Monte v. State Of Fla.

• Decision Date: 05 January 2011
• Docket Number: No. 4D08-1461,No. 4D08-1437,4D08-1437,4D08-1461
• Parties: FRANK MONTE, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

FRANK MONTE, Appellant,

v.STATE OF FLORIDA, Appellee.

No. 4D08-1437

No. 4D08-1461

District Court Of Appeal Of The State

Of Florida

Fourth District

July Term 2010

January 5, 2011

Ciklin, J.

In this case we explain the need, at each critical stage of criminal proceedings, to offer a pro se litigant court-appointed counsel and the procedures required when there are grounds to question a criminal defendant's competency to stand trial. We also explore a defendant's right to self-representation amid concerns of competency.

Frank Monte was charged with two counts of aggravated stalking and one count of violation of a protective injunction.¹ He was tried before a jury on March 10, 2008.

On January 8, 2008, the trial court, on request of defense counsel, appointed an expert to address Monte's competency to stand trial.

During a January 15, 2008 hearing, the trial court considered Monte's competency to proceed based on the written evaluation prepared by a single expert appointed by the trial judge but stopped short of making a ruling after defense counsel objected, arguing that the trial court was required to appoint at least two experts to assist with the determination of competency, pursuant to Florida Rule of Criminal Procedure 3.210(b) (2008). Also during this hearing, the trial court granted Monte's motion to discharge his private attorney because the lawyer was unwilling to adopt Monte's speedy trial demand. Monte then hired private attorney Michael Gottlieb to represent him.

On January 16 and 18, 2008, the trial court, on its own motion, appointed two more experts to examine Monte. One of the experts found Monte "not competent to proceed" while the other found him "competent to proceed." The record does not reveal that any additional competency hearing was ever held.

On February 15, 2008, Monte filed a pro se written motion to proceed with standby counsel.

On February 21, 2008, the trial court granted Mr. Gottlieb's motion to withdraw because Gottlieb could not honor Monte's request to demand speedy trial. The next day, February 22, 2008, the trial court appointed assistant public defender Brian Greenwald to represent Monte, but Monte declined the representation, reiterating his request for standby counsel and his intention to proceed pro se. On that same day, the trial court conducted a thorough Faretta² inquiry and the trial court found Monte to have "intelligently and voluntarily" waived his right to counsel, thereby permitting him to proceed pro se. As Monte requested, the public defender was discharged.

On February 28, 2008, a hearing was conducted on Monte's pro se motion to compel discovery, demand for speedy trial, and pending motion for standby counsel. The trial court took no action on the discovery and speedy trial "issues" because nothing legally substantive had been filed or was otherwise before the court which would have caused the need for any type of ruling. The trial court denied Monte's motion for standby counsel without prejudice to renew.

At the commencement of the trial, on March 10, 2008, the trial court recognized that it had previously conducted a Faretta inquiry on February 22 and as such, determined that there was no need to repeat the procedure. At Monte's request, the trial court appointed assistant public defender Greenwald to act as standby counsel. After hearing and denying Monte's motion to suppress, the trial immediately began.

During trial, Monte's harassment, including threatening phone calls and the carrying of a firearm onto the victim's business property was detailed. These actions were targeted against one individual, his employees and staff, and his eight businesses. This behavior ultimately led to the issuance of a permanent non-expiring restraining order against Monte which Monte continually violated. Five employees of the victimtestified to having received hundreds of telephone calls from Monte, including threats to poison the water and blow up the building in which they worked. The victim denied having done anything to Monte and added that threats and slurs were even directed toward the victim's daughter. Monte told law enforcement officials that the victim had ties with terrorists and that he was being investigated by the FBI for a possible connection with those who perpetrated the September 11, 2001 attack against America.

On March 12, 2008, the jury returned a verdict of guilty on both charges. On April 23, 2008, at sentencing, the trial court adjudicated Monte guilty and sentenced him to five years in prison on the aggravated stalking count plus 364 consecutive days on the injunction violation charge.

