ALLEN LEON FRAZIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Allen Leon Frazier was convicted of possession of a firearm by a convicted felon and appealed, claiming ineffective assistance of counsel because the trial court denied his motion to dismiss his court-appointed attorney. The appellate court affirmed the conviction, holding that the trial court properly conducted an inquiry into the alleged ineffectiveness and correctly concluded no grounds for dismissal existed.
The trial court did not err because Frazier was not entitled to have counsel of his choice appointed, and the trial judge properly conducted a comprehensive inquiry into the ineffectiveness claim and correctly concluded there was no showing of ineffective counsel. No further action by the trial court was required.
[1] A claim of ineffective assistance of counsel generally cannot be raised for the first time on direct appeal, unless the trial court has resolved the factual issue of inef…
[2] A defendant is not entitled to appointed counsel of their choice.
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Join FLexlaw to unlock all legal intelligence“a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal”
Establishes the general rule that such claims are not normally reviewable on direct appeal, though exceptions exist
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Join FLexlaw to unlock all legal intelligenceFrazier was convicted by jury trial of possession of a firearm by a convicted felon. Prior to trial, he moved to dismiss his appointed counsel, Attorn…
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COBB, Judge.
The appellant, Allen Leon Frazier, was convicted after jury trial of possession of a firearm by a convicted felon. On appeal he raises one point which merits consideration and discussion: his contention that the trial court erred in not dismissing his court-appointed attorney, allegedly resulting in ineffective assistance of counsel. As a general rule, a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal. Williams v. State, 438 So. 2d 781 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984). In the instant case, however, the trial court resolved the factual issue of ineffectiveness, thus allowing for review on this appeal. Williams; State v. Barber, 301 So. 2d 7 (Fla.1974); Pinder v. State, 421 So. 2d 778 (Fla. 5th DCA 1982).
Prior to trial, Frazier moved the court to dismiss his appointed counsel, Attorney Sheaffer, and to appoint counsel of his choice. Clearly, he was not entitled to this alternative. See Johnson v. State, 427 So. 2d 1103 (Fla. 3d DCA 1983); Mitchell v. State, 407 So. 2d 1005 (Fla. 5th DCA 1981); Wilder v. State, 156 So. 2d 395 (Fla. 1st DCA 1963). Frazier stated his feeling that his counsel was ineffective. The trial judge thereupon made a comprehensive inquiry of Frazier and his counsel in this regard, and correctly concluded that there was no showing of ineffective counsel. See Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So. 2d 997 (Fla.1981). The trial court then denied the motion to dismiss and to appoint other counsel. In response to that denial, Frazier did not refuse to accept Attorney Sheaffer, as did the defendant in Mitchell, nor did Frazier ask to represent himself, as did the defendant in Ausby v. State, 358 So. 2d 562 (Fla. 1st DCA 1978), cert. denied, 365 So. 2d 715 (Fla.1978).
Under these facts, we do not believe that the trial judge was obligated to do anything more than he did. It was held by the Florida Supreme Court in Raulerson v. State, 437 So. 2d 1105 (Fla.1983), that a defendant must clearly and unequivocally demand to represent himself. To like effect are Johnson v. State, 427 So. 2d 1103 (Fla. 3d DGA 1983), and Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA 1967), reversed on other grounds, 216 So. 2d 749 (Fla.1968). Relying upon the United States Supreme Court case of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Court of Appeals, in Brown v. Wainwright, 665 F. 2d 607 (5th Cir.1982), concisely summarized this proposition:
While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. In order for a defendant to represent himself, he must “knowingly and intelligently” forego counsel, and the request must be “clear and unequivocal.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. See also United States v. Brown, 591 F. 2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979); United States v. Jones, 580 F. 2d 785, 787-88 (5th Cir.1978); Chapman v. United States, supra, 553 F. 2d at 892 [(5th Cir.1977) ].
**
The important distinction in the manner in which the two rights come into play requires that a different waiver analysis be applied to the right of self-representation than to the right to counsel. Unlike the right to counsel, the right of self-representation can be waived by defendant’s mere failure to assert it. If on arraignment an indigent defendant stands mute, neither requesting counsel nor asserting the right of self-representation, an attorney must be appointed. Even if defendant requests to represent himself, how ever, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. Chapman v. United States, supra, 553 F. 2d 893 & n.12.
**
The right of self-representation, then, is waived if not asserted, while the right to counsel is not.
665 F. 2d at 610-11.
AFFIRMED.
DAUKSCH and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Darma L. Chiles v. State, 454 So. 2d 726 (Fla. 5th DCA 1984)…sel would not be appointed, he could have insisted on dismissal of Saunders and chosen to exercise his right to represent himself provided his demand to do so was unequivocal. See Raulerson v. State, 437 So. 2d 1105 (Fla. 1983) and Frazier v. State, 453 So. 2d 95 (Fla. 5th DCA 1984). In this case, the procedure outlined in Nelson was not followed and in summarily denying Chiles’ motion, the trial judge indicated to Chiles that his only course was to accept Saunders as his advocate. The order of revocation i…
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Reynolds Brooks v. State, 555 So. 2d 929 (Fla. 3d DCA 1990)…on. The court instructed Brooks to call to counsel’s attention any objection, and stated that the court would then discuss the matter outside the jury's presence. See Raulerson v. Wainwright, 732 F. 2d 803 (11th Cir.1984); see also Frazier v. State, 453 So. 2d 95 (Fla. 5th DCA 1984). . Defendant stated: Mr. Carter here hasn’t presented me with any kind of effective counsel, legal counsel. .The Court: What is the nature of the conflict? Do you have a conflict with your attorney or does he have a conflict wi…
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Aurelian Smith, Jr. v. State, 579 So. 2d 906 (Fla. 5th DCA 1991)…ments which initiated the case. Since the trial court previously heard the testimony on the issue of ineffectiveness of trial counsel, a review of this issue is allowable on direct appeal. State v. Barber, 301 So. 2d 7 (Fla.1974); Frazier v. State, 453 So. 2d 95 (Fla. 5th DCA 1984); Pinder v. State, 421 So. 2d 778 (Fla. 5th DCA 1982). A defendant is entitled to a new trial when the conduct of defense counsel produces an outcome which cannot be relied upon as fair. Strickland v. Washington, 466 U.S. 668, 104…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (18 total)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Brown v. Louie L. Wainwright, 665 F.2d 607 (5th Cir. 1982)
- Wilder v. State, 156 So. 2d 395 (Fla. 1st DCA 1963)
- State v. Cappetta, 216 So. 2d 749 (Fla. 1968)
- United States v. Ruel Frank Brown, Jr., 591 F.2d 307 (5th Cir. 1979)
- Crummie v. State, 204 So. 2d 913 (Fla. 3d DCA 1967)
- Williams v. State, 438 So. 2d 781 (Fla. 1983)