Miller v. State

764 So. 2d 640, 2000 WL 461518
District Court of Appeal of Florida·Decided April 25, 2000·No. 1D97-3071·Published·Cited by 5 cases

Opinion

764 So.2d 640 (2000)

Eric MILLER, Appellant,
v.
STATE of Florida, Appellee.

No. 1D97-3071.

District Court of Appeal of Florida, First District.

April 25, 2000.
Rehearing Denied June 21, 2000.

*641 Nancy A. Daniels, Public Defender; and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; James W. Rogers, Bureau Chief; Carolyn J. Mosley, Assistant Attorney General; *642 and Beth Blechman, Chief Assistant Statewide Prosecutor, Tallahassee, for Appellee.

BROWNING, J.

The State of Florida charged Eric Miller (Appellant) with 141 counts comprising racketeering, organized fraud, financial institution fraud, securities fraud, and money laundering. A second amended information added 7 counts of grand theft and 1 count of racketeering but reduced the total number of counts to 68. Additional counts were eliminated for other reasons; finally, 2 counts of racketeering, 7 counts of grand theft, and 23 counts of securities fraud went to the jury, which returned guilty verdicts on all counts except for 1 count of securities fraud. The trial court adjudicated Appellant guilty and sentenced him to 12 years in prison, to be followed by 10 years of probation, with substantial costs imposed. On appeal, Appellant contends that the lower court erred as follows: by ruling that Appellant lacked good cause to discharge his court-appointed counsel and by requiring Appellant's replacement attorneys to go to trial unprepared without a continuance; by finding that the statement of particulars provided by the State was sufficient; and by issuing a written judgment of sentence that does not accurately reflect the jury's verdicts and the court's oral pronouncements regarding the degree of the felony in five of the counts. Finding no reversible error in the rulings on Appellant's motion to discharge court-appointed counsel, motions for continuance, and request for a better statement of particulars, we affirm Appellant's conviction. Although we affirm Appellant's sentences too, we remand with instructions that the trial court correct the written judgment of sentences on the five counts that inaccurately state the degree of the felony. See Hudson v. State, 732 So.2d 422 (Fla. 1st DCA 1999).

Over the period from Appellant's October 1995 arrest to his sentencing in late July 1997, he was represented by at least six attorneys. About 18 months after his arrest, 7 months into his representation by court-appointed counsel Mr. Banks, and 5 weeks before the scheduled start of trial, Appellant moved to discharge Banks and sought a 30-day continuance. Appellant alleged that counsel lacked experience in the specialized areas of law involved in this case, that he had not prepared an adequate defense, and that he had not hired experts to assist him. Attorney Banks filed a written response in which he attempted to refute the allegations and to demonstrate that he was prepared to go to trial. Banks asserted that the challenge of preparing an adequate defense was exacerbated by Appellant's own dilatory tactics, lack of good faith in communicating information, and failure to cooperate.

The trial court held two Nelson[1] hearings, where the issues raised in the motion to discharge and in counsel's response were thoroughly discussed. Appellant was permitted to explain in full his several reasons for seeking to discharge court-appointed counsel. Appellant added allegations that Banks was disloyal and had disclosed information protected by the attorney-client privilege. As incompetency was the underlying allegation in the motion, the trial court questioned Appellant and Banks before deciding whether or not there was reasonable cause to believe that counsel was not rendering effective assistance to his client. See Nelson, 274 So.2d at 258-59. The court consistently indicated its intent, barring unforeseen circumstances, to begin the trial in mid-May 1997 according to schedule, and Appellant clearly expressed his understanding that this was the plan.

At the first hearing, the court found that court-appointed counsel had done what he could to prepare adequately for trial, and that Appellant lacked good cause to discharge him. Subsequently, in response to Appellant's intermittent comments suggesting *643 his desire to represent himself, the court conducted a Faretta[2] inquiry addressing Appellant's educational level, experience with litigation, and competency to handle the case himself, and "the dangers and disadvantages of self-representation." Id., 422 U.S. at 835-36, 95 S.Ct. 2525. Appellant eventually agreed to keep Banks on the case until replacement counsel could be hired. The court stayed depositions and other proceedings for one week to afford Appellant time to hire a lawyer. Sometime between the two hearings, Appellant filed a grievance against Banks with The Florida Bar.

At the second hearing, Appellant renewed his motion to discharge counsel and reiterated his wish to represent himself. At the end of the hearing, the court determined that Appellant had knowingly, intelligently waived his right to counsel, and Banks was discharged. See State v. Bowen, 698 So.2d 248 (Fla.1997). Having found that Banks had performed "yeoman's service" in representing Appellant adequately, the trial court refused to appoint replacement counsel. See Nelson, 274 So.2d at 259. The court reiterated its intent to start trial on schedule, and Appellant informed the court of his plan to hire another attorney with funds supplied by his family. The hearings on the motion to discharge concluded about two weeks before trial was set to begin.

About a week after these hearings, two attorneys, Messrs. Stafman and Cook, notified the trial court that they had been retained by Appellant, subject to the condition that the trial be continued because they could not be ready in five days. They requested a continuance. The statewide prosecutor representing the appellee objected on the grounds that Appellant was engaging in delaying tactics and that the State would have difficulty rescheduling its witnesses, many of whom were physicians located in areas of Florida outside Leon County. The motion for continuance was denied. With less than a week before trial was set to begin, Appellant formally retained Stafman and Cook to represent him, with no indication that the court was willing to postpone the start of trial. Immediately before trial, replacement counsel renewed their request for a continuance on the grounds that they needed additional time to prepare an adequate defense. The prosecutor asserted that any lack of preparation on counsel's part was the result of Appellant's own calculated strategy to avoid going to trial. The court refused to grant a continuance, on the ground that Appellant could have hired replacement counsel sooner.

Just before trial, Stafman and Cook filed a motion for bill of particulars alleging that every count of the amended information was fatally defective for failing to give sufficient notice of the facts underlying the crimes with which Appellant was charged. After the motion was granted, the State furnished a statement of particulars. Defense counsel's objection to the statement as insufficient was denied.

In his first issue on appeal, Appellant argues that the trial court erred in ruling that Appellant lacked good cause to discharge court-appointed counsel and in requiring replacement counsel to begin trial according to the original schedule, without affording the

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