TEDDY BALTIMORE SMITH

v.

STATE OF FLORIDA

NORTHCUTT, Judge. In his petition under Florida Rule of Appellate Procedure 9.141(d), Teddy Baltimore Smith contends that his appellate counsel was ineffective for failing to challenge his manslaughter conviction on the ground that the trial court improperly denied his motion to proceed pro se. We agree.

The State charged Smith with second-degree murder. At a pretrial hearing, Smith moved to proceed pro se, asserting that he knowingly and intelligently waived his right to counsel.

The trial court questioned Smith extensively on his motion. Among the topics covered were whether Smith understood the rules of evidence (whether he knew how to conduct depositions, introduce exhibits, and cross-examine witnesses) and whether he understood that he faced a potential life sentence. These questions were appropriate to the court's consideration of Smith's motion under Faretta v. California, 422 U.S. 806 (1975). But even though Smith's motion did not mention his trial counsel or complain about her performance, much of the trial court's questioning was more suited to a motion to discharge appointed counsel under Nelson v. State, 274 So. 2d 256, 258–59 (Fla. 4th DCA 1973).

Thus, the court pressed Smith about his attorney's performance, observing that a difference of opinion about the facts did not constitute ineffective assistance of counsel. Smith responded, "I didn't say that. I said I wanted to go pro se. I didn't say nothing with ineffective assistance of counsel. I just said that I wanted to go pro se." Nevertheless, the court ruled, "[w]ell, I'm not discharging your attorney because I find that . . . counsel has been effective. I'm denying your motion to, your pro se motion to go pro se, proceed pro se." At a later pretrial hearing, the State asked the trial court to clarify its reason for previously denying Smith's motion to proceed pro se. The State noted that the court had only declared that counsel was not ineffective. The court rebuffed the State's suggestion that it had denied Smith's motion to proceed pro se because it concluded his counsel was effective. The court then found for the record that Smith had not made a knowing, intelligent, and voluntary waiver of counsel.

Smith proceeded to a jury trial with appointed counsel and was found guilty of the lesser included offense of manslaughter with a weapon.

The trial court sentenced him to twenty-eight years' imprisonment.

On appeal, Smith's appointed counsel did not raise any issue regarding the denial of Smith's motion to proceed pro se.

This court affirmed Smith's conviction and sentence. When considering a claim of ineffective assistance of appellate counsel, this court must make two determinations: [F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). Here, appellate counsel's failure to raise the denial of Smith's motion to proceed pro se satisfied the first prong. Both justifications offered by the trial court for denying the motion were incorrect.

First, Smith's motion did not allege that his trial counsel was ineffective; as a matter of law, his right to represent himself did not require it.

Thus, the court's initial denial of the motion on that basis erroneously conflated the showing necessary to discharge counsel for ineffectiveness under Nelson with the standard applicable in a Faretta hearing. As this court has observed: Defendants in a criminal trial have a constitutional right of self-representation, and thus once a defendant makes an unequivocal request for self-representation, the trial court must "hold a hearing[ ] to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel." Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008). "[A] defendant need not articulate a reason to invoke his right of self-representation." Laramee v. State, 90 So. 3d

341, 345 (Fla. 5th DCA 2012). As part of the Faretta inquiry, "[t]rial courts are . . . required to instruct defendants about the disadvantages and dangers associated with self-representation." Goldsmith v. State, 937 So. 2d 1253, 1256 (Fla. 2d DCA 2006). Eib v. State, 191 So. 3d 977, 979 (Fla. 2d DCA 2016) (alterations in original); see also Neal v. State, 132 So. 3d 949, 951 (Fla. 1st DCA 2014) (reversing and remanding for a new trial because the trial court did not address whether the defendant's request to represent himself was knowing and intelligent and the error was not subject to harmless error review).

The trial court further abused its discretion when it later stated that it had denied Smith's motion to proceed pro se because Smith's waiver of counsel was not knowing and voluntary. That rationale is unsupported by the record. Notably, "a defendant does not need to possess the technical legal knowledge of an attorney before being permitted to proceed pro se." Fleck v. State, 956 So. 2d 548, 549 (Fla. 2d DCA 2007) (quoting Hill v. State, 688 So. 2d 901, 905 (Fla. 1996)). Rather, "the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Hill, 688 So. 2d at 905 (quoting Godinez v. Moran, 509 U.S. 389, 399 (1993)); see also Fla. R. Crim. P. 3.111(d)(3) ("Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.").

Throughout the trial court's comprehensive Faretta inquiry, Smith steadfastly asserted his right to represent himself and prove his innocence.

The record confirms that, in doing so, he generally understood his rights and the ramifications of that choice; nothing suggested that Smith lacked competence to waive his right to counsel. See Potts v. State, 718 So. 2d 757, 760 (Fla. 1998) (approving the trial court's decision to allow a defendant to proceed pro se where "[c]ompetent substantial evidence supports the conclusion that [the defendant] had a general understanding of his rights and that his decision to proceed without counsel was made with eyes open"). If Smith's appellate counsel had argued that the trial court abused its discretion when denying Smith's motion to proceed pro se, this court would have reversed and remanded for a new trial—the relief that Smith requests in his petition.

Consequently, appellate counsel's failure to raise the issue "compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." See Pope, 496 So. 2d at 800. Since a new appeal would be redundant in this case, we reverse Smith's judgment and sentence for manslaughter and remand for a new trial. Petition granted. BLACK and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication.