Opinion
Case No. 95-03381
Opinion filed December 12, 1997.
Appeal from the Circuit Court for Hillsborough County; Cynthia J. Holloway, Judge.
Scott L. Robbins, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Appellee.
Leonard Gillyard appeals his conviction for grand theft, asserting the trial court erred by failing to conduct an adequate inquiry regarding his self-representation as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and raising several other issues. Because the court's Faretta inquiry was inadequate, we reverse and remand for a new trial. Accordingly, Gillyard's other issues are moot.
At Gillyard's initial arraignment, the trial court questioned him as follows:
COURT: Have you spoken to a Public Defender this morning?
GILLYARD: Yes, I did, Your Honor, but I do not choose to be represented by the Public Defender.
COURT: Can you hire an attorney to represent you, Mr. Gillyard?
GILLYARD: I prefer to represent myself.
COURT: Mr. Gillyard, let me caution you on something. You've been charged with one count of grand theft third degree, which is a third degree felony. It carries a maximum sentence of five years in the Florida State Prison. This is a very serious charge that you face. Are you sure you don't want the Public Defender to represent you?
GILLYARD: I'm positive. I'm aware of the charge.
COURT: And you feel that you can represent yourself?
GILLYARD: Yes, Your Honor, I do.
COURT: Have you ever been charged in the past with a crime?
GILLYARD: Yes, Your Honor, I have.
COURT: I'll allow you to represent yourself at this time, Mr. Gillyard, but I want you to understand how serious these charges are against you.
GILLYARD: Respectfully, I understand.
Gillyard subsequently appeared before the court at a status conference, several brief hearings, the pretrial conference, and a two-day trial. At no time during any of these appearances did the court address with Gillyard the dangers and disadvantages of self-representation beyond the above brief discussion at the initial arraignment.
Faretta requires that a defendant's decision to represent himself be made knowingly, intelligently, and in such a manner that "the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed.2d 268 (1942)). "To achieve a valid waiver, a defendant must be made aware of the dangers and disadvantages of self-representation." Hill v. State, 688 So.2d 901, 904 (Fla. 1996). In addition to the requirements of Faretta, the Florida Rules of Criminal Procedure require the court to conduct a thorough inquiry before accepting a defendant's waiver of assistance of counsel. See Fla. R. Crim. P. 3.111(d).
The trial court failed to adequately "explore with the appellant the complexities of a jury trial, [and] the dangers and disadvantages of self-representation." Jones v. State, 658 So.2d 122, 125 (Fla. 2d DCA 1995). The court erred by not conducting a sufficiently thorough Faretta examination of Gillyard on the record. Failure to conduct a proper Faretta inquiry is reversible error, and is not subject to the harmless error rule. See Vera v. State, 689 So.2d 389, 391 (Fla. 2d DCA 1997).
The State's assertion that this court's en banc decision in Bowen v. State, 677 So.2d 863 (Fla. 2d DCA 1996), approved, 698 So.2d 248 (Fla. 1997), overruled Jones is incorrect. InBowen, this court stated "[t]he trial court may not force a lawyer upon a defendant." 677 So.2d at 865. However, Bowen in no way abrogated the trial court's responsibility to determine that a defendant "had made an uncoerced election, and he had been informed of the perils of self-representation." Bowen, 677 So.2d at 865.
Unlike Bowen, the issue here is not whether Gillyard was competent to represent himself, but whether the court sufficiently reviewed with Gillyard the complexities of self-representation so that the decision to represent himself was knowing and intelligent. A Faretta inquiry is not conducted to enable the trial judge to decide whether a defendant possesses the ability to provide competent self-representation. The primary purpose of a thorough Faretta examination is to assist a defendant in making an informed and intelligent choice by alerting him or her to the difficulties of navigating the legal system. See Hill, 688 So.2d at 905.
The trial court failed to sufficiently explore with Gillyard the issues necessary to conduct a proper Faretta inquiry at any phase of the proceedings. Accordingly, we reverse Gillyard's conviction and remand for a new trial.
Reversed and remanded.
QUINCE and WHATLEY, JJ., Concur.
BLUE, A.C.J., Concurs specially with opinion.
