final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No.
Haughwout, Public Defender, and Paul Edward Petillo,
Assistant Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
state charged appellant Melissa Delacruz with crimes arising
from the theft of large sums of money from her employer.
During her jury trial, and without warning, appellant's
attorney informed the trial court he could no longer continue
representation because he had been informed of the
possibility that his fee was paid with funds appellant
allegedly stole from a subsequent employer. Defense counsel
requested leave to withdraw from his representation of
appellant, but the trial court denied the motion. We hold
that the denial of the motion was error and reverse.
was charged with several counts of grand theft; the state
alleged that she used her employer's business credit card
and business account funds for unauthorized personal
expenses. During trial, defense counsel requested an ex
parte hearing and asked to have the courtroom cleared.
The trial court declined to clear the courtroom and instead
offered to use the built-in "white noise machine,"
which blocks the ability for any persons other than those at
the bench to hear the conversation, although the microphones
at the bench record any such conversations. The trial court
assured defense counsel "nobody can hear you except
me." Thereafter, the trial court held multiple ex
parte conferences at sidebar utilizing the white noise
machine. Video footage of the trial provided in the
supplemental record shows appellant was not present at the
bench during these discussions. In the privacy of the sidebar
conference, defense counsel explained that an attorney
representing appellant's current employer called defense
counsel's office, threatening to sue and file a bar
complaint against him if he did not "wire the entire
amount of funds" he received from appellant because she
allegedly stole those funds from that employer.
counsel asserted that he could not advocate as zealously for
appellant as he would in any other situation. In support of
this assertion, defense counsel stated he felt
"victimized" by appellant, who put him in a
situation where he was at risk of "being sued by the
very actions of the person that I'm sentinel to
defend." He disclosed that his ability to advocate for
appellant was compromised because he had to argue to the jury
that appellant did not do the things she was accused of when
he knew in fact she had. He said the situation was
"affecting [him] materially . . . not a financial
materiality but the human effects." Due to this
predicament, counsel filed a written motion to withdraw from
the case and informed the trial court that he and his client
had irreconcilable differences, that a conflict existed under
the Florida Bar rules, and that the Florida Bar ethics
counsel had confirmed to him that a conflict existed. Defense
counsel also informed the court he had retained counsel to
represent him regarding the demand he had received for return
of the funds.
trial court noted that the motion was based on allegations
for which appellant was presumed innocent, and acknowledged
defense counsel was representing appellant in a professional
and effective manner, found that discharge was not warranted,
and denied the motion to withdraw. In reaching this
conclusion, the trial court compared the present case to that
of an attorney continuing legal representation after a client
fails to honor a fee agreement:
[T]he court has come to the conclusion that [what] this is
really about here is money. And I can't tell you how many
times attorneys have been promised to be paid and have failed
to have gotten paid and the court would deny a motion to
In this case, you were promised to be paid with valid money,
and maybe it has turned out that you were paid with invalid
money. And I don't know what's going to happen down
the road with respect to the money that you have earned in
this case. . . . But my firm belief without giving you legal
advice is that's your money as long as you knew and had
no reason to believe that it was fraudulently earned. But in
any event, even if worst-case scenario you were forced to
relinquish the money, what we basically have here is a case
in which you are performing services for [Ms.] Delacruz pro
trial court also explained that it might have granted defense
counsel's motion to withdraw if it had been filed two
months before trial began but noted that the motion was filed
during the middle of trial. After resuming open court, the
trial court-in an attempt to ensure appellant's right to
competent counsel- addressed appellant:
THE COURT: Ma'am, you know, lost in all of this
hullabaloo yesterday and today about what's going on [in
an unrelated matter involving appellant], and I'm not
going to ask you any questions about that. I just want to
make sure that you're happy with [defense counsel's]
performance in representing you in this matter. Are you?
APPELLANT: Absolutely. Yes, sir.
end of the state's case, the trial court again asked
appellant whether she understood "that [defense counsel]
was a little concerned about his ability to advocate for you,
right?" Appellant responded affirmatively. No further
on-the-record discussions took place until appellant appeared
for sentencing following conviction. At that time, defense
counsel renewed his motion to withdraw and explained that his
previous motion was never based on the possibility of not
getting paid but rather was based on his own victimization by
appellant. Defense counsel said that at trial he felt
compelled to "make arguments that in my mind as I was
arguing them I believed to be not accurate." Despite
these arguments, the trial court again denied the motion.
Appellant was adjudicated guilty and sentenced to ...