Christopher J. Mars, Appellant,
State of Florida, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Walton County. Kelvin C.
Thomas, Public Defender, Kevin P. Steiger, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant
Attorney General, Tallahassee, for Appellee.
was charged with three counts of sexual battery by an adult
on a victim more than twelve years of age but less than
eighteen years of age, without their consent, and without
physical force and violence likely to cause serious personal
injury under section 794.011(5)(a), Florida Statutes.
Appellant was also convicted of false imprisonment under
section 787.02, Florida Statutes. At trial, based on
testimony of the victim and other evidence, including DNA
evidence corroborating the victim's testimony, Appellant
was convicted. At sentencing, after the trial court received
a victim-impact statement from the victim and his mother,
Appellant was sentenced to concurrent terms of life
imprisonment on the sexual battery counts and five years'
imprisonment for false imprisonment.
initially raised four issues on appeal, but withdrew one
issue after supplemental records demonstrated the trial court
again offered to provide counsel to appellant just before
trial, as required under Florida Rule of Criminal Procedure
3.111(d)(5), after the trial court initially determined
Appellant knowingly waived his right to counsel and exercised
the right of self-representation. See Faretta v.
California, 422 U.S. 806 (1975); Knight v.
State, 770 So.2d 663 (Fla. 2000).
remaining issues on appeal, Appellant argues that the trial
court reversibly erred in failing to sua sponte
conduct a formal competency hearing and in deciding Appellant
could waive his right to counsel. In addition, he argues that
it can be determined on the face of the record that standby
counsel was ineffective by refusing to share information with
candidly concedes that he was "a difficult defendant to
have in court"; that he was "not cooperative"
in communicating with mental-health experts directed to
interview him; and that he was "not cooperative"
with his counsel before discharging his counsel. The record
supports Appellant's concessions.
pretrial hearing, appointed defense counsel moved for a
continuance and asked the court to order a competency
evaluation; the court granted the motion and issued an order
appointing an expert to evaluate Appellant. At another
hearing, defense counsel informed the court that because
Appellant refused to talk to the evaluator, there had been no
determination of competency, although the evaluator said
Appellant "demonstrated some knowledge of the
adversarial nature of [the] proceedings." The State
argued that since there was no finding of incompetency,
Appellant was presumed to be competent and the proceedings
could go on; the trial court agreed.
asked to address the court, and asserted that he preferred to
be evaluated by someone who had been in the military, but the
court notified him that he could not choose who evaluated
him. Appellant then asked if he could have a different public
defender, and the court proceeded to conduct a hearing under
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
court notified Appellant that it would not appoint new
counsel unless he could demonstrate current counsel was
deficient, which Appellant attempted to do: Appellant claimed
his appointed counsel had not obtained the telephone record
of the victim's mother, but both defense counsel and the
State indicated that there was no such record; Appellant
claimed that defense counsel failed to get a recording of a
phone call between defense counsel and a potential witness,
Kermit Wright, but defense counsel indicated that the call
was not recorded; and Appellant stated that defense counsel
would not give him a copy of his notes from the phone
conversation, but counsel said he told Appellant the nature
of the conversation.
court found that counsel was not deficient, and informed
Appellant that if he chose to discharge his appointed
counsel, he could either hire private counsel or represent
himself, which the court strongly advised Appellant not to
do. Appellant was insistent, claiming that he planned to
retain counsel, and defense counsel stated that this
assertion had been pending for "six court dates."
The trial court then allowed Appellant additional time to
later date, appointed counsel stated he had spent time
preparing for trial, but Appellant refused to talk to him
after ten minutes. The trial court then stated that
Appellant's case had been delayed nine times and trial
was going to proceed. When Appellant claimed it was difficult
retaining an attorney while incarcerated, the court advised
Appellant that it was not going to delay the trial further.
The court warned Appellant that if he continued to refuse to
speak with counsel, and fired his appointed counsel, it was
likely Appellant would be representing himself, unless there
was some evidence appointed counsel was providing deficient
representation. When Appellant claimed appointed counsel had
not taken depositions, defense counsel stated he had in fact
taken nine depositions and that Appellant refused to discuss
case preparation with him. The court determined that defense
counsel was not deficient; rather, Appellant was obstinately
refusing to cooperate with appointed counsel.
then stated he wanted to fire his appointed counsel. He
answered questions logically and adequately, and he clearly
expressed his intent to discharge counsel. When the trial
court began the Faretta[*] inquiry, Appellant refused
to answer the relevant questions. The trial court found
Appellant's silence to constitute affirmative answers,
based on the court's conclusion that Appellant was
intentionally refusing to communicate. The trial court again
warned Appellant of the consequences and disadvantages of
self-representation. The court directed appointed counsel to
serve as standby counsel; appointed counsel agreed, and
promised to share the deposition transcripts with Appellant.
trial began, the trial court noted that Appellant was dressed
in appropriate attire rather than jail clothing and inquired
of the corrections officer who escorted Appellant to court.
The officer stated he had spoken to Appellant, who agreed to
change clothes, but he did not have a "full out"
conversation with Appellant. The officer stated Appellant was
coherent and seemed to understand the proceedings.
court addressed standby counsel, who indicated he was
prepared to proceed if called upon. The court again advised
Appellant that, after the Nelson and
Faretta inquiries, he was being permitted to
represent himself, but that he could request standby counsel
to take over at any time. The court reminded Appellant of the
benefits of counsel and the disadvantages of
self-representation. Appellant continued to be non-responsive
throughout. The court ...