Flaherty v. State

221 So. 3d 633, 2017 WL 1927738, 2017 Fla. App. LEXIS 6567
CourtDistrict Court of Appeal of Florida
DecidedMay 10, 2017
DocketNo. 4D15-4777
StatusPublished
Cited by5 cases

This text of 221 So. 3d 633 (Flaherty 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
Flaherty v. State, 221 So. 3d 633, 2017 WL 1927738, 2017 Fla. App. LEXIS 6567 (Fla. Ct. App. 2017).

Opinion

Levine, J.

In this case, we are confronted with facts that are highly unusual to say the least. In this case, an assistant state attorney assigned to appellant’s case filed a criminal information, offered appellant a plea deal, and provided discovery. Later in the same exact case, under circumstances not fully developed in this record, the very same prosecutor became appellant’s defense attorney at trial. Only after appellant was convicted, but before sentencing, did appellant bring this apparent conflict situation to the attention of the trial court.

Thus, we are confronted with the following issue: does the fact that appellant’s defense attorney was originally the prosecutor on the very same case require a reversal. We decline to adopt a “per se” rule, and And that although this factual situation presents, at least facially, a situation prompting possible ethical concerns, that nonetheless, we must make a determination on a case-by-case basis of whether appellant’s counsel labored under an actual conflict of interest. As to the present case, we find that the record before us does not support a finding that any potential conflict adversely affected trial counsel’s performance. Thus, we affirm.

Appellant was charged by criminal information with burglary of a dwelling, third-degree grand theft, dealing in stolen property, and several counts of giving false information to a pawnbroker.1 This criminal information and a subsequent amended information were signed by an assistant state attorney. This particular prosecutor also signed several filings on behalf of the state, including a demand for notice of alibi, three supplemental aijswers to appellant’s request for discovery, and finally, a conditional plea offer of fifteen years in prison. This prosecutor appeared in court on behalf of the state on this case for two hearings. Appellant apparently was not at either of the two hearings, which included a calendar call.

This prosecutor stopped appearing on behalf of the state on April 18, 2014, when another prosecutor began submitting filings on behalf .of the state. On April 16, 2015, previous private counsel withdrew from representing appellant, and the very same prosecutor, now a former prosecutor, who filed the information against appellant was retained as appellant’s new private counsel. As .appellant’s new counsel, she announced that she was ready to go to trial and did not inform the court of her prior prosecutorial role.

At trial, there was testimony that the victim, appellant’s sister, told police she had come home to find it in disarray with the window to her bedroom broken. Many of her personal belongings were also missing. The victim speculated that the perpetrator was her brother, appellant. Law enforcement found much of the victim’s missing property at pawnshops, and surveillance footage and testimony of the pawnshop employees identified appellant as the one who had pawned the victim’s property. The victim’s missing property was also found at a hotel where appellant was staying. At trial, however, appellant’s sister said she was mistaken when she initially accused appellant of stealing from her. The state introduced tapes of appellant admitting to stealing from the victim. [635]*635In. these tapes, .appellant also encouraged the victim to lie on his behalf.. Appellant was found guilty of all charges.

After being found- guilty, appellant moved to discharge his counsel, believing that she did an inadequate job in his case. In appellant’s motion to discharge, appellant stated that he “has become aware that [his attorney] was also his prosecutor in the instant case which is now before the court.” Appellant then moved for a mistrial based on this conflict. At a subsequent hearing, appellant’s counsel stated that she could not “ethically” represent appellant any longer. After a Faretta2 hearing, the trial court found appellant competent to represent himself, and appellant, acting pro se, moved for a mistrial. The trial court took the motion for mistrial “under advisement.”

At sentencing, appellant moved to discharge his new counsel, a public defender, claiming that the public defender was doing an inadequate job. The trial-court proceeded with sentencing and did not rule on appellant’s prior motion for a mistrial nor was it brought up by his public defender. Following his conviction and sentence, appellant’s appeal ensued.

Appellant argues on appeal that trial counsel was ineffective. Since this is a direct appeal, trial counsel’s conflict of interest thus must appear on the face of the record. Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002). We therefore conduct a de novo review of the record. See Curtis v. State, 204 So.3d 463, 464 (Fla. 4th DCA 2016).

The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel and representation free of conflict. Quince v. State, 732 So.2d 1059, 1064 (Fla. 1999). When determining whether counsel’s representation was free of conflict, we apply the conflict of interest test as annunciated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

The Florida Supreme Court has described the Cuyler test as follows:

[I]n order to establish an ineffectiveness claim premised on an alleged, conflict of interest the defendant must “establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708; see also Quince v. State, 732 So.2d 1059, 1065 (Fla. 1999). A lawyer suffers from an actual conflict of interest when he or she “actively represents conflicting interests.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. To demonstrate an actual conflict, the defendant must identify specific evidence in the record thát suggests that his or her interests were compromised. See Herring v. State, 730 So.2d 1264, 1267 (Fla. 1998), A possible, speculative or merely hypothetical conflict is “insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1708. “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Id. If a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer’s representation.

Hunter v. State, 817 So.2d 786, 791-92 (Fla. 2002).

Thus, the test from Cuyler, as applied in Hunter, requires appellant to demonstrate, first, that an actual conflict existed and, second, that the conflict adversely affected the attorney’s perform-[636]*636anee. Even if we assume that the facts of this case, where the attorney worked as both a prosecutor and defense counsel on the very same case, met the first prong of Hunter, appellant has failed to demonstrate that “the conflict adversely affected the lawyer’s representation.”3 Brown v. State, 894 So.2d 137, 157 (Fla. 2004). Appellant “must identify specific evidence in the record that suggests his interests were impaired or compromised for the benefit of the lawyer or another party.” Id. See also State v. Alexis, 180 So.3d 929, 937 (Fla. 2015).

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Bluebook (online)
221 So. 3d 633, 2017 WL 1927738, 2017 Fla. App. LEXIS 6567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flaherty-v-state-fladistctapp-2017.