FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. Terry P.
Thomas, Public Defender, Kasey Lacey, Assistant Public
Defender, Steven Seliger, Assistant Public Defender, and
Danielle Jorden, Assistant Public Defender, Tallahassee, for
Jo Bondi, Attorney General, Jason Rodriguez, Assistant
Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.
Hooks appeals his conviction and his judgment and sentence
upon violation of probation, raising two issues: whether the
trial court erred by conducting an inadequate
Faretta inquiry, and whether the trial court erred
by denying Hooks' motion to suppress evidence. We affirm,
but write to address Hooks' claim that the trial
court's Faretta inquiry was insufficient.
to trial on two counts and on violation of probation, Hooks
informed the trial court that he wished to represent himself.
The trial court had Hooks read, initial, and sign a form
entitled "Self-Representation Advisory Form/Trial"
("the form"). The trial court then asked if Hooks
read over the form carefully. Hooks answered in the
affirmative. The trial court then proceeded to reiterate the
disadvantages of self-representation and that Hooks had to
make a voluntary and knowing decision to do so. The trial
court then asked if Hooks still wanted to waive his right to
counsel. Hooks again answered in the affirmative. The trial
court then discharged Hooks' counsel, but allowed her to
remain as standby counsel.
before trial commenced, the trial court once again asked
Hooks if he still wanted to represent himself. After speaking
to his standby counsel, Hooks replied affirmatively. Hooks
then represented himself throughout the trial and probation
violation proceedings. The jury found Hooks guilty as
charged. The trial court sentenced Hooks accordingly, and
found Hooks guilty of violating probation, revoked probation,
and sentenced him on those charges as well.
never objected to the sufficiency of the Faretta
inquiry at trial. However, a deficient Faretta
inquiry constitutes fundamental error that can be raised for
the first time on appeal. See Curtis v. State, 32
So.3d 759, 761 (Fla. 2d DCA 2010).
the United States Supreme Court's ruling in
Faretta, an accused has the right to
self-representation at trial." Tennis v. State,
997 So.2d 375, 377 (Fla. 2008). "A defendant's
choice to invoke this right 'must be honored out of that
respect for the individual which is the lifeblood of the
law.'" Id. at 377-78 (quoting
Faretta, 422 U.S. at 834). A defendant "must be
free personally to decide whether in his particular case
counsel is to his advantage." Faretta, 422 U.S.
at 834. As such, "the Sixth and Fourteenth Amendments
include a 'constitutional right to proceed
without counsel when' a criminal defendant
'voluntarily and intelligently elects to do
so.'" Indiana v. Edwards, 554 U.S. 164, 170
(2008) (quoting Faretta, 422 U.S. at 807). A
defendant who expresses a desire to self-represent must
"knowingly and intelligently" do so, and the trial
court should make the defendant "aware of the dangers
and disadvantages of self-representation."
Faretta, 422 U.S. at 835. The Court's purpose in
requiring such an inquiry is to ensure that a defendant who
chooses self-representation does so "with eyes
open." Id. (quoting Adams v. U.S.
ex rel. McCann, 317 U.S. 269, 279 (1943)).
to the Faretta Court's rationale is the view
that forced representation is constitutionally proscribed.
Indeed, the Court viewed the issue through that lens from the
outset. Accordingly, the Court found that "a
defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose
self-representation." Id. at 835.
United States Supreme Court revisited Faretta in
Godinez v. Moran. 509 U.S. 389 (1993). The Court
held that the competency standard for pleading guilty or
waiving the right to counsel was not higher than the standard
for competency to stand trial. Id. at 391.
Specifically, the Court held that whether defendants may be
permitted to represent themselves is a "two-part
inquiry:" first, the trial court establishes that a
defendant is competent; and second, the trial court
determines that a waiver of counsel is "knowing and
voluntary." Id. at 401. "The focus of a
competency inquiry is the defendant's mental capacity;
the question is whether he has the ability to
understand the proceedings." Id. at 401 n.12.
"The purpose of the 'knowing and voluntary'
inquiry, by contrast, is to determine whether the defendant
actually does understand the significance and
consequences of a particular decision and whether the
decision is uncoerced." Id. However, the trial
court need not make an explicit determination of competency
before a defendant may exercise the right to
self-representation. See id. at 401 n.13 (holding
that a court is not "required to make a competency
determination in every case in which the defendant seeks to .
. . waive his right to counsel;" "[A] competency
determination is necessary only when a court has reason to
doubt the defendant's competence." (citing Drope
v. Missouri, 420 U.S. 162, 180-81 (1975); Pate v.
Robinson, 383 U.S. 375, 385 (1966))).
