NEAL v. STATE

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Richard NEAL, Appellant, v. STATE of Florida, Appellee.

No. 1D13–0203.

Decided: February 21, 2014

Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

This is an Anders appeal from Appellant's conviction and habitual felony offender sentence (“HFO”) after the entry of Appellant's nolo contendere plea.1 The public defender submitted an Anders brief and Appellant was afforded the opportunity to file a pro se brief but did not do so. This Court's “full and independent review,” as described in In re Anders Briefs, 581 So.2d 149, 151 (Fla.1991), revealed no arguable issue for appeal and the judgment and sentence are affirmed.

In his Anders brief, counsel asserted that this court lacked jurisdiction to consider this appeal due to Appellant's failure to file a notice of appeal after the rendition of the judgment and sentence and due to the procedural bar of appeals from nolo contendere pleas imposed by rule 9.140(b)(2)(A), Florida Rules of Appellate Procedure. Accordingly, counsel concluded that this appeal is “wholly frivolous.” In Anders, the Court described the process if counsel believes the appeal is frivolous thusly:

Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders v. State of California, 386 U.S. at 744. Appellant's counsel did not move to withdraw and did not include in the brief “anything in the record that might arguably support the appeal.” Id. The brief did not assist this court with “ready references not only to the record, but also to the legal authorities as furnished it by counsel.” Anders, 386 U.S. at 745. The brief essentially presented this court with “only the cold record which it must review without the help of an advocate.” Id.

As explained in In re Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114 (Fla.1990), if the reviewing court is not satisfied that the requirements for an Anders brief have been met by Appellant's brief, the court has the inherent authority to require supplemental briefs on any issue where confusion or doubt remains. An order for supplemental briefing furthers the Appellant's right to a direct appeal with the assistance of counsel. In State v. Causey, 503 So.2d 321, 322 (Fla.1987), the Florida Supreme Court discussed the appellate court's duty to independently review the record after appointed counsel files an Anders brief, “to the extent necessary to discover any errors apparent on the face of the record.” The court held: “While courts should not assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.” State v. Causey, 503 So.2d at 322–323. In Causey, based on its independent review of the record after the filing of an Anders brief by appointed counsel, the First District Court of Appeal reversed the conviction “without allowing either party to brief the issue.” State v. Causey, 503 So.2d at 323. The Florida Supreme Court reversed and remanded, holding that in order to provide the Appellant with his right to the assistance of counsel, “the district court should request that briefs be submitted on the issues raised by the court before the court renders its opinion.” Id.

Unlike the situation in State v. Causey, where the District Court of Appeal had reversed based on its independent review without requesting additional briefing, our independent review of this record did not reveal any meritorious point which might support reversal of the conviction and sentence. Accordingly, although we disagree with counsel and find that this appeal is not “wholly frivolous,” as might be the case where this court's jurisdiction was not properly invoked or where the appeal is procedurally barred, we decline to order supplemental briefing prior to affirming. Our independent review of the record does not reveal any confusion or doubt on the face of the record, nor do we need further illumination or discussion of the applicable law as might be provided by supplemental briefing. See In re Forrester, 556 So.2d at 1117 (“If not satisfied that these requirements have been met, or if it needs further illumination or discussion of applicable law, a reviewing court may require supplemental briefs.”).

Throughout the preparation for trial and the entry of the plea, Appellant represented himself but had accepted standby counsel appointed by the court. Appellant continued to represent himself during the jury trial, with standby counsel in attendance. Upon the State's resting its case, Appellant indicated to the court that he wished to enter a plea. Outside the presence of the jury, and after consulting with standby counsel, Appellant ultimately decided to enter a plea of nolo contendere and stated that he reserved his right to appeal. However, Appellant did not specify any particular ruling or trial event for which he wished to reserve this right. The trial court then considered the State's factual basis, particularly the testimony of the witnesses the State had presented during its case in chief. The court informed Appellant of the rights he was waiving, inquired about Appellant's mental status and understanding of his rights, and accepted the plea. The jury was excused and the trial proceedings concluded.

The sentencing hearing took place a few weeks after the trial and entry of the plea. Appellant again represented himself, with standby counsel in attendance. Appellant stipulated to his prior convictions as presented by the State and the court found that he qualified as an HFO. § 775.084, Fla. Stat. The State and Appellant each presented argument regarding sentencing. Appellant concluded his argument by stating: “And also, sir, when I, you know, with Ms. Rado [standby counsel], I had asked her would I be able to get some type of treatment. And she informed me that the only way I'd be able to get some type of treatment is that I would have to go through you, sir.” The court adjudicated Appellant guilty of the charges and imposed a ten-year HFO sentence.

Later on the day of sentencing, Appellant filed his motion to withdraw plea after sentencing, pursuant to rule 3.170(l), Florida Rules of Criminal Procedure. He alleged that his plea was invalid because standby counsel had promised him he would receive drug treatment if he entered his plea, but the sentence did not contain any such condition. The court denied the motion without a hearing.

Appellant filed his pro se notice of appeal a few days prior to the rendition of the judgment and sentence, but the appeal was not dismissed as premature. The final judgment and sentence were rendered shortly after the notice of appeal was filed. Thereafter, appellate counsel filed an amended notice of appeal correctly identifying the nature of the final judgment to be reviewed. Accordingly, the invocation of this Court's jurisdiction was sufficient under rule 9.110(l), Florida Rules of Appellate Procedure.

