FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Chet A.
Toro, pro se.
Jo Bondi, Attorney General, Tallahassee, and Andrew
Tetreault, Assistant Attorney General, Tampa, for Appellee.
Toro appeals from an order denying his motion for
postconviction relief after an evidentiary hearing in which
he appeared pro se following the discharge of his
court-appointed counsel. The State has conceded error. Mr.
Toro was previously deemed entitled to appointment of counsel
for his postconviction motion. See Williams v.
State, 472 So.2d 738, 740 (Fla. 1985); Graham v.
State, 372 So.2d 1363, 1365-66 (Fla. 1979). We held in
Freeman v. State, 65 So.3d 553 (Fla. 2d DCA 2011),
that after such a finding has been made, a defendant who
wishes to discharge court-appointed postconviction counsel
and proceed pro se must have the benefit of a hearing
conducted "within the rubric of Faretta[ v.
California, 422 U.S. 806 (1975)]."
Freeman, 65 So.3d at 557 (quoting Rose v.
Crosby, No: 8:93-CV-1169-T-23EAJ, 2006 WL 4701821 at *1
(M.D. Fla. Apr. 26, 2006)). Because the postconviction
court's statement to Mr. Toro that he could either
proceed with his court-appointed counsel or represent himself
does not satisfy what was contemplated in Freeman,
we must accept the State's concession.
decision in Freeman did not articulate any
particular inquiries that would satisfy a hearing conducted
"within the rubric of Faretta, "
id.; however, we agree with Mr. Toro that what
transpired between Mr. Toro and the postconviction court
below was insufficient. As we explained in Freeman, a
postconviction court has discretion to permit a defendant in
a noncapital postconviction proceeding to proceed pro se.
Id. But it is incumbent upon the postconviction
court, when undertaking such a discretionary act, to have an
informed basis for its discretionary ruling. Id.
("[T]he exercise of that discretion must be informed by
the facts and circumstances of the individual case . . .
."). The most meaningful way for a postconviction court
to arrive at an informed basis to issue a ruling when a
defendant requests to discharge appointed postconviction
counsel (and facilitate an appellate court's review of
that decision) is for the postconviction court to engage in
some type of discourse with the defendant. Id.;
see also Jones v. State, 69 So.3d 329, 335 (Fla. 4th
DCA 2011) (recognizing that proper exercise of postconviction
court's discretion to permit defendant to proceed pro se
requires "[s]ome inquiry into the voluntary and
intelligent nature of a movant's decision to seek
self-representation" but holding that a "formal
Faretta" hearing is not required). The
postconviction court's brief dialogue with Mr. Toro did
not-indeed, could not-reveal an informed basis from which the
court could have concluded that Mr. Toro's decision to
proceed pro se was "voluntary and intelligent."
See Jones, 69 So.3d at 335; see also
Freeman, 65 So.3d at 557 ("An uninformed exercise
of discretion is, by definition, arbitrary, fanciful, or
unreasonable." (citing Canakaris v. Canakaris,
382 So.2d 1197, 1203 (Fla. 1980))). Accordingly, we are
compelled to reverse the postconviction court's order and
remand for further proceedings. See id. Reversed and
NORTHCUTT and MORRIS, JJ., Concur.
We borrowed this term from a federal
magistrate judge's report and recommendation. See
Rose, 2006 WL 4701821 at *1. We note that the
Rose order approving the report did not purport to
impose a requirement for a hearing "within the rubric of
Faretta" when a defendant expresses
dissatisfaction with appointed postconviction counsel.
Id. That language was simply a prefatory reference
explaining the kind of hearing the magistrate judge conducted
that preceded the reported findings. Id. Thus, our
decision in Freeman should not be read to require a
full Faretta hearing in circumstances such as those
THE COURT: You need to tell me whether
you want to go forward with the hearing today with Ms.
Lakeman or fire her and represent yourself and we will have a
hearing at some point in the future with you representing
yourself. Which of those two things do you want to
Following this, Mr. Toro stated that he would proceed