final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Robert E. Belanger, Judge; L.T. Case No.
Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
case, we are confronted with facts that are highly unusual to
say the least. In this case, an assistant state attorney
assigned to appellant's case filed a criminal
information, offered appellant a plea deal, and provided
discovery. Later in the same exact case, under circumstances
not fully developed in this record, the very same prosecutor
became appellant's defense attorney at trial. Only after
appellant was convicted, but before sentencing, did appellant
bring this apparent conflict situation to the attention of
the trial court.
we are confronted with the following issue: does the fact
that appellant's defense attorney was originally the
prosecutor on the very same case require a reversal. We
decline to adopt a "per se" rule, and find that
although this factual situation presents, at least facially,
a situation prompting possible ethical concerns, that
nonetheless, we must make a determination on a case-by-case
basis of whether appellant's counsel labored under an
actual conflict of interest. As to the present case, we find
that the record before us does not support a finding that any
potential conflict adversely affected trial counsel's
performance. Thus, we affirm.
was charged by criminal information with burglary of a
dwelling, third-degree grand theft, dealing in stolen
property, and several counts of giving false information to a
pawnbroker. This criminal information
and a subsequent amended information were signed by an
assistant state attorney. This particular prosecutor also
signed several filings on behalf of the state, including a
demand for notice of alibi, three supplemental answers to
appellant's request for discovery, and finally, a
conditional plea offer of fifteen years in prison. This
prosecutor appeared in court on behalf of the state on this
case for two hearings. Appellant apparently was not at either
of the two hearings, which included a calendar call.
prosecutor stopped appearing on behalf of the state on April
18, 2014, when another prosecutor began submitting filings on
behalf of the state. On April 16, 2015, previous private
counsel withdrew from representing appellant, and the very
same prosecutor, now a former prosecutor, who filed the
information against appellant was retained as appellant's
new private counsel. As appellant's new counsel, she
announced that she was ready to go to trial and did not
inform the court of her prior prosecutorial role.
trial, there was testimony that the victim, appellant's
sister, told police she had come home to find it in disarray
with the window to her bedroom broken. Many of her personal
belongings were also missing. The victim speculated that the
perpetrator was her brother, appellant. Law enforcement found
much of the victim's missing property at pawnshops, and
surveillance footage and testimony of the pawnshop employees
identified appellant as the one who had pawned the
victim's property. The victim's missing property was
also found at a hotel where appellant was staying. At trial,
however, appellant's sister said she was mistaken when
she initially accused appellant of stealing from her. The
state introduced tapes of appellant admitting to stealing
from the victim. In these tapes, appellant also encouraged
the victim to lie on his behalf. Appellant was found guilty
of all charges.
being found guilty, appellant moved to discharge his counsel,
believing that she did an inadequate job in his case. In
appellant's motion to discharge, appellant stated that he
"has become aware that [his attorney] was also his
prosecutor in the instant case which is now before the
court." Appellant then moved for a mistrial based on
this conflict. At a subsequent hearing, appellant's
counsel stated that she could not "ethically"
represent appellant any longer. After a
Faretta hearing, the
trial court found appellant competent to represent himself,
and appellant, acting pro se, moved for a mistrial. The trial
court took the motion for mistrial "under
sentencing, appellant moved to discharge his new counsel, a
public defender, claiming that the public defender was doing
an inadequate job. The trial court proceeded with sentencing
and did not rule on appellant's prior motion for a
mistrial nor was it brought up by his public defender.
Following his conviction and sentence, appellant's appeal
argues on appeal that trial counsel was ineffective. Since
this is a direct appeal, trial counsel's conflict of
interest thus must appear on the face of the record.
Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA
2002). We therefore conduct a de novo review of the record.
See Curtis v. State, 204 So.3d 463, 464 (Fla. 4th
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel and representation free of
conflict. Quince v. State, 732 So.2d 1059, 1064
(Fla. 1999). When determining whether counsel's
representation was free of conflict, we apply the conflict ...