Kenney v. State, 92-544
| Decision Date | 31 December 1992 |
| Docket Number | No. 92-544,92-544 |
| Citation | 611 So.2d 575 |
| Parties | 18 Fla. L. Week. D247 Floyd Thomas KENNEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Atty. Gen., for appellee.
In this appeal of a criminal conviction, we must reject appellant's contention that the trial court failed to conduct the inquiry required by Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). While appellant expressed dissatisfaction with his lawyer during the trial, such dissatisfaction was based solely upon a claim that the lawyer had not made adequate visits to the jail. Appellant raised no instance of incompetence or inadequacy in the lawyer's handling of the defense. Since no error is shown, the convictions and sentences are affirmed. Watts v. State, 593 So.2d 198 (Fla.1992), cert. denied, --- U.S. ----, 112 S.Ct. 3006, 120 L.Ed.2d 881 (1992); Johnson v. State, 560 So.2d 1239 (Fla. 1st DCA 1990).
ALLEN, J., dissents with written opinion.
When a defendant in a criminal case informs a trial judge that he wishes to discharge his court-appointed counsel, the judge must inquire of the defendant as to his reason for requesting discharge. If incompetency of counsel is given as a reason, the judge must make a sufficient inquiry of the defendant and his appointed counsel to determine whether there is reasonable cause to believe that the counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the judge should make a finding to that effect on the record and appoint a substitute attorney. If no reasonable basis appears for a finding of ineffective assistance of counsel, the judge should so state on the record and advise the defendant that if he discharges his counsel the state may not be required to appoint a substitute. See Hardwick v. State, 521 So.2d 1071 (Fla.1988); Davenport v. State, 596 So.2d 92 (Fla. 1st DCA 1992); Perkins v. State, 585 So.2d 390 (Fla 1st DCA 1991); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
During the first day of trial, the following transpired:
MR. BAZLEY [Defense Counsel]: Your Honor, if I may make a motion before the jury comes in.
Mr. Kenney has spoken with me and he no longer requests me to represent him in this matter and, you know, I believe he would like to make a statement to the court, and I would ask permission to withdraw from the case because he does not feel he is being adequately represented.
I haven't seen him not one time. He hasn't been to the jail not once, you know, pertaining to this situation. You know, how can he come in here and perform a trial, you know, for me for my defense? Ain't no way he can do that.
(Emphasis supplied.)
The appellant therefore told the trial judge that he wanted to discharge his court-appointed counsel because the lawyer had not adequately prepared for trial. This was an allegation of incompetence of counsel which immediately obligated the judge to follow the procedure outlined in the decisions cited above....
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Wilson v. State, 3D98-3388.
...inquiry. See Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA 1995); Lee v. State, 641 So.2d 164 (Fla. 1st DCA 1994); Kenney v. State, 611 So.2d 575 (Fla. 1st DCA 1992); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 3. The evidence against the defendant was considerable. The attending physic......
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Soto v. State
...Mere failure to make what a defendant considers adequate visits to him in jail is not an issue of competency. See Kenney v. State, 611 So.2d 575, 575 (Fla. 1st DCA 1992). Soto also complained that his attorney had failed to file any motions. The record belies this allegation, as there are d......
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Augsberger v. State, 93-03047
...claim of incompetence, does not require a full Nelson inquiry. Lee v. State, 641 So.2d 164 (Fla. 1st DCA 1994); Kenney v. State, 611 So.2d 575 (Fla. 1st DCA 1992). Just as important to our analysis is the critical factor that appellant never made a request for replacement of counsel with an......
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Merelus v. State, 98-206.
...inquiry. See Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA 1995); Lee v. State, 641 So.2d 164 (Fla. 1st DCA 1994); Kenney v. State, 611 So.2d 575 (Fla. 1st DCA 1992). 3. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 ...
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Self-representation and ineffective assistance of counsel: how trial judges can find their way through the convoluted legacy of Faretta and Nelson.
...So. 2d 256 (Fla. 4th D.C.A. 1973). [2] Phillips v. State, 608 So. 2d 778 (Fla. 1992), cert. denied, 509 U.S. 908. [3] Kenney v. State, 611 So. 2d 575 (Fla. 1st D.C.A. 1992); Augsberger v. State, 655 So. 2d 1202 (Fla. 2d D.C.A. [4] Wheat v. United States, 486 U.S. 153 (1988). [5] Morris v. S......