HERBERT MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2001-02-21
No. 4D00-1059
FARMER, JJ., concurs., WARNER, C.J., concurs specially with opinion.
778 So. 2d 1054 Florida District Court of Appeal, Fourth District (2001) Positive Treatment
Cited by 14 cases

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.

Synopsis

Herbert Moore appeals his conviction for trafficking in cocaine and felony fleeing or eluding police, arguing the trial court reversibly erred by failing to conduct a Nelson inquiry into his motion to discharge court-appointed counsel. The appellate court affirms on the basis that Moore waived the issue by failing to renew his motion to discharge before or during trial.


Holding

The appellate court affirms the conviction, finding that although it would have been better practice for the trial court to conduct a Nelson inquiry, Moore waived any objection by failing to renew his motion to discharge counsel in the six months before trial or at any time during trial.


Headnotes

[1] A defendant waives the right to a Nelson inquiry if they fail to renew their motion to discharge counsel before trial or at any time before trial has ended.

[2] A trial court is not required to conduct a Nelson inquiry when a defendant merely expresses general dissatisfaction with counsel or complains about a conflict of interest…

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

Key Quotes

“Courts must make certain inquiries "where a defendant, before the commencement of trial, makes it appear ... that he desires to discharge his court-appointed counsel."”

Establishes the general rule requiring inquiry when a defendant expresses desire to discharge appointed counsel before trial.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Six months before trial, Moore filed a pro se motion to discharge his court-appointed attorney John Bruhn, citing conflict of interest and irreconcila…

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.


Opinion of the Court
POLEN, J.

POLEN, J.

Herbert Moore appeals after a jury convicted him of trafficking in cocaine in an amount in excess of 28 grams, and felony fleeing or eluding a police officer. Among other matters, he argues that the court reversibly erred in failing to conduct a Nelson inquiry. We affirm, on the basis of appellant’s waiver of this issue.

Six months before trial, Moore filed a pro se motion to discharge his court-appointed attorney, John Bruhn, from representing him at trial. As grounds, he alleged only there was a “conflict of interest and irreconcilable differences” between him and Bruhn. However, he specifically requested the court to “[ajppoint another attorney to represent the defendant who is both competent and without conflict of interest.” The court summarily denied his motion on the ground that he was not constitutionally entitled to “hybrid representation.”

Bruhn subsequently represented Moore at trial.

The record does not disclose that Moore ever brought up the issue of discharging Bruhn again during the intervening six months, much less at trial. He was before the court one month after his pro se motion was denied, but this time on a motion to reduce bond.

At trial, a confidential informant testified that Moore asked him where he could buy cocaine. He testified Moore paid him $1,400 for two ounces of crack, which Moore then put in a cologne box. A detective confirmed that Moore’s exchange of money for crack took place. Moore was convicted as charged. After sentencing, he filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in which he argued that the Florida Criminal Code, effective October 1, 1998 and under which he was sentenced, was unconstitutional. The court denied his motion. This appeal followed.

Courts must make certain inquiries “where a defendant, before the commencement of trial, makes it appear ... that he desires to discharge his court-appointed counsel.” Nelson, 274 So. 2d at 258. “The mere expression of a desire to discharge appointed counsel necessitates an inquiry ‘as to the reason for the request to discharge.’ ” Marti v. State, 756 So. 2d 224, 228 (Fla. 3d DCA 2000) (citing Nelson, 274 So. 2d at 258).

Where the initial inquiry shows the reason for the desired discharge is incompetence, further inquiry is required. At this point, the court should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.

Nelson, 274 So. 2d at 259. The nature of the inquiry will be determined by the specificity of the defendant’s claim as to his lawyer’s incompetence. Marti, 756 So. 2d at 229 (citing Lowe v. State, 650 So. 2d 969 (Fla.1994)).

Overall, in deciding whether a trial court conducted an appropriate Nelson inquiry, appellate courts apply the abuse of discretion standard of review. Kearse v. State, 605 So. 2d 534, 536 (Fla. 1st DCA 1992) (citations omitted), rev. denied, 613 So. 2d 5 (Fla.1993). Appellate courts will find abuse occurred if the court fails to provide the defendant with the opportunity to explain why he objects to counsel or if the court fails to conduct the above inquiries. Id. (citations omitted).

