BARBARA WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1988-11-02
No. 87-3139
DOWNEY and DELL, JJ., concur.
532 So. 2d 1341 Florida District Court of Appeal, Fourth District (1988) Positive Treatment
Cited by 12 cases

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Synopsis

Barbara Williams appealed her grand theft conviction, raising three meritorious issues: denial of her request to discharge court-appointed counsel without proper inquiry, failure to state findings of fact when sentencing her as a habitual offender, and erroneous assessment of costs without notice. The court reversed and remanded for a new trial based on the counsel discharge error.


Holding

The court held that the trial court erred in denying the discharge request without proper inquiry and that this error was not harmless, requiring reversal and remand for new trial. The court also found error in failing to state findings of fact for habitual offender sentencing, though this would require remand for resentencing only if not reversing on other grounds. The parties agreed the cost assessment was erroneous.


Headnotes

[1] A trial court must inquire into a defendant's reasons for seeking to discharge court-appointed counsel before proceeding to trial.

[2] A trial court's failure to examine a defendant's reasons for discharging counsel, when the defendant expresses dissatisfaction, constitutes reversible error.

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Key Quotes

“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 legal standard requiring trial courts to inquire into reasons for discharge requests.

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Facts & Procedural History

Williams and a codefendant were charged with grand theft. On the day of trial, Williams requested to discharge her court-appointed counsel and move fo…

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Opinion of the Court
GLICKSTEIN, Judge.

GLICKSTEIN, Judge.

Appellant and her codefendant were charged by information with grand theft, a third degree felony. On the day of trial, the trial court denied appellant’s request to discharge her court-appointed counsel and also denied her request for a one week continuance in order to retain private counsel. Appellant was tried before a jury and was found guilty as charged. The trial court entered a judgment adjudicating appellant guilty, declared her a habitual offender and sentenced her within the guidelines to serve a ten year term of incarceration with credit for time served.

Appellant raises three points on appeal, all of which are meritorious.

I.

Appellant contends that prior to jury selection on the day of trial, the trial court erred in denying her request to discharge her court-appointed counsel and her motion for a one week continuance in order to retain private counsel. We agree that the trial court erred as to her initial request and reverse and remand for new trial on that ground.

This court stated in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), that “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.” Id. at 258. The record in the instant case discloses that the trial judge did not make the necessary inquiry into the appellant’s complaints regarding her attorney’s representation of her. Instead, the record shows that when the defendant tried to explain to the trial judge her basis for requesting a discharge of her attorney, the trial court reacted with the following statement: “You are going to trial today with your lawyer. You can represent yourself or have her represent you.” The trial court failed to make any attempt to examine the appellant’s complaints about her attorney and instead exhibited an unwillingness to give any genuine consideration to her request. The trial court’s actions were clearly violative of the Florida Supreme Court’s dictates in Johnston v. State, 497 So. 2d 863, 867 (Fla.1986) that “[a] trial court is obligated to examine the reasons given by a defendant to support his motion to discharge counsel.” See also Scull v. State, 533 So. 2d 1137 (Fla.1988).

In Nelson this court stated that “[i]f no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.” Id. at 259. Herein the record discloses that although the appellant persisted in seeking to have her attorney discharged, the trial court failed to state specifically on the record that it failed to find any reasonable basis for believing that the court-appointed counsel was not rendering effective assistance to the appellant.

The state argues that the appellant asserted an insufficient reason for requesting a change of counsel, i.e., a loss of confidence. The state cites to Johnston v. State, 497 So. 2d 863 (Fla.1986), for the proposition that “[gjeneral loss of confi dence or trust standing alone will not support withdrawal of counsel.” Id. at 868. A review of that case reveals that the trial court therein properly examined the reasons asserted by the defendant in support of his motion to discharge counsel. Id. at 867. Herein, no proper examination of the reasons underlying appellant’s request to discharge her attorney appears in the record. Although the appellant stated a few “reasons” during her comments to the court, it is not possible to deduce from this record what her entire basis for seeking discharge of her attorney was, because the trial judge would not allow her to complete her comments. As exhibited by the following excerpt, the record shows that the appellant attempted to give her reasons to the court and was abruptly interrupted by the trial judge:

THE DEFENDANT: Your Honor, sir, I would like to know what — I would like to, you know, try to get me a paid lawyer. THE COURT: Well, you had plenty of time to do it.

THE DEFENDANT: Because I don’t feel comfortable with this lady here, you know. I feel like I haven’t been—

THE COURT: You have had since last June to do that, if you wanted to. This case is set for trial. This is the second time it’s been set for trial.

