Supreme Court of Florida ____________
No. SC20-195 ____________
JOHN F. MOSLEY, Appellant,
vs.
STATE OF FLORIDA, Appellee.
September 15, 2022
COURIEL, J.
This is the appeal of the circuit court’s final order resentencing
John F. Mosley to death for the murder of his ten-month-old son,
Jay-Quan Mosley. The circuit court entered the order after Mosley’s
second penalty phase trial; we vacated Mosley’s original sentence of
death pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016). Mosley
v. State, 209 So. 3d 1248, 1284 (Fla. 2016).
We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We find
that, because the trial court failed to address Mosley’s unequivocal motion to represent himself at his Spencer1 hearing, he is entitled to
a new Spencer hearing and sentencing hearing. We do not,
however, find that he is entitled to a third penalty phase trial.
I
Twice before we have recounted the murders that bring Mosley
to this Court. Mosley v. State, 46 So. 3d 510, 514-15 (Fla. 2009);
Mosley, 209 So. 3d at 1254-55. A jury convicted him of two counts
of first-degree murder after he strangled his girlfriend, Lynda
Wilkes; asphyxiated their son, Jay-Quan, in a garbage bag; and
disposed of both their bodies, hers by immolation, his in a
dumpster. At the conclusion of his first trial, in 2005, the jury
unanimously recommended a life sentence for the murder of Wilkes
and, by a vote of eight to four, recommended a death sentence for
the murder of Jay-Quan. The trial court imposed the recommended
sentences.
This Court affirmed the convictions and sentence of death on
direct appeal. Mosley, 46 So. 3d at 529. Mosley moved for
postconviction relief under rule 3.851 of the Florida Rules of
1. Spencer v. State, 615 So. 2d 688 (Fla. 1993). -2- Criminal Procedure. Mosley, 209 So. 3d at 1257-58. After an
evidentiary hearing, the postconviction court denied the motion. Id.
This Court affirmed that decision as to Mosley’s guilt phase claims
but decided that a new penalty phase 2 was required under Hurst v.
Florida, 577 U.S. 466 (2016).3 209 So. 3d at 1284.
2. “Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment . . . . The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable.” § 921.141(1), Fla. Stat. (2004); see also Engle v. State, 438 So. 2d 803, 813 (Fla. 1983) (identifying the “three phases of a capital case in the trial court” as “1) The trial in which the guilt or innocence of the defendant is determined; 2) the penalty phase before the jury; and 3) the final sentencing process by the judge”).
3. “Any fact ‘[exposing] the defendant to a greater punishment than that authorized by the jury’s guilty verdict’ . . . must be submitted to a jury.” Hurst v. Florida, 577 U.S. 92, 97 (2016) (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 (2000)). We initially interpreted Hurst v. Florida to mean that in order for a court to impose a death sentence, the jury must unanimously find “the existence of each aggravating factor,” “that the aggravating factors are sufficient,” and “that the aggravating factors outweigh the mitigating circumstances.” Hurst, 202 So. 3d at 44. Since the trial judge imposed Mosley’s death sentence after “independently weighing the aggravating factors and mitigating circumstances,” we vacated Mosley’s initial death sentence and remanded for a new penalty phase. Mosley, 209 So. 3d at 1284. But later, we receded from our holding that entitled Mosley to a new penalty phase. State v. Poole, 297 So. 3d 487, 503-04 (Fla. 2020) (holding that the question whether aggravating factors outweigh the mitigating
-3- Prior to his second penalty phase proceeding for Jay-Quan’s
murder, Mosley moved to represent himself in arguing a motion for
an evidentiary hearing based on newly discovered evidence. On
March 20, 2018, after a Faretta 4 inquiry, the trial court initially
circumstances “need not be submitted to a jury” because it is “not an element”); see also Mosley, 209 So. 3d at 1285 (Canady, J., concurring in part and dissenting in part) (“Based on the jury’s verdict establishing the existence of an aggravator, I would conclude that there was no [Hurst] violation. . . . Hurst v. Florida . . . only requires that the jury find the existence of an aggravator that renders a defendant eligible to be considered for death.”).
