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Self-Representation and Ineffective Assistance of Counsel: How Trial Judges Can Find Their Way Thro

Criminal Law

Requests for self-representation and claims of ineffective assistance of court-appointed counsel present a real quagmire to the trial judges who must deal with them. Such difficulties are understandable, since the case law in these areas is voluminous, complex, and at times downright inconsistent. Judge Chris Altenbernd of the Second District Court of Appeal attempted to assist trial judges by giving them a skeleton procedural outline to follow in his concurring opinion in Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995). However, the issue became even more confusing when the same court receded from portions of that procedural guide less than a year later in Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996). This article is intended to sort out some of the confusion and assist trial judges who are increasingly confronted with these issues by criminal defendants.

When Defendants Complain About Court-Appointed Counsel

The trial judge must first conduct a Nelson1 inquiry to determine whether trial counsel has in fact been ineffective. As part of this hearing, the judge should inquire of both the defendant and the court-appointed counsel about the circumstances surrounding the complaint. Only after inquiring of both the defendant and counsel can the judge determine whether the omission or act occurred, and whether it constitutes a “specific, serious deficiency measurably below that of professionally competent counsel.”2

There is no easy formula for determining whether an attorney’s particular act or omission constitutes ineffective assistance. In general, Florida courts have made this determination on a case-by-case basis. But one of the most prevalent claims made by defendants about their court-appointed attorney is that the attorney has not made sufficient visits to the jail to discuss the case. If this is the extent of the defendant’s complaints and he or she raises no instance of incompetency or inadequacy in the handling of the defense, the trial judge is not required even to conduct a Nelson inquiry.3

Sometimes a defendant will voice complaints about his or her attorney that, at the root, are nothing more than a reflection of personality differences between the defendant and attorney. In such a situation, the judge should remember that an accused is not entitled to the appointment of counsel of his or her choice,4 and that the Sixth Amendment does not guarantee a meaningful relationship between the accused and counsel.5 The judge’s inquiry should focus on the adversarial process, not on the harmoniousness of the attorney-client relationship.6

After the Nelson inquiry, if the judge determines that the court-appointed counsel has in fact been ineffective, the judge should make a finding to that effect on the record and appoint a substitute attorney. The new attorney should be allowed adequate time to prepare for trial.

Alternatively, if the judge determines that the attorney has not been ineffective, that finding should also clearly be made on the record. The judge should then advise the defendant that if he or she discharges the original counsel, the state may not be required to appoint another one. If the defendant continues to demand dismissal of the court-appointed counsel, then it is presumed that the defendant is exercising the right to self-representation.7 The trial judge may then discharge the attorney and require the defendant to proceed without representation. But the judge must first conduct a Faretta8 inquiry to determine if the defendant’s waiver is knowing and intelligent. The proper procedure for conducting a Faretta hearing is discussed below .

The best course for a judge to follow is to advise a defendant about the right to self-representation anytime the defendant complains about the court-appointed counsel.9 But the requirement to give a defendant this advice does not mandate reversal every time a court fails to do so upon learning that a defendant has expressed dissatisfaction with counsel, “a daily occurrence in many trial courts.”10

When Defendants Request Self-Representation

Initially, trial judges should be aware that the right of self-representation may be lost if it is not timely asserted. See, e.g., Horton v. Dugger, 895 F.2d 714 (11th Cir. 1990) (upholding denial of self-representation request made after jury was empaneled but before trial began). However, at least one Florida court has held otherwise. See Smith v. State, 677 So. 2d 370 (Fla. 2d DCA 1996) (conviction reversed where trial court advised defendant he had “no choice” but to proceed with court-appointed attorney or return to his cell while the trial continued without him, when he sought to discharge his court-appointed attorney after the state rested its case but before the defense case-in-chief). Because of the conflicting law in this area, it is probably best for a trial judge to err on the side of caution and conduct a Nelson and/or Faretta inquiry anytime complaints about counsel or requests for self-representation are made, regardless of what point they occur during trial.

A trial judge is only required to conduct a Faretta inquiry when there is an unequivocal request for self-representation.11 The purpose of a Faretta hearing is to determine whether a defendant is knowingly and intelligently waiving the right to counsel. These are the factors a trial judge should consider in determining whether a defendant’s waiver of counsel is knowing and intelligent:12

•What is the defendant’s age, education, and background?

• What is the defendant’s mental condition?

•Does the defendant understand the dangers and disadvantages of self-representation, including:

a) the nature and complexity of the case?

b) the seriousness of the charge?

c) the potential sentence?

d) the possibility of sentence enhancement, such as habitual offender, use of a firearm, or use of a mask?

•What is the defendant’s experience in the criminal justice system?

•Does the defendant understand the requirement to abide by the rules of courtroom procedure?

•Was the defendant represented by counsel before trial?

•Is the waiver the result of coercion or mistreatment?

