Joseph C. Bodiford of Bodiford Law, P.A., Special Assistant Public Defender, Tampa, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
Just before he was tried on criminal charges, Charles Jones unequivocally informed the court that he did not want to be represented by his appointed attorney. The court denied Jones's request to discharge his counsel without inquiring into his reasons. This was a structural defect in Jones's trial, and we must reverse his convictions and remand for a new trial.
Jones was charged with fleeing at high speed to elude, a second-degree felony in violation of section 316.1935(3)(a), Florida Statutes (2007), and obstruction without violence, a misdemeanor in violation of section 843.02, Florida Statutes (2007). On the morning of his trial, prior to voir dire, Jones told the court: " I'm ready to fire my attorney. I don't want him to represent me.... I don't want this guy right here to represent me." The court responded with assurances that Jones's appointed counsel was " a fine attorney" and had " done everything possible that he can to represent your interest, so he's going to represent you." Jones reiterated: " I don't want [defense counsel] to represent me." The court ignored the request, and instead, it announced that the case was to be tried " right now" and directed the bailiff to bring in the venire for jury selection.
After the prospective jurors were questioned but before the jury was selected, Jones's attorney informed the court that Jones wanted to discharge him and obtain another lawyer. On the court's inquiry, someone in the gallery mentioned the name of a private defense attorney. Jones then addressed the court directly, stating that he did not want to be represented by the Public Defender's Office. But the mentioned attorney was not present. Without further inquiry, the court denied Jones's request to dismiss his appointed attorney. The jury was then selected, sworn, and released for the day.
Trial resumed the following day before a different judge. The previously named defense attorney was in attendance, and he asked to represent Jones. He also sought a continuance in which to prepare. But, as the jury had already been sworn, the prosecutor expressed concern about the risk of double jeopardy. The court denied the
motion for continuance, finding that it was " interposed solely for the purpose of delay." However, recognizing the defendant's right to counsel of his choosing, the court granted a brief recess to permit the private attorney to decide whether he wanted to immediately take over the defense.
After the recess, Jones was not to be found. His appointed counsel advised that he could not locate Jones. He also informed the court that, just that morning, Jones's family had expressed concerns about Jones's competency and had pointed out his bizarre behavior. No evidence was taken on this point, and the trial proceeded in Jones's absence with appointed counsel representing him. Jones was convicted as charged and sentenced, as a habitual offender, to twenty years in prison for fleeing and to time served for obstruction.
Jones's case implicates important rights constitutionally guaranteed to all criminal defendants. The Sixth Amendment to the United States Constitution contains an explicit right to the assistance of counsel for the defense in a criminal prosecution. Criminal defendants do not have the right to appointed counsel of their choice. Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988). But " ‘ the right to counsel is the right to the effective assistance of counsel.’ " Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The Supreme Court has also recognized that the Sixth Amendment contains an implicit right to self-representation. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (" The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." ). Sixth Amendment rights " are part of the ‘ due process of law’ that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States." Id. at 818, 95 S.Ct. 2525 (footnote omitted).
The Florida Supreme Court has recognized that the right to counsel might be impaired by the incompetence of a court-appointed attorney. Hardwick, 521 So.2d at 1074. To minimize this possibility, the court adopted a procedure, first developed in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for inquiring into a defendant's request to dismiss an appointed attorney. Hardwick, 521 So.2d at 1074-75. The issue may arise when a defendant complains about his appointed attorney, or it may come up when a defendant asks to dismiss his appointed counsel, as occurred here. In either case, the court must conduct a preliminary inquiry into the reasons for the defendant's dissatisfaction. Nash v. State, 53 So.3d 1208, 1211 (Fla. 2d DCA 2011) (citing Nelson ); see also Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004) (" The first step in the procedure is the preliminary Nelson inquiry
in which the court ascertains whether the defendant unequivocally requests court-appointed counsel's discharge and the court asks the reason for the request." ). If the defendant claims that the attorney is not rendering effective assistance, the court should inquire of both the defendant and the attorney and then make a finding on the record whether the defendant has a reasonable basis for the claim. Nash, 53 So.3d at 1211. If the defendant's complaint lacks substance, a full inquiry is not warranted. Penn v. State,51 So.3d 622, 623 (Fla. ...