Jones v. State , 4D10–4785.

• Decision Date: 07 September 2011
• Docket Number: No. 4D10–4785.,4D10–4785.
• Citation: 69 So.3d 329
• Parties: Kevin Jeffrey JONES, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

69 So.3d 329

Kevin Jeffrey JONES, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–4785.

District Court of Appeal of Florida, Fourth District.

Sept. 7, 2011.

Kevin Jeffrey Jones, Raiford, pro se.Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm the trial court's denial of appellant's 18–claim, 100–plus–page motion and supplemental motion for postconviction relief. Fla. R.Crim. P. 3.850. Appellant raised numerous claims couched in terms of ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (setting forth a two-prong standard that requires defendant to establish (1) that counsel provided constitutionally-deficient performance and (2) that defendant was prejudiced). The postconviction court summarily denied certain claims and denied the remaining claims after conducting an evidentiary hearing.

We write to address appellant's arguments that the court erred in excluding him from the evidentiary hearing based on appellant's disruptive courtroom behavior. Appellant contends that the court did not conduct an adequate inquiry when he moved to discharge appointed postconviction counsel and erred in refusing to permit him to represent himself. We hold that the court did not abuse its discretion in removing appellant from the courtroom after he punched his postconviction attorney and that the court conducted an adequate inquiry as to appellant's dissatisfaction with appointed counsel. Appellant did not unequivocally ask to represent himself at the hearing, and the trial court did not abuse its discretion in refusing to allow appellant, whose legal filings are largely incomprehensible, to represent himself. We affirm in all respects. ¹

Background

Appellant was convicted after jury trial of capital sexual battery on a child under twelve and sentenced as a prison releasee reoffender to life in prison. The child testified at trial that appellant, her mother's live-in boyfriend, succeeded in partially inserting his penis into her vagina and anus and that he inserted his fingers into her vagina. The day after the incident the six-year-old victim reported the abuse to a school teacher who discovered feces and blood in the child's underwear. The child's hymen was intact but she had a bleeding abrasion in her vaginal area and redness which the doctor who conducted the sexual assault examination opined could have been caused by rubbing with a finger or penis. The doctor opined that a bloody vaginal swab suggested possible inter-vaginal orifice trauma as well. The child was incontinent but had solid stool which the doctor found unusual and consistent with anal penetration. This court per curiam affirmed the conviction and sentence on direct appeal without a written opinion. Jones v. State, 963 So.2d 245 (Fla. 4th DCA 2007) (table).

Postconviction Motions

Appellant's excessive postconviction motions raised many repetitive, meritless, and frivolous claims which we will not discuss in detail in this opinion. The trial court ordered an evidentiary hearing on several claims because some of appellant's sworn allegations were not refuted by the record. Appellant alleged that, in a deposition, the victim had denied that appellant caused the injury to her vaginal area and that he had seen the child's mother applying ointment to the injury. Trial counsel had traveled across the state to take the child's deposition and lost the tape of that deposition. Counsel again deposed the victim before trial and she maintained that appellant was the cause of her injuries. Trial counsel's loss of the tape of the initial deposition was addressed in hearings before trial after appellant filed motions to discharge his trial counsel on that basis. Although the issue appears to have been fully litigated before trial, in these postconviction proceedings, appellant accuses trial counsel and the prosecutor of conspiring to destroy the tape of this deposition (and then coaching the victim to lie in the second deposition) in order to hide evidence which appellant maintains was favorable to his defense.

Evidentiary Hearing

At the evidentiary hearing, after the judge denied appellant's requests to discharge his court-appointed postconviction counsel and to appoint new counsel, and after the judge refused to allow appellant to represent himself, appellant summoned his postconviction counsel to his side under the pretense that he wanted to speak with him. Appellant then struck counsel in the face with a closed fist. Appellant was subdued by deputies and removed from the courtroom.² The evidentiary hearing proceeded with his court-appointed postconviction counsel and without appellant.

