor, who filed the information against appellant was retained as appellant's new private counsel. As appellant's new counsel, she announced that she was ready to go to trial and did not inform the court of her prior prosecutorial role.

At trial, there was testimony that the victim, appellant's sister, told police she had come home to find it in disarray with the window to her bedroom broken. Many of her personal belongings were also missing. The victim speculated that the perpetrator was her brother, appellant. Law enforcement found much of the victim's missing property at pawnshops, and surveillance footage and testimony of the pawnshop employees identified appellant as the one who had pawned the victim's property. The victim's missing property was also found at a hotel where appellant was staying. At trial, however, appellant's sister said she was mistaken when she initially accused appellant of stealing from her. The state introduced tapes of appellant admitting to stealing from the victim.

221 So.3d 635

In these tapes, appellant also encouraged the victim to lie on his behalf. Appellant was found guilty of all charges.

After being found guilty, appellant moved to discharge his counsel, believing that she did an inadequate job in his case. In appellant's motion to discharge, appellant stated that he "has become aware that [his attorney] was also his prosecutor in the instant case which is now before the court." Appellant then moved for a mistrial based on this conflict. At a subsequent hearing, appellant's counsel stated that she could not "ethically" represent appellant any longer. After a Faretta² hearing, the trial court found appellant competent to represent himself, and appellant, acting pro se, moved for a mistrial. The trial court took the motion for mistrial "under advisement."

At sentencing, appellant moved to discharge his new counsel, a public defender, claiming that the public defender was doing an inadequate job. The trial court proceeded with sentencing and did not rule on appellant's prior motion for a mistrial nor was it brought up by his public defender. Following his conviction and sentence, appellant's appeal...