Foster v. State, 96-3315

• Decision Date: 17 December 1997
• Docket Number: No. 96-3315,96-3315
• Citation: 704 So.2d 169
• Parties: 23 Fla. L. Weekly D14 Guillermo FOSTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 169

704 So.2d 169

23 Fla. L. Weekly D14

Guillermo FOSTER, Appellant, v. STATE of Florida, Appellee.

No. 96-3315.

District Court of Appeal of Florida,

Fourth District.

Dec. 17, 1997.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, who was tried by jury and convicted of unarmed robbery, challenges both the denial of his pre-trial motion to suppress evidence as well as an alleged denial of his right to counsel. We find no error in the court's disposition of the motion to suppress, but we reverse the conviction because we agree that appellant was improperly denied privately-retained counsel of his choice to represent him at trial. ¹

Proceedings

On September 15, 1994, appellant was charged by information with one count of robbery with a weapon. The following month, he was declared insolvent and assigned a public defender. About fifteen months later, on January 22, 1996, appellant was being represented by assistant public defender Randy Haas, who appeared at a hearing on appellant's motion to suppress evidence. Jury selection was scheduled to begin immediately following the hearing on the motion to suppress; however, when the motion was denied, appellant pled guilty to the charged offense.

The next day, appellant wrote a letter to Judge Trachman, complaining that his public defender had provided him with ineffective assistance at the suppression hearing; specifically, appellant alleged that Mr. Haas had failed to impeach witnesses with supposedly contradictory deposition testimony. In response, Judge Trachman allowed appellant to withdraw his guilty plea. In addition, the judge discharged Randy Haas and, on February 22, 1996, appointed special public defender Ronald Dallas to represent appellant.

Almost five months later, on July 9, 1996, appellant and Mr. Dallas appeared in court. Jury selection was scheduled to begin that day. Mr. Dallas informed the trial court that he had not yet received a copy of the transcript of the suppression hearing, which he needed in order to properly prepare his cross-examinations. The prosecutor explained that the court reporter had not yet prepared the transcript.

Mr. Dallas stated that appellant wished to address the court, and that he had "no idea" what appellant would say. Appellant proceeded to complain that Mr. Dallas was providing ineffective representation--that Mr. Dallas never came to see him to discuss the case, never assisted appellant in filing various motions, would not take appellant's phone calls, and that appellant was being forced to "run up" his mother's phone bill by calling Mr. Dallas. Although there is no indication in the record that appellant previously voiced these concerns to the trial court, appellant told the judge:

I don't feel he's going to represent me to the fullest. That's the reason why I addressed the Court before you scheduled this hearing for trial. I addressed the Court and told you that my family hired me a private attorney, and I would like for him to take over these cases.

Now, you're denying me the right to a fair trial and to the counsel of my request, of my choice. I never picked Mr. Dallas to be my attorney. The Court is the one that gave him to me. I simply told him I did not want an attorney from the courts anymore. That's the reason I hired--my family sent the money to hire the attorney for me to have a fair trial, which I'm entitled to. Right now I'd like to fire Mr. Dallas. I don't have nothing against him, but I want to fire him because he's not going to represent me to the fullest.

(emphasis added).

Mr. Dallas responded that he had discussed the case with appellant and that he, Dallas, had an understanding of the case. However, Mr. Dallas continued:

However, I do agree with him. He wants somebody else to represent him, and he should have that right to have somebody else represent him.

The court replied:

Unfortunately, this case is now two years old. I can't let it get any older. Today is Tuesday, July 9th, 1996. I have set this case for trial. If I can't try this, I have no other cases to try this afternoon because I announced last week that this case would be tried this week. We are going to try the case.

Appellant reiterated that he would like Mr. Dallas to withdraw so that his privately-retained attorney could step in. Appellant added, "I don't care if you schedule my trial for next Monday, but I want the counsel that I think will represent me to the fullest." The judge repeated that "we are going to go forward."