There are no particular words required to establish that the defendant is making an informed decision. The issue depends on the facts and circumstances of each case.13 The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.14

The most prevalent mistake made by trial judges during a Faretta hearing is inquiring into the defendant’s legal skills and ability to actually conduct his or her defense. A defendant’s technical legal knowledge is irrelevant to determining whether his or her waiver is knowing and intelligent.15 Additionally, the Second District Court of Appeal has held that once a trial judge determines that a defendant’s waiver is knowing and intelligent, the judge may not proceed to inquire into whether there are other “unusual circumstances” which would deny a fair trial to a defendant who represents himself or herself. Bowen v. State, 677 So. 2d 863 (Fla. 2d DCA 1996), aff’d, 22
Fla. L. Weekly S208 (April 24, 1997). The import of the Bowen decision appears to be that Florida’s pre- Faretta “unusual circumstances” test for self-representation established in Cappetta v. State, 204 So. 2d 913 (Fla. 4th DCA 1967), and approved by the Florida Supreme Court at 216 So. 2d 749 (Fla. 1968), was overruled by Faretta.16

On the other hand, the Fourth District has suggested that trial judges should inquire about the fairness of a trial without counsel when conducting a Faretta hearing, because the inquiry serves the purpose of making the defendant “aware of the disadvantages under which he is placing himself by waiving counsel.”17 The Fourth District also continues to hold that a trial judge may properly deny self-representation based on “unusual circumstances” such as the state of the defendant’s health, as long as the “unusual circumstance” is something other than lack of legal knowledge.18

In his concurring opinion of the Florida Supreme Court’s review of the Bowen decision, Justice Wells noted that Florida Rule of Criminal Procedure 3.111(d)(3) may not follow the mandates of Faretta and Nelson with sufficient clarity. The rule provides that “[n]o waiver shall be accepted if it appears that the defendant is unable to make an intelligent and understanding choice because of a mental condition, age, education, experience, the nature or complexity of the case, or other factors.” To clarify the rule and harmonize it with the Supreme Court’s interpretations of Faretta and Nelson, Justice Wells has suggested that the Criminal Procedure Rules Committee of The Florida Bar review the rule. He has also suggested that the Florida Conference of Circuit Court Judges develop a colloquy for trial judges to use when questioning defendants who wish to waive the assistance of counsel.

If the trial judge concludes after a Faretta inquiry that the defendant’s waiver is knowing and intelligent, then the defendant must be permitted to represent himself or herself at trial. The trial judge should renew the offer of assistance of counsel at each subsequent stage of the proceedings.19 If the judge determines that the defendant’s waiver is not knowing and intelligent, the judge should explain on the record the factors leading to the decision and then proceed to trial with the defendant represented by appointed counsel.

Occasionally a trial judge will be confronted with a defendant whose behavior and complaints regarding court-appointed counsel are completely unfounded and disruptive to courtroom procedure. In such a situation, the judge is not compelled to allow the defendant to delay and continually frustrate the trial. The judge may presume that the defendant’s actions constitute a request to proceed pro se.20 The best course would be to confirm the waiver of counsel by conducting a Faretta inquiry. But the failure to do so does not automatically require reversal. See Waterhouse v. State, 596 So. 2d 1008 (Fla. 1992), cert. denied, 506 U.S. 957 (1992) (conviction affirmed despite lack of Faretta hearing. “Waterhouse’s manipulation of the proceedings and his attempts to delay show an obvious understanding of the proceedings against him. Under these facts, we find the requirements of Faretta were met.”)

Hybrid Representation

Often a defendant seeking self-representation will request that standby counsel be appointed to assist the defendant in conducting the defense. The appointment of standby counsel under Faretta is constitutionally permissible, but not constitutionally required. Standby counsel may be denied when the defendant refuses to cooperate with the trial court or with court-appointed counsel in their efforts to provide legal assistance.21 But a judge should use caution in denying standby counsel, because a defendant may waive the right to self-representation if the defendant later abandons his or her initial request to proceed pro se. Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (en banc). The trial judge is not required to allow a nonlawyer to assist a pro se defendant in lieu of a licensed attorney. See Bauer v. State, 610 So. 2d 1326 (Fla. 2d DCA 1992).

