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Birlkey v. State

Florida Court of Appeals, Fourth District

May 24, 2017

GEORGE BIRLKEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Usan, Judge; L.T. Case No. 13-12235 CF10A.

          Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          Klingensmith, J.

         George 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.

         Appellant 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[1] 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 standby counsel.

         On 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).

         Six 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 appeal followed.

         We 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 2008).

         Here, 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.

         "If 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.").

         Here, 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).

         The 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 ...


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