TORRES v. STATE

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Docket Number

No. 2D08-3861.

Attorney(S)

James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

Judges

Morris Silberman

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Smart Summary

Factual and Procedural Background

Alison Torres was convicted of fleeing or attempting to elude with wanton disregard, willful and wanton reckless driving causing damage, and resisting or obstructing an officer without violence. Prior to trial, Torres filed a motion to discharge his court-appointed counsel, Assistant Public Defender Smith, alleging ineffective assistance of counsel based on Smith's failure to obtain transcripts or call an exculpatory witness, failure to obtain an expert witness regarding Torres' physical condition, and failure to adequately communicate or file a requested motion to suppress. On the day of trial, Torres informed the court of a conflict of interest with Smith and requested a new attorney. The trial court denied this request without conducting a proper inquiry into the basis of the conflict or ineffective assistance claims and instead proceeded with a Faretta inquiry regarding Torres' desire to represent himself. Ultimately, Torres agreed to proceed to trial with Smith as counsel. Torres appealed, asserting that the trial court erred by failing to conduct the required preliminary inquiry into his request to discharge counsel.

Legal Issues Presented

Whether the trial court erred by failing to conduct a preliminary Nelson inquiry when Torres unequivocally requested discharge of court-appointed counsel due to alleged ineffective assistance.
Whether the trial court’s failure to conduct a Nelson inquiry constitutes per se reversible error that precludes application of a harmless error test.
Whether proceeding directly to a Faretta inquiry without first addressing the request to discharge counsel was proper.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Faretta v. California, 422 U.S. 806 (1975)	Defendant's right to self-representation and the requirement for a court to conduct a Faretta inquiry to ensure the waiver of counsel is knowing and intelligent.	The court held that a Faretta inquiry is required if a defendant chooses to represent himself after deciding to discharge counsel.
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973)	Procedure for addressing a defendant's unequivocal request to discharge court-appointed counsel, including the necessity of a preliminary inquiry into the reasons for the request.	The court reaffirmed that a preliminary Nelson inquiry must be conducted before denying a defendant's request to discharge counsel.
Hardwick v. State, 521 So.2d 1071 (Fla. 1988)	Endorsement of the Nelson procedure and requirement to ascertain the defendant’s reasons for requesting new counsel.	Supported the procedural framework requiring a preliminary inquiry into the defendant’s request to discharge counsel.
Jackson v. State, 33 So.3d 833 (Fla. 2d DCA 2010)	Standard of review for adequacy of Nelson inquiry and the per se error rule for failure to conduct any preliminary inquiry.	The court applied the per se error rule, holding that failure to conduct a Nelson inquiry is reversible error without a harmless error analysis.
Milkey v. State, 16 So.3d 172 (Fla. 2d DCA 2009)	Requirement to conduct a preliminary inquiry when defendant alleges ineffective assistance as reason for discharge of counsel.	The court found the facts analogous and followed Milkey to conclude the trial court erred by failing to conduct a preliminary inquiry.
Maxwell v. State, 892 So.2d 1100 (Fla. 2d DCA 2004)	Clarification of the steps following a defendant’s request to discharge counsel, including informing the defendant about self-representation rights and conducting a Faretta inquiry.	Guided the court’s understanding of procedural requirements after a request to discharge counsel is made.
Nesmith v. State, 6 So.3d 93 (Fla. 1st DCA 2009)	Holding that proceeding directly to a Faretta hearing without a preliminary Nelson inquiry is error.	Supported the court’s conclusion that bypassing the Nelson inquiry was improper.
Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA 1995)	Distinguishing cases where defendant fails to articulate reasons beyond generalized complaints for discharge of counsel.	The court distinguished this case from Augsberger because Torres provided specific claims of ineffective assistance.
Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988)	Similar to Augsberger, regarding insufficient grounds for discharge of counsel.	Distinguished on the basis that Torres alleged specific ineffective assistance claims.
Jones v. State, 658 So.2d 122 (Fla. 2d DCA 1995)	Emphasizing the importance of strict adherence to Nelson and Faretta procedures despite the trial court’s potential frustration.	Reinforced the necessity of conducting the required inquiries to avoid reversal and judicial inefficiency.

Court's Reasoning and Analysis

The court analyzed the procedural requirements established by Florida precedent for handling a defendant's request to discharge court-appointed counsel. It emphasized that when a defendant makes an unequivocal request to discharge counsel based on ineffective assistance, the trial court must conduct a preliminary Nelson inquiry to determine whether there is reasonable cause to believe counsel is not providing effective assistance. Only if the court finds no reasonable cause may it deny the request and inform the defendant of the right to self-representation, triggering a Faretta inquiry.

