CHARLES D. COMBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2014-02-14
No. 2D12-3255
SILBERMAN and KELLY, JJ., Concur.
133 So. 3d 564 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 4 cases

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Synopsis

Charles Combs was convicted of two counts of robbery with a mask and sentenced to 30 years in prison. The court reversed because the trial judge failed to conduct a constitutionally required Faretta hearing after Combs unequivocally expressed his desire to represent himself, which constitutes per se reversible error.


Holding

The trial court committed per se reversible error by failing to conduct a Faretta hearing following Combs' unequivocal request to represent himself. The court must reverse and remand for a new trial. The trial court also erred in sustaining hearsay objections to the defendants' out-of-court statements regarding their intent to commit the robbery, as these statements fell within the state-of-mind hearsay exception and were relevant to Combs' defense.


Headnotes

[1] A trial court commits per se reversible error by failing to conduct a Faretta hearing after a defendant unequivocally requests to represent himself.

[2] An oral invocation of the right to self-representation is sufficient to trigger a Faretta inquiry if the request is unequivocal.

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Key Quotes

“Once a defendant unequivocally requests to represent himself, 'pursuant to Faretta and this Court's precedent, the trial court is obligated to hold a hearing to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.'”

Establishes the constitutional requirement for a Faretta hearing upon unequivocal request for self-representation

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Facts & Procedural History

On December 16, 2011, after the trial court denied Combs' motion to dismiss counsel, Combs clearly stated 'I'm notifying the court that I would like t…

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Opinion of the Court
BLACK, Judge.

BLACK, Judge.

Charles Combs was convicted of two counts of robbery with a mask. He was sentenced to concurrent terms of thirty *566years in prison as a prison releasee reof-fender. Because we conclude that the trial court failed to conduct a Faretta1 hearing following Combs’ unequivocal request to represent himself, we must reverse. Our resolution renders all but one of Combs’ remaining six issues moot.

On December 16, 2011, the trial court held a hearing to address Combs’ motion to dismiss counsel and to revisit his notice of intent to use reverse Williams2 rule evidence. Following the denial of the motion to dismiss counsel, the court advised Combs that the next step was to determine whether he wanted to represent himself. The court told Combs that he would need to file a Faretta motion if he wished to represent himself. The following exchange occurred thereafter:

Court: Your motion to dismiss [counsel] is denied.... A written order will be forthcoming [as to the Williams rule issue].
Combs: How do I do the Faretta hearing then, your honor?
Court: Sir, I’m not here to give you legal advice.
Combs: No, I’m saying I would like to have a—
Court: Okay.
Combs: I would like to have a Faretta— Court: What did I just say?
Combs: I’m notifying the court that I would like to represent myself.
Court: What did I just say? Were you listening?
Combs: Yes, I was listening, your hon- or.
Court: Okay. So if you were listening—
Combs: You said my next step would be to do a Faretta hearing.
Court: File a motion for a Faretta hearing.

Combs’ statement that he was “notifying the court” that he wished to represent himself was unequivocal. Once a defendant unequivocally requests to represent himself, “ ‘pursuant to Faretta and this Court’s precedent, the trial court is obligated to hold a hearing to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.’ ” Herron v. State, 113 So.3d 852, 854 (Fla. 2d DCA 2012) (quoting McCray v. State, 71 So.3d 848, 864 (Fla.2011)). “The ‘failure to take the preliminary step of holding a hearing on a defendant’s unequivocal pro se request results in per se reversible error.’ ” Id. (quoting McCray, 71 So.3d at 864); accord Wilson v. State, 76 So.3d 1085, 1088 (Fla. 2d DCA 2011). “ ‘[O]ur review is not amenable to a harmless error analysis,’ and we must reverse and remand for a new trial.” Id. (quoting Flournoy v. State, 47 So.3d 403, 403 (Fla. 2d DCA 2010)).

We note that contrary to the implied assertion of the trial court, a written motion to proceed pro se is not required. Oral invocations of the right to self-representation are sufficient to warrant a Faret-ta inquiry provided the request is unequivocal, as here. See Vollmer v. State, 101 So.3d 383, 384 (Fla. 2d DCA 2012); Hutchens v. State, 730 So.2d 825, 826 (Fla. 2d DCA 1999); Laramee v. State, 90 So.3d 341, 344 (Fla. 5th DCA 2012). And rather than require a written motion, “[i]f the trial court’s docket did not permit a contemporaneous Faretta inquiry, it should have scheduled the inquiry for a date certain before the scheduled trial date.” See Hutchens, 730 So.2d at 826. By failing to *567conduct a Faretta hearing, the court “sought to place the burden on the accused to renew his request at a later date” in violation of the defendant’s constitutional right. Id.

