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Mars v. State

Florida Court of Appeals, First District

August 3, 2018

Christopher J. Mars, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Walton County. Kelvin C. Wells, Judge.

          Andy Thomas, Public Defender, Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

          B.L. THOMAS, C.J.

         Appellant 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.

         Appellant 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).

         In his 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 Appellant.


         Appellant 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.

         At a 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.

         Appellant 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).

         The 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.

         The 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 retain counsel.

         At the 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.

         Appellant 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.

         When 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.

         The 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 ...

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