Opinion
No. 1D99-1818.
Opinion filed December 29, 2000.
An appeal from the Circuit Court for Alachua County. Larry G. Turner, Judge.
Reversed and Remanded for further consistent proceedings.
Nancy A. Daniels, Public Defender, G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, Bart Schneider, Assistant Attorney General, Tallahassee, for Appellee.
This is an appeal from the denial of Curtis Williams' motion to discharge his court-appointed attorney on the ground of incompetence. We agree that the lower court erred in denying the motion without conducting a proper inquiry under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and, accordingly, we vacate the judgment of guilt and sentence and remand the case for representation by different counsel and new trial.
Williams filed a motion to discharge his assistant public defender and to appoint another attorney to assist him, alleging dissatisfaction with counsel's performance based upon her failure to contact him, her attempt to coerce him into entering a plea, and her ineffectiveness in representing him in a previous trial, which resulted in his receiving a 10-year sentence. The trial court declined to appoint another attorney, but, apparently treating the motion as one seeking self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975), permitted appellant to represent himself. Williams thereafter appeared pro se before the court to schedule a hearing on a motion to suppress, and when he informed the court that he needed assistance of counsel, the court reappointed the public defender, and appellant was later assigned the same assistant of whom he had earlier complained. On February 9, 1999, eight days before trial, Williams filed a pro se motion for rehearing of the order denying the motion to suppress, in which he again criticized his counsel's competency in handling the suppression hearing. On February 11, appellant filed in open court a renewed motion to disqualify his attorney on the ground of incompetency. On the following day, without addressing appellant's motion to disqualify, the court ordered that all of these motions be struck for the reason that Williams was represented by counsel and thus he was precluded from representing himself. Subsequently, Williams proceeded to jury trial with counsel and was found guilty as charged, and thereafter was sentenced as a habitual offender.
The state defends the trial court's refusal to appoint different counsel partly on the ground that Williams went to trial with the same lawyer whom he had sought to have discharged, yet made no further attempt to dismiss his attorney or seek self-representation. Consequently, the failure of the court to conduct a Nelson inquiry was harmless under Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988). We cannot agree that Kott controls the facts in the case at bar.
Kott appears to support the theory that a defendant who fails to renew a motion to dismiss his or her appointed attorney at trial is deemed to have abandoned the motion. The facts in Kott, however, reveal that on the day of trial the court acknowledged receipt of the motion and then asked the defendant if he had anything to add to his allegations, and the defendant responded in the negative. Thus, although given an opportunity at a hearing to present evidence in support of his motion to dismiss, the defendant offered nothing. Id. at 958. Compare the facts in Kott with those at bar. At the first hearing on the motion to discharge, although Williams vigorously asserted his counsel's lack of competency, the court never addressed any of his Nelson ineffectiveness complaints. The court instead focused almost entirely on his alleged claims of conflict of interest. And, although appellant thereafter made numerous additional allegations regarding his attorney's deficiencies, the court declined to entertain any of them, because he was already represented by an assistant public defender; hence, Williams was given no further opportunity, as was the defendant in Kott, to support his charges of lawyer incompetence.
A Nelson inquiry is not required for conflict-of-interest claims.See Kearse v. State, 605 So.2d 534, 536 (Fla. 1st DCA 1992).
Thus, contrary to the state's argument that the court below did not abuse its discretion in denying the Nelson motion, the lower court failed to exercise its discretion at all because it never ruled on the merits of the motion. Compare the facts in Kearse v. State, 605 So.2d 534 (Fla. 1st DCA 1992), with those before us. One month before trial, Kearse filed his first discharge motion, which was cursorily denied. One week before trial, the defendant filed a pro se motion for dismissal of the information on the ground of entrapment. During the hearing on the motion, the defendant expressed dissatisfaction with his attorney's services and asked leave of court to proceed pro se on the motion to dismiss. The court denied his motion, because his counsel had not adopted it. Id. at 536. In Kearse, as here, the trial court failed to make any rulings as to the sufficiency of the defendant's ineffectiveness claims. Because of the court's failure to conduct a proper Nelson hearing, this court held the lower court had abused its discretion in denying the motion. Id. at 537. In reaching its decision, the court inKearse reiterated the rule that a trial court abuses its discretion if it fails to provide the defendant with the opportunity to explain why he or she objects to counsel or fails to conduct the above inquiries. Id. at 536 (and citations therein). Significantly, the court said nothing inKearse, as it had in Kott, about the defendant later going to trial with his attorney without raising any additional complaint regarding the lawyer's representation.
