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Daniels v. State

Florida Court of Appeals, Second District

July 13, 2018

CHRISTOPHER DELANE DANIELS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Sarasota County; Thomas Krug, Judge.

          Howard L. Dimmig, II, Public Defender, and Karen Kinney, Assistant Public Defender, Bartow, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

          VILLANTI, Judge.

         Christopher 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[1] 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 proceedings.

         The law 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.
Id. Id. Faretta Id.
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 ...

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