Filed: Jul. 13, 2018
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHRISTOPHER DELANE DANIELS, ) ) Appellant, ) ) v. ) Case No. 2D16-4840 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed July 13, 2018. Appeal from the Circuit Court for Sarasota County; Thomas Krug, Judge. Howard L. Dimmig, II, Public Defender, and Karen Kinney, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahasse
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHRISTOPHER DELANE DANIELS, ) ) Appellant, ) ) v. ) Case No. 2D16-4840 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed July 13, 2018. Appeal from the Circuit Court for Sarasota County; Thomas Krug, Judge. Howard L. Dimmig, II, Public Defender, and Karen Kinney, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CHRISTOPHER DELANE DANIELS, )
)
Appellant, )
)
v. ) Case No. 2D16-4840
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed July 13, 2018.
Appeal from the Circuit Court for Sarasota
County; Thomas Krug, Judge.
Howard L. Dimmig, II, Public Defender, and
Karen Kinney, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.
VILLANTI, Judge.
Christopher DeLane Daniels seeks review of his convictions and
sentences for three counts of sale or delivery of cocaine within 1000 feet of a park,
raising a single issue concerning the trial court's failure to conduct a Nelson1 hearing in
response to Daniels' pro se motion entitled "Petition for Nelson Hearing." Because the
trial court erred by not conducting a preliminary inquiry into the basis for Daniels'
petition, we reverse and remand for further proceedings.
The law concerning the need for a hearing when a defendant seeks to
discharge appointed counsel is clear.
In Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA
1973), the court set forth a procedure for handling a request
to discharge court-appointed counsel. Maxwell v. State, 892
So. 2d 1100, 1102 (Fla. 2d DCA 2004).
The first step in the procedure is the
preliminary Nelson inquiry in which the court
ascertains whether the defendant
unequivocally requests court-appointed
counsel's discharge and the court asks the
reason for the request. The answer to the
preliminary inquiry determines the next steps.
If a reason for the request is court-appointed
counsel's incompetence, then the court must
further inquire of the defendant and his counsel
to determine if there is reasonable cause to
believe that court-appointed counsel is not
rendering effective assistance and, if so,
appoint substitute counsel. If the reasons for
the request do not indicate ineffective
assistance of counsel, then no further inquiry is
required.
Id. (citations omitted). If there is no need for further inquiry
or after such inquiry the court determines there is not
reasonable cause to determine that counsel is ineffective,
then the court must inform the defendant he or she is not
entitled to substitute court-appointed counsel and will have
to exercise his or her right to self-representation. Id. Before
the court may allow a defendant to represent himself or
herself, it must conduct a Faretta inquiry to determine that
1Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
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the defendant's waiver of the right to court-appointed
counsel is knowing and intelligent. Id.
The preliminary Nelson inquiry is a critical step in the
procedure for handling a request to discharge counsel.
Maxwell, 892 So. 2d at 1102. "Depending on the answer to
the preliminary Nelson inquiry, a complex, multi-faceted
combined Nelson and Faretta hearing could ensue, or the
inquiry could end there." Id. The failure to conduct this
preliminary inquiry in response to a defendant's request to
discharge court-appointed counsel is a structural defect that
requires reversal as per se error. Id. at 1103. Simply put,
the trial court may not remove the possibility of discharging
court-appointed counsel for incompetence without giving the
defendant a chance to be heard on the issue. Id.
Mansfield v. State,
227 So. 3d 704, 708 (Fla. 2d DCA 2017) (emphasis added). While
"a Nelson hearing [may be] unwarranted where a defendant presents general
complaints about defense counsel's trial strategy and no formal allegations of
incompetence have been made," Morrison v. State,
818 So. 2d 432, 440 (Fla. 2002),
the need for a preliminary Nelson inquiry arises "when a defendant complains about his
appointed attorney, or it may come up when a defendant asks to dismiss his appointed
counsel," Jones v. State,
74 So. 3d 149, 151 (Fla. 2d DCA 2011). "In either case, the
court must conduct a preliminary inquiry into the reasons for the defendant's
dissatisfaction,"
id. (citing Nash v. State,
53 So. 3d 1208, 1211 (Fla. 2d DCA 2011)),
and the defendant has the right to be heard on the issue, see
Mansfield, 227 So. 3d at
708 (citing Maxwell v. State,
892 So. 2d 1100, 1102 (Fla. 2d DCA 2004)). Moreover,
even when the defendant files a written motion that implicates Nelson, the court may not
rely solely on the written motion but instead is obligated to inquire of the defendant
whether he wishes to discharge appointed counsel and exercise his right to self-
representation. See Jackson v. State,
33 So. 3d 833, 836 (Fla. 2d DCA 2010);
Montgomery v. State,
1 So. 3d 1228, 1230 (Fla. 2d DCA 2009). The court's failure to do
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so constitutes a structural defect that requires reversal as per se error. See Maxwell,
892 So. 2d at 1103; Boaz v. State,
135 So. 3d 506, 508 (Fla. 5th DCA 2014).
Here, Daniels filed a petition asking specifically for a Nelson hearing and
asserting that appointed counsel had violated Daniels' due process rights by agreeing to
an early trial date for which counsel would not be prepared. Once it reviewed that
petition, rather than denying it without a hearing, the trial court should have convened a
preliminary Nelson inquiry to allow Daniels to be heard concerning whether he was
unequivocally requesting that his court-appointed counsel be discharged and to
ascertain all the reasons for the request. Because Daniels' petition was at least
minimally sufficient on its face, the trial court's failure to conduct the preliminary Nelson
inquiry requires reversal.
Moreover, contrary to the State's assertion here, the error was not
rendered harmless by the trial court appointing stand-by counsel for Daniels. As this
court has stated, "while the failure to conduct an adequate Nelson inquiry is subject to
an abuse of discretion standard and, presumably, a harmless error analysis, the failure
to conduct any inquiry is per se error." Jackson, 33 So. 3d at 836. Therefore, because
there was a complete absence of any inquiry into the legitimacy of Daniels' complaints
about his attorney, the error was not harmless.
Reversed and remanded for further proceedings.
KELLY and LUCAS, JJ., Concur.
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