review of the history of Florida Rule of Criminal Procedure
3.111(d) is helpful in understanding Florida courts'
application of Faretta. In 1972, the Florida Supreme
Court adopted Florida Rule of Criminal Procedure 3.111,
entitled "Providing Counsel to Indigents, " which
established procedures for appointment of counsel to indigent
defendants. In re Florida Rules of Criminal
Procedure, 272 So.2d 65 (Fla. 1972). The rule addressed
a defendant's waiver of appointed counsel as follows:
No waiver shall be accepted where it appears that the
defendant is unable to make an intelligent and understanding
choice because of his mental condition, age, education,
experience, the nature or complexity of the case, or other
Fla. R. Crim. P. 3.111(d)(3) (1973). Two years after this
rule became effective, the United States Supreme Court
decided Faretta, which, as stated, recognized that a
defendant has the right to self-representation. But based on
Rule 3.111(d), Florida courts held that a trial court must
make specific inquiry on the record relating to the
defendant's age, ability to read and write, education,
and other factors, before a waiver of counsel was deemed
sufficient. See e.g. Wilson v. State, 724 So.2d 144,
145 (Fla. 1st DCA 1998); Gillyard v. State, 704
So.2d 165 (Fla. 2d DCA 1997); Smith v. State, 512
So.2d 291 (Fla. 1st DCA 1987). By mandating these specific
questions, these cases suggested that a court had an
obligation to deny a request for self-representation unless
the defendant was sufficiently aged, educated, and literate,
to handle self-representation, seemingly in conflict with
Florida Supreme Court addressed the tension between the
waiver of counsel provision of Rule 3.111(d) and
Faretta in State v. Bowen, 698 So.2d 248
(Fla. 1997). In Bowen, the trial court refused to
accept the defendant's waiver of counsel based upon the
factors enumerated in Rule 3.111(d)(3), in particular that
the defendant's education was insufficient to represent
himself in a complex case. Bowen, 698 So.2d at
250-51. The supreme court reversed, holding that "once a
court determines that a competent defendant of his or her own
free will has 'knowingly and intelligently' waived
the right to counsel, the dictates of Faretta are
satisfied, the inquiry is over, and the defendant may proceed
unrepresented." Id. at 251. "[N]o citizen
can be denied the right of self-representation-or any other
constitutional right-because he or she has only a high school
diploma." Id. at 252. In concurrence, Justice
Wells expressed concern that Rule 3111(d)(3) was inconsistent
with the court's ruling in Bowen and other decisions
Id. (Wells, J, concurring).
light of Bowen, the Florida Supreme Court amended
the rule, removing the requirement that a court refuse to
permit a waiver of counsel based upon the defendant's
mental condition, age, education, experience, the nature or
complexity of the case, or other factor, and replaced it with
Regardless of the defendant's legal skills or the
complexity of the case, the court shall not deny a
defendant's unequivocal request to represent him or
herself, if the court makes a determination of record that
the defendant has made a knowing and intelligent waiver of
the right to counsel.
Fla. R. Crim. P. 3.111(d)(3) (1998); Amendment to Florida
Rule of Criminal Procedure 3.111(d)(2)-(3), 719
So.2d 873 (Fla. 1998). Thus, Rule 3.111(d) reflects the
understanding that Faretta does not require certain
"magic words" to effectuate self-representation.
Potts v. State, 718 So.2d 757, 760 (Fla. 1998). The
amended rule also added a provision to subsection (2) of Rule
3.111(d) requiring the court to "advise the defendant of
the disadvantages and dangers of self-representation"
before determining whether a waiver of counsel is knowing and
short, a competent defendant who does not suffer from severe
mental illness and who has been advised of the disadvantages
and dangers of self-representation cannot be denied the right
to self-representation, regardless of age, education,
experience, or the nature or complexity of the case. While
these factors may be relevant in determining competence,
failure to inquire specifically into any of the factors does
not automatically render a Faretta inquiry
deficient. We ruled in Edenfield v. State, 45 So.3d
26 (Fla. 1st DCA 2010), that any case imposing such a
requirement was applying the pre-1998 version of Rule
The current version of Rule 3.111(d) does not require
questions regarding any of the information emphasized by
Edenfield. Some cases indicate a mechanical, rote process
must be followed, requiring specific questions about the
defendant's age, education, mental condition, and
experience with criminal proceedings. However, these holdings
are based on a prior version of Rule 3.111(d)(3). This prior
version stated a waiver was unacceptable unless the trial
court found on the record that the defendant had made a
competent choice based on his "mental condition, age,
education, experience, the nature or complexity of the case,
or other factors." This language was removed from the
Rule in 1998, following Bowen's holding that the
inquiry needs to ensure only that the defendant is proceeding
"with eyes open." 698 So.2d at 251. Regardless,
asking such questions can often be a redundant exercise. Much
of the information covered by the questions is already
provided to the court by other means. For example, in the
instant case, the County Court had access to Edenfield's
probable cause affidavit and DUI citation.
Edenfield, 45 So.3d at 30 n.11. See also Neal v.
State, 60 So.3d 1132, 1135 (Fla. 4th DCA 2011) (noting
that "[a]lthough a prior version of the rule required
the court to find on the record that the defendant had made a
competent choice of self-representation based on his
'mental condition, age, education, experience, the nature
or complexity of the case, or other factors, ' that
express requirement was eliminated in the current version of
the rule"). As we did in Edenfield, we
emphasize again that no "magic words" or specific
questions are necessary to ensure an adequate
Faretta inquiry. 45 So.3d at 30. If the trial court
has adequately determined that the defendant is competent to
waive counsel, and is satisfied that the defendant
understands its advice regarding the dangers and
disadvantages of self-representation, then not only does the
court not err in permitting self-representation, but is
required to do so.
form given to Hooks informed him of his right to counsel and
explained, in detail, the advantages and disadvantages of
self-representation. Hooks had to initial every numbered
statement on the form and sign his name at the bottom of the
form. The form is exhaustive and states as follows:
1. If I cannot afford a lawyer, the state will
appoint me one and pay for it.
2. If I can afford a lawyer, I can hire a lawyer of my
3. Before trial, a lawyer's legal training and experience
A. Help me get or change bail.
B. Get information about my case by enforcing the legal rules