J.D. DUNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Fourth District Court of Appeal reversed two convictions for possession of a firearm by a convicted felon and grand theft where the trial court failed to conduct a required Nelson hearing regarding the defendant's request to discharge court-appointed counsel and also failed to conduct a proper discovery violation hearing regarding the state's failure to disclose an incriminating statement made by the defendant at arrest.
The convictions in both cases are reversed because the trial court failed to conduct a Nelson hearing as required when a defendant requests discharge of court-appointed counsel on grounds of ineffective assistance. Additionally, the conviction in one case must be reversed due to a discovery violation where the state failed to disclose an incriminating statement and the court did not conduct a proper Richardson hearing to determine whether the violation caused harm or prejudice.
[1] A trial court must conduct a hearing to inquire into a defendant's reasons for requesting the discharge of court-appointed counsel, particularly when incompetency is alle…
[2] If a trial court fails to conduct a required Nelson hearing regarding a defendant's request to discharge counsel, convictions must be reversed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when a defendant requests discharge of his court-appointed counsel the trial judge should make an inquiry of the defendant as to the reason for the request. If incompetency of counsel is a reason, then the court should make an inquiry of the defendant and his appointed counsel to determine whether there is cause to believe that counsel is not rendering effective assistance.”
Establishes the Nelson hearing requirement that the trial court failed to follow
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant was convicted after separate trials of possession of a firearm by a convicted felon and grand theft. The defendant filed pro se motions …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Nelson Hearing cases and more on FLexlaw
PER CURIAM.
We withdraw our opinion filed June 22, 1994, and substitute the following opinion which deletes our incorrect statement that defendant was convicted of burglary of a dwelling. Defendant’s Motion for Clarification is granted.
Defendant, after separate trials, was convicted of possession of a firearm by a convicted felon and grand theft. He filed a pro se motion in both cases seeking dismissal of his court appointed counsel alleging that he was not receiving effective assistance of counsel. We consolidate the two appeals and reverse.
In Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), this court held that when a defendant requests discharge of his court-appointed counsel the trial judge should make an inquiry of the defendant as to the reason for the request. If incompetency of counsel is a reason, then the court should make an inquiry of the defendant and his appointed counsel to determine whether there is cause to believe that counsel is not rendering effective assistance. If reasonable cause for such belief appears the trial court should make a finding to that effect and appoint substitute counsel. If no reasonable basis appears then the trial judge should so state and advise the defendant that if he discharges his original counsel the state may not thereafter be required to appoint a substitute. Nelson was approved in Hardwick v. State, 521 So. 2d 1071 (Fla.1988).
Here defendant requested discharge of his court-appointed counsel in both cases. The trial court did not conduct a Nelson hearing in either ease, but stated on the record he was only ruling on the motion in one of the eases, because the motion in the other case was not before him at that time. It is clear from the record that defendant was attempting to discharge his counsel in both cases and did everything he could, pro se, to have both motions determined. We therefore treat the order as denying the motions in both cases and since the court did not conduct a Nelson hearing, we reverse the convictions.
The conviction in case number 93-1513 must also be reversed because of a discovery violation. The state had indicated in its answer to notice of discovery that there were no written, recorded or oral statements of defendant; however, at trial the arresting officer testified on cross-examination to a remark made by defendant at the time of the arrest which was incriminating. The state should have made this information known to defendant prior to trial. When it came up at trial the court was required to conduct a hearing and determine whether the discovery violation resulted in harm or prejudice to the defendant. State v. Richardson, 246 So. 2d 771 (Fla.1971). Although the state argues that what in fact occurred was the equivalent of a Richardson hearing, we do not agree. We therefore reverse and remand both cases for a new trial.
ANSTEAD, KLEIN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brown v. State, 640 So. 2d 106 (Fla. 4th DCA 1994)…statements made by him. Apparently the state affirmatively advised the defendant there were no statements. A discovery violation therefore occurred which necessitated a Richardson hearing. Cumbie v. State, 345 So. 2d 1061 (Fla.1977); Dunn v. State, 640 So. 2d 201 (Fla. 4th DCA 1994); Price v. State, 627 So. 2d 64 (Fla. 5th DCA 1993). The fact that the police officer was deposed does not change our opinion that a discovery violation occurred, especially in light of the police officer’s sworn deposition testim…
-
Weems v. State, 645 So. 2d 1098 (Fla. 4th DCA 1994)…Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is inapposite. We have considered, and do not believe this opinion is in conflict with, our decisions in Graves v. State, 642 So. 2d 142 (Fla. 4th DCA 1994); Dunn v. State, 640 So. 2d 201 (Fla. 4th DCA 1994); and Lewis v. State, 623 So. 2d 1205 (Fla. 4th DCA 1993). In Graves, the issue was failure to conduct an otherwise required Nelson inquiry because the defendant’s motions were made pro se while represented by counsel. In Dunn, th…
-
Tonti Kinzie v. State, 696 So. 2d 530 (Fla. 4th DCA 1997)…he proceeded to trial with counsel and without [*531] objection, raising it only on appeal after an adverse verdict. See Parker v. State, 570 So. 2d 1053 (Fla. 1st DCA 1990); Kott v. State, 518 So. 2d 957 (Fla. 1st DCA 1988). Compare Dunn v. State, 640 So. 2d 201 (Fla. 4th DCA 1994) (court’s failure to rule treated as denial where pro se defendant did everything possible to secure a ruling). We also affirm as to all other issues raised. STONE, C.J., and WARNER and SHAHOOD, JJ., concur.…
Authorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Hardwick v. State, 521 So. 2d 1071 (Fla. 1988)