Gainer v. State, 95-68

• Decision Date: 09 April 1996
• Docket Number: No. 95-68,95-68
• Citation: 671 So.2d 240
• Parties: 21 Fla. L. Weekly D858 Reginald Donald GAINER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 240

671 So.2d 240

21 Fla. L. Weekly D858

Reginald Donald GAINER, Appellant, v. STATE of Florida, Appellee.

No. 95-68.

District Court of Appeal of Florida First District.

April 9, 1996.

An appeal from the Circuit Court for Bay County. Don T. Sirmons, Judge.

Nancy A. Daniels, Public Defender; Fred Parker Bingham II, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Patrick Martin, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, Judge.

Reginald Donald Gainer appeals convictions for sale and possession of cocaine in Case No. 94-1315. He also appeals the sentences imposed in that case, as well as sentences imposed for four prior offenses for which he had been on probation when the two new offenses took place. We affirm the convictions, but find merit in some of appellant's points with respect to his sentences. We affirm the sentence for the sale of cocaine, but vacate appellant's other sentences and remand for resentencing.

Convictions Stand

While defense counsel exercised peremptory challenges to prospective jurors at a sidebar conference, Mr. Gainer sat at counsel table, in the courtroom but out of earshot. He urges reversal of his convictions on grounds of noncompliance with Florida Rule of Criminal Procedure 3.180(a)(4), as construed in Coney v. State, 653 So.2d 1009 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218. The Coney court held that a "defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised," 653 So.2d at 1013, but decided that this construction of the rule should be given prospective application only. The present case had been tried and was pending on appeal at the time Coney was decided. We recently held that the

express limitation of Coney to prospective application precludes the application of Coney to cases pending on direct appeal or not yet final at the time of the issuance of the Coney opinion.

Lett v. State, 668 So.2d 1094, 1095 (Fla. 1st DCA 1996) (on rehearing). We also certified in Lett as a question of great public importance the following: "DOES THE DECISION IN CONEY APPLY TO "PIPELINE CASES," THAT IS, THOSE OF SIMILARLY SITUATED DEFENDANTS WHOSE CASES WERE PENDING ON DIRECT REVIEW OR NOT YET FINAL DURING THE TIME CONEY WAS UNDER CONSIDERATION BUT PRIOR TO THE ISSUANCE OF THE OPINION?" Id. On the basis of stare decisis, we reject appellant's contention, but certify the same question here.

Alternatively, appellant seeks reversal of his convictions on the ground that the trial court responded erroneously when he complained about defense counsel's efforts on his behalf. Feelings of dissatisfaction were apparently mutual: Appointed defense counsel also sought leave to withdraw from representing appellant. At a pretrial hearing on the motion to withdraw, appellant announced that he had not received deposition transcripts or a report the Florida Department of Law Enforcement had supposedly prepared, and that he had been unable to supply the names of potential witnesses to defense counsel. In response, defense counsel assured the court that he had furnished appellant copies of all written discovery in his possession and reported that depositions, while scheduled, had not yet taken place. The trial court denied the motion for leave to withdraw, advising appellant to provide defense counsel "with the names of any witnesses that you feel are appropriate."

On the day of trial, appellant again complained that he had not received deposition transcripts, but he made no further complaint about trial preparation or counsel's representation. The trial court remarked that discovery depositions in criminal cases are not ordinarily transcribed in the Fourteenth Circuit. After defense counsel advised the court that he had given appellant written summaries of deposed witnesses' testimony, the trial court ruled that ineffective assistance had not been demonstrated. Although appellant stated that he did not desire to represent himself, ¹ the trial court informed him that, while he did not have the right to appointed counsel of his choice, self-representation was an available alternative.

In Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154, our supreme court approved the procedure laid down in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). In Nelson, the court said:

[W]here a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his 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 thereafter be required to appoint a substitute.

