Gaines v. State

Decision Date23 January 1998
Docket NumberNo. 97-0450,97-0450
Citation706 So.2d 47
Parties23 Fla. L. Weekly D297 Anthony J. GAINES, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellee.

ANTOON, Judge.

Anthony Gaines (defendant) appeals his judgments and sentences which were imposed by the trial court after a jury found him guilty of committing the offenses of possession of cocaine and possession of cannabis. 1 The defendant contends that the trial court erred (1) by failing to make an adequate Nelson 2 inquiry; and (2) in denying his motion for a judgment of acquittal on the cocaine charge. These contentions lack merit and therefore we affirm.

Immediately before his trial commenced the defendant told defense counsel, an assistant public defender, that the Public Defender's office had a conflict of interest in representing him. Defense counsel advised the trial court of the defendant's communication and the trial court questioned the defendant. The defendant stated that the alleged conflict was based on a bar grievance which he had previously filed against the Public Defender's office:

I filed Florida Bar ... created conflict or something ... it's been a couple years. Judge Miller struck down the public defender this year, issued me a private attorney.

The court then asked the defendant, "Are you satisfied with the services [defense counsel] provided for you?" The defendant responded, "Nothing against [defense counsel] personally, but no, sir." The trial court then ruled that substitute counsel would not be appointed, and the trial proceeded.

On appeal, the defendant argues that the trial court failed to conduct a proper Nelson hearing. Under Nelson, once a defendant requests the trial court to discharge his court-appointed attorney because the attorney's representation is allegedly ineffective, the trial court is required to make an independent inquiry into whether there is reasonable cause to believe that the attorney is not providing effective assistance to the defendant. Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973). If the court determines that there is a reasonable basis to conclude that the representation being provided by court-appointed counsel is ineffective, the trial court should make specific findings supporting that conclusion and appoint substitute counsel. Id. However, if there is no reasonable basis to believe that the attorney's representation is ineffective, the trial court must deny the request stating the reasons for the ruling on the record. Id.

Here, the defendant's objection was not a traditional Nelson objection since the defendant did not raise a claim of ineffective assistance of counsel. Instead, the defendant simply stated that his attorney was an assistant public defender and that two years ago he had a conflict in another case involving a different public defender. The defendant did not advise the trial court as to the nature of the perceived conflict of interest or how it may have impacted the quality of legal representation he was receiving. While a conflict of interest may adversely effect an attorney's representation, the mere allegation of a conflict does not give rise to the necessity of conducting a Nelson inquiry. See Johnson v. State, 560 So.2d 1239 (Fla. 1st DCA 1990). Furthermore, the filing of a bar complaint against the Office of the Public Defender does not automatically create a conflict of interest requiring the appointment of substitute counsel. Boudreau v. Carlisle, 549 So.2d 1073, 1077 (Fla. 4th DCA 1989), dismissed, 557 So.2d 866 (Fla.1990). Accordingly, the trial court properly concluded that the defendant was not entitled to receive substitute counsel since the instant record does not include any reference as to the basis of the defendant's previous bar grievance and the court was not required to conduct a Nelson hearing because the defendant did not provide the trial court with any details indicating that defense counsel was rendering ineffective...

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17 cases
  • Gamble v. State
    • United States
    • Florida Supreme Court
    • May 6, 2004
    ...conflict affected his counsel's competency to represent him, the need for a Nelson inquiry was never triggered. See Gaines v. State, 706 So.2d 47, 49 (Fla. 5th DCA 1998) (holding that "[w]hile a conflict of interest may adversely effect [sic] an attorney's representation, the mere allegatio......
  • Ramey v. Haverty Furniture Companies, Inc., 2D07-567.
    • United States
    • Florida District Court of Appeals
    • January 18, 2008
    ... ... 3d DCA 2007); Hutchinson v. Plantation Bay Apartments, LLC, 931 So.2d 957 (Fla. 1st DCA 2006); Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2003); Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001); Baker v. Myers Tractor Servs., ... ...
  • Metropolitan Dade County v. Martinsen, 98-2055.
    • United States
    • Florida District Court of Appeals
    • July 14, 1999
    ... ... I write separately to take what I consider to be the final, necessary step in this case and refer this matter to the State's Attorney for Miami-Dade County with a request that she determine whether charges of perjury should be filed against the plaintiff herein ... ...
  • Bologna v. Schlanger
    • United States
    • Florida District Court of Appeals
    • June 20, 2008
    ... ... See Austin v. Liquid Distribs. Inc., 928 So.2d 521 (Fla. 3d DCA 2006); Amato v. Intindola, 854 So.2d 812 (Fla. 4th DCA 2003); Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574 (Fla. 1st DCA 2003) ...         Bologna's failure to disclose that she had received multiple ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Fraud on the court as a basis for dismissal with prejudice or default: an old remedy has new teeth.
    • United States
    • Florida Bar Journal Vol. 78 No. 2, February 2004
    • February 1, 2004
    ...for equivalent misconduct." Morgan v. Campbell, 816 So. 2d 251, 254 (Fla. 2d D.C.A. 2002) (Altenbernd, J. concurring). (5) Cox, 706 So. 2d at 47. (6) Steele v. Chapnick, 552 So. 2d 209 (Fla. 4th D.C.A. 1989) (Although plaintiff's responses to defendants' request for production of documents,......
  • The "big lie".
    • United States
    • Florida Bar Journal Vol. 73 No. 7, July 1999
    • July 1, 1999
    ...for abusive practices as a basis for dismissing or striking the claims of litigants who repeatedly lie under oath. See, e.g., Cox, 706 So. 2d at 47 (a litigant's repeated lies and deception "must be discouraged in the strongest possible way"); Savino v. Florida Drive-In Theatre Mgt., Inc., ......

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