final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No.
Haughwout, Public Defender, and Stacey Kime, Assistant Public
Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
Birlkey ("appellant") appeals from the trial
court's finding that he violated probation
("VOP") and consequent eighteen-month prison
sentence (with credit for time served). Appellant, who
represented himself while accompanied with standby counsel,
asserts that the trial court erred in not renewing an offer
of assistance of counsel prior to the VOP hearing and
sentencing. We agree that the court should have renewed the
offer of counsel before sentencing, and reverse.
was placed on probation after pleading no contest to the
charges of burglary of a structure and possession of burglary
tools. Four months later, the State filed an affidavit of VOP
alleging a new arrest for burglary and grand theft, and a
failure to truthfully answer an officer's inquiries.
Appellant requested a Faretta hearing to represent himself in both the
VOP proceedings and the underlying criminal case involving
the new charges. After conducting a Faretta hearing
on November 6, 2014, and finding that appellant made a
knowing, voluntary, and intelligent waiver of his right to
counsel, the trial court allowed appellant to represent
himself. Additionally, with appellant's consent, the
court appointed an assistant public defender to serve as
November 18, 2014, appellant attended his first hearing while
representing himself to argue various motions, including a
demand for speedy trial on the new underlying charges (which
was granted) and a request to continue the VOP hearing until
after that trial (which was denied).
days later at the VOP hearing (November 24, 2014), appellant
again represented himself, with standby counsel remaining by
his side. At the start of the hearing, the trial court did
not renew to appellant the offer of assistance of counsel. At
the conclusion of the hearing the court found he violated his
probation, and thereafter immediately commenced the
sentencing phase of the proceedings. The record shows the
court again did not renew an offer of counsel prior to the
start of sentencing. After orally imposing the prison
sentence for the VOP, the trial court asked appellant if he
still wanted to represent himself at the upcoming jury trial
on the underlying charges; he replied affirmatively, and
stated that he did not want court-appointed counsel. This
review appellant's claim that the trial court failed to
renew the offer of assistance of counsel for abuse of
discretion. See Hays v. State, 63 So.3d 887, 888
(Fla. 5th DCA 2011) ("[D]etermining that the trial court
abused its discretion by failing to renew the offer of
assistance of counsel to the defendant at the sentencing
stage, we vacate the defendant's sentence and remand for
resentencing."). However, case law also suggests that a
violation of a defendant's right to counsel at a critical
stage of sentencing is per se reversible error, not subject
to a harmlessness analysis. See Cuyler v. State, 131
So.3d 827, 828 (Fla. 1st DCA 2014); see also Tennis v.
State, 997 So.2d 375, 379 (Fla. 2008); Davis v.
State, 10 So.3d 176, 178 (Fla. 5th DCA 2009);
Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA
appellant argues that the trial court reversibly erred by
failing to renew an offer of assistance of counsel at the
start of both the VOP hearing and sentencing. He contends the
failure requires reversal for two reasons: 1) the hearing on
his various motions occurring between the Faretta
hearing and the violation hearing was an intervening critical
(or crucial) stage necessitating a renewed offer of
assistance of counsel at the commencement of the VOP hearing;
and 2) the sentencing hearing was a crucial stage requiring
the renewal of the offer of assistance. We disagree with
appellant on the first issue, but agree with him on the
second and reverse accordingly.
a waiver is accepted at any stage of the proceedings, the
offer of assistance of counsel shall be renewed by the court
at each subsequent stage of the proceedings at which the
defendant appears without counsel." Fla. R. Crim. P.
3.111(d)(5). Moreover, the Counsel Clause of the Florida
Constitution under article I, section 16 recognizes the right
to counsel as well as self-representation in all criminal
prosecutions. See Traylor v. State, 596 So.2d 957,
966-67 (Fla. 1992); Brown v. State, 45 So.3d 110,
115 (Fla. 1st DCA 2010). In Traylor, the Florida
Supreme Court held a criminal defendant "is entitled to
decide at each crucial stage of the proceedings whether he or
she requires the assistance of counsel." 596 So.2d at
968. In view of this right, the Traylor court
clarified that "[a]t the commencement of each such
stage, an unrepresented defendant must be informed of the
right to counsel and the consequences of waiver."
Id.; see also Sproule v. State, 719 So.2d
349, 350 (Fla. 4th DCA 1998). ("A defendant's waiver
of the right to counsel applies only to the stage of the
proceedings during which the waiver is made."). Thus,
"[w]here the right to counsel has been properly waived,
the State may proceed with the stage in issue; but the waiver
applies only to the present stage and must be renewed at each
subsequent crucial stage where the defendant is
unrepresented." Sproule, 719 So.2d at 350
(quoting Traylor, 596 So.2d at 968); see also
Segal v. State, 920 So.2d 1279, 1280 (Fla. 4th DCA 2006)
("Although a full Faretta inquiry need not be
conducted at every stage of criminal proceedings, once
counsel has been waived under Faretta, the offer of
assistance of counsel must be renewed by the court at each
subsequent stage of the proceedings.").
the defendant made a knowing waiver of counsel at the
November 6 Faretta hearing. The very next hearing
was held twelve days later on November 18, and involved:
appellant's request to withdraw a previously filed motion
to suppress; a mislabeled motion to show cause; a demand for
speedy trial on the new underlying charges; and a request to
continue his VOP hearing. None of these matters sufficed to
qualify the November 18 hearing as a critical stage. The
United States Supreme Court has indicated that "critical
stages" are those "step[s] of a criminal proceeding
. . . that held significant consequences for the
accused." Bell v. Cone, 535 U.S. 685, 696
(2002); see also Monte v. State, 51 So.3d 1196, 1200
(Fla. 4th DCA 2011) ("A 'crucial stage' is
'any stage that may significantly affect the outcome of
the proceedings.'" (quoting Traylor, 596
So.2d at 968)). Although the Supreme Court has never provided
a definitive list of these critical stages, it has provided
examples of the type of proceedings that do and do not
qualify as such. See Montejo v. Louisiana, 556 U.S.
778, 786 (2009) (post-indictment interrogation is a critical
stage); Iowa v. Tovar, 541 U.S. 77, 81 (2004) (entry
of guilty plea qualifies as critical stage); Gardner v.
Florida, 430 U.S. 349, 358 (1977) (sentencing is
critical stage in criminal proceedings); United States v.
Wade, 388 U.S. 218, 236-37 (1967) (post-indictment live
lineup is critical stage); see also United States v.
Ash, 413 U.S. 300, 320-21 (1973) (post-indictment
photographic lineup not a critical stage); Gilbert v.
California, 388 U.S. 263, 267 (1967) (taking of
handwriting exemplar is not a critical stage).
various motions presented at the November 18 hearing, the
most significant of which was the requested continuance of
appellant's trial, are unlike any of the examples of
critical stages that the Supreme Court has identified.
Because neither the U.S. Supreme Court nor the Florida
Supreme Court has ever held that a hearing on a motion ...