4. Faretta v. California, 422 U.S. 806, 835 (1975), established that the Sixth Amendment to the U.S. Constitution guarantees a defendant the right to conduct his own defense so long as he knowingly and intelligently chooses to do so. Once an accused makes an unequivocal demand to proceed pro se, the court must conduct an inquiry to determine whether the accused is making a competent and intelligent choice, with knowledge of the “dangers and disadvantages of self-representation.” Id. As the Court said in Faretta:
It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him.
Id. at 834.
-4- granted his motion, appointing standby counsel and a mitigation
specialist.5 But the trial court reversed itself when it found that
Mosley did not understand what giving up his right to counsel
entailed. At the end of the hearing, the trial court took Mosley’s
motion to proceed pro se under advisement.
With a new judge presiding,6 Mosley again moved to represent
himself pro se. At a hearing on the motion, however, Mosley stated
that he did not want to represent himself nor to be represented by
his attorney at the time. The trial court denied Mosley’s request for
another attorney, and Mosley withdrew his outstanding motion to
5. The American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases explains the function of a mitigation specialist in its commentary to Guideline 4.1: “A mitigation specialist is also an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (footnote omitted).
6. While Mosley’s motion was pending, his counsel moved to disqualify the judge, Judge McCallum, on the grounds that her husband had worked on the case as an investigator. Judge McCallum granted the motion, and Judge Weatherby took over the case.
-5- represent himself.
On November 20, 2019, the trial court held its final conference
before the penalty phase. Mosley again moved to represent himself.
After another Faretta inquiry, the trial court granted Mosley’s
motion to proceed pro se and appointed standby counsel. Mosley
requested an eighteen-month continuance to prepare for trial,
which the trial court denied.
On December 2, 2019, the trial court proceeded with Mosley’s
penalty phase. The State called Bernard Griffin, a key cooperating
witness, who testified about the murders. On cross-examination,
Mosley noted that Griffin was “back on the stand for the state” and
asked him, “[A]fter this hearing is done you going to get to go free
again or they going to cut your time in half?” The trial court
interjected and instructed the jury that “Mr. Griffin is under a 20-
year sentence,” and “[t]here is no legal avenue for that sentence to
be changed at all except perhaps by his death in custody.” Mosley
protested the judge’s intervention. He insisted the “state can send
letter recommendations” to the court, “[a]sking to reduce [Griffin’s]
time.” After Mosley’s repeated attempts to “establish [Griffin’s]
motive,” the judge responded, “There is absolutely no evidence of -6- that at all and the Court has no authority whatsoever to change a
sentence once the period of expiration has occurred, so I don’t care
who writes the letter. He ain’t going anywhere.” On redirect, the
prosecutor asked Griffin whether he’d been offered anything in
exchange for his testimony. Griffin responded, “No, not at all.”
Later in the penalty phase, Mosley called his mother to testify.
She testified that her son was a good son; that Mosley’s father was
physically abusive; that Mosley attended high school, college, and a
few police academies; that he had worked as an emergency
technician; and that he had served in the Navy. After her initial
testimony, she was excused, and several other witnesses testified.
The next day, before the first witness was called, Mosley advised the
trial court that he wished to recall his mother for further
questioning. The State objected, arguing that any additional
testimony would be cumulative. Because the trial court had
allowed Mosley’s mother to attend the proceedings, including the
testimony of other witnesses after she testified, and because of the
risk of cumulative testimony, the trial court required Mosley first to
proffer her testimony outside the presence of the jury. During the
proffer, Mosley asked his mother whether his father had sexually -7- abused his sisters. Additionally, he asked whether his father had
physically abused him and whether he had in fact been raised by
his grandmother. The trial court allowed Mosley to elicit before the
jury his mother’s testimony regarding his physical abuse and being
raised by his grandmother. But, explaining that the credibility of
Mosley’s father was not at issue, the trial court did not permit
Mosley to ask questions about his father’s sexual abuse of Mosley’s
sisters.