I concur completely with this decision. I concur specially because I am concerned that our decision, while correctly advising the trial court that the Faretta inquiry was inadequate, does not offer any guidance when the trial judge in this case faces the same problem in the future. Because I am unaware of a form currently available to the trial bench for this problem, I have taken the liberty of appending a suggested Faretta inquiry to this opinion.
This suggested Faretta inquiry is based on a list of questions I found helpful while serving in the criminal division as a circuit judge. I found that by using the list of questions, most all of the defendants who professed the desire to represent themselves changed their mind when they realized they did not possess the knowledge necessary to adequately defend themselves before a jury. I suggest that a successful Faretta inquiry results in a defendant accepting the assistance of counsel.APPENDIX Faretta Faretta not Faretta Neil Slappy
The following outline contains specific questions recommended for use when a inquiry is required. The legal requirements of this inquiry are contained in this opinion. I do not suggest that a inquiry requires the court to pose all the questions recommended below. I do suggest an important function of this procedure is to convince the defendant that he or she should proceed to trial without assistance of counsel. This series of questions, if properly posed, should convince the defendant to accept assistance of counsel, or failing that, should result in a finding of a complete and proper inquiry. When the defendant demands self-representation, the court should first establish the defendant has the present mental capacity to make an intelligent waiver. This would be similar to the inquiry made when accepting a plea in lieu of a jury trial. For example, inquiry should be made regarding the defendant's age, education, ability to read and write, influence of drugs or alcohol, and whether the defendant has ever been adjudicated incompetent or is currently suffering from any mental disability. I suggest the defendant then be asked questions similar to the following: (1) Have you ever studied law? (2) Have you ever represented yourself in a criminal action? (3) Do you understand the charge(s) against you? (4) Are you aware of the maximum penalty for each charge? (5) Are you familiar with the exact legal elements for each charge? (6) Do you realize that if you are found guilty of more than one of those crimes, this may result in an order that the sentences be served consecutively; that is, one after another? (7) Do you realize that if you represent yourself, you are on your own? As the judge, I cannot tell you how you should try your case or even advise you as to how to try your case. I cannot help you in any way. (8) Are you familiar with the Florida Evidence Code and Florida case law? (9) Do you realize that the Florida Evidence Code and Florida case law govern what evidence may or may not be introduced at trial and, in representing yourself, you must abide by those rules? For example: — do you know what voir dire means? — do you know how to conduct a voir dire examination? — do you know the grounds for excusing a juror for cause? — do you understand or objections? — do you know the definition of hearsay? — do you know the exceptions to the hearsay rule? — do you know the best evidence rule? — do you know what constitutes proper impeachment? — do you know when character evidence is appropriate and when it is not appropriate? — do you know when and how to make proper objections? — do you know when and how to move for judgment of acquittal? — do you understand that failure to properly move for judgment of acquittal may result in a waiver? — do you know how to proffer evidence to protect the record for appeal? — are you familiar with a motion for mistrial? — do you know the proper grounds for mistrial? — are you aware that failure to timely move for mistrial may waive crucial mistakes made by the State or this court? — do you know how to request and object to jury instructions? (10) Are you familiar with the Florida Rules of Criminal Procedure? (11) Do you realize that those rules govern the way in which a criminal action is tried in this court? (12) [Then say to the defendant something to this effect]: I must advise you that in my opinion you would be far better defended by a trained lawyer than you can be by yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the Rules of Evidence. I would strongly urge you not to try to represent yourself. (13) Now, in light of the penalty that you might suffer if you are found guilty, and in light of all the difficulties of representing yourself, is it still your desire to represent yourself and to give up your right to be represented by a lawyer? (14) Is your decision entirely voluntary on your part? (15) [If the answers to the two preceding questions are in the affirmative, you should then say something to the following effect]: I find that the defendant has knowingly and voluntarily waived his [or her] right to counsel. I will therefore permit him [or her] to represent himself [or herself]. Although it is not necessary to repeat this initial inquiry, the defendant should be reminded of the warnings contained in the inquiry and the court should renew the offer of assistance of counsel at each subsequent critical stage of the proceedings.For examples of Faretta inquiries used by other courts,see State v. Frampton, 737 P.2d 183, 187 n.12 (Utah 1987); Benchbook for United States District Court Judges, vol. 1 section 1.02(C) (Federal Judicial Center, 4th ed. 1996).