However, a court does not abuse its discretion in refusing to conduct a Nelson inquiry when the defendant fails to make an unequivocal request for the discharge of counsel and for appointment of other counsel. Davis v. State, 703 So. 2d 1055 (Fla.1997).

Likewise, there is no abuse of discretion in failing to conduct further inquiry where the defendant merely expresses his general dissatisfaction with counsel, or where he simply complains about a conflict of interest. See Smith v. State, 641 So. 2d 1319, 1321 (Fla.1994) (holding inquiry not required where defendant expressed only dissatisfaction with attorney but not his competence); Kearse, 605 So. 2d at 536 (holding Nelson inquiry was not required for conflict-of-interest and bias claims made in motion to discharge); Johnson v. State, 560 So. 2d 1239, 1240 (Fla. 1st DCA 1990)(holding trial court is not required to conduct a full Nelson inquiry when conflict, not incompetency, is the basis for the motion to discharge).

Although the motion barely raised questions about Bruhn’s competence, we believe it would have been the better practice for the trial court to have conducted some inquiry into threshold Nelson matters.2 Nevertheless, we cannot ignore that Moore failed to renew his motion to discharge in the intervening six months before trial, and/or at any time before trial had ended. Accordingly, we must deem his objections as waived. See Kinzie v. State, 696 So. 2d 530 (Fla. 4th DCA), rev. denied, 705 So. 2d 9 (Fla.1997); Kott v. State, 518 So. 2d 957 (Fla. 1st DCA 1988).

As to the other issues raised in this appeal, we affirm as unpersuasive.

AFFIRMED.

FARMER, JJ., concurs.

WARNER, C.J., concurs specially with opinion.

. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

. In denying the motion, the court mistakenly believed that Moore wanted to make his own defense personally but yet have the assistance of counsel. In citing to State v. Tait, 387 So. 2d 338 (Fla.1980), and its progeny, the court was correct in holding that a defendant does not have a constitutional right to such hybrid representation. Id. at 339-40 (citations omitted). This issue, however, was not raised in Moore’s motion and, therefore, appears to have been irrelevant. We further note the judge who denied Moore's pro se motion to discharge was not the same judge who presided at trial.

Concurrence
WARNER, C.J.,

WARNER, C.J.,

concurring specially.

In my opinion allegations of conflict of interest and “irreconcilable differences,” without more, do not raise issues of competency. Therefore, no Nelson inquiry was necessary.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Jabez Boaz v. State, 135 So. 3d 506 (Fla. 5th DCA 2014)
    …rt heard the motion to withdraw the plea but did not conduct a Nelson hearing. We review a trial court’s conduct regarding a Nelson hearing for an abuse of discretion. Wilson v. State, 889 So. 2d 114, 117 (Fla. 4th DCA 2004) (citing Moore v. State, 778 So. 2d 1054, 1056 (Fla. 4th DCA 2001)). A trial court must conduct a Nelson hearing only when a defendant’s actions satisfy a three-prong test: “the defendant makes a ‘clear and unequivocal’ statement that he wishes to discharge appointed counsel, the discharg…
  • Bonet v. State, 937 So. 2d 209 (Fla. 3d DCA 2006)
    …nt to proceed. See Nelson v. State, 274 So. 2d 256, 258-259 (Fla. 4th DCA 1973).1 On the record before us, no [*211] abuse of discretion has been demonstrated. See Wilson v. State, 889 So. 2d 114, 117-118 (Fla. 4th DCA 2004), citing, Moore v. State, 778 So. 2d 1054, 1056 (Fla. 4th DCA 2001). Accordingly, the three direct criminal contempt convictions are reversed and remanded for proceedings mandated by Rule 3.830; Bonet’s convictions for aggravated stalking, violation of an injunction against domestic violen…
  • Martinez v. State, 785 So. 2d 702 (Fla. 3d DCA 2001)
    …IAM. Affirmed. See Marti v. State, 756 So. 2d 224 (Fla. 3d DCA 2000); Parker v. State, 570 So. 2d 1053 (Fla. 1st DCA 1990), review denied, 581 So. 2d 1309 (Fla.1991); Kott v. State, 518 So. 2d 957 (Fla. 1st DCA 1988). See generally Moore v. State, 778 So. 2d 1054 (Fla. 4th DCA 2001).…

Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (11 total)

View all 11 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw