Bowden v. State

150 So. 3d 264, 2014 Fla. App. LEXIS 17462, 2014 WL 5420657
CourtDistrict Court of Appeal of Florida
DecidedOctober 27, 2014
DocketNo. 1D13-1053
StatusPublished
Cited by3 cases

This text of 150 So. 3d 264 (Bowden v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowden v. State, 150 So. 3d 264, 2014 Fla. App. LEXIS 17462, 2014 WL 5420657 (Fla. Ct. App. 2014).

Opinion

ROBERTS, J.

The appellant, Devin Bowden, was placed on community control/probation in February' 2012 in two underlying cases. He appeals the order revoking his community control/probation that resulted in his subsequent incarceration. Although it seems likely that the appellant’s behavior constituted grounds for forfeiting his right to counsel, we are constrained to reverse given the record before us.

An affidavit of violation of probation (VOP) was filed charging the appellant with several violations. The appellant was found to be indigent, and the public defender was appointed. The public defender represented the appellant at two pretrial hearings before moving to withdraw. Conflict counsel was then appointed who also moved to withdraw. A private attorney, A1 Sauline, was then appointed to represent the appellant. Sauline proceeded to represent the appellant at two pretrial hearings in December 2012 and January 2013.

At the outset of the pre-trial hearing on January 14, 2013, the trial court indicated that it understood that the appellant believed Sauline was incompetent and wanted to discharge him as counsel. The appellant replied that he “pretty much” wanted to discharge Sauline. When asked why, the appellant stated that Sauline did not like him, which was something he had heard from “every attorney.” The trial court then stated that it had reviewed the letters the appellant had written to Sauline in which the appellant threatened to kill Sauline’s wife, rape his secretary and children, and threatened to perform homosexual acts on Sauline. The transcript of the pre-trial hearing shows that the appellant’s attempts to deny or respond in any way to these allegations were cut off by the trial court. The abusive letters were not included in the record on appeal, and there is no record indication that the trial court ever questioned Sauline about the letters. The trial court then stated,

So, Mr. Bowden, I’m going to find that Mr. Sauline is not deficient, but I am going to find that there is a sufficient conflict of interest that exists such that he is discharged, based upon your own doing, from representing you any further. You shall represent yourself or hire your own attorney going forward. Your evidentiary hearing has been previously set for February 11th. I will see 4 you at that time.

[266]*266On February 11, 2013, the appellant appeared pro se for his VOP hearing during which his probation was revoked on three grounds. The trial court immediately proceeded to sentencing, and the appellant was sentenced to concurrent five and seven years’ incarceration in his underlying cases. There was no mention of the appellant’s pro se status at either the VOP hearing or sentencing.

The appellant argues on appeal that the trial court erred by discharging Sauline without appointing new counsel to represent him during his VOP hearing. He finds further error in the trial court’s failure to hold a Faretta1 hearing before effectively requiring the appellant to act pro se. We find that a defendant may forfeit his right- to counsel by egregious behavior. However, under the particular facts of this case, we are constrained to reverse.

Both the United States and the Florida Constitutions guarantee an indigent criminal defendant the right to assistance of appointed counsel. See U.S. Const, amend. VI; Art I, sec. 16, Fla. Const. The right to counsel is a fundamental right that applies to every critical stage of the proceedings. Florida has determined that a person subject to probation revocation has an absolute right to counsel unless there has been informed waiver thereof. State v. Hicks, 478 So.2d 22, 23 (Fla.1985). An informed waiver is found when a defendant makes an affirmative waiver of the right to counsel and the record shows the trial court held a hearing to determine whether the waiver was knowingly and intelligently made. See Faretta, 422 U.S. at 834, 95 S.Ct. 2525. In addition, the defendant choosing to represent himself should be “made aware of the dangers and disadvantages of self-representation, so the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” Id. (citation omitted). The deprivation of the right to counsel at a probation revocation hearing without evidence of a knowing and intentional waiver is fundamental error. See e.g., Brady v. State, 910 So.2d 388, 390 (Fla. 2d DCA2005).

The State argues that the trial court was not required to hold a Faretta hearing or to appoint new counsel because the appellant forfeited his right to counsel by his misconduct. Indeed, since the mid-1990s, state and federal courts have found that a defendant may forfeit his right to counsel such that the procedural safeguards typically associated with waiver of counsel do not apply.

In United States v. McLeod, 53 F.3d 322, 323 (11th Cir.1995), the defendant was appointed new counsel to represent him on a motion for new trial. Counsel briefed the motion for new trial and then moved to withdraw as counsel. Id. A hearing was held on the motion to withdraw during which counsel testified that the defendant was abusive, had repeatedly threatened to sue him, and had asked him to engage in unethical conduct. Id. Although given the opportunity, the defendant declined to testify. Id. The court granted the motion to withdraw and declined to appoint new counsel stating that the defendant’s behavior constituted a waiver. Id. Notably, new counsel was appointed for subsequent proceedings such as the defendant’s appeal and sentencing. Id. at 363, n. 13.

In considering the propriety of the court’s discharge of appointed counsel, the Eleventh Circuit cited, by way of analogy, other instances in which a criminal defendant could forfeit a constitutional right by his behavior, i.e., misbehavior in the court[267]*267room could result in a forfeiture of the constitutional right to be present at trial. Id. at 325. Despite stating that it was troubled by the fact that the defendant was not warned that his misbehaviors might lead to pro se representation, the Eleventh Circuit nonetheless affirmed, finding that the defendant had forfeited his right to counsel by his misconduct and stating, “[W]e conclude that under certain circumstances, a defendant who is abusive toward his attorney may forfeit his right to counsel.” Id.

Shortly thereafter, the Third Circuit, in United States v. Goldberg, 67 F.3d 1092 (3d Cir.1995), distinguished the concept of forfeiture from waiver or implied waiver by conduct, stating,

Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right.

Id. at 1100.

The Third Circuit declined to apply a forfeiture analysis to the case before it in part because the defendant’s alleged death threats to his attorney were not established at a hearing at which the defendant was present or represented. Id. at 1101-02.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
150 So. 3d 264, 2014 Fla. App. LEXIS 17462, 2014 WL 5420657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowden-v-state-fladistctapp-2014.