TERRY E. SMELLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry Smelley appealed his conviction for burglary of a dwelling and violation of probation, challenging whether the trial court erred by failing to conduct a Nelson inquiry when he expressed dissatisfaction with his court-appointed counsel, and whether the court's departure from sentencing guidelines was proper. The court affirmed the judgment and 15-year sentence.
The trial court did not err by failing to conduct a full Nelson inquiry because appellant's expression of dissatisfaction did not amount to an assertion of counsel incompetence, and appellant made no attempt to clarify his request. The trial court's departure from the sentencing guidelines was also proper and constituted no reversible error.
[1] A trial court is not required to conduct a Nelson inquiry when a defendant expresses general dissatisfaction with appointed counsel, rather than alleging incompetence.
[2] A defendant's statement that appointed counsel is not performing to the best of their capabilities does not, without further clarification, constitute an assertion of cou…
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Join FLexlaw to unlock all legal intelligence“Where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court-appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge.”
Establishes the standard for when a Nelson inquiry is required in cases involving requests to discharge court-appointed counsel.
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Join FLexlaw to unlock all legal intelligenceSmelley was convicted of burglary of a dwelling and violation of probation. At the January 20, 1985 sentencing hearing, his court-appointed counsel in…
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WENTWORTH, Judge.
This is an appeal from a judgment and sentence for burglary of a dwelling and violation of probation by which appellant was sentenced to 15 years’ incarceration. We affirm.
Among appellant’s points on appeal is the contention that the trial court committed reversible error by not conducting a Nelson inquiry at the sentencing hearing, after appellant stated in a letter to his court-appointed counsel that he was dissatisfied with the attorney’s performance. See Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). At the January 20, 1985 sentencing hearing, before the trial court sentenced appellant, his counsel (Mr. Norton) told the court:
I received a letter from Mr. Smelley indicating to me that he didn’t want me to represent him; that I was not doing the best of my capabilities in his behalf. I don’t know that he still feels that way. I think it’s something we need to address on the record though.
I wrote a letter to him in response and I won’t get into that, but basically he’s asking to be appointed another lawyer. The court responded that it could not appoint a different public defender, stating, “it’s either yourself or Mr. Norton as far as the court’s concerned unless you’re able to hire an attorney or unless you have an attorney here today, and I assume that you don’t.” Appellant said he would go ahead with the proceeding with his present attorney. The trial court then stated that it intended to depart from the recommended guidelines sentence of 9-12 years. The court did so, and subsequently set forth its reasons in writing. Appellant contends that the court erred in not conducting a Nelson inquiry at the time.
In Nelson the court stated:
... Where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court-appointed counsel, the trial judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be al lowed adequate time to prepare the defense.
Based on the statement of counsel for appellant (in his presence), the trial court was not required to make a full inquiry. “Incompetency” was not cited as the reason for appellant’s concern. His expression was instead an ambiguous statement of dissatisfaction with his attorney’s not “doing the best of [his] capabilities” and did not amount to an assertion of counsel incompetence requiring exploration or verification as a predicate for substitution. Appellant made no attempt to clarify his request at the hearing. The court therefore was not required to make a further inquiry of appellant or his attorney, and not required to appoint new counsel.
Appellant also argues in this appeal that the trial court did not give adequate notice of its intention to depart from the guidelines, and that the court’s reasons for departure were not clear and convincing. We also find no reversible error on these grounds. Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984); Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984).
Affirmed.
BOOTH, C.J., and SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. State, 560 So. 2d 1239 (Fla. 1st DCA 1990)…appoint a substitute. See Nelson, 274 So. 2d at 258-259. Where incompetency of counsel is not the stated basis for the defendant’s motion to discharge, the trial court is not required to conduct a full inquiry as set out in Nelson. Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986). In the instant case, no written motion to discharge was ever filed. The only statement of reasons for discharge thus appeared in defense counsel’s statement on the day of trial that he could not in good faith conduct appellant’…
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Edwards v. State, 689 So. 2d 1251 (Fla. 4th DCA 1997)…lify the trial judge. We reverse. Appellant has failed to demonstrate reversible error in his first two points on appeal. See Cruse v. State, 538 So. 2d 954 (Fla. 5th DCA 1989); McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986); Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986). [*1252] The state argues that appellant’s third point on appeal is barred by the law of the ease. In Edwards v. Speiser, 4th DCA No. 95-0121 (April 3, 1995), this court denied appellant’s petition for writ of prohibition to disq…
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Reynolds Brooks v. State, 555 So. 2d 929 (Fla. 3d DCA 1990)…in evaluating defendant’s motions. We disagree with these contentions for several reasons. First, we reject the state’s assertion because defendant alleged not only that counsel was hostile, but also that he was ineffective.2 Cf. Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986) (where defendant failed to cite “incompetency as reason for concern and did not attempt to clarify request at hearing, trial court was not required to make full inquiry.”). Next, we conclude that the court did not conduct an adeq…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Mincey v. State, 460 So. 2d 396 (Fla. 1st DCA 1984)
- Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984)
- Brooks v. State, 456 So. 2d 1305 (Fla. 1st DCA 1984)