MILO A. ROSE, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Appeal from the Circuit Court in and for Pinellas County,
William H. Burgess III, Judge - Case No. 521982CF008683XXXXNO
E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A.,
Clearwater, Florida, for Appellant
Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa
Martin, Assistant Attorney General, Tampa, Florida, for
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.
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
Id. at 1156-57.
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). In 2000, this Court affirmed
the summary denial of Rose's first successive motion for
postconviction relief. Rose III, 774 So.2d at 637.
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 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.
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).
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.
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.
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).
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
(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