At the conclusion of the penalty phase, the jury unanimously
found that the State had proven four aggravating factors: (1) the
murder was especially heinous, atrocious, or cruel; (2) the murder
was committed in a cold, calculated, and premeditated manner; (3)
the victim was less than twelve years of age; and (4) Mosley was
previously convicted of another capital felony—that is, Wilkes’s
murder. The jury unanimously found that the aggravating factors
were sufficient to impose the death penalty and found no mitigating
circumstances. And the jury unanimously found that the
aggravating factors outweighed the mitigating circumstances.
Once the trial judge dismissed the jury, he offered Mosley
counsel for his Spencer hearing. Mosley accepted, and the judge set -8- the hearing for January 30, 2020. But on January 23, 2020, seven
days before the Spencer hearing, Mosley filed a motion titled,
“Unequivocal Demand to Immediately Represent Myself Pro Se.”
When the Spencer hearing began, the prosecutor
acknowledged to the trial court that defense “counsel has provided
me a pleading that was filed on January 23rd, 2020 . . . and this
was a pro se pleading filed by Mr. Mosley, so I believe prior to
addressing the pleadings that have been filed by [defense counsel]
we need to address that request.” The trial court responded, “Sure.
That’s fine. And I intend to do so.” But then it directed its
questions toward the “written motion [for a new penalty phase trial]
alleging some 10 or 12 errors.” Mosley’s counsel asked for
clarification:
Counsel: “Your Honor, do you want me to go ahead with the Motion For New Penalty Phase argument? The Court: “Yes.” Counsel: “Or do you want to address the pro se motion?” The Court: “No, no, no.”
After hearing argument, the trial court denied the motion for a
new penalty phase, then asked the parties, “Any reason why
sentence should not now be imposed?” Mosley’s counsel answered
with argument in mitigation, noting testimony from Mosley’s mother -9- about the family’s history of abuse. Mosley’s counsel inquired
whether the court required written sentencing memoranda. The
court responded, “I think it was capably argued.” The court then
asked again, “So is there any reason the sentence should not now
be imposed?” Mosley’s counsel responded, “There is none, sir,
unless you require the sentencing memorandums.” The court again
declined the memoranda.
The trial court ruled, “Having gone through all of this, the
motion for new penalty phase hearing is denied. Mr. Mosley . . . I
hereby sentence you to death and remand you to the custody of the
Sheriff . . . . Mr. Mosley, now let me address with you a written --
written document which I received this morning called unequivocal
demand to immediately represent myself pro se. Do you intend to
represent yourself on appeal?” Mosley responded, “That was
supposed to be before this Spencer hearing.” The trial court
responded:
If you had intended it to be -- happen beforehand there’s no provision for you representing yourself under the present circumstances. I don’t think there would have been any provision at this time anyway because we’ve gone through everything, but given the fact that I gave you the opportunity to represent yourself during the course of the trial and then you asked me to reappoint - 10 - your attorneys which I’ve done I am not now going to reappoint you to handle the matter today.
The trial court again asked Mosley if he wanted to represent
himself, and Mosley again responded, “I respectfully say I wanted to
handle my Spencer hearing myself.” When Mosley continued
speaking, the court cut him off, saying, “No, no, no. We’re past
that, Mr. Mosley. Do you want me to appoint the Public Defender
in Tallahassee or whomever to handle your appeal on this
particular matter or do you want to handle your appeal yourself?”
Mosley responded, “I have no control over it. [You’ve] already
denied me the right to a Faretta so I have no comment on that
because I wasn’t allowed to represent myself and I wanted to and it
was extremely important for me to represent myself to give the
arguments that I wanted to give.” The court moved on and
appointed a public defender as Mosley’s appellate counsel. Mosley’s
counsel then filed this appeal.
- 11 - II
Of the issues Mosley raises on appeal, we find that one
constitutes reversible error: the trial court’s failure to address
Mosley’s motion to represent himself at his Spencer hearing. We
take up that issue first, then explain why the other issues raised on
appeal do not entitle Mosley to a new penalty phase.
