DAVID MINCEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Mincey appeals his robbery conviction and an attorney fee award for appointed standby counsel. The court affirms the conviction despite the trial court's failure to renew the offer of counsel at each stage of the proceeding, finding the error harmless, but reverses the attorney fee award because Mincey was not given notice and an opportunity to contest it.
The trial court's failure to renew the offer of counsel at each crucial stage was error, but the error was harmless because extensive warnings were given, Mincey understood his right to counsel, he extensively relied on standby counsel throughout the proceedings, and the evidence of guilt was overwhelming. The trial court had authority to assess attorney fees under Florida Statutes section 27.56(1), but the fee award was reversed because Mincey was not afforded notice and an opportunity to contest the amount.
[1] A trial court's failure to renew an offer of counsel at each subsequent stage of proceedings after a defendant has waived the right to counsel is subject to harmless erro…
[2] A defendant who represents himself with the assistance of standby counsel may be ordered to pay attorney fees for those services.
Previewing 2 of 5 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“If a waiver [of the right to counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”
Establishes the mandatory procedural requirement from Florida Rule of Criminal Procedure 3.111(d)(5) that triggered the trial court's error.
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Join FLexlaw to unlock all legal intelligenceMincey requested to represent himself with appointed standby counsel after his public defender in another case had been discharged. The trial court co…
The full statement of facts, procedural history, and disposition for this case are member content.
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WEBSTER, Judge.
In this direct criminal appeal, appellant seeks review of his robbery conviction, and of an order directing that he pay attorney fees for the services of appointed standby counsel. As to the conviction, appellant argues that reversible error occurred when the trial court (1) failed to renew an offer of counsel at subsequent stages of the proceeding after appellant had been permitted to represent himself with the assistance of appointed standby counsel; and (2) failed to dismiss the case, or at least to hold an additional hearing, because of a perceived discovery violation. We conclude that neither argument merits reversal. However, we believe that some discussion is appropriate regarding the first argument. Because the attorney fee award was entered without affording appellant notice and an opportunity to be heard, we reverse that award.
Following'conviction in another ease, appellant requested that the public defender representing him in this case be discharged, and that he be permitted to represent himself, with the assistance of standby counsel. The trial court conducted an appropriate inquiry, and then determined that appellant was voluntarily and intelligently waiving his right to counsel, and that he was competent to represent himself. The trial court told appellant that an attempt would be made to find an attorney willing to act as standby counsel. The trial court also told appellant that he “ha[d] a right to be represented by an attorney in every stage of the trial,” and that one would again be appointed to repre sent him if that should be his wish. Appellant acknowledged that he understood his right to the assistance of counsel. A few days later, the trial court appointed an attorney to act as standby counsel. Appellant was never again offered counsel.
Although appellant had been permitted to represent himself, appointed standby counsel participated in a number of pretrial hearings, including examining witnesses during a hearing on a motion seeking to dismiss the case because of a claimed discovery violation. During jury selection, both appellant and standby counsel participated in voir dire, and in the exercise of jury challenges. Appellant made the opening statement and closing argument, and questioned witnesses; however, he frequently conferred with standby counsel. Standby counsel made all of the legal arguments during the trial, including those in support of the motions for a judgment of acquittal. Following the jury’s verdict, standby counsel filed a motion for new trial. Standby counsel also argued the motion for new trial, and handled the sentencing. Appellant now claims that he is entitled to a new trial because the trial court did not renew the offer to appoint counsel at each stage of the proceeding subsequent to that at which appellant was permitted to represent himself.
Florida Rule of Criminal Procedure 3.111(d)(5) states that, “[i]f a waiver [of the right to counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” In Traylor v. State, 596 So. 2d 957, 968 (Fla.1992), the court said that this procedure is mandated by article I, section 16, of the Florida Constitution:
[W]e hold that a prime right embodied by the Section 16 Counsel Clause is the right to choose one’s manner of representation against criminal charges. In order for this right to have meaning, it must apply at least at each crucial stage of the prosecution. For purposes here, a “crucial stage” is any stage that may significantly affect the outcome of the proceedings. Because a prime interest that is protected is the right of the individual to exercise self-determination in the face of criminal charges, prosecution begins under the Counsel Clause when an accused is charged with a criminal act....
Once the defendant is charged — and the Section 16 rights attach — the defendant is entitled to decide at each crucial stage of the proceedings whether he or she requires the assistance of counsel. At the commencement of each such stage, an unrepresented defendant must be informed of the right to counsel and the consequences of waiver. Any waiver of this right must be knowing, intelligent, and voluntary, and courts generally will indulge every reasonable presumption against waiver of this fundamental right. Where the right to counsel has been properly waived, the State may proceed with the stage in issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.
(Footnotes omitted.)
