Tucker v. State, No. 2D98-4935.

CourtCourt of Appeal of Florida (US)
Writing for the CourtSALCINES.
Citation754 So.2d 89
PartiesKevin TUCKER, Appellant, v. STATE of Florida, Appellee.
Decision Date10 March 2000
Docket NumberNo. 2D98-4935.

754 So.2d 89

Kevin TUCKER, Appellant,
v.
STATE of Florida, Appellee

No. 2D98-4935.

District Court of Appeal of Florida, Second District.

March 10, 2000.


754 So.2d 90
James Marion Moorman, Public Defender, and Joanna B. Conner, Assistant Public Defender, Bartow, for Appellant

754 So.2d 91
Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Appellee

SALCINES, Judge.

Kevin Tucker appeals his conviction for fleeing to elude with high speed. We affirm.

While on patrol in June of 1998, a Hillsborough County Sheriffs Deputy drove through a mobile home park. He observed a motorcycle sitting in a vacant lot next to one of the mobile homes and ran a check on the tag. Just as the registration came back indicating that the motorcycle was stolen, the deputy saw Tucker exit the mobile home and get on the motorcycle. Tucker looked back directly at the deputy and then sped off. The deputy was in a marked vehicle with overhead lights and sirens which he activated. The deputy drove down a side street to intersect Tucker's path, but Tucker cut in front of the deputy, almost causing a collision. The deputy followed Tucker and another marked vehicle as well as a helicopter joined in the pursuit. Eventually the high speed chase was called off due to the danger it posed to other motorists. Tucker's name and address were obtained from the occupant of the mobile home, and it appears that he was subsequently located and arrested on this charge while incarcerated for another matter.1

Tucker does not attack the sufficiency of the evidence to support his conviction. Instead, he maintains that the trial court failed to conduct a full Nelson2 inquiry into his dissatisfaction with the assistant public defender handling his case and, as a result, he is entitled to a new trial.3 We conclude that the trial court conducted a hearing sufficient to satisfy the requirements of Nelson. Nonetheless, we note that the record suggests either an error in the reporter's transcription or in the trial court's interpretation of the law with regard to an indigent's entitlement to court-appointed counsel.

We turn first to the point concerning the adequacy of the inquiry conducted by the trial court. On October 1, 1998, Tucker filed a written, pro se motion for withdrawal or for termination of counsel. In that motion, he alleged irreconcilable conflicts of interest between himself and Melody Dietsch, who apparently was his appointed assistant public defender at that time. The trial court rendered an order denying the motion on October 26, 1998.4

On that same day, October 26, the matter proceeded to trial and jury selection began. Immediately prior to the commencement of jury selection, the assistant public defender handling the matter for trial, Guy Brown, orally advised the trial court of Tucker's desire to have him "fired."5 The following dialogue ensued:

THE COURT: What do you want to say, sir?
THE DEFENDANT: I was speaking to Mr. Brown and he speculated that I was already guilty of this charge. I don't see how he's going to represent me tomorrow in trial if he says I already did
754 So.2d 92
something, I caused this by jumping on the bike myself. He tried to get me to admit that.
I will not admit to nothing and I would like to go to trial. He just assumed that I did that a while ago, how's he going to represent me saying I have already done something?
THE COURT: Okay. Anything else?
THE DEFENDANT: No, Your Honor.
THE COURT: You asking to discharge him?
THE DEFENDANT: I can't do this myself and I can't afford a private attorney, but I can't do it with Mr. Brown here saying that I've already done it. He's assuming that I'm guilty of the charge. I don't see where I will get a fair trial when he's assuming that I did something.
MR. BROWN: If I may, I met with this client last week and, unfortunately, if he's unhappy and if he wants to waive the attorney/client privilege as to what was discussed last week, I would be more than happy to address the Court. If he's willing to waive the privilege.
THE COURT: You understand what he's saying?
THE DEFENDANT: Yeah. He's making the assumption, I said to him is exactly what I said.
THE COURT: Then don't go any further because this lady is taking down everything that's being said. My question to you is whether or not you're asking to discharge your attorney. If your [sic] are, then I'm going to have a hearing to determine whether or not you're able to represent yourself.
I've got 30 jurors and I'm going to pick a jury. If you feel that your lawyer is being ineffective or is going to be ineffective, then we need to have a hearing on that.
THE DEFENDANT: He's assuming I'm guilty. To me that's—
THE COURT: I don't know what your lawyer is assuming, sir. Apparently y'all have had conversations dealing with your defense in this particular case. I don't know what you have told him.
THE DEFENDANT: I spoke to him at pretrial, that's it. And he came to the jail one day and he said a few words and packed up and left. He wouldn't let me show that I had some things about the case.
And the other day when he's there, I said this is not me. And he said, well, so you're saying it wasn't you that took off on the bike and you weren't hauling ass? And I said I'm not admitting nothing. And now he's assuming that I did this.
THE COURT: You want to discharge your lawyer?
THE DEFENDANT: If that's what I have to do to get a fair trial, yes. But I can't do it on my own. And granted I'm no attorney, but I do know myself.

