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Nelson v. State

District Court of Appeal of Florida, Fourth District
Mar 29, 1973
274 So. 2d 256 (Fla. Dist. Ct. App. 1973)

Summary

holding that if an indigent defendant expresses a desire to discharge court-appointed counsel due to counsel's alleged ineffectiveness, the court must hold a hearing to determine whether there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance

Summary of this case from Solano v. Sec'y, Dep't of Corr.

Opinion

No. 71-1008.

February 28, 1973. Rehearing Denied March 29, 1973.

Appeal from the Criminal Court of Record for Orange County, Warren H. Edwards, J.

Walter N. Colbath, Jr., Public Defender, and Carl V.M. Coffin, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., West Palm Beach, for appellee.


This is an appeal from an order of the Criminal Court of Record for Orange County, Florida, denying without an evidentiary hearing a motion to vacate a judgment and sentence filed by the defendant pursuant to Rule 3.850 CrPR, 33 F.S.A.

The appellant had been charged with the robbery of one Robert Fleming on 5 February 1970. Appellant pled not guilty. He was convicted by a jury and sentenced to 25 years in prison. On 6 April 1971 the appellant filed the motion to vacate. The motion alleged that although the appellant, an indigent, had court appointed counsel at the time of arraignment, he only saw counsel on one occasion. The motion avers that the appointed counsel was a personal friend of the robbery victim. Appointed counsel allegedly suggested that the appellant plead guilty. The motion further states that after appellant refused to plead guilty, appellant asked the trial judge prior to the commencement of trial to dismiss appointed counsel. The trial judge complied with the request to dismiss appointed counsel, but refused appellant's request to appoint a successor. As a consequence, the defendant was required to stand trial without the assistance of counsel.

The trial court's order on the motion to vacate indicates that the court in passing on the motion referred to certain notes of the court reporter which were made at the time the appellant moved the court to discharge his court appointed attorney. Apparently from these notes, which are not in the record before us, the trial judge made the following findings:

"1) That Defendant was not tried against his will without representation on November 10, 1970.

2) That Defendant was not sentenced against his will without representation on February 10, 1971.

3) That on the occasion of Defendant's trial on November 10, 1970 after being advised by the Trial Judge that he would have to proceed to trial without counsel if he persisted in his demand that court appointed counsel withdraw, Defendant did so persist and the trial proceeded.

4) That on the occasion of Defendant's being sentenced on February 10, 1971 his formerly court appointed counsel was present with the Defendant and did participate as counsel of record for Defendant in the sentencing procedure."

On these findings the trial judge denied the motion.

This appeal raises what seems to be a recurring issue — the procedure which the trial court should follow for the purpose of protecting an indigent's Sixth Amendment right to counsel in a criminal prosecution where before the commencement of the trial the Defendant moves to discharge appointed counsel. See Love v. State, 270 So.2d 408, 4 DCA, opinion filed December 12, 1972.

The right of an indigent to appointed counsel includes the right to effective representation by such counsel. Anders v. State, 1967, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493; Chalk v. Beto, 5 Cir. 1970, 429 F.2d 225. Although we are not able to formulate any verbal criteria that will define for all situations conduct which measures up to "effective assistance", it may be said with reasonable assurance that the delivery of effective assistance requires the attorney involved to make a reasonable investigation into the facts of the case and to acquaint himself with the law pertinent to the facts. In addition, effective counsel should be free of any influence or prejudice which might substantially impair his ability to render independent legal advice to his indigent client.

It follows from the foregoing that where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge. If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute. See Wilder v. State, Fla.App. 1963, 156 So.2d 395, 397. If the defendant continues to demand a dismissal of his court appointed counsel, the trial judge may in his discretion discharge counsel and require the defendant to proceed to trial without representation by court appointed counsel. See Cappetta v. State, Fla.App. 1967, 204 So.2d 913 for principles that should guide the court in the exercise of such discretion.

If the foregoing procedure is followed, the indigent's right to counsel will be protected and a sufficient record will be made to permit a prompt and accurate disposition of post conviction attacks on the judgment. In the present case, it appears from the record before us that the defendant's right to counsel was not adequately protected at the time he moved to discharge court appointed counsel. For that reason we are of the opinion that the motion to vacate should be granted. Accordingly, the order on the motion to vacate is quashed and the cause is remanded to the trial court with instructions to grant the motion to vacate and provide the defendant with a new trial as well as representation by court appointed counsel.

CROSS and OWEN, JJ., concur.


Summaries of

Nelson v. State

District Court of Appeal of Florida, Fourth District
Mar 29, 1973
274 So. 2d 256 (Fla. Dist. Ct. App. 1973)

holding that if an indigent defendant expresses a desire to discharge court-appointed counsel due to counsel's alleged ineffectiveness, the court must hold a hearing to determine whether there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance

Summary of this case from Solano v. Sec'y, Dep't of Corr.

holding that where a defendant, before commencement of the trial, requests discharge of his court-appointed counsel, the trial judge should make an inquiry of the defendant as to the reason for the request and, "[i]f incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant . . . but if no reasonable basis for such belief appears, trial judge should so state on record and advise defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute."

