FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Thomas Krug,
L. Dimmig, II, Public Defender, and Karen Kinney, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Jonathan P.
Hurley, Assistant Attorney General, Tampa, for Appellee.
DeLane Daniels seeks review of his convictions and sentences
for three counts of sale or delivery of cocaine within 1000
feet of a park, raising a single issue concerning the trial
court's failure to conduct a
Nelson hearing in response to Daniels' pro se
motion entitled "Petition for Nelson
Hearing." Because the trial court erred by not
conducting a preliminary inquiry into the basis for
Daniels' petition, we reverse and remand for further
concerning the need for a hearing when a defendant seeks to
discharge appointed counsel is clear.
In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA
1973), the court set forth a procedure for handling a request
to discharge court-appointed counsel. Maxwell v.
State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004).
The first step in the procedure is the preliminary Nelson
inquiry in which the court ascertains whether the defendant
unequivocally requests court-appointed counsel's
discharge and the court asks the reason for the request. The
answer to the preliminary inquiry determines the next
steps. If a reason for the request is court-appointed
counsel's incompetence, then the court must further
inquire of the defendant and his counsel to determine if
there is reasonable cause to believe that court-appointed
counsel is not rendering effective assistance and, if so,
appoint substitute counsel. If the reasons for the request do
not indicate ineffective assistance of counsel, then no
further inquiry is required.
The preliminary Nelson inquiry is a critical step in the
procedure for handling a request to discharge counsel.
Maxwell, 892 So.2d at 1102. "Depending on the
answer to the preliminary Nelson inquiry, a complex,
multi-faceted combined Nelson and Faretta
hearing could ensue, or the inquiry could end there."
Id. The failure to conduct this preliminary inquiry in
response to a defendant's request to discharge
court-appointed counsel is a structural defect that requires
reversal as per se error. Id. at 1103. Simply put,
the trial court may not remove the possibility ...