GARY D. DIBARTOLOMEO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary DiBartolomeo was convicted of burglary of a conveyance and sentenced to five years imprisonment, but the Florida Fourth District Court of Appeal reversed because the trial court compelled him to proceed pro se without making an adequate inquiry into his financial ability to retain counsel or his competency to waive counsel.
The trial court erred and violated the defendant's rights by denying court-appointed counsel without conducting a full inquiry into his financial circumstances and by compelling pro se representation without inquiring on the record into his ability to intelligently waive counsel or advising him of the dangers and disadvantages of self-representation.
[1] A trial court must conduct a full inquiry into a defendant's financial circumstances before denying court-appointed counsel.
[2] Factors to consider when determining indigency for court-appointed counsel include income, dependents, probable expenses, and debts.
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Join FLexlaw to unlock all legal intelligence“A denial of court-appointed counsel may not rest on such a basis, however. The trial court had a duty to make a full inquiry into the defendant's financial circumstances, considering such factors as the accused's weekly income and number of dependents, the probable expense and burden of defending the case, and the amount of debts owed by the defendant, or debts that might be incurred because of illness or other misfortunes within his family.”
Establishes the court's holding that denial of appointed counsel requires a full financial inquiry considering specific factors, not merely reliance on failure to file an indigency affidavit.
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Join FLexlaw to unlock all legal intelligenceDiBartolomeo was convicted of burglary of a conveyance and sentenced to five years imprisonment. The trial judge denied him court-appointed counsel ap…
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PER CURIAM.
Gary DiBartolomeo was convicted of burglary of a conveyance and sentenced to five years imprisonment.
We reverse because the trial court compelled the defendant to proceed pro se at his trial without first making an adequate inquiry into his financial ability to retain private counsel. Apparently the trial judge felt that DiBartolomeo was not entitled to a court-appointed attorney in view of his failure to submit an affidavit of indigency with the public defender’s office as previously instructed by the court at two prior appearances. A denial of court-appointed counsel may not rest on such a basis, however.
The trial court had a duty to make a full inquiry into the defendant’s financial circumstances, considering such factors as the accused’s weekly income and number of dependents, the probable expense and burden of defending the case, and the amount of debts owed by the defendant, or debts that might be incurred because of illness or other misfortunes within his family. Enrique v. State, 408 So. 2d 635 (Fla.3d DCA 1981), pet. for review denied, 418 So. 2d 1280 (Fla.1982); § 27.52(2)(c), Fla.Stat. (1983).
The record in this case does not show that such an inquiry was made at any stage of the proceeding.
Moreover, the trial court did not inquire on the record into DiBartolomeo’s ability to make an intelligent decision to waive counsel, as required by Florida Rule of Criminal Procedure 3.111(d), nor did it advise him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Keene v. State, 420 So. 2d 908 (Fla. 1st DCA 1982); Drago v. State, 415 So. 2d 874 (Fla. 2d DCA 1982).
Therefore, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HERSEY and HURLEY, JJ., concur. LETTS, J., dissents with opinion.
LETTS, Judge,
dissenting.
This defendant was repeatedly instructed by the court to fill out the required affidavit. There is no suggestion he did not understand. In short, he played games with the trial judge and I would not have him win. It is obvious from the record he had no way of retaining private counsel.
Cases With Similar Vibessemantic neighbors from the corpus
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Cooper v. State, 576 So. 2d 1379 (Fla. 2d DCA 1991)…4 So. 2d 1074 (Fla. 4th DCA 1984). Finally, there is no indication on the record that the appellant was apprised of the dangers and disadvantages of self-representation. See Morgano v. State, 439 So. 2d 924 (Fla. 2d DCA 1983); DiBartolomeo v. State, 450 So. 2d 925 (Fla. 4th DCA 1984). Under these circumstances, we cannot say that the appellant knowingly and intelligently waived his right to counsel. See Alexander v. State, 446 So. 2d 1189 (Fla. 2d DCA 1984). Accordingly, we reverse the judgment and sentence…
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Smith v. State, 549 So. 2d 1147 (Fla. 3d DCA 1989)…ning as to the severity of the charge or its possible penalty, we cannot confirm that the defendant made an “intelligent and understanding choice.” See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); DiBartolomeo v. State, 450 So. 2d 925 (Fla. 4th DCA 1984); Keene v. State, 420 So. 2d 908 (Fla. 1st DCA 1982), review denied, 430 [*1148] So. 2d 452 (Fla.1983); Drago v. State, 415 So. 2d at 874; Fla.R.Crim.P. 3.111(d). Accordingly, the judgment of conviction is reversed, the sentence…
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Young v. State, 609 So. 2d 633 (Fla. 4th DCA 1992)…ated refusals to accept three appointed lawyers. Nevertheless, we reversed on account of the failure to make the appropriate inquiry, saying that we did so “with a great degree of reluctance.” 454 So. 2d at 1076. Similarly, in DiBartolomeo v. State, 450 So. 2d 925 (Fla. 4th DCA 1984), we also reversed a trial judge’s decision to compel a defendant to proceed on his own behalf because of the lack of Faretta findings. To the same effect are Jones v. State, 584 So. 2d 120 (Fla. 4th DCA 1991); Burns v. State, 57…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Reynold Enrique v. State, 408 So. 2d 635 (Fla. 3d DCA 1981)
- Amado L. Pedroso v. State, 420 So. 2d 908 (Fla. 2d DCA 1982)
- Smiley Vincent Keene v. State, 420 So. 2d 908 (Fla. 1st DCA 1982)
- Drago v. State, 415 So. 2d 874 (Fla. 2d DCA 1982)