Reigelsperger v. State

16 So. 3d 942, 2009 Fla. App. LEXIS 11594, 2009 WL 2513464
District Court of Appeal of Florida·Decided August 19, 2009·No. 1D08-4425·Published

Opinion

WOLF, J.

Appellant challenges his convictions for armed robbery with a firearm and attempted first-degree murder with a firearm. He raises one issue: whether appellant was denied his Sixth Amendment right to assistance of counsel where he was represented in part by a certified legal intern without his written consent. The trial court determined after an evidentiary hearing that appellant was fully aware he was being represented by an intern and had, in fact, executed the required form. We, therefore, affirm.

On March 6, 2008, the State filed an information charging appellant with armed robbery with a firearm and attempted first-degree murder with a firearm. The information alleged that the firearm was possessed and discharged, causing death or great bodily harm. A certified legal intern participated in the motions and trial of the case including the following relevant portions: (1) argument of appellant’s sixth motion in limine; (2) voir dire of the jury pool; (3) opening and closing argument; (4) cross examination of two witnesses; and (5) arguments in allocution of appellant’s sentence. No consent for representation by a certified legal intern was found in the court file.

After deliberation, the jury returned verdicts finding appellant guilty of robbery while discharging a firearm and attempted first-degree murder while discharging a firearm. As a result, on August 18, 2008, appellant was sentenced to concurrent life sentences with a 25-year minimum mandatory applicable. Appellant’s notice of appeal was timely filed.

On March 13, 2009, after the filing of appellant’s initial brief, the State filed a motion to relinquish jurisdiction for the purpose of reconstructing the record concerning appellant’s consent to representation by a certified legal intern. This court granted the motion and the trial court conducted a hearing on the issue at which the following evidence was presented:

Testimony of Assistant Public Defender Mary Hickson

Hickson explained that she was the lead attorney on appellant’s case. She was present at every stage of appellant’s case. When Casey Bryant, the certified legal intern, assisted her with a case, she would go over the consent form with the client. Bryant would then make a copy of the form and he would file the original with *944 the clerk and keep a copy in their file. Hickson had a specific memory of going over the certified legal intern consent form with appellant, and she stated appellant and Bryant would have signed the form at this time. Hickson testified it is her practice to make sure that anybody represented by a certified legal intern understands the extent of such representation. Hick-son recalled appellant never expressed any concerns about being represented by an intern and he was happy to have additional people working on his case. Hickson stated appellant and Bryant got along very well. Hickson explained she never had any concerns that appellant was unaware or upset about the fact that a certified legal intern was working on his case. She was very satisfied with Bryant’s performance. Hickson testified she remembered Bryant approaching the clerk before trial to make sure that the consent form was in the file. Hickson recalled the clerk telling Bryant that she believed the form was underneath the paper. Hickson recalled that this particular clerk was being trained at the time. Hickson explained that, during that same time period, in another case which she handled, a filed consent form did not make it into that clerk’s file. Hickson presented a copy of the standard waiver form and the form was admitted into evidence. The waiver form read in pertinent part:

I, the Defendant herein, having been advised of the availability of the services of a student intern to assist the office of the Public Defender for the Fourth Judicial Circuit in the defense of my case, do hereby request that an intern or interns be assigned to my case and consent that an intern may appear on my behalf in any court as directed by the Public Defender or his Assistants.

Following Hickson’s testimony, the State played a phone call appellant made from jail and Hickson identified appellant as the speaker on the phone call. The pertinent portion played as follows:

I had two of them in here today and there’s another one. (Inaudible.) I got three lawyers fighting for me. And right now they’re suppose to (inaudible). They’re interns, so they’re trying to make a name for themselves (inaudible).

Testimony of Casey Bryant, the certified legal intern

Bryant testified that he dealt with appellant for five or six months and met with him 30-40 times. He testified appellant knew that he was an intern based on discussions they had and every time he represented someone he executed a consent form. Bryant stated appellant never expressed any concern about Bryant being an intern. Appellant stated Hickson supervised him at all times. After sentencing, appellant showed Bryant a list of issues he wanted to appeal. The fact that Bryant was an intern was on that list; however, appellant did not act shocked that Bryant was an intern.

Testimony of Appellant

Appellant testified he did not sign a consent form. Appellant could not say if he had seen the form before. He testified he was not aware that Bryant was an intern. He conceded he met with Bryant many times but stated his status as an intern was never mentioned to him. Appellant testified he was only referring to Michael Kalil on the phone call. When asked if he recalled saying “they are interns,” appellant replied: “I might have said that, but if you listen to how I talk, I have a weird way of talking. If you listen to the whole conversation, my slang is different than everybody else’s.”

At the close of the hearing, the trial court made the following findings:

*945 THE COURT: Let me quickly note just for record purposes that I certainly remember Mr. Reigelsperger and I remember the trial. And I’m sure that nobody on the jury had seen somebody shot in the back of the head before because I certainly hadn’t either.
So, I absolutely remember Mr. Reigel-sperger, and I remember Mr. Bryant trying this case. And I want it clear for the record that I knew Mr. Bryant was a legal intern. And I also think that if you look at the transcripts of the trial at the conclusion of the State’s case, I specifically asked Mr. Reigelsperger if he was satisfied with the representation of counsel, and everything that happened at that point, and he acknowledged that he had [sic].
I find this testimony today to be utterly incredible. Under the circumstances of all this, I can’t account for where the form is because we are meticulous, particularly in this division. And the reason for that is, I happen to be a professor at the Florida Coastal School of Law and I am well versed with the requirements of interns. Mr. Bryant was a student out there at the time, and I knew it, and I knew it when he was in this division. It is completely and utterly implausible that Mr. Reigelsperger didn’t know that Mr. Bryant was a legal intern because everybody else in the world certainly did.

Florida Bar Rule 11-1.2(b) authorizes a legal intern to represent a defendant and provides in pertinent part:

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Reigelsperger v. State, 16 So. 3d 942, 2009 Fla. App. LEXIS 11594, 2009 WL 2513464 (Fla. Ct. App. 2009).

16 So. 3d 942 (Reigelsperger v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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