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Hooks v. State

Florida Court of Appeals, First District

December 6, 2017



          An appeal from the Circuit Court for Leon County. Terry P. Lewis, Judge.

          Andy Thomas, Public Defender, Kasey Lacey, Assistant Public Defender, Steven Seliger, Assistant Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

          WINOKUR, J.

         Sylvester 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[1] 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.


         Prior to trial on two counts[2] 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.

         Immediately 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.


         Hooks 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).


         "Under 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)).

         Central 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.[3] 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.

         The 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))).


         A 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 factors.

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 Faretta.

         The 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).

         In 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 the following:

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 intelligent.[4]

          In 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 3.111(d):

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.


         The 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 choice.
3. Before trial, a lawyer's legal training and experience may:
A. Help me get or change bail.
B. Get information about my case by enforcing the legal rules ...

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