In Torres' case, the trial court bypassed the Nelson inquiry entirely, immediately denying the request for substitute counsel and moving to a Faretta inquiry. Torres was not allowed to fully articulate his specific claims of ineffective assistance. The court found this to be a clear procedural error analogous to the situation in Milkey, where failure to conduct a preliminary inquiry was held to be per se reversible error. The court rejected the State’s argument that Torres’ complaints were merely generalized, noting that Torres presented specific claims which the trial court refused to consider.

The court acknowledged the difficulties trial courts face when defendants are obstreperous or make last-minute requests but stressed the mandatory nature of the procedural safeguards. The failure to conduct the preliminary Nelson inquiry was deemed a violation of these safeguards and constituted reversible error without the possibility of harmless error review.

Holding and Implications

The court reversed the judgment and sentence and remanded the case for a new trial.

The direct effect of this decision is that Torres is entitled to a new trial due to the trial court's procedural error in failing to conduct the required preliminary inquiry into his request to discharge counsel. The court did not set new precedent but reaffirmed the strict procedural requirements for handling such requests and the per se reversible nature of failing to conduct a Nelson inquiry.

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Alison TORRES, Appellant, v. STATE of Florida, Appellee.

SILBERMAN, Judge.

Alison Torres seeks review of his judgment and sentence for fleeing or attempting to elude with wanton disregard, willful and wanton reckless driving causing damage, and resisting or obstructing an officer without violence. We reverse and remand for a new trial because the trial court erred in addressing Torres' request to discharge court-appointed counsel.

Prior to trial Torres had filed a motion to discharge Assistant Public Defender Smith in which Torres alleged that attorney Smith was providing ineffective assistance because he failed to (1) obtain transcripts or call a witness with exculpatory evidence, (2) obtain an expert witness to explore Torres' physical condition, and (3) adequately communicate with Torres or file a motion to suppress as requested. On the day of trial, attorney Smith informed the court that there was a problem between him and Torres. When Torres was brought out, he told the court that he had a conflict of interest with attorney Smith and that he had filed a motion for postconviction relief alleging the ineffective assistance of counsel. Torres asserted that he wanted a new attorney appointed. Instead of inquiring as to the basis for the alleged conflict of interest, the court immediately responded, "You're not entitled to another lawyer."

At that point, attorney Smith informed the court that Torres' postconviction motion was actually filed against another public defender in his office. When Torres began to explain the basis for the motion, the court interrupted and again stated, "You're not entitled to another lawyer." In response, Torres stated that he did not want to proceed with the public defender. The court asked if he wanted to represent himself, and Torres said he did but then started to argue some of the points in his motion to discharge counsel and his motion for postconviction relief.

The court responded by beginning a Faretta inquiry. When Torres tried to interrupt, the court cut him off and stated, "This is a Faretta inquiry, sir. We're doing it right now. Now, if you want to represent yourself, you have every right to do so, as foolish as that is." Ever persistent, Torres repeatedly attempted to explain that he was dissatisfied with attorney Smith's assistance. While Torres was able to make some abbreviated argument, the court repeatedly cut him off by either resuming the Faretta inquiry or telling Torres he was not entitled to substitute counsel. Court then recessed so Torres could change into a suit for trial.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

When court resumed, the bailiff informed the court that Torres told him attorney Smith was "making faces at him." Counsel denied the assertions. Attorney Smith also informed the court that Torres refused to give him his suit size. When Torres was brought in, the court asked if he was still representing himself. Torres replied by asserting that attorney Smith had been making faces at him and "calling me all like this." Torres said, "I do not want him in my trial, period." The court then resumed its Faretta inquiry.

Torres again interrupted the inquiry to assert that he had a conflict with attorney Smith and requested a substitute attorney. The court unequivocally informed Torres that he was not getting another attorney and completed the Faretta inquiry. When it became clear to Torres that the trial was going to proceed without the court appointing substitute counsel, Torres agreed to go to trial represented by attorney Smith.

The supreme court has adopted the procedure outlined by the Fourth District in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for addressing a criminal defendant's request to discharge court-appointed counsel. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla. 1988). Preliminarily, the court must determine whether the defendant's request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request. Jackson v. State, 33 So.3d 833, 835 (Fla. 2d DCA 2010). If the request is unequivocal and the defendant asserts counsel's ineffective assistance as the reason for the request, the court must conduct an inquiry "`to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel.'" Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009) (quoting Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004)). If the court determines there is no such reasonable cause, then it need not pursue further inquiry. If the defendant pursues his request to discharge counsel, the court must inform him he is not entitled to court-appointed substitute counsel and that he must represent himself. Id. If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel. Maxwell, 892 So.2d at 1102.