Through the services of the public defender, Monte raises three issues on appeal. First, Monte contends that the trial court erred by not renewing the offer of assistance of counsel at certain critical stages of the proceedings. Second, he asserts that the trial court erred in failing to conduct a competency hearing both before trial and sua sponte during trial, when Monte argues, it should have become reasonably apparent to the trial judge that such a hearing was necessary. Finally, Monte argues that the trial court erred in permitting self-representation without first determining that Monte was competent to make the decision to waive counsel.

Renewal of Offer of Counsel at Critical Stages

A trial court must renew an offer for assistance of counsel to an unrepresented defendant at each critical stage of a trial:

A defendant's waiver of the right to counsel applies only to the stage of the proceedings during which the waiver is made. "Where the right to counsel has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented."

Sproule v. State, 719 So. 2d 349, 350 (Fla. 4th DCA 1998) (citation omitted); see also Fla. R. Crim. P. 3.111(d)(5). A "crucial stage" is "any stage that may significantly affect the outcome of the proceedings." Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992); see also Segal v. State, 920 So. 2d 1279, 1280 (Fla. 4th DCA 2006) ("Although a full Faretta inquiry need not be conducted at every stage of criminal proceedings, once counsel has been waived under Faretta, the offer of assistance of counsel must be renewed by the court at each subsequent stage of the proceedings.").

Here, a Faretta inquiry was made on February 22, 2008. The hearing on Monte's motion to suppress and the beginning of trial both occurred on March 10, 2008. Sentencing was conducted on April 23, 2008. Monte specifically claims that the trial court erred in not renewing an offer of counsel before the hearing on his motion to suppress, the start of trial, and sentencing.

The need to renew an offer of assistance of counsel is not dependent on the time between an initial offer and a subsequent critical stage, but rather is dependent on whether there are any intervening critical stages. For example, in Lamb v. State, 535 So. 2d 698, 699 (Fla. 1st DCA 1988), an offer of counsel three weeks before trial did not require a renewal where there were no intervening proceedings. The court explained that "[t]he pretrial hearing on the waiver of counsel addressed [defendant's] competence and ability to appear pro se at the trial stage, and the fact that the trial occurred three weeks later is immaterial. The rule does not place a time limitation on an offer and waiver of counsel." Id. However, if between the initial offer of counsel and trial there are other critical stages, it would be error to not renew the offer of counsel before trial. See Sproule, 719 So. 2d at 351 ("[U]nlike Lamb, where there were no intervening proceedings during the three weeks that passed between the pretrial hearing and trial, here, the record indicates two other appearances before the court where the offer was not renewed.").

After the Faretta inquiry took place on February 22, 2008 and before the March 10, 2008 trial (and hearing on the motion to suppress on the morning of the trial), there was a hearing on February 28, 2008. At this February 28 court appearance, the trial court discussed Monte's motion to compel discovery, a demand for speedy trial, and a motion for standby counsel. While this February 28 court appearance can certainly be categorized as an intervening proceeding, the record indicates that nothing of legal substance existed regarding any discovery and speedy trial matters. Further, the trial court made it clear to Monte that the issue of standby counsel would be revisited at the March 10 trial.

At the commencement of court proceedings on March 10 one of the first things discussed was Monte's self-representation. Monte indicated that he was "still prepared to go pro se with standby counsel." After a brief colloquy, the trial court permitted Monte to represent himself, explaining that:

I have already conducted a Faretta inquiry as of February 22, 2008.... [T]he court finds that none of the facts have changed which would require another Faretta inquiry, that was done February 22, 2008. I do find that the defendant is able to go forward and represent himself having intelligently and voluntarily waived his right to counsel.

Monte's comments indicated his knowing intention to represent himself and his intelligent understanding of proceeding pro se.³ Conducting another Faretta inquiry or renewing an offer of counsel at this juncture would have been superfluous and legally unnecessary. See Knight v. State, 770 So. 2d 663, 670 n.6 (Fla. 2000) ("A defendant's right to have court-appointed counsel discharged and right to represent himself becomes meaningless and a source of gamesmanship if the trial court has to offer counsel to the defendant each time he appears in court."). In addition, Monte was, as he requested, appointed standby counsel. "Standby counsel is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any...