LEROY JONATHAN TARVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leroy Tarver appeals his convictions for drug offenses and challenges the denial of his request to represent himself at sentencing. The court affirmed his convictions but reversed and remanded for resentencing because the trial court applied the wrong legal standard when denying his pro se request, confusing competence to represent oneself with competence to waive counsel.
The trial court erred by applying the wrong standard. The correct standard is whether a defendant is competent to waive his right to counsel, not whether he is competent to represent himself. Because the record shows the trial court applied the wrong standard, reversal and remand for a new sentencing hearing is required.
[1] A trial court must determine whether a defendant is competent to waive the right to counsel, not whether the defendant is competent to represent himself.
[2] A defendant's decision to represent himself must be made knowingly and intelligently.
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Join FLexlaw to unlock all legal intelligence“The standard is whether a defendant is competent to waive his right to counsel, not whether he is competent to represent himself.”
Establishes the correct legal standard for evaluating pro se requests that the trial court failed to apply.
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Join FLexlaw to unlock all legal intelligenceTarver was convicted by jury of sale of cocaine within a thousand feet of a church, possession of cocaine, sale of cannabis within a thousand feet of …
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Leroy Jonathan Tarver appeals his convictions and sentences following a jury trial. Tarver raises two issues on appeal. We affirm his convictions and the second *912issue without further comment; however because the trial court applied the wrong standard when it denied Tarver’s request to proceed to the sentencing hearing pro se, we reverse and remand for the trial court to vacate Tarver’s sentences and to conduct another sentencing hearing.
Tarver filed two motions for a Nelson1 hearing prior to trial. Both motions were heard and the trial court ultimately determined that counsel’s performance was satisfactory. Tarver proceeded to trial with the assistance of counsel. The jury convicted Tarver of sale of cocaine within a thousand feet of a church, possession of cocaine, sale of cannabis within a thousand feet of a church, and possession of marijuana. After trial but before sentencing, Tarver filed a third motion for a Nelson hearing alleging that trial counsel was incompetent, had a conflict of interest, and was not adequately representing him. The trial court held a hearing and again denied Tarver’s request for new counsel. Tarver then asked to proceed pro se to sentencing. The trial court conducted a Faretta2 inquiry, and ultimately denied Tarver’s request to proceed pro se because it found that he was incompetent to represent himself. Tarver remained represented by counsel at his sentencing hearing.
“Faretta requires that a defendant’s decision to represent himself be made knowingly, intelligently, and in such a manner that ‘the record will establish that he knows what he is doing and his choice is made with eyes open.’ ” Gillyard v. State, 704 So.2d 165, 166 (Fla. 2d DCA 1997) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). “Reversal is required where a defendant unequivocally requests to represent himself and the trial court denies the request without determining — after conducting a proper Faretta inquiry — that the choice of self-representation was not made knowingly and intelligently.” Goldsmith v. State, 937 So.2d 1253, 1256-57 (Fla. 2d DCA 2006). The standard is whether a defendant is competent to waive his right to counsel, not whether he is competent to represent himself. Fleck v. State, 956 So.2d 548, 549 (Fla. 2d DCA 2007); see also Eggleston v. State, 812 So.2d 524, 525 (Fla. 2d DCA 2002) (“A criminal defendant who is competent to choose self-representation may not be denied that choice, even though the decision for self-representation will most certainly result in incompetent trial counsel.”). There is no harmless error analysis available for this error. Eggleston, 812 So.2d at 525.
The transcripts of the pre-senteneing hearing suggest that the trial court found Tarver to be competent; however the court ultimately denied Tarver’s request because he “d[idn’t] have the minimum capability to adequately represent [him]self.” Because it is clear from the record on appeal that the trial court applied the wrong standard, we reverse and remand for the court to vacate Tarver’s sentence and conduct another sentencing hearing. If Tarver again seeks to waive his right to counsel, the court should conduct another Faretta inquiry and determine whether Tarver is competent to waive his right to counsel. If it finds that he is, Tarver should be allowed to represent himself at the sentencing hearing.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and WALLACE, JJ„ Concur.
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Cravelyn Hooker v. State, 152 So. 3d 799 (Fla. 4th DCA 2014)…. 4th DCA 2003) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525). The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation. See id. at 681; Tarver v. State, 145 So. 3d 911, 912 (Fla. 2d DCA 2014). “Under Faretta, ‘[t]he test is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to • represent himself.’ ” Smith v. State, 956 So. 2d 1288, 1289 (Fla. 4…
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EIB v. State, 191 So. 3d 977 (Fla. 2d DCA 2016)…ciated with self-representation.” Goldsmith v. State, 937. So. 2d 1253, 1256 (Fla. 2d DCA 2006). The failure to hold a proper Faretta hearing at a critical stage of the proceedings is reversible error. See Tennis, 997 So. 2d at 379; Tarver v. State, 145 So. 3d 911, 912 (Fla. 2d DCA 2014); Goldsmith, 937 So. 2d at 1256. Sentencing is a critical stage of the proceedings. See Cuyler v. State, 131 So. 3d 827, 828 (Fla. 1st DCA 2014). Consequently, because the trial court failed to [*980] conduct a proper Faretta…
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Wilson v. State, 259 So. 3d 941 (Fla. 3d DCA 2018)…warnings, Wilson continued to affirmatively insist on representing himself. The likelihood that a defendant would incompetently represent himself is not a valid reason to deny his unequivocal request for self-representation. See Tarver v. State, 145 So. 3d 911, 912 (Fla. 2d DCA 2014); McKinney v. State, 850 So. 2d 680, 681 (Fla. 4th DCA 2003) (quoting Faretta, 422 U.S. at 835). Further, when a defendant waives his right to appointed counsel, rule 3.111(d)(5) requires a court to renew its offer of assi…
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)
- Bowden v. State, 937 So. 2d 1253 (Fla. 5th DCA 2006)
- Gillyard v. State, 704 So. 2d 165 (Fla. 2d DCA 1997)
- Myrick Eggleston v. State, 812 So. 2d 524 (Fla. 2d DCA 2002)
- Nixon v. State, 956 So. 2d 548 (Fla. 1st DCA 2007)
- Fleck v. State, 956 So. 2d 548 (Fla. 2d DCA 2007)