Even if standby counsel is appointed, the defendant must be permitted to control the organization and content of his or her defense, make motions, argue points of law, participate in voir dire, question witnesses, and address the court and the jury at appropriate points. The defendant has the entire responsibility for his or her own defense.22

Sometimes a defendant will resist the appointment of standby counsel even though the trial judge believes an attorney’s assistance might at some point become necessary. A trial judge can appoint standby counsel over the defendant’s objection to relieve the judge of the need to explain and enforce basic rules of courtroom procedure or to assist the defendant in overcoming routine obstacles to reach his or her goal. However, the judge must not permit standby counsel’s participation over the defendant’s objection to substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak on any matter of importance. Outside the presence of the jury, the defendant must be freely permitted to address the court on his or her own behalf. On disagreements between the counsel and the defendant, the trial judge must resolve the disagreement in the defendant’s favor whenever the matter is one that would normally be left to the discretion of counsel.23

Occasionally a defendant will insist on acting as co-counsel with a court-appointed attorney. But Faretta does not require a trial judge to permit this type of “hybrid” representation. A defendant does not have the right to partially represent himself or herself and at the same time be partially represented by counsel. Neither does a defendant have a constitutional right to choreograph the attorney’s appearance.24


It is understandable that trial judges might be inclined to resist allowing a defendant to represent himself or herself at trial. To allow such pro se representation requires an exorbitant amount of patience and vigilance on the part of the judge as well as the prosecutor. It can also generate tremendous anxiety in victims of violent crimes at the prospect of being subjected to questioning by their attackers. Even so, the Sixth Amendment has guaranteed that a defendant who makes a knowing and intelligent waiver of counsel has the right to represent himself or herself. This is true even though it “seems to cut against the grain of [the United States Supreme Court]’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to assistance of counsel.”25

Under certain circumstances, the trial court may properly deny self-representation or the appointment of different counsel. But the key to having those decisions upheld is in conducting a thorough inquiry into the effectiveness of court-appointed counsel and the nature of the defendant’s waiver. q
1 Nelson v. State, 274 So. 2d 256 (Fla. 4th D.C.A. 1973).
2 Phillips v. State, 608 So. 2d 778 (Fla. 1992), cert. denied , 509 U.S. 908.
3 Kenney v. State , 611 So. 2d 575 (Fla. 1st D.C.A. 1992); Augsberger v. State , 655 So. 2d 1202 (Fla. 2d D.C.A. 1995).
4 Wheat v. United States , 486 U.S. 153 (1988).
5 Morris v. Slappy, 461 U.S. 1 (1983).
6 United States v. Cronic , 466 U.S. 648 (1984).
7 Hardwick v. State , 521 So. 2d 1071 (Fla. 1988), cert. denied , 488 U.S. 871 (1988).
8 Faretta v. California , 422 U.S. 806 (1975).
9 Capehart v. State , 583 So. 2d 1009 (Fla. 1991), cert. denied, 502 U.S. 1065 (1992).
10 Causey v. State, 623 So. 2d 617 (Fla. 4th D.C.A. 1993), rev. denied, 634 So. 2d 623 (Fla. 1994); State v. Craft, 685 So. 2d 1292 (Fla. 1996).
11 Augsberger v. State , 655 So. 2d 1202 (Fla. 2d D.C.A. 1992); see also Weems v. State, 645 So. 2d 1098 (Fla. 4th D.C.A. 1994), rev. denied, 654 So. 2d 920 (Fla. 1995).
12 Faretta v. California, 422 U.S. 806 (1975); see also Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986).
13 Fitzpatrick v. Wainwright, 800 F. 2d 1057 (11th Cir. 1986); Payne v. State , 642 So. 2d 111 (Fla. 1st D.C.A. 1994).
14 Fitzpatrick v. Wainwright , 800 F. 2d 1057 (11th Cir. 1986).
15 Faretta v. California , 422 U.S. 806 (1975).
16 The Cappetta test includes “whether the accused, by reason of age, mental derangement, lack of knowledge, or education, or inexperience in criminal procedures would be deprived of a fair trial if allowed to conduct his own defense, or in any case, where the complexity of the crime was such that in the interest of justice legal representation was necessary.” Cappetta, 204 So. 2d at 918.
17 Morris v. State, 667 So. 2d 982 (Fla. 4th D.C.A. 1996), appeal dism. , 673 So. 2d 29 (Fla. 1996).
18 Id.
19 Fla. R. Crim. P. 3.111(d)(5).
20 State v. Young, 626 So. 2d 655 (Fla. 1993).
21 Jones v. State, 449 So. 2d 253 (Fla. 1984), cert. denied, 469 U.S. 893 (1984).
22 McKaskle v. Wiggins, 465 U.S. 168 (1984); Behr v. Bell, 665 So. 2d 1055 (Fla. 1996).
23 McKaskle v. Wiggins , 465 U.S. 168 (1984).
24 Id .; Sheppard v. State, 391 So. 2d 346 (Fla. 5th D.C.A. 1980).
25 Faretta, 422 U.S. at 832

. Angela D. McCravy is an assistant attorney general in the Second District. Ms. McCravy is a former special agent with the Drug Enforcement Administration. She received her B.S. from Georgia State University in 1983 and her J.D. from Stetson University College of Law in 1993.

This column is submitted on behalf of the Criminal Law Section, Claire K. Luten, chair, and Randy E. Merrill, editor.

Criminal Law