Summary
finding trial court did not err in failing to conduct a proper Nelson inquiry "because appellant neither made an unequivocal request to discharge the court appointed counsel, nor stated that incompetency was the basis for his unhappiness with counsel"
Summary of this case from Tramontano v. StateOpinion
Case No. 4D97-2666
Opinion filed September 20, 2000 July Term 2000
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 96-2589CF.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
ON REMAND FROM THE SUPREME COURT
We affirm appellant's conviction and sentence, finding that the trial court did not err in failing to conduct a proper Nelson inquiry because appellant neither made an unequivocal request to discharge the court appointed counsel, nor stated that incompetency was the basis for his unhappiness with counsel. See Woody v. State, 698 So.2d 391, 391 (Fla. 4th DCA 1997). Moreover, appellant proceeded to trial with his counsel and made no attempt to dismiss him or request self-representation. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla. 1997), cert. denied, 524 U.S. 930 (1998). Finally, his claim that the trial court erred in failing to advise him of his right of self-representation after it had found that his appointed counsel was rendering effective representation is without merit, as the supreme court has found no such obligation on the part of the trial court. See Watts v. State, 593 So.2d 198, 203 (Fla. 1992).
Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973), approved by Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla. 1988).
With respect to his sentence, we affirm appellant's due process challenge to section 921.001(5), Florida Statutes (1997). See Gardner v. State, 661 So.2d 1274, 1276 (Fla. 5th DCA 1995). Secondly, we affirm the length of his sentence based on Mays v. State, 717 So.2d 515 (Fla. 1998). Although the written judgment of sentence does not conform to the oral pronouncement, no motion to correct the sentence was filed. See Fla. R. Crim. P. 3.800(b). The issue is thus not preserved for appeal.
We reverse the sentence to include the award of six months credit for jail time orally pronounced by the trial court but not reflected in the written judgment of sentence. See Greenwood v. State, 25 Fla. L. Weekly S598 (Fla. Jul. 13, 2000); Gillen v. State, 696 So.2d 952 (Fla. 4th DCA 1997).
WARNER, C.J., DELL and KLEIN, JJ., concur.