FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Thomas P.
L. Dimmig, II, Public Defender, and Joanna Beth Conner,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Elba Caridad
Martin, Assistant Attorney General, Tampa, for Appellee.
Johnson appeals his judgment and sentences for battery on a
law enforcement officer and obstructing or opposing an
officer with violence. He argues that the court failed to
offer counsel, failed to conduct an adequate
Faretta inquiry, and erred in accepting his waiver
of the right to counsel at various critical
stages. Because the court failed to offer counsel
to Johnson and failed to conduct a Faretta inquiry
before permitting him to represent himself during plea
negotiations, which is a critical stage, we reverse.
person accused of [a] crime has a right to have counsel to
aid him in his defense . . . ." Cutts v. State,
45 So. 491, 492 (Fla. 1907) (quoting Barnes v.
Commonwealth, 23 S.E. 784 (Va. 1895), overruled in
part by Council v. Commonwealth, 94 S.E. 245 (Va.
1956)). This right attaches at a critical stage of the
proceedings, and the defendant-if unrepresented-must be
informed of this right and the consequences of a waiver.
Wilson v. State, 76 So.3d 1085, 1087-88 (Fla. 2d DCA
2011) (quoting Traylor v. State, 596 So.2d 957, 968
(Fla. 1992)). Conversely, the defendant has the right to
conduct his own defense. Art. 1, § 16, Fla. Const.;
see also Faretta v. California, 422 U.S. 806, 821
(1975) ("The Sixth Amendment, when naturally read . . .
implies a right of self-representation."). If the
defendant chooses to avail himself of this right and waive
the assistance of counsel, the court must inquire of the
defendant to determine whether the waiver is knowing and
intelligent. Tennis v. State, 997 So.2d 375, 378
(Fla. 2008). If the court then finds that the waiver is
knowing and intelligent the defendant must be permitted to
represent himself. Traylor, 596 So.2d at 968.
"[T]he waiver is only valid at that stage and the court
must renew the offer of counsel at each crucial stage as long
as the defendant is unrepresented." Hyden v.
State, 117 So.3d 1, 4 (Fla. 2d DCA 2011); see
also Fla. R. Crim. P. 3.111(d)(5).
represented himself throughout the entire proceedings. He
argues that the first Faretta inquiry on June 9,
2015, was inadequate; that he was not offered counsel at the
competency hearing on September 1, 2015, or at the follow up
to the competency hearing on November 9, 2015; and that the
court erred in accepting his waiver of the right to counsel
at the second Faretta inquiry on February 1, 2016,
prior to jury selection. We agree with Johnson that the
failure to offer counsel and conduct a Faretta
inquiry at the November 9, 2015, hearing was error. As such,
we need not address his remaining claims.
November 9, 2015, hearing the court initially reiterated the
concerns it had regarding Johnson's competency, noted
that both doctors had found Johnson competent following their
evaluations on September 1, 2015, and made its own finding
that Johnson was competent. The court then entertained plea
negotiation during which the State offered five years'
prison, which Johnson rejected. The court also scheduled the
pretrial conference for January 26, 2016, and trial for the
first week in February. At no point did the court extend to
Johnson the assistance of counsel or conduct a
plea bargaining stage is a critical one." Alcorn v.
State, 121 So.3d 419, 422 (Fla. 2013); see also
Padilla v. Kentucky, 559 U.S. 356, 373 (2010)
("[W]e have long recognized that the negotiation of a
plea bargain is a critical phase of litigation for purposes
of the Sixth Amendment right to effective assistance of
counsel." (citing Hill v. Lockhart, 474 U.S.
52, 57 (1985))); see also Missouri v. Frye, 566 U.S.
134, 144 (2012) ("In today's criminal justice system
. . . the negotiation of a plea bargain, rather than the
unfolding of a trial, is almost always the critical point for
a defendant. . . . [A] plea agreement can benefit both
parties. In order that these benefits can be realized,
however, criminal defendants require effective counsel during
plea negotiations. 'Anything less . . . might deny a
defendant effective representation by counsel at the only
stage when legal aid and advice would help him.'"
(quoting Massiah v. United States, 377 U.S. 201, 204
(1964))). Because plea negotiation is a critical stage and
Johnson was unrepresented, the court should have offered him
the assistance of counsel and if waived, inquired of him to
determine whether the waiver was knowing and intelligent
before permitting him to engage in plea negotiation with the
State. See Segal v. State, 920 So.2d 1279, 1280
(Fla. 4th DCA 2006) ("[O]nce 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." (citing Fla. R. Crim. P. 3.111(d)(5);
Traylor, 596 So.2d at 968)). "Faretta
and [Florida Rule of Criminal Procedure] 3.111(d)(2) place
the duty on the trial court to safeguard an accused's
right to self-representation." Betts v. State,
157 So.3d 376, 380 (Fla. 2d DCA 2015).
court's failure to offer counsel and properly safeguard
Johnson's right to self-representation at the point of
plea negotiation was not harmless. "Failure to renew the
offer of counsel at a critical stage and conduct a
Faretta inquiry if the defendant rejects the renewed
offer is per se reversible error." Alexander v.
State, 224 So.3d 804, 806 (Fla. 2d DCA 2017) (emphasis
omitted) (quoting Brooks v. State, 180 So.3d 1094,
1096 (Fla. 1st DCA 2015)); Howard v. State, 147
So.3d 1040, 1043 (Fla. 1st DCA 2014) (stating the same
principle). Thus, Johnson is entitled to a new trial.
and remanded for new trial.
SILBERMAN and ...