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Schultz v. State

Florida Court of Appeals, Fourth District

January 15, 2020

BARRY MICHAEL SCHULTZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Laura Johnson, Judge; L.T. Case No. 50-2011-CF-002959-AXXX-MB.

          Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

          Levine, C.J.

         Appellant appeals his resentencing, raising two issues: one, that the trial court erred in denying his counsel's motion to withdraw as counsel, and two, that the trial court failed to consider a departure sentence. We find that the trial court did not abuse its discretion in denying counsel's legally insufficient motion to withdraw filed on the eve of sentencing. We further find that the trial court properly struck appellant's pro se motion for downward departure where appellant was already represented by counsel, and where the trial court further stated that this was not a case in which it would depart.

         Previously, appellant was found guilty of fifty-five counts of drug trafficking. Appellant's scoresheet reflected that the lowest permissible sentence was approximately 157.5 years. The state requested concurrent life sentences with a twenty-five-year mandatory minimum. The defense requested concurrent sentences at the bottom of the guidelines. The trial court sua sponte downwardly departed and imposed concurrent twenty-five-year minimum mandatory sentences. Appellant's private counsel filed a notice of appeal. Subsequently, the trial court allowed private counsel to withdraw and appointed a public defender.

         This court affirmed appellant's convictions, but reversed and remanded for resentencing because appellant had not filed a motion for downward departure, no evidence was presented at the sentencing hearing to support a departure, and the trial court failed to articulate in writing the basis for downward departure. State v. Schultz, 238 So.3d 288 (Fla. 4th DCA 2018).

         On remand, appellant's former private counsel was copied on an "Agreed Order to Return Prisoner" for resentencing. Private counsel attended a status check hearing that was also attended by the public defender. A stand-in attorney for private counsel attended a second status check hearing. Subsequently, the trial court discharged the public defender and continued the sentencing hearing with the private counsel as attorney of record.

         Before resentencing, appellant filed a pro se motion for downward departure. The day before this sentencing hearing, appellant's private counsel moved to withdraw as counsel due to "[i]rreconcilable differences," without providing any further details. At the outset of the sentencing hearing, the court asked counsel whether he wanted to add anything regarding his motion to withdraw. Counsel responded:

And I'll just also explain, Judge, just to get a little bit more intimate with the details on why. Without getting into too many details, Judge, I contacted-based on some of the discussion with [appellant] and the grounds raised in the motion, his pro se motion, which we've provided, I believe, a courtesy copy to The Court. . . . And other issues we have to at this point withdraw . . . . as counsel for [appellant].

         The court denied the motion to withdraw as counsel, commenting that it was filed on the eve of sentencing. The trial court struck appellant's pro se motion for downward departure because appellant was already represented by counsel. The court further stated that "even if it was legally sufficient and even if I could impose a downward departure, which I can't, because there's a mandate from the 4th DCA that I sentence you within the guidelines, this is not a case in which I would downwardly depart."

         Only then did counsel move for an ex parte hearing to explain why he needed to withdraw. The trial court denied the request. Counsel stated that he had a conflict with appellant. The trial court reiterated that it was denying the motion to withdraw.

         The state requested a life sentence. Defense counsel urged the court to again depart and sentence appellant to twenty-five years. The trial court stated that it had reviewed appellant's trial testimony and ...


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