Trial counsel testified that the victim had not made the statements that appellant alleged regarding the pre-existing nature of the injury. The victim did not indicate in either deposition that appellant had not caused the injury. The victim's mother also testified at deposition contrary to appellant's allegations. Presumably, if permitted to testify, appellant would have repeated the unfounded accusations that he lodged in his motion.

In his initial brief, appellant proffers that he would have testified regarding a sexually-transmitted disease he had acquired in the past and that the victim would have gotten this disease if he had committed the acts. This proffered testimony is not relevant to any claim raised in the motion.

Analysis

Appellant contends that the trial court erred in removing him from the courtroom and failing to afford him an opportunity to return and provide testimony regarding his postconviction claims. He also contends that the trial court did not conduct a sufficient inquiry into his requests to discharge court-appointed counsel.

A motion for postconviction relief under Rule 3.850 is a civil proceeding challenging a conviction and sentence. State ex rel. Butterworth v. Kenny, 714 So.2d 404, 409–10 (Fla.1998). Postconviction challenges are quasi-criminal in nature because they are brought in courts with criminal jurisdiction. Id. A postconviction movant, however, does not have the same panoply of constitutional rights which are afforded to a defendant in a criminal prosecution.

Neither the Fifth nor the Sixth Amendment rights of a criminal defendant apply in postconviction relief proceedings. Arbelaez v. State, 898 So.2d 25, 42 (Fla.2005). See also Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (holding that prisoner has no federal constitutional due process or equal protection right to counsel in postconviction proceedings); Mayolo v. State, 714 So.2d 1124, 1124 (Fla. 4th DCA 1998) (recognizing that a postconviction movant has no Sixth Amendment right to appointed counsel). A postconviction movant stands convicted under a presumptively valid judgment and the movant, as a civil litigant, has the burden of proving a legally valid basis to vacate that judgment.

A defendant cannot claim ineffective assistance of postconviction counsel. Hunter v. State, 48 So.3d 836 (Fla.2010) (additional cases cited therein); Hartley v. State, 990 So.2d 1008, 1016 (Fla.2008) (“ ‘[A]ll courts' have held, that the Sixth Amendment does not guarantee a right to the effective assistance of postconviction counsel.”).

The requirements of Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which are founded on the Sixth Amendment, do not apply in postconviction relief proceedings. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (holding that Faretta does not apply and a defendant has no right of self-representation in a direct appeal of a criminal conviction).³

The right to represent oneself in a criminal prosecution derives from the Sixth Amendment and “ ‘must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ' ” Tennis v. State, 997 So.2d 375, 377–78 (Fla.2008) (quoting Faretta, 422 U.S. at 834, 95 S.Ct. 2525). Under Faretta, the criminal defendant has a constitutional right to proceed pro se in the criminal prosecution when the defendant “voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807, 95 S.Ct. 2525. A defendant's unequivocal request for self-representation triggers a duty for the trial court to conduct a hearing to “determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis, 997 So.2d at 378. When making this determination, the defendant's legal knowledge and skill to conduct the defense is not a basis for denying self-representation. Fla. R.Crim. P. 3.111(d)(3). See Faretta, 422 U.S. at 836, 95 S.Ct. 2525. The inquiry is intended to assure that the decision to waive counsel is made with “eyes open.” Id. at 835, 95 S.Ct. 2525.

Faretta itself provides that: “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” 422 U.S. at 834 n. 46, 95 S.Ct. 2525. “[S]erious and obstructionist misconduct” is grounds for terminating self-representation in a criminal prosecution. Id. (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). See also Perry v. Mascara, 959 So.2d 771, 773 (Fla. 4th DCA 2007) (“The right to self-representation, however, is not absolute and does not entitle petitioner to abuse the court system.”).

In Florida, a non-capital postconviction movant has no absolute constitutional or statutory right to appointed counsel in postconviction relief proceedings. See Graham v. State, 372 So.2d 1363, 1365 (Fla.1979); Hooks v. State, 253 So.2d 424, 426 (Fla.1971). The authority to appoint counsel in such proceedings derives from “due process concerns.”...