274 So.2d at 258-59. Mindful that a "Nelson inquiry" can only be "as specific and meaningful as the defendant's complaint" of ineffective assistance, Lowe v. State, 650 So.2d 969, 975 (Fla.1994), cert. denied, --- U.S. ----, 116 S.Ct. 230, 133 L.Ed.2d 159, we find no error. Here, as in Hardwick:

The trial court made a proper inquiry, allowed the defendant to state his reasons for asserting his claims, and specifically found that defense counsel was competent as to those reasons. Since nothing in the record otherwise establishes defense counsel's incompetence as alleged by ... [here Mr. Gainer], we therefore may not disturb the trial court's finding.

521 So.2d at 1075. The able trial judge made conscientious inquiry into appellant's complaints, and duly determined that the allegations of ineffective assistance of counsel were unfounded.

Sentencing for New Offenses

The trial court sentenced appellant as a habitual felony offender for possession of a controlled substance (cocaine, as defined in section 893.03, Florida Statutes (1993)) in violation of section 893.13, Florida Statutes (1993), the offense alleged in count II of the information filed in Case No. 94-1315. The habitual offender statute does not, however, authorize enhanced sentences where "the felony for which the defendant is to be sentenced ... is not a violation of s. 893.13 relating [solely] to the purchase or the possession of a controlled substance." § 775.084(1)(a)3., Fla.Stat. (1993); Reeves v. State, 659 So.2d 1259 (Fla. 4th DCA 1995). While appellant's concurrent sentence as a habitual felony offender for sale of cocaine (count I) was lawful, we reverse and remand for sentencing under the guidelines as to the conviction for possession of cocaine (count II).

Sentencing For Old Offenses

In Case No. 88-1029, Mr. Gainer was convicted of selling cocaine on May 21, 1988, and sentenced on July 28, 1989, to thirty months in the custody of the Department of Corrections to be followed by twelve years' probation. He violated the terms of his probation in Case No. 88-1029 by committing new offenses of which he was convicted on May 6, 1991, in Cases Nos. 90-713, 90-2878, and 90-2916. On May 6, 1991, he was sentenced to seven years in the custody of the Department of Corrections, to be followed by three years' probation in all four cases (as well as others not pertinent here), with credit for time already served in Case No. 88-1029.

On direct appeal, this court concluded that "the scoresheet prepared for sentencing [on May 6, 1991] was improperly calculated." Gainer v. State, 590 So.2d 1001, 1002 (Fla. 1st DCA 1991). Because the pleas entered on May 6, 1991, were part of a plea agreement, however, the court affirmed. But the court noted "an additional issue as to the voluntariness of Gainer's plea[s]," id., and recognized that collateral relief might be appropriate. On December 20, 1991, the trial court granted such relief, and Mr. Gainer withdrew the pleas entered on May 6, 1991. He then entered new pleas to the informations in Cases Nos. 90-713, 90-2878, and 90-2916 and to the affidavit of probation violation in Case No. 88-1029, under a modified plea agreement, which resulted in four concurrent sentences of five and a half years in the custody of the Department of Corrections, to be followed by three years' probation. Appellant was serving these probationary terms at the time of the new offenses.

Guidelines Violated on Resentencing

Appellant's convictions in Case No. 94-1315 were grounds for revocation of probation in Cases Nos. 88-1029, 90-713, 90-2878 and 90-2916. On December 12, 1994, in each of the four older cases, the trial court imposed sentences of nine years in the custody of the Department of Corrections, allowing credit for time previously served. ² (Although concurrent with each other, the four sentences were to be served before the habitual offender sentences pronounced in Case No. 94-1315.) The four nine-year sentences were all necessarily subject to the guidelines in force at the time the various offenses took place. Hamilton v. State, 548 So.2d 234 (Fla.1989); Dewberry v. State, 546 So.2d 409 (Fla.1989); Franklin v. State, 545 So.2d 851 (Fla.1989); Lambert v. State, 545 So.2d 838 (Fla.1989). "Sentences imposed after revocation of probation or community control must be in accordance with the guidelines." Fla.R.Crim.P. 3.701(d)(14).

The scoresheet prepared on ...