The state argues that, although it is clear that the trial court failed to comply with the foregoing procedural requirements, it is equally clear that the error was harmless. We agree. Before permitting appellant to represent himself with the assistance of standby counsel, the trial court gave extensive warnings regarding the dangers of self-representation. It also told appellant that he had the right to be represented by an attorney at every stage of the proceeding, and that, if appellant changed his mind and again wanted appointed counsel, all he had to do was ask. Appellant clearly understood this. In addition, appellant relied on standby counsel extensively, before, during and after the trial. See Harrell v. State, 486 So. 2d 7 (Fla. 3d DCA 1986) (holding frequent use of standby counsel by defendant sufficient to serve as constant reminder of right to counsel). Finally, the evidence of appellant’s guilt was overwhelming.
Our supreme court has told us “that constitutional errors, with rare exceptions, are subject to harmless error analysis.” State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986). Even “fundamental errors” — i.e., errors which may be raised for the first tíme on appeal — are subject to harmless error analysis. State v. Clark, 614 So. 2d 453 (Fla.1992).
We believe that the recent opinion in State v. Roberts, 677 So. 2d 264 (Fla.1996), provides strong support for the conclusion that errors such as that at issue here are subject to harmless error analysis. Having performed that analysis, we are convinced that the trial court’s failure fully to comply with the requirements of Traylor, and of rule 3.111(d)(5), did not have any effect on the outcome of this case.
Appellant argues that the trial court lacked the power to direct him to pay a fee for the services of appointed standby counsel. We disagree. We believe that the trial court’s action was permissible pursuant, to section 27.56(1), Florida Statutes (1993), which authorizes the assessment of attorney fees against defendants “who ha[ve] received the assistance of the public defender’s office or a special assistant public defender, or the services of a private attorney appointed pursuant to the Florida Statutes or the Florida Rules of Criminal Procedure.” Here, appellant requested, and “received the assistance of,” appointed standby counsel. Accordingly, we see nothing inappropriate about a fee award for those services. However, we reverse the fee imposed, because appellant was afforded neither notice of intent to seek such a fee nor an opportunity to contest its amount. E.g., Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995); L.A.D. v. State, 616 So. 2d 106 (Fla. 1st DCA), review denied, 624 So. 2d 268 (Fla.1993). On remand, such a fee may again be imposed, provided that appellant is given notice and an opportunity to contest the amount.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
ALLEN and MICKLE, JJ., concur.
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Cited By (12 total)
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Reed v. State, 783 So. 2d 1192 (Fla. 1st DCA 2001)…ase were determined to be fundamental, any such error would' be harmless. Both the supreme court and this court have determined that even fundamental error may in fact be harmless. See State v. Clark, 614 So. 2d 453, 454 (Fla.1992); Mincey v. State, 684 So. 2d 236, 239 (Fla. 1st DCA 1996). In the recent case of Stephens v. State, 26 Fla. L. Weekly S161, — So. 2d -, 2001 WL 252160 (Fla. Mar. 15, 2001), the supreme court reaffirmed the principle that the quantum of evidence supporting the defendant’s guilt shou…
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Knight v. State, 770 So. 2d 663 (Fla. 2000)…der to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding. See Harrell v. State, 486 So. 2d 7 (Fla. 3d DCA 1986); see also McCarthy v. State, 731 So. 2d 778, 781 (Fla. 4th DCA 1999); Mincey v. State, 684 So. 2d 236, 238 (Fla. 1st DCA 1996). Accordingly, Knight’s claim that the court erred by not renewing the offer of court-appointed counsel is without merit. In his third claim, Knight argues the court erred in using his prior violent felony conviction as an a…
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Birlkey v. State, 220 So. 3d 431 (Fla. 4th DCA 2017)…d and remanded for resentencing because the trial court did not renew' the offer of counsel before sentencing. There, we distinguished the situation in this case, where appellant did not heavily rely on standby counsel, from that of Mincey v. State, 684 So. 2d 236, 238 (Fla. 1st DCA 1996): In Mincey, “appellant relied on standby counsel extensively, before, during and after the trial,” and standby counsel handled the sentencing. Id. at 238. But see Harris v. State, 687 So. 2d 29, 30 (Fla. 5th DCA 1997) (“Whi…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Traylor v. State, 596 So. 2d 957 (Fla. 1992)
- In the Interest of L.A.D. v. State, 616 So. 2d 106 (Fla. 1st DCA 1993)
- Bryant v. State, 661 So. 2d 1315 (Fla. 1st DCA 1995)
- State v. Clark, 614 So. 2d 453 (Fla. 1992)
- State v. Roberts, 677 So. 2d 264 (Fla. 1996)
- Harrell v. State, 486 So. 2d 7 (Fla. 3d DCA 1986)