A
Under the Sixth Amendment to the U.S. Constitution, an
accused has the “constitutional right to conduct his own defense.”
Faretta, 422 U.S. at 836. We have said that a defendant’s choice to
invoke this right “must be honored out of ‘that respect for the
individual which is the lifeblood of the law.’ ” Tennis v. State, 997
So. 2d 375, 377-78 (Fla. 2008) (quoting Faretta, 422 U.S. at 834).
Just as a defendant may waive the right to counsel, he or she
may waive the right to go it alone. In both Faretta and Tennis, the
defendant invoked his right to conduct his own defense well in
advance of trial. Faretta, 422 U.S. at 807; Tennis, 997 So. 2d at
377. Relying on those precedents, the federal courts, this Court,
and several Florida District Courts of Appeal have found that a
request to represent oneself at trial can, in the trial court’s exercise - 12 - of sound discretion, be denied when it is untimely. See United
States v. Dunlap, 577 F.2d 867, 869 (4th Cir. 1978) (“[O]nce trial
has begun, it is within the trial court’s discretion whether to allow
the defendant to dismiss counsel and proceed pro se.”); McCray v.
State, 71 So. 3d 848, 870 (Fla. 2011) (“As other courts have
recognized, a trial court’s decisions on a defendant’s belated request
for self-representation after the trial begins is reviewed for an abuse
of discretion.”); Davis v. State, 162 So. 3d 326, 327 (Fla. 3d DCA
2015); Thomas v. State, 958 So. 2d 995, 996 (Fla. 5th DCA 2007).
What counts as “untimely” is less settled. Certainly a motion made
well in advance of trial is timely. One made on its eve, or certainly
after trial has begun, makes it difficult for a trial court, without
granting a continuance, to explain to the defendant the significant
responsibilities that attend self-representation, and to provide the
defendant adequate time to shoulder those responsibilities. A
motion for self-representation that comes late is, in that sense,
disruptive of orderly proceedings and may result in delay that is
unfair to the State, victims, witnesses, and other parties having
business before the court. A court may, in its discretion, give
weight to those considerations in denying as untimely a motion for - 13 - self-representation.
Subject to these considerations, and except in limited
circumstances to which we will come shortly, once a defendant
makes an unequivocal demand to represent himself, the trial court
must conduct a Faretta inquiry to determine whether the defendant
is knowingly and intelligently waiving his right to counsel. We have
said that a trial court’s failure to do so is per se reversible error.
McCray, 71 So. 3d at 864; Hardwick v. State, 521 So. 2d 1071,
1074 (Fla. 1988) (explaining that once a defendant exercises his
right to self-representation, it is “incumbent upon the court to
determine whether the accused is knowingly and intelligently
waiving his right to court-appointed counsel, and the court commits
reversible error if it fails to do so”), superseded on other grounds by
Hooks v. State, 286 So. 3d 163, 169 (Fla. 2019); Tennis, 997 So. 2d
at 379 (“Under our clear precedent, and that of the district courts of
appeal, the trial court’s failure to hold a Faretta hearing in this case
to determine whether Tennis could represent himself is per se
reversible error.”); see State v. Young, 626 So. 2d 655, 657 (Fla.
1993) (concluding that Faretta and Florida Rule of Criminal
- 14 - Procedure 3.111(d) 7 require reversal if the lower court does not
conduct a proper Faretta inquiry); Jones v. State, 449 So. 2d 253,
258 (Fla. 1984) (instructing that “the trial court should forthwith
proceed to a Faretta inquiry” once a defendant exercises his right to
self-representation).
A court may deny a defendant’s demand for self-representation
without a Faretta inquiry if the demand is not made unequivocally.
