Rehearing Denied December 23, 2019
from the Circuit Court for Pinellas County; Chris Helinger,
L. Dimmig, II, Public Defender, and Richard J. DAmico,
Special Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and William Stone, Jr.,
Assistant Attorney General, Tampa, for Appellee.
Gaetano Spera challenges his conviction and sentence for
first-degree murder. Spera was sentenced to life in prison
following a jury trial. He argues on appeal that the trial
court erred in failing to conduct a Faretta
hearing after he unequivocally requested to represent
himself. We agree and are therefore compelled to reverse for
a new trial.
March 21, 2018, Spera filed a pro se "Motion To
Faretta" which stated: "Comes Now, the defendant,
Gaetano Spera, pro-se, and Moves this honorable Court for a
Faretta hearing. As grounds for said Motion the following
[is] alleged[:] 1. Defendants right to
self-representation." The court did not conduct a
Faretta hearing or rule on the motion. The trial
began on April 3, 2018, with Spera represented by counsel,
and the still-pending motion was not addressed.
"Under the United States Supreme Courts ruling in
Faretta, an accused has the right to
self-representation at trial." Tennis v. State,
997 So.2d 375, 377 (Fla. 2008). "[O]nce a defendant
elects to make an unequivocal request for
self-representation, pursuant to Faretta and this
Courts precedent, the trial court is obligated to hold a
hearing to determine whether the defendant is knowingly and
intelligently waiving his right to court-appointed counsel.
" McCray v. State, 71 So.3d 848, 864 (Fla.
2011) (quoting Tennis, 997 So.2d at 378). The
"failure to take the preliminary step of holding a
hearing on a defendants unequivocal pro se request results
in per se reversible error." Id.
Herron v. State, 113 So.3d 852, 853-54 (Fla. 2d DCA
2012). Without question, Speras written motion was an
unequivocal request to represent himself. See
Combs v. State, 133 So.3d 564, 566 (Fla. 2d DCA
2014) ("Combs statement that he was notifying the
court that he wished to represent himself was
unequivocal."); Herron, 113 So.3d at 853-54
(holding that Herrons written motion, indicating that
"pursuant to rules 3.111(d) and 3.160(e) of Fla. R.Crim.
P. (2010)" Herron "waive[d] his right to be
represented by an attorney" and " assert[ed] his
constitutional right to represent himself as established in
Faretta ," was an unequivocal request for
self-representation); McKinley v. State, 261 So.3d
599, 599-600 (Fla. 4th DCA 2019) (holding that McKinleys
repeated assertions that he wanted to represent himself and
would represent himself were unequivocal); Hooker v.
State, 152 So.3d 799, 801-02 (Fla. 4th DCA 2014)
(holding that Hookers statement to the court that he would
"like to exercise [his] sixth amendment right to go pro
se" was an unequivocal request for self-representation);
Rodriguez v. State, 982 So.2d 1272, 1273-74 (Fla. 3d
DCA 2008) (holding that Rodriguezs
statement at the start of trial that he would "prefer to
represent [him]self" was an unequivocal request for
State contends that Speras request was equivocal because he
did not also request to dismiss his counsel. While a request
to dismiss counsel may go hand in hand with a request for
self-representation, the failure to explicitly indicate ones
desire to discharge counsel does not otherwise make a clear
request for self-representation any less so. Cf.
Hooker, 152 So.3d at 801-02; Rodriguez, 982
So.2d at 1273-74. This case is distinguishable from
McCray v. State, 71 So.3d 848, 868 (Fla. 2011), in
which the supreme court determined that McCrays request for
self-representation was equivocal because "the record
makes clear that McCray ... sought to represent himself while
simultaneously having counsel assist him." We have no
such record in this case.
Speras request, which was made approximately two weeks
before trial, was not untimely. CompareLaramee
v. State,90 So.3d 341, 345 (Fla. 5th DCA 2012)
("Nor was Mr. Laramees request [for
self-representation] untimely, as it was made one week before
trial. While a defendants request for self-representation
may be summarily denied if not timely asserted, ordinarily, a
request is timely if made prior to the trials
commencement."), withLambert v.
State,864 So.2d 17, 18 (Fla. 2d DCA 2003) (concluding
that the trial court did not err in denying the untimely
request for self-representation made midtrial), andDavis v. State,162 So.3d 326, ...