Rose v. State, SC17-878

• Decision Date: 19 July 2018
• Docket Number: No. SC17-878,SC17-878
• Citation: Rose v. State, 249 So.3d 547 (Fla. 2018)
• Parties: Milo A. ROSE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

249 So.3d 547

Milo A. ROSE, Appellant,

v.STATE of Florida, Appellee.

No. SC17-878

Supreme Court of Florida.

[July 19, 2018]

Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa Martin, Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

Discharged counsel appeals the postconviction court's order granting Milo A. Rose's pro se motion to dismiss postconviction proceedings and discharge collateral counsel.We have jurisdiction.Seeart. V, § 3(b)(1), Fla. Const.For the reasons below, we affirm.

BACKGROUND

In 1985, this Court affirmed Rose's conviction for first-degree murder and his death sentence.Rose v. State(Rose I ), 472 So.2d 1155, 1156(Fla.1985).In so doing, we explained the facts as follows:

At approximately 10 p.m. on October 18, 1982, several witnesses were talking together outside one of their residences.Testimony at trial revealed that they saw two men walking down the street.Subsequently they heard the sound of breaking glass and saw that one of the men ... was lying on the ground.The other man, identified by witnesses as Milo Rose ... was standing over him.Evidence shows that [Rose] then walked to a nearby vacant lot, picked up a concrete block, and returned to the man on the ground.[Rose] raised the block over his head and hurled it down on [the victim's] head.He picked up the block and hurled it down a total of five or six times.The area where the incident occurred was well lighted, so the witnesses were able to see the man with the concrete block clearly.

[Rose] was living with ... the victim's mother[ ] at the time.Two other acquaintances were staying with them.On the night of the incident, these two acquaintances left an apartment which was in the vicinity where the killing occurred and found [Rose] hitchhiking on a nearby street.[Rose] got into their truck and stated several times that he had just killed [the victim].[Rose] was later found in [the victim's mother's] house and was arrested [and charged with first-degree murder].

... [Rose] was tried by a jury which found him guilty as charged.

Id. at 1156-57.¹

In 1993, this Court affirmed the denial of Rose's initial motion for postconviction relief.Rose v. State(Rose II ), 617 So.2d 291, 298(Fla.), cert. denied , 510 U.S. 903, 114 S.Ct. 279, 126 L.Ed.2d 230(1993).²In 2000, this Court affirmed the summary denial of Rose's first successive motion for postconviction relief.Rose III , 774 So.2d at 637.

In 2003, discharged counsel, Bjorn E. Brunvand, was appointed to represent Rose.In 2005, Rose filed a motion to discharge Brunvand and represent himself in state court proceedings.After conducting a complete Faretta³ inquiry and finding that Rose "is an intelligent man" who was "waiving his right to counsel knowingly, intelligently[,] and with his eyes wide open," the postconviction court granted Rose's motion.

Nearly a decade later, Florida Rule of Criminal Procedure 3.851 was amended to prohibit capital defendants like Rose from representing themselves in postconviction proceedings in state court.SeeFla. R. Crim. P. 3.851(b)(6).Although counsel was not reappointed to represent Rose in state court, in 2017, Brunvand, who represents Rose in federal court, filed a second successive postconviction motion on Rose's behalf—against Rose's wishes—seeking relief under the United States Supreme Court's decision in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504(2016), and this Court's decision on remand in Hurst v. State(Hurst ), 202 So.3d 40(Fla.2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246(2017).

At the hearing on this motion, Rose informed the postconviction court that he wanted to dismiss postconviction proceedings and discharge Brunvand, who had not otherwise represented Rose in state court since being discharged in 2005.It was in this unusual procedural posture that the postconviction court conducted the inquiry required by Durocher v. Singletary , 623 So.2d 482(Fla.1993), andrule 3.851(i) to "determine if [Rose] understands the consequences of waiving collateral counsel and proceedings,"Durocher , 623 So.2d at 485.

In its order granting Rose's motion, the postconviction court well explained its colloquy with Rose:

The Court warned [Rose] that if he chose to dismiss the motion [seeking Hurst relief] and discharge counsel his postconviction proceedings would end and counsel would not file additional motions on his behalf.[Rose] stated several times that he maintains his innocence and does not want to pursue any legal claims that do not lead to an evidentiary hearing on his actual innocence.[Rose] repeatedly expressed his belief that his sentence is invalid and he is entitled to immediate release from custody, but insisted that he does not want appointed counsel to represent him and does not want to pursue the motion counsel filed.The Court warned [Rose] that Rule 3.851 does not allow postconviction defendants to proceed pro se and explained that if he abandoned the motion, his substantive claims will not be ruled upon or reviewed by an appellate court.The Court pointed out that [Rose's] waiver of the motion is antithetical to his ultimate goal of reversing his sentence, but [Rose] maintained that he does not want to pursue the motion filed by defense counsel and wants defense counsel discharged from his case.

