WHITE v. STATE (2022)

Antonious White appeals from the order modifying his probation, arguing that the trial court fundamentally erred by failing to conduct an adequate Faretta ¹ inquiry before allowing him, without counsel, to admit that he had violated the conditions of his probation. Because White did not have the assistance of counsel at the violation hearing and did not waive his right to counsel, we reverse.²

In March 2021, White's probation officer filed an affidavit asserting that White had violated his probation in two different cases by possessing and using methamphetamine. At the violation hearing, White appeared pro se. The trial court asked White if he wanted counsel, and White responded only that he “was thinking [he] was just going to get [his probation] reinstated.” The State then made White an offer, and after some discussion, the court offered to appoint counsel if White “want[ed] to talk to a lawyer about [his] options.” White declined counsel, opting for a sentence of 180 days in jail. He then admitted the alleged violations.

The trial court modified White's probation, ordering 180 days in county jail, entry into the in-jail substance abuse treatment program, a drug evaluation, treatment if necessary, and enhanced drug testing. If White completed the substance abuse treatment program, the remainder of the jail sentence would be vacated.

This appeal followed.

“Under the United States Supreme Court's ruling in Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)], an accused has the right to self-representation at trial.” Tennis v. State, 997 So. 2d 375, 377 (Fla. 2008). “[O]nce a defendant makes an unequivocal request for self-representation, the trial court must ‘hold a hearing[ ] to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel.' ” Eib v. State, 191 So. 3d 977, 979 (Fla. 2d DCA 2016) (second alteration in original) (quoting Tennis, 997 So. 2d at 378). The court is also required to inform defendants about the disadvantages and dangers associated with self-representation. See 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.”); Goldsmith v. State, 937 So. 2d 1253, 1256 (Fla. 2d DCA 2006).

In Florida, the right to counsel has been extended to all probation violation hearings. See State v. Hicks, 478 So. 2d 22, 23 (Fla. 1985); see also Brady v. State, 910 So. 2d 388, 390 (Fla. 2d DCA 2005). And “unless there has been an informed waiver [of the right to counsel, a probationer] is entitled to counsel, and it must be afforded him before he is required to respond in any manner to the revocation charges.” Brady, 910 So. 2d at 390 (alteration in original) (quoting Hicks, 478 So. 2d at 23). Failing to inquire whether a probationer has knowingly and intelligently waived the right to counsel constitutes fundamental error requiring reversal. See id.

White was entitled to counsel at his violation hearing, and the record fails to establish that he knowingly and intelligently waived that right. Although the trial court asked White if he wanted counsel to be appointed, it did not conduct a Faretta hearing. Accordingly, we reverse the order modifying White's probation and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FOOTNOTES

1.   Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

2.   The State properly concedes error.

ROTHSTEIN-YOUAKIM, Judge.

NORTHCUTT and LaROSE, JJ., Concur.