appeal from the Circuit Court for Leon County. Terry P.
Motion for Rehearing, Rehearing En Banc, and/or Certification
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.
and Osterhaus, JJ, concur; Winokur, J, concurs with opinion.
Winokur, J., concurring.
certified a question of great public importance to resolve an
apparent conflict in case law regarding the specificity of
questions that must be asked to ensure a voluntary waiver of
counsel. Hooks asks that we also certify conflict. I concur
in the denial of this motion, including his request for
rehearing and rehearing en banc.
separately to emphasize two points. First, Hooks claims we
have overlooked that the Supreme Court "approved" a
standard Faretta colloquy as part of the 1998
amendment to Florida Rule of Criminal Procedure 3.111(d) and
"added" the standard colloquy to the rule. In fact,
the model colloquy is not part of Rule 3.111. The Court only
asked the Criminal Procedure Rules Committee to make
suggestions for standardizing Faretta inquiries.
Amendment to Florida Rule of Criminal Procedure
3.111(d)(2)-(3), 719 So.2d 873 (Fla. 1998). The
Court's request was passed to the Conference of Circuit
Judges, which developed a model colloquy. Id. The
Court attached the model colloquy as an appendix to its
opinion amending the rule in order to make it available to
trial judges. Id. The Court neither
"approved" the model colloquy nor "added"
it to Rule 3.111. While the model colloquy is useful, it does
not establish an enforceable standard for ensuring an
adequate waiver of counsel. See Neal v. State, 60
So.3d 1132, 1135 (Fla. 1st DCA 2011) (noting that
"[w]hile the model colloquy contained in the rules is
very helpful, failure to follow it to the letter does not
compel a finding that a defendant has not made a knowing and
intelligent choice of self-representation."); Vega
v. State, 57 So.3d 259, 262 (Fla. 5th DCA 2011)
("trial courts are not bound to follow the model
Faretta colloquy suggested by the supreme
Hooks argues that we have overlooked the trial court's
failure to ask him numerous questions about, for instance,
his age, his education, his "mental status, " and
his experience in criminal proceedings, and that without
answers to these questions the court failed to ensure that he
was competent to waive counsel. I note that he does not claim
that his answers to any of these questions would have
suggested that he was not competent to waive counsel. In
fact, the record shows the opposite. Before jury selection,
Hooks gave a clear statement regarding the issues in the case
and his defense theory. Hooks actively participated in jury
selection, making two cause challenges and a peremptory
strike. Hooks gave a coherent opening statement,
cross-examined all four of the State's witnesses,
actively participated in sidebar discussions, moved for
judgment of acquittal after the State rested, and gave a
cogent closing argument. The court confirmed at every
critical stage of the proceeding that Hooks wished to
continue representing himself, until sentencing, when Hooks
chose to be represented by stand-by counsel. At sentencing,
the court indicated that Hooks appeared to be a "pretty
intelligent guy, " and called him
"articulate." Hooks asks that we reverse the trial
court not because the court allowed an incompetent defendant
to represent himself, but because the court failed to ask a
list of questions that would have shown what the record
already shows, and what even Hooks himself does not dispute.
a plea colloquy, where the case is usually over soon after
the defendant enters the waiver (of trial), a
Faretta inquiry allows the case to proceed after the
defendant enters the waiver (of counsel). Thus-and again
unlike a guilty plea-the court has ample opportunity after
the waiver of counsel to determine whether the defendant
appears competent. In my view the questions to ascertain
competency prior to the waiver are far more important in the
plea context than in the waiver-of-counsel
context.[*] Here, nothing that occurred at trial
would have given the trial court any indication that,
perhaps, Hooks had not been competent to waive counsel.
recognize that the Florida Supreme Court has held that
Faretta and Rule 3.111(d) "require reversal
when there is not a proper Faretta inquiry."
State v. Young, 626 So.2d 655, 657 (Fla. 1993).
See also Case v. State, 865 So.2d 557, 559 (Fla. 1st
DCA 2003) (citing Young for the proposition that
"[w]hen a defendant waives the right to counsel, the
trial court's failure to perform an adequate
Faretta inquiry is per se reversible error").
As such, Hooks is not obligated to show that he was
incompetent. However, the United States Supreme Court has
held that a court is required to make a competency
determination when a defendant seeks to waive his or her
right to counsel "only when a court has reason to doubt
the defendant's competence." Godinez v.
Moran, 509 U.S. 389, 401 n.13 (1993). In other words, a
defendant who is plainly competent cannot show prejudice from
the court's failure to ask questions to confirm that he
is competent. Nothing else demonstrates more that this case
is an example of "Simon Says" jurisprudence, where
judgments are to be reversed not because a party suffered
prejudicial error, but because the court failed to say the
right words the right way.
case, the trial court adequately determined that Hooks'
waiver of counsel was voluntary. As Hooks has failed to
demonstrate that we overlooked ...