FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Citrus County, Richard A. Howard,
Judge. Victor J. Musleh, Senior Judge.
S. Purdy, Public Defender, and Brittany N. O'Neil,
Assistant Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Kellie A.
Nielan, Assistant Attorney General, Daytona Beach, for
Slinger appeals his convictions and sentences, following a
jury trial, on three counts: 1) sexual battery; 2) lewd or
lascivious molestation of a child between the ages of twelve
and sixteen; and 3) lewd or lascivious battery of a child
between the ages of twelve and sixteen. The State alleged
that Slinger both fondled and performed oral sex upon a
twelve-year-old boy. On appeal, Slinger argues that the trial
court erred in failing to conduct an adequate
Faretta inquiry into
whether his waiver of his Sixth Amendmentright to representation was knowing and
voluntary. We agree, reverse Slinger's convictions, and
remand for further proceedings.
addition to guaranteeing an accused person representation by
appointed counsel, the Sixth Amendment protects a
defendant's right to represent himself or herself.
Faretta v. California, 422 U.S. 806, 807 (1975). The
purpose of a Faretta inquiry is to determine whether
a defendant knowingly and intelligently waives the right to
counsel and asserts the right to self-representation.
Id. at 835; see also Fla. R. Crim. P.
3.111(d)(2)-(3). In making that determination, no specific
language is required, but the Florida Supreme Court has
provided guidelines for courts to utilize. See,
e.g., Amend. to Fla. R. Crim. P.
3.111(d)(2)-(3), 719 So.2d 873, 876-80 (Fla. 1998)
(setting out model inquiry); see also Fitzpatrick v.
Wainwright, 800 F.2d 1057, 1064-68 (11th Cir. 1986)
(laying out factors to consider in assessing a
trial court's handling of the defendant's right to
self-representation is reviewed for an abuse of discretion.
McCray v. State, 71 So.3d 848, 864 (Fla. 2011)
(quoting Aquirre-Jarquin v. State, 9 So.3d 593, 602
(Fla. 2009)). Failure to conduct a Faretta inquiry
when the defendant makes an unequivocal invocation of his
right to self-representation is per se reversible error.
Id. "The ultimate test is not the trial
court's express advice, but rather the defendant's
understanding." Fitzpatrick, 800 F.2d at 1065.
a pretrial status conference, Slinger requested a hearing on
his previously filed motion to discharge his public defender.
The trial court then began what was ostensibly a
Nelson hearing to
determine whether Slinger's appointed counsel was
ineffective. From the start, however, the inquiry blurred the
line between a Faretta hearing and a Nelson
hearing, despite procedurally important distinctions between
the two. The court began by asking
several questions about Slinger's age, education, work
history, and prior legal experience-questions that should
have been part of the Faretta inquiry. The court
then asked questions related to the Nelson inquiry
and heard arguments by Slinger and his counsel. The court
found that Slinger's counsel was not rendering
ineffective assistance. Slinger, in response to the
court's questioning, indicated that he wished to
court then proceeded to conduct a Faretta inquiry.
The inquiry itself, however, lasted a mere three pages of the
transcript. Cf. State v. Bowen,
698 So.2d 248, 251 (Fla. 1997). The court did not ask about
Slinger's history of mental or emotional illness, nor did
it discuss the maximum possible sentence or the nature and
complexity of the case. See Jones, 658 So.2d at 128
(Altenbernd, J., concurring). The court asked Slinger one
question about his knowledge of legal proceedings-whether he
was aware of the interrogative methods on direct and cross
examination-but did not address the issue of jury selection.
Cf. id. The court warned Slinger that he would be
expected to follow the same rules of procedure as any
attorney, but it did not point out that Slinger, as opposed
to an appointed attorney, would have diminished access to
legal materials and limited ability to contact witnesses
while in jail. See McGirth v. State, 209 So.3d 1146,
1157 (Fla. 2017) (noting that the Faretta inquiry
requires the court to state that the defendant's
"access to legal resources will be limited while in
custody"). Finally, the court failed to state on the
record the reasons for its determination that Slinger had
knowingly and voluntarily waived his right to counsel.
Cf. Jones, 658 So.2d at 128‒29.
this Faretta inquiry inadequate. While we
acknowledge that there are no magic words for the court to
use in conducting the exchange, the deficiencies in this
inquiry make it impossible for us to determine if Slinger
made a knowing waiver of his right to counsel. See
Fitzpatrick, 800 F.2d at 1065. Although the trial court
referenced the seriousness of the charges, the court did not
explain the maximum penalties that Slinger faced. Most
importantly, the court's explanation of the challenges of
self-representation did not adequately explain the
establishing that Slinger was aware of the many disadvantages
of self-representation or the possible penalties he faced, it
is impossible to say that his waiver was knowing.
Accordingly, we find that the court abused its discretion in
accepting Slinger's waiver of his Sixth Amendment right
to counsel. We reverse and remand for further