Haugabook v. State

• Decision Date: 19 March 1997
• Docket Number: No. 96-1764,96-1764
• Parties: 22 Fla. L. Weekly D725 Michael HAUGABOOK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1245

689 So.2d 1245

22 Fla. L. Weekly D725

Michael HAUGABOOK, Appellant, v. STATE of Florida, Appellee.

No. 96-1764.

District Court of Appeal of Florida,

Fourth District.

March 19, 1997.

Richard L. Jorandby, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, Michael Haugabook, was convicted of an assortment of criminal offenses, unnecessary to catalogue here, and sentenced as an habitual offender. We affirm the judgment and sentence, but write to address appellant's claim that the trial court erred in failing to conduct a Nelson inquiry when appellant complained during trial about his counsel's effectiveness.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), approved, Hardwick v. State, 521 So.2d 1071 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988), this court explained:

[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.

Id. at 258-59 (emphasis added).

In the present case, after the prosecution rested, the following colloquy took place:

THE DEFENDANT: Your Honor, I don't want to cause no shame on this court. I don't want to get up on that stand and say what I got to say because I don't feel like my attorney is representing me properly because he has never tried to contest the statement of the officer and they got conflicting statements on this tape. And that juror right there, he looking at me like he already know I'm going to be found guilty. So I feel like I ain't get no justice. The State ain't shown no probable cause why they strike all the black jurors on my case. I'm on trial with all white officers and all white jury, how am I going to get a fair trial? How I'm going to be tried fair?

THE COURT: Well, if you have some complaints, you can take an appeal afterwards. But the case is going to proceed.

We agree with the State's position that no Nelson inquiry was required on defendant's "motion" to discharge counsel because, being made after the commencement of trial, the motion was untimely. ¹ We concur with the second district's holding in Dukes v. State, 503 So.2d 455 (Fla. 2d DCA 1987), that a trial judge is not required to conduct a Nelson hearing when a motion to discharge counsel is made only after the trial has already begun. When a defendant first registers his dissatisfaction with counsel's representation in the midst of trial, it would be impracticable for the trial judge to stop the proceedings and hold the type of hearing mandated by Nelson. Indeed, a defendant could compel the trial judge to halt the proceedings and conduct this ancillary hearing based on every single tactical action trial counsel takes that the defendant disagrees with. The rule in Nelson was designed...