ROBERT BURKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1999-04-28
No. 97-3913
STONE, C.J., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
732 So. 2d 1194 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 10 cases

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Synopsis

In this direct appeal of a felony conviction, the court held that a defendant represented by counsel has no absolute right to pro se self-representation and therefore a trial court did not err in treating a pro se demand for speedy trial filed by represented counsel as a nullity without first seeking the court's discretionary permission.


Holding

The court held that a defendant represented by counsel has no absolute right to pro se self-representation but only a qualified right subject to the trial court's sound discretion. Because appellant did not affirmatively request the opportunity for self-representation, the trial court was not required to exercise its discretion or consider the pro se demand for speedy trial.


Headnotes

[1] A defendant represented by counsel does not have an absolute right to self-representation; the privilege is qualified and subject to the court's sound discretion.

[2] A represented defendant must obtain the court's consent to exercise the qualified right to self-representation.

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Key Quotes

“a defendant represented by counsel has no absolute right to participate and represent himself and that the matter is subject to the exercise of sound discretion by the trial courts”

Establishes the foundational principle that a represented defendant's right to self-representation is qualified, not absolute, and subject to court discretion.

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Facts & Procedural History

Appellant Burke was represented by counsel in a criminal prosecution but filed a pro se demand for speedy trial while still being represented by an at…

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Opinion of the Court
KLEIN, J.

KLEIN, J.

In this direct appeal of appellant’s felony conviction, the sole issue is whether the trial court correctly held that appellant’s pro se demand for speedy trial, filed while appellant was represented by counsel, was a nullity. We agree that it was and affirm.

Appellant relies on Article I, section 16 of the Florida Constitution, which provides: “In all criminal prosecutions the accused ... shall have the right ... to be heard in person, by counsel, or both....” In Powell v. State, 206 So. 2d 47, 48 (Fla. 4th DCA 1968), this court construed the same language in an earlier version of our constitution as follows:

The rule is that a defendant represented by counsel has no absolute right to participate and represent himself and that the matter is subject to the exercise of sound discretion by the trial courts.

We believe the rule to be sound and equally applicable and needed in the appellate courts of this state. Absent some compelling reason reflected in an application for permission and absent this court’s consent for an appellant to represent himself and to be also represented by counsel, we believe that a party on appeal represented by counsel has no right, in propria persona, to file additional briefs and appellate papers. To permit this would clearly interfere with the time schedules and the filing and service of papers. Such practice would frustrate and confuse the appellate process and administration of justice.

Subsequently, in State v. Tait, 387 So. 2d 338, 340 (Fla.1980), the Florida Supreme Court held that Article I, section 16 gives a defendant, represented by counsel, a qualified, not an absolute right, stating:

When the accused is represented by counsel, affording him the privilege of addressing the court or the jury in person is a matter for the sound discretion of the court. Powell v. State, 206 So. 2d 47 (Fla. 4th DCA 1968); Thompson v. State, 194 So. 2d 649 (Fla. 2d DCA 1967). Powell and Thompson were decided under section 11 of the Declaration of Rights of the Constitution of 1885. The fact that the people framed article I, section 16 of the Constitution of 1968 in the same language gives strong support to the proposition that the construction provided by Powell and Thompson is correct.

We construe our decision in Powell to require that a represented defendant first obtain the court’s consent in order to also represent himself. Although Powell involved the right of a represented defendant to file a brief in this court, the broad language used by the supreme court in Tait, when it approved Powell, applies to all courts.

Appellant argues that Tait requires the trial court to exercise discretion and that declaring that his demand was a nullity was a failure to exercise discretion. As we noted earlier, though, our supreme court held in Tait that a represented defendant does not have an absolute right to self-representation. If the right is not absolute, then the appellant did not have the absolute right to have the trial court consider his demand for speedy trial. That conclusion is consistent with the Tait holding that whether to afford a defendant “the privilege of addressing the court or the jury in person is a matter for the sound discretion of the court.” Tait, 387 So. 2d at 340. We .construe that language to mean that the point at which the court exercises its discretion is when the defendant requests the right to exercise his qualified privilege. In the present case appellant did not request the opportunity for self-representation, and we therefore hold that the trial court was not required to consider his demand for speedy trial.1

Affirmed.

STONE, C.J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. . Our holding is limited to actions taken by a represented defendant which are normally performed by counsel and which, if done by the defendant, would constitute dual representation. A motion to discharge counsel, filed by a represented defendant, would not first require the court’s consent, because it would not constitute dual representation.


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Citator

Cited By

  • Sheppard v. State, 17 So. 3d 275 (Fla. 2009)
    …allow litigants to file separate pro se briefs or pleadings in pending appeals is that allowing such pro se pleadings would [*281] frustrate and confuse rather than advance the appellate process and the administration of justice. See Burke v. State, 732 So. 2d 1194, 1195 (Fla. 4th DCA 1999) (citing Powell v. State, 206 So. 2d 47, 47 (Fla. 4th DCA 1968)). In this Court we have likewise announced a policy that, even in appeals of death penalty cases, we will strike pro se pleadings or briefs where the party is r…
  • Frazier Lewis v. State, 766 So. 2d 288 (Fla. 4th DCA 2000)
    …lf and, at the same time, to have the assistance of counsel. See Tait, 387 So. 2d at 339-40. Thus, it is true that, generally, pleadings filed by a criminal defendant who is represented by counsel are treated as a nullity. See, e.g., Burke v. State, 732 So. 2d 1194, 1195 (Fla. 4th DCA 1999). The courts have carved out an exception, however, permitting a criminal defendant who is represented by counsel to file a pro se motion seeking discharge of that counsel. For instance, in Graves v. State, 642 So. 2d 142 (F…
  • Gonzales v. State, 993 So. 2d 55 (Fla. 5th DCA 2008)
    …onzales’ lawyer refused to adopt the motion. Whiting, 929 So. 2d at 674.3 However, the trial court certainly also had the discretion to allow Gonzales to represent himself while also being represented by appointed counsel. See, e.g., Burke v. State, 732 So. 2d 1194, 1195-96 (Fla. 4th DCA 1999). In support of his oral motion, Gonzales for the first time asserted that he had been coerced into entering the plea by his first attorney. However, as noted by the trial court, this eonclusory allegation was fully refut…

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