Finding that Rose "knowingly, intelligently, and voluntarily waived his right to pursue postconviction relief and his right to appointed collateral counsel," the postconviction court granted Rose's motion to dismiss postconviction proceedings and discharge collateral counsel.This is discharged counsel's appeal of the postconviction court's order, as required by rule 3.851(i)(8)(B).

ANALYSIS

In Durocher , this Court held that competent capital defendants may waive the right to postconviction counsel and proceedings but held that a Faretta -type inquiry is necessary to ensure that the waiver is knowing, intelligent, and voluntary.623 So.2d at 483-85.The procedures for waiving postconviction counsel and proceedings that this Court established in Durocher have since been codified in rule 3.851(i), which provides in pertinent part:

(5) If the defendant is found to be incompetent for purposes of this rule, the court shall deny the motion without prejudice.

(6) If the defendant is found to be competent for purposes of this rule, the court shall conduct a complete ( Durocher/Faretta ) inquiry to determine whether the defendant knowingly, freely and voluntarily wants to dismiss pending postconviction proceedings and discharge collateral counsel.

(7) If the court determines that the defendant has made the decision to dismiss pending postconviction proceedings and discharge collateral counsel knowingly, freely, and voluntarily, the court shall enter an order dismissing all pending postconviction proceedings and discharging collateral counsel.

Fla. R. Crim. P. 3.851(i)."Under rule 3.851(i), if the trial judge grants the motion, discharged counsel must seek review in this Court."Trease v. State , 41 So.3d 119, 124(Fla.2010);see alsoFla. R. Crim. P. 3.851(i)(8)(B).This Court reviews a postconviction court's ruling regarding a defendant's competency to waive and its finding that the waiver was knowing, intelligent, and voluntary for an abuse of discretion.Trease , 41 So.3d at 124.

In this case, discharged counsel has not challenged Rose's competency.Because "[a] presumption of competence attaches from a determination of competency to stand trial,"Durocher , 623 So.2d at 484, absent grounds to believe that Rose was not competent, the postconviction court was not required to revisit the issue of Rose's competency.SeeFla. R. Crim. P. 3.851(i)(4)(requiring the trial judge to appoint experts to examine the defendant and to hold a hearing on the defendant's competency only if "the judge concludes that there are reasonable grounds to believe the defendant is not mentally competent for purposes of this [ rule 3.851(i) ]").Although Rose's competency is not in dispute, discharged counsel argues that the postconviction court did not follow the procedure required by Durocherandrule 3.851(i) and abused its discretion in finding that Rose's waiver was knowing, intelligent, and voluntary.We disagree.

The record establishes that before granting Rose's motion to discharge Brunvand in 2005, the postconviction court conducted a complete Faretta inquiry.When the postconviction court revisited counsel's discharge in 2017—in light of the subsequent prohibition against capital defendants' representing themselves in state court postconviction proceedings—it inquired as to whether Rose understood the consequences of waiving postconviction counsel and proceedings.As the postconviction court explained in the order on appeal, during the colloquy, Rose expressed his beliefs that the federal courts will eventually recognize that Hurst v. Florida overturned his conviction and sentence and that future death warrant litigation in his case will allow him to revisit the issue of his guilt.Critically, however, the postconviction court explained, and Rose acknowledged, that he is betting his life on beliefs that are contrary to the law and that his postconviction waiver would abandon the Hurst claim that discharged counsel filed on his behalf.⁴

Our precedent is clear that "we cannot deny [Rose] his right to control his destiny,"Durocher , 623 So.2d at 484, by overturning the waiver of postconviction proceedings and counsel that Rose clearly desired, so long as the waiver was knowing, intelligent, and voluntary.On this record, we find no abuse of discretion in the postconviction court's finding that it was after conducting the inquiry required by Durocherandrule 3.851.Cf.Robertson v. State , No. SC16-1297, 2016 WL 7043020, at *2-3(Fla.Dec. 1, 2016)(affirming postconviction court...