At this point, Harris Lowenthal, appellant's privately-retained counsel, addressed the court. He reminded the court that he had advised the judge on the previous day that he wished to make an appearance on appellant's behalf. Mr. Lowenthal requested "reasonable time" to allow him to prepare for trial and file some motions. The court expressed its concern that this case would "drag on." The judge pointed out that Mr. Lowenthal had "no standing here," and that "[t]here's no reason for [the substitution of counsel]. This case has been set for trial, and it's going to trial today."

Mr. Dallas, court-appointed defense counsel, then reminded the court that he still required the transcript of the suppression hearing to prepare for trial. Mr. Dallas stated that he would need "some time" to review the transcript, and that "maybe it would be in the best interest of everybody if this matter was delayed until a transcript was obtained."

The prosecutor then spoke up:

I think the Court should make a finding that the defendant is not entitled to fire Mr. Dallas, nor was he entitled to fire Mr. Haas.

. . . . .

[I]n my view, the defendant in this case has been manipulating the case so that it never gets to trial.

The court made no such findings.

The trial court then declared that it would conduct a Nelson inquiry. The court found "no reasonable cause to believe that Mr. Dallas is rendering ineffective representation." The judge then warned appellant:

... Mr. Dallas will not be replaced by another attorney, and if you want to discharge Mr. Dallas, you could do so but then you're going to be without an attorney.

After conferring with Mr. Dallas and Mr. Lowenthal, appellant asked whether Mr. Lowenthal could work alongside Mr. Dallas. The court said, "No. Mr. Dallas will be your attorney if you're going to have an attorney." Appellant then decided to "leave [Mr. Dallas] on the case ... [s]ince I really have no choice." The trial court then found that appellant's decision to leave Mr. Dallas on the case was "freely, voluntarily, intelligently, and knowingly entered."

The trial judge stressed that "one of his concerns" with allowing Mr. Lowenthal to take over appellant's case was that the time it would take Mr. Lowenthal to acquaint himself with it would delay the two-year-old case even longer. However, Mr. Dallas explained that, in his opinion, the case was "simple" and "straightforward," and that Mr. Lowenthal could be ready by "Monday or the following week." The judge repeated yet again that he was "pushing this case forward" because it was two years old and because the "witnesses want to get this over with and their memories only diminish as time passes."

The trial court then agreed, with the consent of the prosecutor, to reset the trial for the following Monday, July 15, 1996, to allow Mr. Dallas time to obtain and review the transcript of the suppression hearing. On the following Monday, the trial was again postponed because the State's fingerprint expert was unavailable. Trial finally began on July 30, 1996. Appellant was found guilty of robbery, a lesser included offense of the charged crime of robbery with a weapon, and sentenced to thirty years as an habitual offender.

Discussion

The Sixth Amendment protects the right of criminal defendants to be represented by the attorney of their choosing. See Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). While this right is not unlimited, we find that the trial court abused its discretion in this case by denying appellant the opportunity to be represented by the private counsel retained by his family on his behalf.

The right to select counsel: private vs. court-appointed counsel

We agree with appellant that the trial court's Nelson inquiry, in which the judge determined that Mr. Dallas was rendering adequate representation, was unwarranted. Under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), trial judges must conduct an inquiry into pre-trial allegations that court-appointed counsel is rendering ineffective representation solely to determine if the defendant is entitled to other court-appointed counsel. Nelson instructs:

If reasonable cause for such belief appears [i.e., that court-appointed counsel is not rendering effective assistance], the court should ... appoint a substitute attorney.... If no reasonable basis appears for a finding of ineffective representation, the trial court should ... advise the defendant that if he discharges his original counsel, the State may not thereafter be required to appoint a substitute.

Id. at 259.

Thus, under Nelson, a defendant always retains the right to discharge court-appointed counsel. The purpose of the Nelson inquiry is to determine whether the defendant will be entitled to other court-appointed counsel following the discharge. See Branch v. State, 685 So.2d 1250, 1252 (Fla.1996)("A Nelson inquiry is appropriate when an indigent defendant attempts to discharge current, and obtain new, court-appointed counsel prior to trial due to ineffectiveness.") (emphasis added), cert. denied, --- U.S. ----, 117 S.Ct. 1709, 137 L.Ed.2d 833 (1997). If the trial judge decides that court-appointed counsel is rendering adequate representation, the indigent defendan...