Howard v. State

147 So. 3d 1040, 2014 Fla. App. LEXIS 13227, 2014 WL 4197392
District Court of Appeal of Florida·Decided August 26, 2014·No. No. 1D13-2091·Published·Cited by 12 cases

Opinions

MARSTILLER, J.

David Morris Howard was convicted by a jury of carjacking and sentenced to 43 years in prison. He represented himself at trial and during sentencing. On appeal, Howard does not challenge the conviction, but seeks reversal of the sentence and a new hearing on his motion for new trial, arguing that the trial court failed to conduct a Faretta1 inquiry at the outset of the sentencing phase of the proceedings, during which the court also considered and denied the new trial motion. Because a hearing on a new trial motion and sentencing are critical stages in a criminal proceeding, the trial court was required to renew the offer of counsel and perform another Faretta inquiry before letting Howard continue representing himself. Failure to do so is per se reversible error.

Howard initially moved to represent himself on October 2, 2012, several months before trial. At the hearing on his motion, the trial court conducted a full Faretta inquiry. Among other things, the court advised Howard he was facing a prison sentence of 30 years mandatory minimum, if found to be a prison releasee reoffender (“PRR”),2 to life in prison, if deemed a habitual felony offender (“HFO”).3 The court found Howard had knowingly, intelligently and voluntarily waived his right to counsel. The court also appointed standby counsel after Howard said he would have no objection to the court’s doing so.

On February 11, 2013, prior to jury selection in the criminal trial, Howard indicated he wanted to continue representing himself. The trial court conducted another full Faretta inquiry, again advising [1042] Howard of the dangers of self-representation and the 30 years-to-life sentencing range, and found, as before, knowing and intelligent waiver of counsel. Howard thereafter proceeded pro se, with the assistance of standby counsel. The jury rendered its verdict against Howard on February 13, 2013.

Howard filed a timely pro se motion for new trial based on asserted “partiality” shown by the trial judge throughout the proceedings. On February 21, 2013, the trial court held a hearing to conduct “Phase I” of sentencing. Standby counsel attended. The trial court considered and orally denied Howard’s motion for new trial, then set a second hearing when Howard requested a pre-sentence investigation, which he previously had waived, and because the State did not have the necessary evidence to establish a foundation for PRR sentencing. Before concluding the hearing, the trial court asked:

THE COURT: By the way, Mr. Howard, I did mean to ask this: Do you still want to represent yourself, sir, or do you want—
THE DEFENDANT: I wanted to talk to my standby counsel.
THE COURT: All right.... [I]f you want to turn it back over to your standby counselor, all you have to do is tell them that, and the next time we come back, they can represent you for the rest of resentencing.

Howard deferred his answer to the next hearing, which took place approximately one month later, on March 26, 2013.

At the outset of the subsequent hearing, the trial court offered to “turn this over to Mr. Murphy to conclude your sentencing.” Howard declined the offer, stating “I want to continue to represent myself, sir.” The hearing then proceeded with standby counsel present, and the State presented evidence of Howard’s most recent prison release date to support PRR sentencing. At Howard’s request, the trial court postponed final sentencing to give him time to secure witnesses to speak on his behalf. The court admonished him to ensure the witnesses’ availability the week of April 8.

In the interim, the trial court held a proceeding on April 4, 2013, for the State to provide conclusive evidence identifying Howard as the subject of the previously-entered conviction and prison release records. As before, at the beginning of the proceeding, the trial court asked Howard whether he still wanted to continue representing himself, or be represented by the Public Defender. Howard again declined the offer of appointed counsel. Standby counsel was present throughout the hearing.

On April 11, 2013, the trial court convened what was supposed to be the final sentencing hearing. However, when Howard advised the court his witnesses were not present, the court passed sentencing to the following day.

The court opened the hearing on April 12, 2013, by asking Howard if he wanted to continue representing himself and, upon Howard’s affirmative answer, the court conducted a Faretta inquiry, expressly acknowledging the critical stage of the proceedings. The court found that Howard “again, passed the Faretta inquiry,” appointed the Public Defender for purposes of appeal, and, with standby counsel present, considered and denied Howard’s “supplementary” motion for new trial filed on April 4, 2013, and took testimony from Howard’s step-mother about his character. Ultimately, the trial court adjudicated Howard a HFO, found that he qualified as a PRR, and sentenced him to a prison term of 43 years, with a 30-year PRR mandatory minimum.

Howard argues on appeal that the trial court committed per se reversible error when, before proceeding with sen[1043] tencing, it failed to conduct a second Far-etta inquiry and failed to offer to reappoint counsel. “Under Faretta and [Florida Supreme Court] precedent, once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.” Tennis v. State, 997 So.2d 375, 378 (Fla.2008). The failure to conduct such an inquiry is per se reversible error. Id. at 379. Further, “[o]nce a defendant waives the right to counsel in a criminal case, the court must renew the offer of counsel at each subsequent critical stage of the proceedings, one of which is sentencing.” Serrano v. State, 113 So.3d 895, 896 (Fla. 2d DCA 2012); see also Fla. R. Grim. P. 3.111(d)(5). The hearing on a defendant’s motion for new trial is also a critical stage. See Harper v. State, 201 So.2d 65, 66 (Fla.1967); Miller v. State, 8 So.3d 451, 453 (Fla. 1st DCA 2009). Failure to renew the offer of counsel at a critical stage and conduct a Faretta inquiry if the defendant rejects the renewed offer is per se reversible error. See Cuyler v. State, 131 So.3d 827, 828 (Fla. 1st DCA 2014); Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007); Wilson v. State, 947 So.2d 1225, 1226-27 (Fla. 1st DCA 2007).

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Howard v. State, 147 So. 3d 1040, 2014 Fla. App. LEXIS 13227, 2014 WL 4197392 (Fla. Ct. App. 2014).

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