Opinion
No. 83-1849.
March 28, 1985.
Appeal from the Circuit Court for Orange County, Ted. P. Coleman, J.
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a burglary and grand theft conviction.
Two issues are raised, both of which arise out of the trial court having granted appellant's trial attorney's motion to withdraw. Appellant's attorney was appointed to represent him and they could not get along together. Appellant lost an earlier trial for a different crime, with the same lawyer representing him. Apparently, the relationship disintegrated to the point that appellant threatened violence against his lawyer.
After the lawyer was allowed to withdraw appellant asked for another lawyer. The trial judge refused. Faced with representing himself at trial, appellant asked for a postponement in order to try to prepare. It is the failure to appoint a substitute lawyer and the failure to grant a continuance which are the points on appeal.
The constitution guarantees the right to counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But accused persons do not have the right to select their appointed lawyer. Harold v. State, 450 So.2d 910 (Fla. 5th DCA 1984); Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983); Wiltz v. State, 346 So.2d 1221 (Fla. 3d DCA 1977) cert. den. 358 So.2d 135 (Fla. 1978).
As was the case in Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981), the conduct of appellant here was at least a tacit rejection of appointed counsel. Once the trial judge allows the withdrawal of a lawyer that does not automatically mean the accused goes to trial with no lawyer. An inquiry to satisfy the requirements of Rule 3.111(d), Florida Rules of Criminal Procedure, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and Mitchell must be conducted. Here, it was not. Thus we must reverse and remand for trial with a lawyer.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr., J., concurs.
COWART, J., dissents with opinion.
Jackson well understood about jury trials and lawyers and the trial judge made it clear to him that if he rejected appointed counsel at the time, and in the manner he did, that he must represent himself. See Mansfield v. State, 430 So.2d 586 (Fla. 4th DCA 1983). Jackson was capable of making an intelligent and understandable choice and waived his constitutional right to counsel and effectuated his right to represent himself by rejecting his appointed counsel with full knowledge and understanding of his alternatives and the consequences. See Williams v. State, 427 So.2d 768, 770 (Fla. 2d DCA 1983). The trial court made an adequate inquiry. As to Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981) and Schafer v. State, 459 So.2d 1138 (Fla. 5th DCA 1984) see the dissent in Schafer. This case should be affirmed.