See Hardwick, 521 So. 2d at 1074 (“We note that the courts have
long required that a request for self-representation be stated
unequivocally.”); Chapman v. United States, 553 F.2d 886, 892 (5th
Cir. 1977) (requiring an unequivocal demand “because a decision to
defend pro se may jeopardize a defendant’s chances of receiving an
effective defense, and because a pro se defendant cannot complain
on appeal that his own defense amounted to a denial of effective
assistance of counsel”). And a court may deny an unequivocal
7. Fla. R. Crim. P. 3.111(d)(2) (“A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.”).
- 15 - demand without a Faretta inquiry if, but only if, it finds (with or
without regard to timeliness) the demand is designed to delay or
disrupt proceedings. See Young, 626 So. 2d at 657 (“[A] trial judge
is not compelled to allow a defendant to delay and continually
frustrate his trial.”); Jones, 449 So. 2d at 257 (“[N]either the
exercise of the right to self-representation nor to appointed counsel
may be used as a device to abuse the dignity of the court or to
frustrate orderly proceedings.”).
Here, the State is correct that Mosley’s “Unequivocal Demand
to Immediately Represent Myself Pro Se” was untimely, in that it
was filed not just after trial had begun, but after it had concluded.
It came a week before his Spencer hearing and sentencing. But
notwithstanding the tumult that had characterized his prior
relationship with his counsel and Mosley’s vacillation in wanting to
represent himself at other times during the proceedings, there was,
as to the Spencer hearing, no basis in the record to doubt that
Mosley wanted to represent himself. He never withdrew or
equivocated about his motion, which the trial court had ample time
to consider.
True, the determination we must make requires us to - 16 - “consider[] the entire scope of the defendant’s request, instead of
focusing on one isolated statement,” Mosley, 209 So. 3d at 1272,
but Mosley’s request about the Spencer hearing came at a time that
allowed ample consideration by the trial court. It can be sorted
from Mosley’s other halting assertions of a desire to represent
himself during the course of his case.
At the beginning of the Spencer hearing, Mosley’s counsel and
the State brought the motion to the trial court’s attention. Given
Mosley’s unequivocal written request filed a week before the
hearing, we look to the record for the trial court’s assessment of
whether the motion ought to be denied as untimely. But the trial
court made no such assessment. Nobody contends that
consideration of the motion at that time would have disrupted the
proceedings or required any delay in excess of the time it would
have taken to hear argument on the motion, or to simply have
explained that such argument was untimely. Giving no reason for
its decision to do so, the court deferred consideration of the motion
to a time when it would be moot. On those facts, we have no basis
upon which to assess the trial court’s exercise of discretion—to
which we of course accord substantial deference where, unlike here, - 17 - the trial court’s reasoning is amenable to review. See Grindstaff v.
Coleman, 681 F.2d 740, 742 (11th Cir. 1982) (declining to review a
trial court’s decision for abuse of discretion because “[t]he trial
court in this case did not exercise discretion”).
As we said in Tennis:
We understand that in criminal cases, and especially in a death penalty case where the stakes could not be higher, judges may become frustrated over what they perceive to be efforts on the part of a defendant to frustrate or delay the proceedings. We also recognize that presiding over death penalty cases is a difficult and challenging responsibility for a trial judge. However, our cases make clear that when there is an unequivocal request for self-representation, a trial court is obligated to hold a Faretta hearing to determine if the request for self-representation is knowing and intelligent.
997 So. 2d at 380. That did not happen here. Under the
circumstances presented in this case, this is error requiring
reversal. Hardwick, 521 So. 2d at 1074; Tennis, 997 So. 2d at 379;
Young, 626 So. 2d at 657. 8
8. The dissent says that the trial court’s denial of Mosley’s request “was eminently reasonable and far from an abuse of discretion.” Opinion concurring in part and dissenting from the judgment at 28. To be clear, our decision today does not mean that a trial court could not have reasonably considered and denied Mosley’s request, but rather, that the court in this case abused its discretion when it declined to consider the request until after it had become moot—and for no good, or even apparent, reason. - 18 - Mosley raises other issues with the way in which his Spencer
hearing was conducted. But we do not reach those, as we find it is
necessary to remand for a new hearing on this basis alone.
B
We do, however, address Mosley’s allegations of error at his
penalty phase and find that none requires reversal.