Because the issue may arise on retrial, we address the trial court’s error in sustaining the State’s hearsay objections to portions of Combs’ testimony.

The masked robbery with which Combs was charged was committed by two men. It appears undisputed, based upon police officers’ testimony, that one of the men was Dennis Kauffman. Two days after the robbery, Kauffman committed suicide.

Combs’ defense was that Kauffman and Anthony Foreman were responsible for the crime. Foreman had previously confessed to robbing the bank, detailing how he used items belonging to Combs as a disguise in the commission of the crime. Combs sought to introduce several out-of-court statements of Foreman and Kauff-man made just before the robbery to support his defense that Foreman and Kauff-man planned and committed the robbery together.

At a bench conference following the State’s repeated hearsay objections to Combs’ testimony, defense counsel argued that section 90.808(3), Florida Statutes (2011), permitted the statements to be introduced. He contended that Combs would testify as to conversations he had with Foreman and Kauffman prior to the robbery in which both men stated their intention to rob the bank. The court sustained the hearsay objections without elaboration.

Section 90.803(3)(a) is the then-existing state of mind hearsay exception. “A statement of the declarant’s then-existing state of mind ... including a statement of intent, plan, motive, [or] design ... when such evidence is offered to .... [p]rove or explain acts of subsequent conduct of the declarant,” is admissible. § 90.803(3)(a)(2). Relevancy is also a consideration in determining admissibility under the state of mind exception. Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.3b (2011 ed.). That is, “[t]he conduct that the declaration is offered to prove must be relevant to the issues in the case.” Id. And there must be “evidence demonstrating that the declarant acted in accord with the state of mind or intent.” Penalver v. State, 926 So.2d 1118, 1128 (Fla.2006).

With regard to Kauffman’s hearsay statements, “[t]he rule is quite generally recognized that the statements of a deceased person as to the purpose and destination of a trip or journey he is about to take are admissible.” See Bowen v. Keen, 154 Fla. 161, 17 So.2d 706, 711 (1944). Clearly, Kauffman’s alleged statements were relevant and supported by the fact that the robbery occurred. Foreman’s alleged statements were also admissible. Foreman’s inculpatory statements were relevant to Combs’ defense; Foreman’s confession was admitted into evidence. And again, the fact that the robbery occurred is sufficient evidence demonstrating that Foreman acted in accord with his stated intent. See Penalver, 926 So.2d at 1118. Further, although Foreman’s confession was admitted, so was his recantation. His credibility, as well as Combs’, was an issue before the jury. Foreman’s alleged statements would have been valuable to the defense. See Morris v. State, 487 So.2d 291, 292 (Fla.1986).

Based on the foregoing, we reverse and remand for a new trial.

SILBERMAN and KELLY, JJ., Concur.


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Citator

Cited By

  • Sigismondi v. State, 380 So. 3d 1208 (Fla. 2d DCA 2024)
    …hey involve the state of mind of the declarant and there is evidence demonstrating that the declarant acted in accord with the state of mind or intent." Penalver v. State, 926 So. 2d 1118, 1128 (Fla. 2006) (emphasis added); see also Combs v. State, 133 So. 3d 564, 567 (Fla. 2d DCA 2014) (following Penalver). The court found that, even under Sigismondi's own version of events, there was no evidence that Blow was acting according to a plan to attack Sigismondi. Sigismondi did testify that Blow punched him on…
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  • Joecephus Devin LaFLEUR v. State, 159 So. 3d 247 (Fla. 5th DCA 2015)
    …y-nilly leaping back and forth between the choices.”). EVANDER, BERGER and WALLIS, JJ., concur. . Although it was error for the trial court to require LaFleur to present his request for self-representation in writing, see, e.g., Combs v. State, 133 So. 3d 564, 566 (Fla. 2d DCA 2014), the error was harmless where LaFleur subsequently made his request in a written motion, and the trial court held a hearing on the motion.…

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