This court reviews whether a trial court conducted an adequate Nelson inquiry for an abuse of discretion. Jackson, 33 So.3d at 836; Milkey, 16 So.3d at 174. Generally, the trial court's ruling may also be reviewed to determine whether the error was harmless. Jackson, 33 So.3d at 836. However, a court's failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply. Jackson, 33 So.3d at 835, 836; Milkey, 16 So.3d at 174.

The facts of this case are analogous to those in Milkey. In Milkey, the defendant appeared for his revocation of probation hearing and informed the court that he was "not really happy" with defense counsel. 16 So.3d at 173. The court responded, "You can represent yourself if you wish." Counsel explained that another attorney was representing the defendant on the new law charges. The court cut counsel off and addressed the defendant, stating, "She's not here. You can have [defense counsel] or you can represent yourself. What are we doing? Are we going to have a hearing?" Whereupon, the defendant proceeded with defense counsel and was found in violation of probation.

On appeal, this court concluded that the trial court effectively refused to conduct a preliminary Nelson inquiry and reversed. Id. at 177-78. We explained as follows:

Upon hearing that Milkey was "not really happy" with counsel, the court should have allowed him to finish his sentence to determine the basis of his dissatisfaction and whether some type of Nelson inquiry was necessary. The trial court should have given Milkey the opportunity to have his desire to discharge counsel "come to light." Based upon the options given to Milkey by the trial court-discharging his counsel and representing himself or proceeding with current counsel-it is apparent that the trial court understood Milkey's statement as an effort to discharge counsel. Even though Milkey might not have ultimately been entitled to a full Nelson/Faretta hearing, the trial court should have further inquired to determine whether he, in fact, wished to discharge counsel and the basis for his request. . . . On the record before us, the trial court was not permitted to assume that Milkey's dissatisfaction was not based on counsel's incompetency or that a Nelson hearing, if conducted, would dispel any notion of counsel's incompetency.

Id. at 176 (citations omitted); See also Nesmith v. State, 6 So.3d 93, 94-95 (Fla. 1st DCA 2009) (holding that court erred in failing to conduct a preliminary Nelson inquiry but instead proceeding straight to a Faretta hearing when the defendant asked for substitute counsel).

In this case, as in Milkey, it is clear that the trial court understood that Torres wished to discharge counsel. Additionally, as in Milkey, the court responded to Torres' complaint about counsel by informing Torres that he could represent himself but that he was not getting substitute counsel. As in Nesmith, the court then proceeded into a Faretta inquiry while bypassing the Nelson inquiry. Although Torres was able to articulate one of the bases for his alleged conflict with counsel, he was able to only briefly mention a second basis and he did not get to address the third basis at all. Instead, the court steadfastly refused to allow Torres to explain the bases for his motion to discharge counsel. While it is possible that Torres' claims would not have warranted a full Nelson inquiry, the record does not clearly establish this fact. Instead, the trial court improperly assumed that Torres' dissatisfaction with counsel was not based on counsel's incompetency or that a Nelson hearing, if conducted, would have dispelled any notion of counsel's incompetency.

Contrary to the State's assertions, this is not a case in which the court conducted a preliminary Nelson inquiry but the defendant was unable to articulate a reason beyond generalized complaints that failed to allege ineffective assistance. Cf. Augsberger v. State, 655 So.2d 1202 (Fla. 2d DCA 1995); Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988). It is clear from the transcript that Torres would have liked the opportunity to explain the bases for his assertions that counsel was ineffective, but the court refused to allow him to do so. Furthermore, the allegations in Torres' motion to discharge counsel were more than generalized complaints about trial preparation or strategy or a general loss of confidence in defense counsel. Instead, Torres had set forth specific claims of ineffective assistance of counsel that the court refused to hear or consider.

It is apparent that Torres was being obstinate and difficult, but the court was still required to conduct a preliminary Nelson inquiry. As this court has explained:

We recognize the burden placed on a trial court by Nelson and Faretta when confronted by a defendant, who is often obstreperous, claiming ineffective assistance of court-appointed counsel. We realize that the procedures mandated by these cases will often involve a tedious and time-consuming process designed to test the frustration and patience level of the most able trial judge, especially when the request for discharge comes on the day of trial and a jury venire of inconvenienced citizens is impatiently waiting in the courthouse for the jury selection process to begin. We must emphasize, however, the importance of strict adherence to these requirements and the real potential for reversal should they not be followed, thereby resulting in a needless expenditure of judicial resources.

Jones v. State, 658 So.2d 122, 126 (Fla. 2d DCA 1995).

Thus, the trial court erroneously failed to conduct a preliminary Nelson inquiry in this case. Furthermore, this failure is per se error which precludes the application of a harmless error test. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.