Woseley v. State

District Court of Appeal of Florida

Woseley v. State

590 So. 2d 979, 1991 Fla. App. LEXIS 12214, 1991 WL 259441

CourtDistrict Court of Appeal of Florida

DecidedDecember 3, 1991

DocketNo. 91-2539

StatusPublished

Cited by2 cases

This text of 590 So. 2d 979 (Woseley 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

Woseley v. State, 590 So. 2d 979, 1991 Fla. App. LEXIS 12214, 1991 WL 259441 (Fla. Ct. App. 1991).

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Opinion

WIGGINTON, Judge.

Petitioners seek certiorari review of the trial court’s order granting the state’s motion to disqualify defense counsel from representing both petitioners. We grant cer-tiorari and quash the appealed order, with directions.

Petitioners, who cohabited at the same address, were charged with possession of more than 20 grams of cannabis with intent to sell. They retained the same defense counsel, Angela Jacobs, who, according to an affidavit in the record, informed both petitioners of potential conflicts of interest and of their right to separate attorneys. On March 20, 1991, approximately two months after their arrest, the state made a plea offer to petitioners, in which the state proposed to allow petitioner Madison to plead to a reduced charge if she would testify against petitioner Woseley. Petitioners did not accept that plea offer. Thereafter, on July 10, 1991, the state filed a motion to disqualify defense counsel, arguing that the plea offer showed a clear conflict of interest between the petitioners [980]*980so that multiple representation of both of them by the same attorney is clearly inappropriate. After a hearing, at which petitioners were not present,¹ the trial judge granted that motion.

Even if the state’s plea offer can be construed as creating a substantial conflict, as recognized in DeArce v. State, 405 So.2d 283 (Pla. 1st DCA 1981):

In a criminal case, the existence of a conflict of interest is not determinative because the defendant has a constitutionally guaranteed right to counsel of his choice.

In DeArce, the court recognized that a defendant, after being fully informed of the ramifications of his decision, should be given the opportunity to waive his right to conflict-free counsel. In Barclay v. Wainwright, 444 So.2d 956 (Fla.1984) and Roberts v. State, 573 So.2d 964 (Fla. 2d DCA 1991), the court also recognized that a defendant can make an effective waiver of conflict. In Roberts, prior to trial the state filed a motion to determine whether a conflict existed since the same attorney was representing two defendants, who were husband and wife, on drug trafficking charges. In response, both defendants signed a waiver of conflict of interest and after questioning both defendants, the court determined the waiver to be voluntary. Later, upon review of the denial of the husband’s 3.850 motion for relief grounded on a claim of ineffective assistance of counsel, the court found the above inquiry satisfied the standards set out in DeArce and that the waiver invalidated the 3.850 claim.

In the instant case, there is no indication that petitioners were given the opportunity to exercise their right to elect to waive any possible conflict. Therefore, as in DeArce, we quash the trial court’s order disqualifying petitioners’ defense counsel from representation of both petitioners, with directions that petitioners “be given the opportunity to elect to proceed with [their] present counsel after being fully informed of the consequences that might result from such representation.”

ERVIN and WOLF, JJ., concur.

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WIGGINTON, Judge.

Petitioners seek certiorari review of the trial court’s order granting the state’s motion to disqualify defense counsel from representing both petitioners. We grant cer-tiorari and quash the appealed order, with directions.

Petitioners, who cohabited at the same address, were charged with possession of more than 20 grams of cannabis with intent to sell. They retained the same defense counsel, Angela Jacobs, who, according to an affidavit in the record, informed both petitioners of potential conflicts of interest and of their right to separate attorneys. On March 20, 1991, approximately two months after their arrest, the state made a plea offer to petitioners, in which the state proposed to allow petitioner Madison to plead to a reduced charge if she would testify against petitioner Woseley. Petitioners did not accept that plea offer. Thereafter, on July 10, 1991, the state filed a motion to disqualify defense counsel, arguing that the plea offer showed a clear conflict of interest between the petitioners [980]*980so that multiple representation of both of them by the same attorney is clearly inappropriate. After a hearing, at which petitioners were not present,¹ the trial judge granted that motion.

Even if the state’s plea offer can be construed as creating a substantial conflict, as recognized in DeArce v. State, 405 So.2d 283 (Pla. 1st DCA 1981):

In a criminal case, the existence of a conflict of interest is not determinative because the defendant has a constitutionally guaranteed right to counsel of his choice.

In DeArce, the court recognized that a defendant, after being fully informed of the ramifications of his decision, should be given the opportunity to waive his right to conflict-free counsel. In Barclay v. Wainwright, 444 So.2d 956 (Fla.1984) and Roberts v. State, 573 So.2d 964 (Fla. 2d DCA 1991), the court also recognized that a defendant can make an effective waiver of conflict. In Roberts, prior to trial the state filed a motion to determine whether a conflict existed since the same attorney was representing two defendants, who were husband and wife, on drug trafficking charges. In response, both defendants signed a waiver of conflict of interest and after questioning both defendants, the court determined the waiver to be voluntary. Later, upon review of the denial of the husband’s 3.850 motion for relief grounded on a claim of ineffective assistance of counsel, the court found the above inquiry satisfied the standards set out in DeArce and that the waiver invalidated the 3.850 claim.

In the instant case, there is no indication that petitioners were given the opportunity to exercise their right to elect to waive any possible conflict. Therefore, as in DeArce, we quash the trial court’s order disqualifying petitioners’ defense counsel from representation of both petitioners, with directions that petitioners “be given the opportunity to elect to proceed with [their] present counsel after being fully informed of the consequences that might result from such representation.”

ERVIN and WOLF, JJ., concur.

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Bluebook (online)

590 So. 2d 979, 1991 Fla. App. LEXIS 12214, 1991 WL 259441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woseley-v-state-fladistctapp-1991.

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