Lyons v. State

Citation437 So.2d 711
Decision Date16 August 1983
Docket NumberNo. AO-390,AO-390
PartiesBobby LYONS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael Allen, Public Defender, Gwendolyn Spivey, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.

MILLS, Judge.

Lyons appeals a verdict of guilty on charges of possession of a weapon, aggravated battery, and lesser included offense of resisting an officer without offering to do violence. He raises two points on his appeal. The trial court erred in denying his request to represent himself and it erred in excluding defense evidence that the victim consented to the aggravated battery. We affirm.

After the jury had been sworn, Lyons requested that he be allowed to represent himself. The judge denied the request as untimely.

At trial, the testimony established that on 17 March 1982, Lyons and Bailey, the victim, were prisoners at Florida State Prison. Bailey, who was handcuffed, was being escorted back to his cell from the clinic by a prison guard. Lyons ran out of a door and began stabbing at Bailey with a homemade knife. Lyons was restrained by the guard and another guard recovered the knife. Four guards and Bailey testified for the State.

The defense attorney tried to cross-examine Bailey about his relationship and interaction with Lyons. The trial judge sustained the State's objections to the questions as irrelevant. With the jury excused, defense counsel tried to proffer Bailey's anticipated answers, but was allowed only to explain how those answers might be relevant to the defense theory of consent. The testimony of defense witnesses was also excluded as irrelevant. The defense attorney summarized their testimony and argued it would establish the defense of consent to the aggravated battery charge. The trial court assured defense counsel that it would exclude the witnesses' testimony and Lyons' testimony as irrelevant. Lyons then decided not to take the stand and the defense rested.

Lyons first contends that his request to represent himself was timely, and that the denial of his request, without any inquiry to determine his ability to do so, violated his rights under the federal and state constitutions. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Cook v. State, 167 So.2d 793 (Fla. 1st DCA 1964); Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), rev'd. on other grounds, 216 So.2d 749 (Fla.1968).

He contends that there is no credible distinction between his case and Kimble v. State, 429 So.2d 1369 (Fla. 3d DCA 1983); and Martin v. State, 434 So.2d 979 (Fla. 1st DCA 1983).

In Kimble, the defendant made his request "toward the end of the jury selection process." The Third District Court reversed his conviction because the trial court had denied his request without sufficient inquiry.

In Martin, the trial judge granted defendant's request made on the morning of the trial and after the jury had been selected but not yet sworn.

The distinction is that Lyons made his request after the jury had been selected and sworn and as counsel were about to make their opening statements. Cappetta v. State, supra, requires: "Such request must be made prior to the commencement of trial." Cappetta also directs:

If the defendant has not complied with the above requirements and the trial has begun with defendant represented by counsel, there must then be shown that prejudice to the legitimate interest of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance.

We agree with the trial judge that Lyons' request was untimely. To have granted his motion at that time would have "disrupted the proceedings already in progress," Cappetta, supra. It was within the trial judge's discretion to deny the request at that time, and we have not been shown how that denial was prejudicial. Cappetta,...

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17 cases
  • Mccray v. State
    • United States
    • Florida Supreme Court
    • September 21, 2011
    ...the decision of whether to allow a defendant to proceed pro se rests in the sound discretion of the trial court. Lyons v. State, 437 So.2d 711 (Fla. 1st DCA 1983). When exercising this discretion, the trial court should make inquiry of the defendant as to why the defendant desires to repres......
  • State v. Mackrill, CA 06-0728.
    • United States
    • Montana Supreme Court
    • August 20, 2008
    ...134, ¶¶ 7-8 (Miss. 1998) (adopting the reasoning of Fransua); Jaske v. State, 539 N.E.2d 14, 18 (Ind.1989) (same); Lyons v. State, 437 So.2d 711, 712 (Fla. App. 1 Dist. 1983) (same); State v. Weber, 137 Wash.App. 852, 155 P.3d 947, ¶¶ 20-21 (Div. 3 2007) (holding that consent was not a defe......
  • People v. Ford
    • United States
    • United States Appellate Court of Illinois
    • October 28, 2015
    ...State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984), Commonwealth v. Burke, 390 Mass. 480, 457 N.E.2d 622 (1983), Lyons v. State, 437 So.2d 711 (Fla.Dist.Ct.App.1983), and 43 N.E.3d 201 State v. Fransua, 85 N.M. 173, 510 P.2d 106 (App.1973) ).¶ 29 In this case, defendant argues that cons......
  • Jaske v. State
    • United States
    • Indiana Supreme Court
    • June 1, 1989
    ...of whether the victim invites the act and consents to the battery. 85 N.M. at 174, 510 P.2d at 107. See also Lyons v. State (1983), Fla.Dist.Ct.App., 437 So.2d 711 (expressly adopting New Mexico Court of Appeals view); Annotation, Consent as Defense to Charge of Criminal Assault and Battery......
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