A preliminary Nelson inquiry is required where, prior to trial, a defendant asks to discharge his or her court-appointed attorney. If the defendant assigns incompetency of counsel as a reason for the request, further inquiry is required. See Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973). A trial court does not abuse its discretion in refusing to conduct a Nelson inquiry when the defendant fails to make an unequivocal request for the discharge of counsel and for the court's appointment of other counsel. See Davis v. State, 703 So.2d 1055 (Fla.1997); Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA...

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10 practice notes
  • Guzman v. Sec'y, Case No. 2:08-cv-411-FtM-36SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 16 Septiembre 2011
    ...the trial court that he had "no confidence" in counsel and that counsel "don't got no confidence in himself." Citing Tucker v. State, 754 So. 2d 89 (Fla. 2d DCA 2000), the trial court found that a defendant's "general loss of confidence or trust . . . does not require withdrawal of counsel.......
  • LeGrand v. State, No. 1D09-2022.
    • United States
    • Court of Appeal of Florida (US)
    • 31 Marzo 2010
    ...dissatisfaction that counsel had not visited him in jail not grounds to inquire about counsel's effectiveness); Tucker v. State, 754 So.2d 89, 93 (Fla. 2d DCA 2000) (defendant's claim that counsel believed defendant was guilty did not require Nelson hearing); Dunn v. State, 730 So.2d 309, 3......
  • Milkey v. State, No. 2D08-5423.
    • United States
    • Court of Appeal of Florida (US)
    • 24 Julio 2009
    ...complaints about defense counsel's trial strategy" without making any formal allegations of incompetence. Id.; see also Tucker v. State, 754 So.2d 89, 92 (Fla. 2d DCA 2000) (stating that trial court does not abuse its discretion by not conducting a Nelson inquiry when the defendant's "dissa......
  • Gonzales v. State, No. 5D07-3777.
    • United States
    • Court of Appeal of Florida (US)
    • 29 Agosto 2008
    ...conduct a Nelson inquiry at this point because there was no claim of incompetence on the part of his lawyer. See, e.g., Tucker v. State, 754 So.2d 89, 93 (Fla. 2d DCA 2000) ("Where incompetency of counsel is not the basis for the defendant's motion to discharge, a trial court is not require......
  • Request a trial to view additional results
10 cases
  • Guzman v. Sec'y, Case No. 2:08-cv-411-FtM-36SPC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 16 Septiembre 2011
    ...that he had "no confidence" in counsel and that counsel "don't got no confidence in himself." Citing Tucker v. State, 754 So. 2d 89 (Fla. 2d DCA 2000), the trial court found that a defendant's "general loss of confidence or trust . . . does not require withdrawal of......
  • LeGrand v. State, No. 1D09-2022.
    • United States
    • Court of Appeal of Florida (US)
    • 31 Marzo 2010
    ...dissatisfaction that counsel had not visited him in jail not grounds to inquire about counsel's effectiveness); Tucker v. State, 754 So.2d 89, 93 (Fla. 2d DCA 2000) (defendant's claim that counsel believed defendant was guilty did not require Nelson hearing); Dunn v. State, 730 So.2d 309, 3......
  • Milkey v. State, No. 2D08-5423.
    • United States
    • Court of Appeal of Florida (US)
    • 24 Julio 2009
    ...about defense counsel's trial strategy" without making any formal allegations of incompetence. Id.; see also Tucker v. State, 754 So.2d 89, 92 (Fla. 2d DCA 2000) (stating that trial court does not abuse its discretion by not conducting a Nelson inquiry when the defendant's "dissat......
  • Gonzales v. State, No. 5D07-3777.
    • United States
    • Court of Appeal of Florida (US)
    • 29 Agosto 2008
    ...conduct a Nelson inquiry at this point because there was no claim of incompetence on the part of his lawyer. See, e.g., Tucker v. State, 754 So.2d 89, 93 (Fla. 2d DCA 2000) ("Where incompetency of counsel is not the basis for the defendant's motion to discharge, a trial court is not re......
  • Request a trial to view additional results

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