Mosley first argues the trial court abused its discretion by
preventing cross-examination of Griffin about his motivations to
testify at the penalty phase trial, 9 and by telling the jury there was
no possible way Griffin could have his sentence reduced for
testifying against Mosley. Mosley argues that the trial court’s
decision curtailed his Sixth Amendment right to confront the
witnesses against him. See Rodriguez v. State, 753 So. 2d 29, 43
(Fla. 2000) (explaining that it is an “uncontroverted proposition that
the Sixth Amendment right of confrontation applies to all three
phases of the capital trial”).
We find that the trial court permissibly exercised its discretion
9. For purposes of this appeal, we consider Griffin’s testimony only at the penalty phase.
- 19 - in determining the scope of Griffin’s cross-examination. See Patrick
v. State, 104 So. 3d 1046, 1057 (Fla. 2012) (reviewing a trial court’s
decision to limit cross-examination for abuse of discretion). While
“[b]ias on the part of a prosecution witness is a valid point of
inquiry in cross-examination . . . the prospect of bias does not open
the door to every question that might possibly develop the subject.”
Breedlove v. State, 580 So. 2d 605, 609 (Fla. 1991) (quoting
Hernandez v. State, 360 So. 2d 39, 41 (Fla. 3d DCA 1978)); see also
Patrick, 104 So. 3d at 1058 (concluding that the trial court’s choice
to limit questioning on an informant’s motivations for testifying was
not an abuse of discretion, even though the trial court knew the
informant would potentially benefit from testifying). It is settled
that “trial judges retain wide latitude . . . to impose reasonable
limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Moore v. State, 701 So. 2d 545, 549 (Fla. 1997) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Here, the trial court permissibly limited the scope of cross-
examination on the basis of its determination that Griffin would not - 20 - qualify for a reduction or suspension of his sentence on account of
his penalty phase testimony, as such reduction or suspension
requires substantial assistance in the “identification, arrest, or
conviction” of an accomplice—none of which would be a result of
his penalty phase testimony. § 921.186, Fla. Stat. (2019).
Second, we reject Mosley’s argument that the trial court
improperly excluded his mother’s proffered testimony that his
father had sexually abused two of his sisters. We review that
decision for abuse of discretion. Glover v. State, 226 So. 3d 795,
806 (Fla. 2017); Frances v. State, 970 So. 2d 806, 813 (Fla. 2007).
We find no such abuse, because the trial court reasonably
concluded that Mosley’s mother’s proffered testimony did not
establish that she had personal knowledge of the sexual abuse or
how it affected Mosley.
Third, Mosley claims the trial court committed fundamental
error by failing to instruct the jury that it must find beyond a
reasonable doubt that the aggravating factors were sufficient to
justify death and that the aggravating factors outweighed the
mitigating factors. But that is not the law. The sufficiency and
weight of aggravating factors in a capital case are not elements that - 21 - must be determined by the jury beyond a reasonable doubt. Rogers
v. State, 285 So. 3d 872, 885-86 (Fla. 2019).
Finally, Mosley contends that the trial court erred in refusing
to consider his motion for an evidentiary hearing based on newly
discovered evidence. But the trial court correctly denied the motion
because Mosley was not authorized to file it himself while
represented by counsel. See Puglisi v. State, 112 So. 3d 1196, 1206
n.14 (Fla. 2013) (“We have previously said that ‘[t]here is no
constitutional right for hybrid representation at trial.’ ” (quoting
Mora v. State, 814 So. 2d 322, 328 (Fla. 2002))); Sheppard v. State,
17 So. 3d 275, 279 (Fla. 2009) (“[A] defendant has no Sixth
Amendment right to simultaneously proceed pro se and with legal
representation.”); see also Fla. R. Crim. P. 3.851(b)(6) (“A defendant
who has been sentenced to death may not represent himself or
herself in a capital postconviction proceeding in state court.”).
III
We vacate Mosley’s sentence of death and remand solely for a
new hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla.
1993), and a new sentencing hearing.
- 22 - It is so ordered.
CANADY, POLSTON, LABARGA, and GROSSHANS, JJ., concur. MUÑIZ, C.J., concurs in part and dissents from the judgment with an opinion. FRANCIS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
MUÑIZ, C.J., concurring in part and dissenting from the judgment.