Likewise, this appeal was not procedurally barred by the entry of the nolo contendere plea. Rule 9.140(b)(2)(A)(ii)c., Florida Rules of Appellate Procedure, allows defendants to appeal from pleas of nolo contendere on grounds that the plea is “an involuntary plea, if preserved by a motion to withdraw plea.” Appellant's motion to withdraw plea after sentencing essentially alleged that his plea was rendered involuntary due to standby counsel's misrepresentation that he would receive drug treatment if he entered the plea. The fact that this assertion is conclusively refuted by the transcript of the sentencing hearing does not procedurally bar the appeal; the record merely renders the appeal on this basis meritless.

The transcript of the pre-trial Faretta hearing2 (pertaining to self-representation) in this case demonstrates the proper exercise of the trial court's discretion in allowing Appellant to represent himself. McCray v. State, 71 So.3d 848, 864 (Fla.2011) (“The standard of review for a trial court's handling of a request for self-representation is abuse of discretion .”); see also Sparaga v. State, 111 So.3d 260, 263 (Fla. 1st DCA 2013). The transcript clearly supports the sufficiency of the trial court's inquiry to determine if the defendant knowingly and intelligently waived his right to counsel and was aware of the dangers and disadvantages of self-representation. The record reveals no violation of the requirements of Faretta, as codified in rule 3.111(d), Florida Rules of Criminal Procedure.

The grounds upon which Appellant sought to discharge the public defender and represent himself consisted of general complaints about defense counsel's trial strategy, particularly counsel's refusal to file a motion to dismiss the charges as Appellant requested but that counsel deemed meritless. Appellant specifically requested discharge of counsel so that he could represent himself, not the appointment of new counsel. He never asserted that counsel was incompetent or ineffective to represent him. Accordingly, no hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), was warranted. LeGrand v. State, 31 So.3d 924, 926 (Fla. 1st DCA 2010).

The trial court's failure to reiterate an offer of appointed counsel to Appellant immediately prior to the mid-trial entry of his plea and at the beginning of the sentencing hearing do not require reversal of the judgment and sentence in this case. Rule 3.111(d)(5), Florida Rules of Criminal Procedure requires that the court “renew” the offer of counsel “at each subsequent stage of the proceedings at which the defendant appears without counsel.” The entry of a plea is a critical stage of the proceedings at which point the offer for appointed counsel must ordinarily be renewed. Henretty v. State, 39 Fla. L. Weekly D183, 2014 WL 211491 (Fla. 1st DCA Jan. 17, 2014). Likewise, sentencing is a critical stage of the proceeding and ordinarily, the trial court's failure to renew the offer of counsel before sentencing is reversible error. Monte v. State, 51 So.3d 1196 (Fla. 4th DCA 2011).

The general rule requiring renewal of the offer of counsel does not apply in this case because standby counsel was appointed by the court, accepted by Appellant, and available for consultation at each stage of the proceedings. The transcript of both the trial, during which the plea was entered, and the subsequent sentencing hearing shows that standby counsel was present and that Appellant repeatedly availed himself of the court's invitations to consult with standby counsel. The court offered both Appellant and standby counsel the opportunity to present argument at all appropriate stages of the proceedings. Under these circumstances, the trial court's failure to renew the offer of counsel under rule 3.111(d)(5) was not error. See McCarthy v. State, 731 So.2d 778 (Fla. 4th DCA 1999). In Knight v. State, 770 So.2d 663, 670 (Fla.2000), the Florida Supreme Court held that the presence of standby counsel, particularly where the defendant willingly accepted standby counsel and consistently relied upon him or her, “is a constant reminder to a self-representing defendant of his right to court-appointed counsel at any stage of the proceeding.” The court ruled that a trial court's failure to renew the offer of appointed counsel in that situation is not a ground for reversal. The court noted: “A defendant's right to have court-appointed counsel discharged and right to represent himself becomes meaningless and a source of gamesmanship if the trial court has to offer counsel to the defendant each time he appears in court.” Knight v. State, 770 So.2d 663, n. 6 (Fla.2000); see also Brown v. State, 113 So.3d 134, 142 (Fla. 1st DCA 2013).

Appellant's entry of his nolo contendere plea comported with all the requirements of law. The transcript of the plea colloquy in the record confirms the trial court's compliance with rule 3.172, Florida Rules of Criminal Procedure, including the defendant's acknowledgement that he believed the plea to be in his best interest. Appellant stated to the court under oath that he was not promised anything, including any particular sentence, in exchange for the plea and he affirmatively represented to the court that he asked standby counsel if he could get drug treatment and she “informed me the only way I'd be able to get some type of treatment is that I would have to go through you, sir.”

The trial court's denial of Appellant's motion to withdraw plea after sentencing, pursuant to rule 3.170(l), Florida Rules of Criminal Procedure, is also free from error. Appellant's assertion that his plea was involuntary due to a misrepresentation by standby counsel regarding drug treatment is cognizable on appeal under rule 9.140(b)(2)(A)(ii)c., Florida Rules of Appellate Procedure. However, Mr. Neal's allegation of fact—that standby counsel promised him drug treatment if he entered his plea—is directly contradicted in the record of Mr. Neal's own statement to the court, under oath, as quoted above. Accordingly, the trial court's denial of the motion to withdraw plea was correct.

For all the foregoing reasons, the conviction and sentence are AFFIRMED.

FOOTNOTES

1.  Anders v. California, 386 U.S. 738 (1967).

2.  Faretta v. California, 422 U.S. 806 (1975).

CLARK, J.

WOLF, J., Concurs in Result, and VAN NORTWICK, J., concurs.

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