Smith v. State
| Decision Date | 25 January 1984 |
| Docket Number | Nos. AO-388,AP-96,s. AO-388 |
| Citation | 444 So.2d 542 |
| Parties | Charles Elton SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Allen, Public Defender, and Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Richard Patterson, Asst. Atty. Gen., for appellee.
This case involves the trial court's discharge, at the defendant's request, of his court-appointed attorney resulting in the defendant's representation of himself at trial on charges of attempted armed robbery (with firearm). We reverse on the grounds that the trial court did not make the requisite inquiry regarding self-representation by the defendant.
At arraignment on September 13, 1982, the defendant expressed displeasure with the representation by the public defender who had been appointed to represent him and asked that the court appoint another lawyer to represent him. The judge handling the arraignment advised the defendant to confer further with his public defender and that if he still wished to pursue his request that another attorney be appointed he could take that up later with the judge to whom the case was assigned for trial. Inasmuch as a demand for speedy trial was filed, the case was set for trial for September 30.
The public defender representing the defendant filed a motion to withdraw due to disagreements which had developed over the handling of the defendant's representation including the difficulty in preparing for trial imposed as a result of the defendant's refusal to withdraw the demand for speedy trial which the defendant himself had filed a week before the information was filed.
The motion to withdraw was heard in pretrial proceedings before the trial court on September 24 and 28, 1983. The defendant told the trial judge that he was dissatisfied with the public defender, that he did not want the public defender to represent him and that he wanted the court to appoint private counsel for him. The defendant also told the court that he did not want to represent himself, that he was not capable of doing so.
During these proceedings, the learned trial judge, with characteristic patience, gave the defendant every opportunity to articulate the alleged shortcomings of the public defender's efforts in representing the defendant. The trial judge recognized that appointment of new counsel would be inappropriate unless there was sufficient cause to discharge or relieve his attorney. The judge concluded, and rightly so, that the public defender had properly gone about the task of representing the defendant in the limited time frame imposed by the demand for speedy trial and that there were no grounds entitling the defendant to the appointment of new counsel.
The judge explained to the defendant the constraints he was placing on his attorney by refusing to withdraw his demand for speedy trial because discovery had not been completed. The judge told the defendant that if he insisted on going to trial on September 30, he would have to represent himself and that if he wanted effective assistance of counsel, he should withdraw his demand for speedy trial and allow adequate time for preparation of his case. Although the judge stated that he could strike the demand for speedy trial on the basis that the defendant's attorney had not filed the demand, nothing further was said or done about that. The defendant stated that he would not withdraw his demand and would go to trial on September 30 but did not wish to represent himself. The court announced that the case would be tried on the 30th, that the defendant would have to represent himself and that the court would not require the public defender to sit with the defendant while he conducted his own defense.
On September 30, prior to commencement of the trial, there was a further colloquy between the court and the defendant in which the court inquired as to whether the defendant still wished to proceed to trial representing himself. The defendant responded that he never said that he wanted to represent himself. The case proceeded to trial with the defendant representing himself. The jury returned a verdict of guilty of armed robbery as charged in the information.
The defendant was sentenced on October 4, 1983, to a 15-year term of incarceration. No renewal of the offer of counsel by the court was made for the sentencing stage of the proceedings.
When a defendant moves the court to discharge his court-appointed attorney and to replace him with another appointed attorney, the trial court should first determine whether adequate grounds exist for replacement of the defendant's attorney with new counsel. Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). The trial judge in the instant case inquired at length into the defendant's complaints regarding his attorney's representation of him. The judge properly found that the defendant had no legitimate complaint. The judge was then required to advise the defendant that the result of granting the defendant's request to discharge his attorney would leave the defendant unrepresented. The appellant was clearly and repeatedly so advised by the trial judge.
After being so advised, where a defendant continues to persist in demanding that his appointed attorney be discharged, as did the appellant, the situation is tantamount to that which exists when a defendant seeks to represent himself. Tucker v. State, 440 So.2d 60 (Fla. 1st DCA 1983); Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982), rev. denied 430 So.2d 452 (Fla.1983); Williams v. State, 427 So.2d 768 (Fla. 2nd DCA 1983); cf. Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981).
Fla.R.Cr.P. 3.111(d) sets forth procedures governing waiver of counsel by a defendant. The rule provides, in pertinent part:
(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused's comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.
(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.
Also, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Court stated:
[I]n order to represent himself, the accused must "knowingly and intelligently" forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. , at 464-465, 58 S.Ct. [1019], at 1023 . Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. , at 279, 63 S.Ct. , at 242 .
It was, therefore, incumbent upon the trial court, when the defendant persisted in his demand that his attorney be discharged, to make adequate inquiry to determine whether the defendant was knowingly and intelligently waiving his constitutional right.
In construing the requirements of the above rule and Faretta, we have held that, before a defendant will be permitted to represent himself, the trial court will be required
to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self-representation. Thereafter the trial court must determine whether defendant has made his choice voluntarily and intelligently. We have further held that the trial court should determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries, such as the accused's age, mental derangement, lack of knowledge, education or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel.
Keene v. State, supra at 910; see also Tucker v. State, supra, Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982); Robinson v. State, 368 So.2d 674 (Fla. 1st DCA 1979); Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978); Kimble v. State, 429 So.2d 1369 (Fla. 3rd DCA 1983).
In the instant case, the trial court, although inquiring at length concerning whether grounds existed for replacing the defendant's appointed counsel and impressing upon the defendant that neither he nor any attorney could be prepared for trial within the abbreviated period imposed by the defendant's demand for speedy trial, did not make inquiry into the defendant's ability to knowingly and intelligently make the choice of self-representation. More specifically, the court did not inquire into the defendant's age, mental status, lack of knowledge, education or experience in criminal proceedings. We have closely examined the record of the trial court proceedings...
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