Summary of this case from Crumbley v. Crosby

holding that a motion to discharge counsel for incompetence requires that the Florida court inquire into the actual effectiveness of counsel

Summary of this case from Kimbrough v. McNesby

holding that if a defendant requests discharge of his court-appointed counsel prior to trial, the trial judge should make an inquiry of the defendant as to the reason for the request and, if incompetency of counsel is assigned as the reason, should make a sufficient inquiry of the defendant and his appointed counsel to determine whether there is cause to believe that counsel is not rendering effective assistance to the defendant

Summary of this case from Jones v. McDonough

holding that when a defendant raises a claim of ineffective assistance of counsel, the trial judge must conduct an inquiry into the claim

Summary of this case from Ault v. State

holding in relevant part that where a defendant asks to discharge his court appointed counsel based on incompetence of counsel, the trial court "should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant"

Summary of this case from Yzaguirre v. State

finding that, where a defendant, prior to trial, requests to discharge his court-appointed counsel, the trial court is required to conduct an inquiry to determine the reason for the request, and if the defendant alleges counsel is incompetent, to determine whether counsel is rendering effective assistance

Summary of this case from Stephens v. McNeil

recommending such an inquiry whenever a defendant makes it known that he or she desires to discharge appointed counsel

Summary of this case from Howell v. Sec'y, Fla. Dep't of Corr.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth District Court of Appeal held that if an indigent defendant expresses a desire to discharge court-appointed counsel because of counsel's ineffectiveness, the trial court must hold a hearing to determine whether there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant.

Summary of this case from Anderson v. Secretary, Fl. Dept. of Corrs.

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth District Court of Appeal held that if an indigent defendant expresses a desire to discharge court-appointed counsel because of counsel's ineffectiveness, the trial court must hold a hearing to determine whether there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant.

Summary of this case from Shaabazz v. Secretary, Florida Department of Corrections

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), the Fourth District Court of Appeal held that if an indigent defendant expresses a desire to discharge court-appointed counsel because of counsel's ineffectiveness, the trial court must hold a hearing to determine whether there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant.

Summary of this case from Shaabazz v. Sec'y, Fla. Dep't of Corr.

In Nelson, Florida's Fourth District Court of Appeal held that if an indigent defendant expresses a desire to discharge court-appointed counsel because of counsel's ineffectiveness, the trial court must hold a hearing to determine whether there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant.

Summary of this case from Johnson v. Sec'y, Fla. Dep't of Corr.

addressing the procedure that must be followed when a criminal defendant in Florida requests dismissal of his court-appointed counsel

Summary of this case from Tarleton v. Sec'y, Fla. Dep't of Corr.

requiring the trial judge to make certain inquiries when a defendant asks to discharge appointed counsel

Summary of this case from Rightmire v. Florida

setting forth requirements for a hearing when indigent defendants allege court-appointed lawyers are not rendering effective assistance

Summary of this case from Bodie v. Sec'y Fla. Dep't of Corr.

In Nelson v. State, 274 So.2d 256, 258 (Fla. 4th DCA 1973), Florida's Fourth District Court of Appeal set forth "the procedure which the trial court should follow for the purpose of protecting an indigent's Sixth Amendment right to counsel in a criminal prosecution where before the commencement of the trial the Defendant moves to discharge appointed counsel."

Summary of this case from Obando v. Jones

establishing the procedure a trial court must follow, consistent with an indigent's right to effective representation, when a defendant expresses a desire to discharge court appointed counsel because of counsel's alleged incompetency

Summary of this case from Malone v. Sec'y, Dep't of Corr.

In Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973), the court held that to protect an indigent defendant, if it appears that the defendant wishes to discharge his counsel, the trial court should make an inquiry as to the reason behind the request for discharge of counsel, and if incompetency of counsel is at issue, then inquiry should be made as to whether effective assistance is being rendered.

Summary of this case from Daniels v. Sec'y, DOC

establishing the procedures to be followed in Florida courts when a defendant seeks to discharge court-appointed counsel on grounds of ineffective assistance

Summary of this case from Ortiz v. Secretary, Department of Corrections

establishing the procedures to be followed in Florida courts when a defendant seeks to discharge court-appointed counsel on grounds of ineffective assistance

Summary of this case from Livingston v. Crosby

In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), approved by Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla. 1988), the court recognized that where a defendant wishes to discharge counsel, in order to protect the right of effective representation of counsel, a trial court should "make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant."

Summary of this case from Sheppard v. State

establishing procedure for handling complaint that appointed counsel is incompetent, adopted in Hardwick v. State, 521 So.2d 1071, 1075 (Fla. 1988)

Summary of this case from Gill v. State

In Nelson, the Fourth District held that "where a defendant, before the commencement of trial, makes it appear to the trial judge that he desires to discharge his court appointed counsel, the trial judge, in order to protect the indigent's right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge."

Summary of this case from Logan v. State

setting forth the procedure to be followed when an indigent defendant seeks to dismiss his court-appointed attorney

Summary of this case from Orndorff v. State

In Nelson, we held that when a criminal defendant voices displeasure with appointed counsel, a trial court is required to inquire whether there is a basis to believe counsel is ineffective, again, applying the Sixth Amendment.

Summary of this case from Erlandsson v. Erlandsson
Case details for

Nelson v. State

Case Details

Full title:WILLIAM ARTHUR NELSON, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Mar 29, 1973

Citations

274 So. 2d 256 (Fla. Dist. Ct. App. 1973)

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