ROSALIO RIOS, 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 trial court abused its discretion by failing to conduct an adequate inquiry into the defendant's desire to discharge his court-appointed counsel.
[1] A trial court abuses its discretion when it fails to conduct an adequate inquiry into a defendant's desire to discharge trial counsel.
[2] A proper inquiry into a defendant's request to change attorneys requires the court to ascertain the reason for the request, typically a belief that counsel is not renderi…
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 intelligenceThe defendant, on the morning of trial, expressed a desire to change attorneys. The trial court summarily denied the request, stating it was too late …
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 Inquiry cases and more on FLexlaw
DANAHY, Acting Chief Judge.
During the evening hours of December 31, 1995, the appellant was involved in an altercation with his neighbors and their holiday visitors. Apparently, all parties had been celebrating the approaching New Year with liberal amounts of alcohol. The altercation resulted in a near fatal stabbing and the appellant was charged with aggravated assault 1 and aggravated battery.2 At trial the jury found him guilty of assault as a lesser included offense of aggravated assault and aggravated battery as charged. He now appeals his convictions claiming reversible error on two grounds. We agree with him on one but not the other and reverse for a new trial.
The point with which we do not agree is the appellant’s claim that his trial counsel was ineffective for failing to pursue a defense of voluntary intoxication. Although the record suggests that this was a matter of strategy, the point is moot given our disposition on the remaining issue and remand for a new trial.
The appellant meritoriously contends that the trial court erred in failing to conduct an adequate inquiry regarding his desire to discharge his trial counsel, an assistant public defender. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). The record reveals that on the morning of trial, as voir dire was about to begin, the following exchange took place:
[Defense Counsel]: Your Honor, I just want to state on the record that again my ehent, Mr. Rios, had requested a change of attorneys this morning.
[The Court]: That request comes too late. No defendant on the morning of trial can, all of a sudden, say I want to hire a private attorney. If Mr. Rios’s private attorney is present and is prepared to go forward, I have no problems with discharging the Public Defender and allowing Mr. Rios’s private attorney to proceed to represent him in the trial of the case. Mr. Rios, do you have your attorney present?
[The appellant]: No. [The Court]: Then we’re going to proceed to trial.
In deciding whether a trial court conducted a proper inquiry when a defendant raises an issue about receiving effective assistance under Nelson, the standard of review is abuse of discretion. Augsberger v. State, 655 So. 2d 1202 (Fla. 2d DCA 1995). A proper Nelson inquiry begins with ascertaining the reason for an attempt to change attorneys; usually it is based on the defendant’s belief that court-appointed counsel is not rendering effective assistance. If reasonable cause is found to believe that court-appointed counsel is ineffective, the court should make such finding and appoint a substitute attorney who should be given time to prepare. If it appears that counsel is rendering effective assistance, the court should also so state on the record and advise the defendant that he may discharge his court-appointed counsel but that the State will not be required to appoint a substitute. Augsberger, 655 So. 2d at 1203-04, citing Nelson, 274 So. 2d at 258-59. If court-appointed counsel is found to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, a Faret-ta 3 hearing is in order. An expression of general loss of confidence or trust, standing alone, does not equate to ineffective assistance and does not require withdrawal of counsel. Augsberger, 655 So. 2d at 1204 (also citing Johnston v. State, 497 So. 2d 863 (Fla.1986)). Neither does a defendant’s perception that counsel has inadequately conferred with the client, without more specific allegations of incompetence, amount to ineffective assistance. Augsberger, 655 So. 2d at 1204.
Because the trial court in the case on review made no attempt to ascertain the basis for the appellant’s wish to change attorneys, as indicated by trial counsel, we find that the trial court did abuse its discretion in this case. The trial court failed to conduct any inquiry at all, except to ask if the appellant had a private attorney ready and willing to proceed. This put the cart before the horse. The trial court neglected to satisfy itself on threshold Nelson matters such as whether the appellant’s request to change attorneys was prompted by a belief that counsel was rendering ineffective assistance and, if so, upon what evidence were the allegations of ineffective assistance based, and, based on the information garnered from the defendant and counsel, whether counsel was providing effective assistance.
In Augsberger we found no abuse of discretion because the trial court asked the defendant there what trial counsel had or had not done to cause the defendant his dissatisfaction. The defendant could only give a vague and generalized answer despite questioning by the trial court. We concluded, in accord with Lowe v. State, 650 So. 2d 969 (Fla.1994), that the trial court had not abused its discretion under the Nelson standard because its inquiry was as explicit as it could have been when faced with the defendant’s generalized complaints.
In contrast to Augsberger, the appellant here was not even given the opportunity to express a complaint, generalized or not, about his counsel’s performance. We recognize that on the morning of trial the court is anxious to proceed to matters at hand. Although such concern explains the short shrift the court gave the appellant when his counsel raised a warning about a possible Nelson issue, it does not excuse the failure to properly address the issue as was done here.
We reverse the convictions and remand for a new trial.
SCHOONOVER and FULMER, JJ., Concur. . § 784.021, Fla. Slat. (1995), a third degree felony.
. § 784.045, Fla. Slat. (1995), a second degree felony.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Maxwell v. State, 892 So. 2d 1100 (Fla. 2d DCA 2004)…g that Nelson set forth “the procedure to be followed when a defendant indicates a desire to represent himself’). The issue of whether a trial court conducted an appropriate Nelson inquiry is subject to review for abuse of discretion. Rios v. State, 696 So. 2d 469, 470 (Fla. 2d DCA 1997). The first step in the procedure is the preliminary Nelson inquiry in which the court ascertains whether the defendant unequivocally requests court-appointed counsel’s discharge and the court asks the reason for the request.…
-
Odell Rutledge v. State, 1 So. 3d 1122 (Fla. 1st DCA 2009)…required to appoint a substitute. The court should have advised Appellant thus. See Knight v. State, 770 So. 2d 663, 665, 667-68 (Fla.2000); Gudinas v. State, 693 So. 2d 953, 961-62 & n. 11 (Fla.1997); Hardwick, 521 So. 2d at 1074-75; Rios v. State, 696 So. 2d 469, 471 (Fla. 2d DCA 1997); Taylor v. State, 557 So. 2d 138, 143 (Fla. 1st DCA 1990), disapproved of on other grounds, Heuss v. State, 687 So. 2d 823, 824 (Fla.1996); Nelson, 274 So. 2d at 259. In Matthews v. State, 584 So. 2d 1105, 1106-07 (Fla. 2d DC…
-
Milkey v. State, 16 So. 3d 172 (Fla. 2d DCA 2009)…asis of his dissatisfaction and whether some type of Nelson inquiry was necessary. The trial court should have given Milkey the opportunity to have his desire to discharge counsel “come to light.” Maxwell, 892 So. 2d at 1103; see also Rios v. State, 696 So. 2d 469, 471 (Fla. 2d DCA 1997) (stating that a proper Nelson inquiry begins with a determination of the reason why the defendant wishes to change attorneys to determine whether the request is based on ineffective assistance). Based upon the options given t…
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
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Godinez v. Moran, 509 U.S. 389 (U.S. 1993)
- Johnston v. State, 497 So. 2d 863 (Fla. 1986)
- Thompson v. State, 650 So. 2d 969 (Fla. 1994)
- Augsberger v. State, 655 So. 2d 1202 (Fla. 2d DCA 1995)