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Rose v. State

Supreme Court of Florida

July 19, 2018

MILO A. ROSE, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          An Appeal from the Circuit Court in and for Pinellas County, William H. Burgess III, Judge - Case No. 521982CF008683XXXXNO

          Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater, Florida, for Appellant

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa Martin, Assistant Attorney General, Tampa, Florida, for Appellee

          PER CURIAM.

         Discharged counsel appeals the postconviction court's order granting Milo A. Rose's pro se motion to dismiss postconviction proceedings and discharge collateral counsel. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm.

         BACKGROUND

         In 1985, this Court affirmed Rose's conviction for first-degree murder and his death sentence. Rose v. State (Rose I), 472 So.2d 1155, 1156 (Fla. 1985). In so doing, we explained the facts as follows:

At approximately 10 p.m. on October 18, 1982, several witnesses were talking together outside one of their residences. Testimony at trial revealed that they saw two men walking down the street. Subsequently they heard the sound of breaking glass and saw that one of the men . . . was lying on the ground. The other man, identified by witnesses as Milo Rose . . . was standing over him. Evidence shows that [Rose] then walked to a nearby vacant lot, picked up a concrete block, and returned to the man on the ground. [Rose] raised the block over his head and hurled it down on [the victim's] head. He picked up the block and hurled it down a total of five or six times. The area where the incident occurred was well lighted, so the witnesses were able to see the man with the concrete block clearly.
[Rose] was living with . . . the victim's mother [] at the time. Two other acquaintances were staying with them. On the night of the incident, these two acquaintances left an apartment which was in the vicinity where the killing occurred and found [Rose] hitchhiking on a nearby street. [Rose] got into their truck and stated several times that he had just killed [the victim]. [Rose] was later found in [the victim's mother's] house and was arrested [and charged with first-degree murder].
. . . [Rose] was tried by a jury which found him guilty as charged.

Id. at 1156-57.[1]

         In 1993, this Court affirmed the denial of Rose's initial motion for postconviction relief. Rose v. State (Rose II), 617 So.2d 291, 298 (Fla.), cert. denied, 510 U.S. 903 (1993).[2] In 2000, this Court affirmed the summary denial of Rose's first successive motion for postconviction relief. Rose III, 774 So.2d at 637.

         In 2003, discharged counsel, Bjorn E. Brunvand, was appointed to represent Rose. In 2005, Rose filed a motion to discharge Brunvand and represent himself in state court proceedings. After conducting a complete Faretta[3] inquiry and finding that Rose "is an intelligent man" who was "waiving his right to counsel knowingly, intelligently[, ] and with his eyes wide open," the postconviction court granted Rose's motion.

         Nearly a decade later, Florida Rule of Criminal Procedure 3.851 was amended to prohibit capital defendants like Rose from representing themselves in postconviction proceedings in state court. See Fla. R. Crim. P. 3.851(b)(6). Although counsel was not reappointed to represent Rose in state court, in 2017, Brunvand, who represents Rose in federal court, filed a second successive postconviction motion on Rose's behalf-against Rose's wishes-seeking relief under the United States Supreme Court's decision in Hurst v. Florida, 136 S.Ct. 616 (2016), and this Court's decision on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, 137 S.Ct. 2161 (2017).

         At the hearing on this motion, Rose informed the postconviction court that he wanted to dismiss postconviction proceedings and discharge Brunvand, who had not otherwise represented Rose in state court since being discharged in 2005. It was in this unusual procedural posture that the postconviction court conducted the inquiry required by Durocher v. Singletary, 623 So.2d 482 (Fla. 1993), and rule 3.851(i) to "determine if [Rose] understands the consequences of waiving collateral counsel and proceedings," Durocher, 623 So.2d at 485.

         In its order granting Rose's motion, the postconviction court well explained its colloquy with Rose:

The Court warned [Rose] that if he chose to dismiss the motion [seeking Hurst relief] and discharge counsel his postconviction proceedings would end and counsel would not file additional motions on his behalf. [Rose] stated several times that he maintains his innocence and does not want to pursue any legal claims that do not lead to an evidentiary hearing on his actual innocence. [Rose] repeatedly expressed his belief that his sentence is invalid and he is entitled to immediate release from custody, but insisted that he does not want appointed counsel to represent him and does not want to pursue the motion counsel filed. The Court warned [Rose] that Rule 3.851 does not allow postconviction defendants to proceed pro se and explained that if he abandoned the motion, his substantive claims will not be ruled upon or reviewed by an appellate court. The Court pointed out that [Rose's] waiver of the motion is antithetical to his ultimate goal of reversing his sentence, but [Rose] maintained that he does not want to pursue the motion filed by defense counsel and wants defense counsel discharged from his case.

         Finding that Rose "knowingly, intelligently, and voluntarily waived his right to pursue postconviction relief and his right to appointed collateral counsel," the postconviction court granted Rose's motion to dismiss postconviction proceedings and discharge collateral counsel. This is discharged counsel's appeal of the postconviction court's order, as required by rule 3.851(i)(8)(B).

         ANALYSIS

         In Durocher, this Court held that competent capital defendants may waive the right to postconviction counsel and proceedings but held that a Faretta-type inquiry is necessary to ensure that the waiver is knowing, intelligent, and voluntary. 623 So.2d at 483-85. The procedures for waiving postconviction counsel and proceedings that this Court established in Durocher have since been codified in rule 3.851(i), which provides in pertinent part:

(5) If the defendant is found to be incompetent for purposes of this rule, the court shall deny the motion without prejudice.
(6) If the defendant is found to be competent for purposes of this rule, the court shall conduct a complete (Durocher/Faretta) inquiry to determine whether the defendant knowingly, freely and voluntarily wants to dismiss pending ...

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