Jones v. State

Decision Date30 June 1995
Docket NumberNo. 93-00282,93-00282
Citation658 So.2d 122
Parties20 Fla. L. Weekly D1543 Benjamin JONES, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Regina W. Cosper, Sarasota, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.


Benjamin Jones appeals the judgments and sentences imposed after a jury trial for attempted robbery with a firearm, aggravated battery with a firearm, and possession of a firearm by a convicted felon. We find merit only in his contentions that the trial court erred in the procedure it followed in denying his requests for discharge of his court-appointed counsel and for self-representation. Accordingly, we are compelled to reverse and remand for a new trial.

Appellant's first trial on these charges ended in a mistrial. Prior to that trial, the appellant complained to the trial court about the ineffectiveness of his court-appointed counsel and, at one point, filed a written motion to discharge his attorney specifically alleging the basis of his complaints. The record does not reflect, however, whether the trial court ever addressed the merits of appellant's allegations, and he proceeded to trial with court-appointed counsel.

Prior to the commencement of jury selection in the second trial, appellant again advised the trial court of his continued dissatisfaction with his court-appointed counsel. He also presented a copy of a complaint he had filed against the attorney with The Florida Bar. Without inquiring of appellant and his attorney about the substance of the complaint, except to have the appellant acknowledge that it was "basically the same stuff" he had discussed with the trial court before the first trial, the trial court immediately asked if the appellant wanted to represent himself. The appellant responded by stating "[w]ell, I'll do that, because I ain't going with [court-appointed counsel]."

The trial court then proceeded to conduct an inquiry based on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), directed at appellant's ability to represent himself. This inquiry established that the appellant finished the tenth grade, that he could read and write, that he had participated in a jury trial with a lawyer, and that he knew how to select a jury and examine and cross-examine witnesses. At one point during the inquiry, appellant became upset over the fact that a new prosecutor was now handling his case without his knowledge. After the trial court explained that a defendant does not have the right to choose the prosecutor, it then asked appellant if he knew about the burden of proof in a criminal case. The appellant responded: "I don't understand none of this."

The trial court immediately followed this response with a finding under Faretta that the appellant was incapable of representing himself. It also announced that it had reviewed appellant's previous motion to discharge his attorney, as well as the Bar complaint, and had determined that appellant had not demonstrated that his attorney was ineffective. The trial court further observed that it appeared during the first trial that appellant and court-appointed counsel "got along quite well." Appellant then proceeded to trial with court-appointed counsel and was convicted. 1 He was sentenced as a habitual violent felony offender on each count and received concurrent thirty year sentences which included a minimum mandatory term of ten years.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the court established a procedure which a trial court must follow, consistent with an indigent's right to effective representation, when a defendant expresses a desire to discharge court-appointed counsel prior to trial because of alleged incompetency of counsel. As stated in Nelson:

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 court 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.

Id. at 258-259 (emphasis added). See also Hardwick v. State, 521 So.2d 1071, 1074-1075 (Fla.) (specifically adopting procedure of Nelson ) cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988).

We followed Nelson in Matthews v. State, 584 So.2d 1105 (Fla. 2d DCA 1991). We further noted in Matthews that if a defendant's complaints about court-appointed counsel are found to be meritless, a trial court "is then required to advise the defendant that if his request to discharge his attorney is granted, the court is not required to appoint substitute counsel and the defendant would be exercising his right to represent himself." Id. at 1106-1107. We also observed that if the defendant, in the face of this advice, continues to persist in a desire to discharge counsel, the trial court must determine under Faretta whether the defendant is knowingly and intelligently waiving the right to court-appointed counsel. Accord Reddick v. State, 636 So.2d 176 (Fla. 2d DCA 1994).

We have also held that a trial court commits reversible error in failing to conduct the inquiry required by Nelson. Johnson v. State, 629 So.2d 1050 (Fla. 2d DCA 1993); Taylor v. State, 605 So.2d 958 (Fla. 2d DCA 1992). The trial court's failure, in that regard, is subject to review under the abuse of discretion standard. Kearse v. State, 605 So.2d 534 (Fla. 1st DCA 1992), review denied, 613 So.2d 5 (Fla.1993).

We conclude in this case that the trial court abused its discretion in failing to conduct an appropriate inquiry under Nelson. As the record reflects, it never inquired of the appellant and his court-appointed counsel as to whether there was reasonable cause to believe that counsel was being ineffective. Perkins v. State, 585 So.2d 390, 392 (Fla. 1st DCA 1991) (Nelson requires trial court to examine both defendant and counsel). Nor did the trial court ever make any adequate findings on the record as to why it was summarily denying appellant's request for discharge of counsel, except to note that it found the reasons set forth in the motion and the Bar complaint 2 to be unpersuasive and that appellant and his counsel appeared to relate well to each other during the first trial.

Furthermore, even if appellant's reasons for removing counsel were baseless, the trial court failed to advise him, as required by Matthews, 584 So.2d 1105, that if he continued to persist in his desire to discharge counsel, substitute counsel would not be appointed and he would be exercising his right of self-representation. Instead, the trial court immediately launched into a Faretta inquiry. See also Perkins v. State, 585 So.2d 390 (Fla. 1st DCA 1991) (even if trial court conducted adequate inquiry in finding counsel competent, trial court still obligated to advise defendant (1) attorney could be discharged, (2) state not required to appoint substitute counsel, and (3) defendant had right to represent himself).

We also conclude that the trial court's determination that the appellant was incapable of representing himself was an abuse of discretion and, therefore, reversible error. Crystal v. State, 616 So.2d 150 (Fla. 1st DCA 1993). While it is true that the appellant responded that he did not understand "none of this" after the trial court asked him about the burden of proof, that statement of confusion, when analyzed in the context of the proceedings, clearly related to the appellant's agitated state of mind in not being advised that a new prosecutor was handling his case.

Moreover, in addition to not inquiring more fully as to the appellant's age, mental condition, education, and lack of knowledge and experience in criminal proceedings, Taylor, 605 So.2d 958, the trial court failed to explore with the appellant the complexities of a jury trial, the dangers and disadvantages of self-representation, the seriousness of the charges pending against him, and the potential sentences facing him upon conviction, which included minimum mandatory sentences as a habitual violent felony offender. E.g., Taylor v. State, 610 So.2d 576 (Fla. 1st DCA 1992). Without such warnings, Faretta's mandate that the record establish that a defendant has knowingly and intelligently exercised the right of self-representation "with eyes open" cannot be fulfilled. 3

We recognize the burden placed on a trial court by Nelson and Faretta when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of court-appointed counsel. We realize that the procedures mandated by these cases will often involve a tedious and time-consuming process designed to test the frustration and patience level of the most able trial judge, especially when the request for discharge comes on the day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin. We must emphasize, however, the importance of strict adherence to these requirements and the real potential for reversal should they not be followed, thereby resulting in a needless expenditure of judicial resources.

Reversed and remanded for new trial.

FRANK, C.J., concurs.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge, concurring.

I reluctantly agree that this case must be retried because the trial judge, when confronted on the bench by a...

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