In our judgment, the decisions in Kott and Kearse may be reconciled on their separate facts. Kott in effect states that when a defendant is afforded the opportunity at trial to present evidence supporting a motion to dismiss a court-appointed attorney and does not furnish such evidence, the motion is deemed to have been abandoned. Kearse, on the other hand, states that when a defendant's motions for disqualification are repeatedly denied without any examination, most recently on the eve of trial, the pro se defendant has done all that the law reasonably requires and there is no necessity to renew such a motion at trial. Under such circumstances, the court abuses its discretion by failing to conduct a proper Nelson inquiry.
Padovano, J., Concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
Lawrence, J., Dissents with opinion.
I respectfully dissent from the majority opinion reversing Williams' judgment and sentence because, in my view, our decision in Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988), is controlling. It is undisputed in the instant case that Williams proceeded to trial with his appointed counsel and had no complaints at trial or at sentencing about his attorney's performance. Furthermore, there is nothing in the record to suggest that Williams did not receive an adequate defense. This court stated the following in its decision in Kott:
The most important circumstance militating in favor of affirmance . . . is the fact that the appellant proceeded to trial with his court-appointed counsel, and made no additional attempt to dismiss counsel or request self-representation. Similarly, there is no evidence in the record of any conflict or lack of communication during the trial between appellant and his attorney that would support a finding that the appellant did not receive an adequate defense. Thus, based on the record at bar, we conclude that the trial court's failure to conduct a more extensive inquiry regarding the merits of the motion to discharge did not violate the appellant's Sixth Amendment right to effective assistance of counsel, and was at most harmless only.
Kott, 518 So.2d at 958. Based on the clear language in Kott, the trial court's failure to conduct an adequate Nelson inquiry was at most harmless error.
Moreover, as in the instant case, the defendant in Kott, while filing a motion to dismiss his court-appointed counsel, did not express a desire to appear pro se. Id. at 959. This court said:
The case on review is distinguishable from Parker v. State, 423 So.2d 553 (Fla. 1st DCA 1982), and Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), relied upon by appellant. In Nelson, after the defendant had requested the dismissal of appointed counsel, the motion was granted without inquiry, and the defendant was required to proceed to trial without the assistance of counsel. In Parker, the defendant made a request to dismiss counsel "for the reason that defendant desires to represent himself," but the trial court summarily dismissed the motion. Both of the above cases implicated more serious Sixth Amendment concerns than the case at bar: Nelson was given no choice other than self-representation, without any inquiry regarding his ability to defend himself, and Parker, who desired to represent himself, was never given a chance to exercise that right. The appellant at bar, however, did not request to proceed pro se, nor was he forced to do so. Instead, after denial of his motion, he accepted court-appointed counsel without any allegation of additional conflict or dissatisfaction.
Id. at 958-59.
The defendant in Kearse expressed a desire to proceed to trial pro se. By failing to entertain Kearse's motion to dismiss his court-appointed counsel, the trial court effectively denied Kearse's right to self-representation. Kearse, 605 So.2d at 536. Thus, the factual situation in Kearse is distinguishable from the instant case and fromKott.
On the merits, Williams' allegations offer further support that the trial court's failure to conduct an adequate Nelson inquiry was harmless error. Williams alleged that his court-appointed attorney failed to contact him for ninety-three days. An attorney's lack of communication with a client does not in and of itself support a claim of ineffectiveness. See Lee v. State, 641 So.2d 164 (Fla. 1st DCA 1994). Williams also alleged that his attorney attempted to coerce him into entering a plea. However, Williams did not enter into a plea, and thus there could be no prejudice resulting from the alleged attempted coercion. Williams further argued that his counsel was ineffective in representing him in a previous trial. Williams had the opportunity to challenge his counsel's performance in the prior trial by way of Florida Rule of Criminal Procedure 3.850, and either chose not to exercise it, or his claims were found to have been without merit.
Accordingly, I would affirm the judgment and sentence entered by the trial court.