ALFRED JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alfred Johnson appealed his conviction for sale of cocaine, arguing that the trial court erred in denying his motion to discharge court-appointed counsel. The First District Court of Appeal affirmed, holding that because Johnson's motion was based on alleged conflict rather than incompetency of counsel, the trial court was not required to conduct the searching inquiry mandated by Nelson v. State.
The trial court properly denied the motion to withdraw without conducting a full Nelson inquiry because the stated basis for discharge was alleged conflict between counsel and defendant, not incompetency of counsel. The Nelson inquiry is required only when incompetency of counsel is alleged; when the stated basis is conflict, no full inquiry is required.
[1] A trial court is not required to conduct a full inquiry into a defendant's request to discharge court-appointed counsel when the stated basis for the motion is a conflict…
[2] When a defendant's court-appointed counsel states that they cannot in good faith continue the defense as the defendant desires, and the defendant is present and aware of…
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Join FLexlaw to unlock all legal intelligence“I cannot agree to be told what I should ask witnesses and how to cross examine witnesses in a trial. I cannot do that, Judge. If I am told to do that, Judge, it is a violation of my oath as an attorney.”
Counsel's statement establishing that the dispute was over trial strategy and ethical obligations, not competency
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Join FLexlaw to unlock all legal intelligenceJohnson's court-appointed counsel, Mr. Parker, announced immediately before jury selection that he could not in good faith conduct Johnson's defense b…
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SHIVERS, Chief Judge.
Appellant/defendant appeals the denial of his motion to dismiss court-appointed counsel, claiming that the trial court failed to conduct a proper inquiry as set out in Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) and approved in Hardwick v. State, 521 So. 2d 1071 (Fla.1988). We disagree, and affirm.
Immediately prior to jury selection at the 1989 trial, appellant’s court-appointed counsel made the following announcement:
MR. PARKER: Your Honor, my client has asked me to withdraw as attorney of record inasmuch as I cannot in good faith handle his defense as he would desire for me to do. I respect that, Your Honor. My client has a certain agenda as to questions he wants to ask during the trial, and I have certain things that I want to do as the attorney in what I think is in the best interest of my client. I cannot agree to be told what I should ask witnesses and how to cross examine witnesses in a trial. I cannot do that, Judge. If I am told to do that, Judge, it is a violation of my oath as an attorney. I feel like that I cannot continue to defend the defendant based on those representations.
My client feels there is a certain way to handle his defense. I apparently do not agree with the way he wants to handle it.
I believe at this point in time, Your Honor, I cannot continue to represent my client because I would be a liability to him. I cannot prepare his case the way he wants it to be prepared and I would respectfully ask the Court to allow me to withdraw as attorney of record for Mr. Johnson.
The trial court denied the motion to withdraw, stating:
THE COURT: That motion will be denied.
I agree with you that you cannot allow Mr. Johnson to dictate what questions you will ask witnesses. You are bound by the Canons of Ethics, as would be any other attorney that I appointed, and you also must be bound by what you feel is in your client’s best interest. That would be true of any other attorney I appointed.
Mr. Johnson is not trained in these rules and does not know the bounds of the rules of criminal procedure or the rules of ethics, and, therefore, his wishes as to questioning of the jurors, — if they transgress those rules must be ignored.
Mr. Johnson, that is going to be true of any attorney I appointed for you. And it will be true if you had no attorney. I would not let you ask a single question that was not proper, and you are not going to. So, sit down and let’s start the trial.
The trial then proceeded, and defendant was found guilty of sale of cocaine and sentenced to 6½ years incarceration.
The Fourth District in Nelson, supra, held that when a defendant lets it be known that he wishes to discharge his court-appointed counsel, the trial court should inquire of the defendant as to his reason for requesting discharge. If incompetency of counsel is given as a reason, the trial court should then make further inquiry to determine whether there is reasonable cause to support the allegation. If reasonable cause appears, the court should appoint substitute counsel; if no reasonable cause appears, the court should then advise the defendant that if he insists on discharging his original counsel, the State may not be required to 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’s defense as appellant desired him to do. Based on the statement of defense counsel, made in appellant’s presence, we find that appellant’s motion to discharge alleged conflict rather than incompetency of counsel and, therefore, that the trial court was not obligated to conduct the inquiry set out in Nelson. Smelley, supra. Accordingly, we hereby affirm appellant’s conviction without prejudice to his right to seek collateral relief by way of Rule 3.850, Fla.R.Crim.P. WIGGINTON and BARFIELD, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Kearse v. State, 605 So. 2d 534 (Fla. 1st DCA 1992)…th DCA 1973). . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). . The trial court is not required to conduct a full Nelson inquiry when incompetency is not the stated basis for the motion for discharge. Johnson v. State, 560 So. 2d 1239, 1240 (Fla. 1st DCA 1990).…
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Tucker v. State, 754 So. 2d 89 (Fla. 2d DCA 2000)…769. Where incompetency of counsel is not the basis for the defendant’s motion to discharge, a trial court is not required to conduct a further Nelson inquiry. See Jones v. State, 658 So. 2d 122, 125 n. 2 (Fla. 2d DCA 1995) (citing Johnson v. State, 560 So. 2d 1239 (Fla. 1st DCA 1990)). Furthermore, “[a]s a practical matter, a trial judge’s inquiry into a defendant’s complaint of incompetence of counsel can be only as specific and meaningful as the defendant’s complaint.” Lowe v. State, 650 So. 2d 969, 975 (Fl…
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Mitchell v. State, 678 So. 2d 1362 (Fla. 1st DCA 1996)…ther than incompetency of counsel,” Nelson did not require a full inquiry. Kearse v. State, 605 So. 2d 534, 536-37 & n. 3 (Fla. 1st DCA 1992), rev. den., 613 So. 2d 5 (Fla.1993); Wilder v. State, 587 So. 2d 543 (Fla. 1st DCA 1991); Johnson v. State, 560 So. 2d 1239 (Fla. 1st DCA 1990). It is noteworthy that after voicing his complaints, Mitchell proceeded to trial with appointed counsel and made no additional attempt to dismiss his attorney or to seek self-representation. Kott v. State, 518 So. 2d 957 (Fla. 1s…
Previewing 3 of 14 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)
- Hardwick v. State, 521 So. 2d 1071 (Fla. 1988)
- Smelley v. State, 486 So. 2d 669 (Fla. 1st DCA 1986)