I agree with the majority that Mr. Mosley is not entitled to a
new penalty phase trial. But I respectfully disagree with the
majority’s decision to vacate Mosley’s death sentence and to remand
for a new sentencing hearing. As the State argues, and as the
majority itself acknowledges, Mosley’s mid-stream request for self-
representation at his Spencer hearing was untimely. Neither first
principles nor our case law supports the conclusion that the trial
court abused its discretion by denying that request. 10
10. Mosley also raises an unpreserved claim challenging the trial court’s failure to recess the Spencer hearing before orally imposing sentence. Mosley does not allege that the trial court’s procedure violated any constitutional or statutory requirement, nor does he argue that the trial court committed fundamental error. This claim is therefore also without merit.
- 23 - To begin, the majority and I proceed from a shared
understanding that “the right to self-representation is not absolute.”
Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000). Relevant
here, “a defendant may forfeit his self-representation right if he does
not assert it ‘in a timely manner.’ ” Hill v. Curtin, 792 F.3d 670, 677
(6th Cir. 2015) (quoting Martinez, 528 U.S. at 162). It follows that,
when a trial court denies a self-representation request as untimely,
there is no need for a Faretta hearing. After all, the purpose of such
a hearing is to explain the pitfalls of proceeding without counsel
and to ensure that the defendant’s decision is voluntary and
informed. That “concern is obviated if self-representation is denied
for some other reason, such as untimeliness.” Hill, 792 F.3d at
677.
The majority and I also agree that Mosley’s request to
represent himself at his Spencer hearing was untimely. While there
are debates on the margins about how far in advance of trial a
defendant must invoke self-representation, a request made after the
commencement of meaningful trial proceedings is undisputedly
untimely. See Wayne R. LaFave et al., Criminal Procedure § 11.5(d)
(5th ed. 2009); Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir. - 24 - 2007) (pro se motion made after jury’s guilty verdict but before
sentencing was untimely). Here, Mosley’s penalty phase do-over
was well underway—indeed, almost complete—when he made the
self-representation request at issue. A Spencer hearing is a distinct
aspect of the penalty phase, but it is not an independent proceeding
for purposes of determining whether a self-representation request is
timely. The majority acknowledges this.
My common ground with the majority continues even to the
next step in the analysis—we agree that the abuse of discretion
standard applies to our review of a trial court’s denial of an
untimely request for self-representation. See Horton v. Dugger, 895
F.2d 714, 717 (11th Cir. 1990) (“Appellate courts routinely uphold
the discretion of trial courts to deny as untimely requests made
after ‘meaningful trial proceedings’ have begun.” (quoting United
States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986))); United States v.
Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (“[I]t is reasonable,
and entirely compatible with the defendant’s constitutional rights,
to require that the right to self-representation be asserted at some
time ‘before meaningful trial proceedings have commenced,’ and
that thereafter its exercise rests within the sound discretion of the - 25 - trial court.” (quoting Chapman v. United States, 553 F.2d 886, 895
(5th Cir. 1977))); accord United States v. Betancourt-Arretuche, 933
F.2d 89, 96 (1st Cir. 1991) (same); United States v. Oakey, 853 F.2d
551, 553 (7th Cir. 1988) (same); United States v. Cunningham, 564
F. App’x 190, 194 (6th Cir. 2014) (same); United States v. Estrada,
25 F. App’x 814, 819-21 (10th Cir. 2002) (reviewing the district
court’s decision concerning an untimely request for self-
representation for an abuse of discretion). Cf. United States v.
Bankoff, 613 F.3d 358, 373 (3d Cir. 2010) (“[D]istrict courts have
discretion to deny an untimely request to proceed pro se after
weighing the ‘prejudice to the legitimate interests of the defendant
against the potential disruption of proceedings already in
progress.’ ” (quoting Buhl v. Cooksey, 233 F. 3d 783, 797 n.16 (3d
Cir. 2000))); United States v. Stevens, 83 F.3d 60, 66-67 (2d Cir.