In light of the fact that the trial court erred, we now examine whether the error is reversible. In State v. DiGuilio, 491 So. 2d 1129 (Fla.1986), the Florida Supreme Court discussed the harmless error test and stated the following:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Id. at 1139. In the instant case it is evident from the record that the jury was allowed into the courtroom during the later part of the hearing on the appellant’s request to discharge her counsel and that the jury witnessed the trial judge arguing with appellant and telling her “You are going to behave yourself here or I am going to take further action.” We cannot say beyond a reasonable doubt that the trial court’s denial of the appellant’s request to discharge her attorney and its manner of effectuating said denial did not affect the jury’s verdict.

II.

Appellant also contends that the trial court erred in sentencing her as a habitual offender without specifically stating facts upon which the decision to extend appellant’s sentence was based. We agree.

The Florida Supreme Court in Walker v. State, 462 So. 2d 452 (Fla.1985), discussed this precise issue. In that case the defendant was convicted of trafficking in stolen property and was sentenced as a habitual offender under statutory section 775.084. The court found that the trial judge erred in not specifically stating, as the statute mandates, the findings upon which he based his decision to extend the defendant’s sentence. See also Chukes v. State, 334 So. 2d 289 (Fla. 4th DCA 1976); Adams v. State, 376 So. 2d 47 (Fla. 1st DCA 1979).

A review of the record in the instant case reveals that it is devoid of any written or oral findings of fact by the trial court supporting its determination that the enhanced sentence imposed on appellant was necessary for the protection of the public. The record shows that at the sentencing hearing, the court was presented with certified copies of three of the appellant’s prior convictions, that the testimony of a fingerprint analyst was introduced who testified that appellant’s fingerprints matched those on seven arrests sheets, and that the trial judge acknowledged reading the presen-tence investigation report prepared on appellant. The court failed to state which facts or circumstances from any of the foregoing formed the basis for its determination to make the following pronouncement: “I will declare Barbara Williams to be a habitual offender and for the protection of the public and criminal activity by Barbara Williams I sentence her to ten years in State Prison and I will give her credit for whatever time she has served.”

Although the record contains evidence which would support the court’s determination that an extended term of imprisonment was necessary, were we not reversing on another ground the trial court’s failure to state its findings of facts would require that this court remand for resentencing. Meehan v. State, 526 So. 2d 1083 (Fla. 4th DCA 1988).

III.

Although we are reversing and remanding for a new trial, we note that the parties are in agreement that the trial court erred in assessing costs against appellant pursuant to section 27.3455, Florida Statutes, without furnishing appellant with prior notice and an opportunity to object.

DOWNEY and DELL, JJ., concur.


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Citator

Cited By

  • Kearse v. State, 605 So. 2d 534 (Fla. 1st DCA 1992)
    …endant with the opportunity to explain why he or she objects to counsel or fails to conduct the above inquiries. See Parker v. State, 423 So. 2d 553 (Fla. 1st DCA 1982). See also Brooks v. State, 555 So. 2d 929 (Fla. 3d DCA 1990); Williams v. State, 532 So. 2d 1341 (Fla. 4th DCA 1988). In the instant case, appellant requested that his court-appointed counsel be dismissed, and, in doing so, asserted incompetency as one of the grounds for relief in his motion. Although a Nelson inquiry was not required as to th…
  • Marti v. State, 756 So. 2d 224 (Fla. 3d DCA 2000)
    …legations of ineffective assistance based, and, based on the information garnered from the defendant and counsel was providing effective assistance. (Emphasis added). See also Marshall v. State, 665 So. 2d 307 (Fla. 2d DCA 1995); Williams v. State, 532 So. 2d 1341 (Fla. 4th DCA 1988). Clearly, Nelson contemplates an immediate dialogue with a defendant who makes the motion. Where the reason for the desired discharge is incompetence, the court “should then make a sufficient ipquiry of the defendant and his app…
  • Reynolds Brooks v. State, 555 So. 2d 929 (Fla. 3d DCA 1990)
    …Brooks. Although we are cognizant of the court’s attempts to proceed with the trial, we conclude that under the circumstances of the case before us, the trial court’s failure to conduct a meaningful inquiry constitutes error. See Williams v. State, 532 So. 2d 1341 (Pla. 4th DCA 1988); Nelson; Chiles v. State, 454 So. 2d 726 (Fla. 5th DCA 1984); Parker v. State, 423 So. 2d 553 (Fla. 1st DCA 1982); cf. Scull v. State, 533 So. 2d 1137 (Fla.1988) (where defendant sought to remove counsel for conflict of interest,…

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