1996) (same); Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983)
(same) (quoting Fulford v. Maggio, 692 F.2d 354, 362 (5th Cir.
1982), rev’d on other grounds, 462 U.S. 111 (1983)); United States v.
Harlan, 960 F.3d 1089, 1093-94 (8th Cir. 2020) (same) (quoting
United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir. 1986)).
- 26 - Where the majority and I part company is in our application of
the abuse of discretion standard in this case. The majority
suggests that the trial court reversibly erred by failing explicitly to
declare Mosley’s self-representation request untimely. Majority op.
at 17 (“Nobody contends that consideration of the motion at that
time would have disrupted the proceedings or required any delay in
excess of the time it would have taken to hear argument on the
motion, or to simply have explained that such argument was
untimely.”). In my view, this fails to consider the entire record and
misapplies the abuse of discretion standard.
It bears emphasis that “the U.S. Supreme Court has never
held that a court must inquire into the basis of a defendant’s
request before denying it as untimely.” Hill, 792 F.3d at 678. In
other words, a trial court can deny an untimely self-representation
request without first engaging in a colloquy comparable to a Faretta
hearing. The Fifth District Court of Appeal has even said, albeit in
dicta, that “a defendant’s request for self-representation may be
summarily denied if not timely asserted.” Laramee v. State, 90
So. 3d 341, 345 (Fla. 5th DCA 2012).
- 27 - Because the trial court here was not obligated to follow any set
process before ruling on Mosley’s untimely self-representation
request, we can find an abuse of discretion only “if no reasonable
person would arrive at the same conclusion as that of the trial
court.” Calloway v. State, 210 So. 3d 1160, 1178 (Fla. 2017). In
light of the entire record, I believe the trial court’s decision to deny
Mosley’s untimely request was eminently reasonable and far from
an abuse of discretion.
Before his penalty phase proceeding, during jury selection,
and again on the first day of the penalty phase trial, Mosley
vacillated between wanting appointed counsel and choosing to
represent himself. This required the trial court repeatedly to
appoint and unappoint counsel for Mosley. Undoubtedly, the
counsel appointed to represent Mosley at his Spencer hearing spent
time preparing for that hearing, only to have Mosley change his
mind yet again. It was in this context that the trial court explained
to Mosley: “[G]iven the fact that I gave you the opportunity to
represent yourself during the course of the trial and then you asked
me to reappoint your attorneys which I’ve done I am not now going
to reappoint you to handle the matter today.” I am unaware of any - 28 - precedent that would have required the trial court here to ignore the
disorder inherent in Mosley’s untimely request and the
accompanying waste of public resources. While the majority faults
the trial court for waiting until the end of the Spencer hearing to
explain its decision to address Mosley’s self-representation request,
I fail to see how the timing of the trial court’s explanation matters.
Finally, I have been unable to locate any authority that
supports, much less dictates, the majority’s decision. The three
cases that the majority cites to bolster its conclusion are inapposite.
In State v. Young, 626 So. 2d 655 (Fla. 1993), our Court reversed a
conviction because the trial court did not conduct an adequate
Faretta hearing before requiring the defendant to represent himself.
In Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), we took up the
adequacy of a Faretta hearing in a case that included no mention of
timeliness or a trial court’s discretion over untimely self-
representation requests. Similarly, the issue of timeliness did not
come up in Tennis v. State, 997 So. 2d 375 (Fla. 2008).
The majority’s decision improves our Court’s case law to the
extent it clarifies that trial courts have the discretion to deny
untimely self-representation requests at the threshold, without first - 29 - conducting a Faretta hearing. That said, I believe that the majority
undermines that progress by misapplying the abuse of discretion
standard here. I would affirm Mosley’s death sentence.
An Appeal from the Circuit Court in and for Duval County, Michael R. Weatherby, Judge Case No. 162004CF006675AXXXMA
Jessica J. Yeary, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,
for Appellant
Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior Assistant Attorney General, and William David Chappell, Assistant Attorney General, Tallahassee, Florida,
for Appellee
- 30 -