01-0497 RICARDO DAVILA V. STATE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 01-0497 RICARDO DAVILA V. STATE

Case Date: 11/13/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

RICARDO JOSE DAVILA, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** CASE NO. 3D01-497

LOWER TRIBUNAL NO.

00-21978

Opinion filed November 13, 2002. An Appeal from the Circuit Court for Miami-Dade County, Maria Dennis, Judge. Bennett H. Brummer, Public Defender, and Luis Fernandez, Special Assistant Public Defender, for appellant. Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee. Before GODERICH, SHEVIN, and RAMIREZ, JJ. RAMIREZ, J. Ricardo Jose Davila appeals his convictions of thirty counts of aggravated child abuse, one count of child neglect, one count of child abuse and three counts of kidnaping. We reject

Davila's assertion that the trial court did not conduct an adequate Nelson1 inquiry and affirm. The record demonstrates that the trial court had previously conducted an adequate Nelson inquiry. After the jury was sworn,

trial counsel raised the issue of his client's dissatisfaction and the court spoke at length with Davila addressing his

concerns. of

A trial judge's inquiry into a defendant's complaints of counsel can be only as specific and

incompetence

meaningful as the defendant's complaint. 2d 969, 975 (Fla. 1994).

Lowe v. State, 650 So.

As in Lowe, the trial judge questioned See

Davila in an attempt to ascertain the basis of his concern.

also Wilder v. State, 587 So. 2d 543, 544-45 (Fla. 1st DCA 1991)(finding a motion for substitution of counsel was properly denied where defendant stated only generalized allegations). Davila argues that it was evident from counsel's statement that he was asking that his attorney be discharged. agree. We cannot

Davila's complaint was nothing more than a general that he did not feel that he was being well

statement

represented by defense counsel.

Davila stated that he wanted

counsel to change, so he could "feel certain that [he was] getting a fair trial." These statements must be viewed as

general statements, insufficient to constitute allegations, let

1

Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). 2

alone particular grievances.

Davila could not point to any

specific act of incompetence, other than not having received discovery. The Florida Supreme Court has held that a "[g]eneral loss of confidence or trust standing alone will not support

withdrawal of counsel" because it does not equate to ineffective assistance of counsel. (Fla. 1986). Johnston v. State, 497 So. 2d 863, 868

In Johnston, unlike this case, the trial judge did

not conduct a proper examination of the reasons underlying the appellant's request to discharge her attorney. The record in

Johnston showed that the defendant attempted to give her reasons to the court but was abruptly interrupted by the trial judge. This is not the situation in our case. Furthermore, the Florida

Supreme Court has held that a complaint that a defendant is displeased with his attorney's trial preparation does not a

constitute an allegation of incompetence so as to c o m p e l Nelson inquiry. 1997).

Gudinas v. State, 693 So. 2d 953, 962 (Fla.

See also Woody v. State, 698 So. 2d 391 (Fla. 4th DCA

1997)(Nelson inquiry into whether defense counsel was competent was not needed where defendant did not complain that his counsel was incompetent, but only that he was displeased with his trial preparation). If court-appointed counsel is found to be rendering

3

effective assistance, and the defendant insists that he still wants to discharge him or her, a Faretta2 hearing is in order. See Rios v. State, 696 So. 2d 469 (Fla. 2d 1997). Davila argues

that the trial court should have conducted a Faretta hearing, where he requested a discharge of his court appointed counsel during trial. trial court We disagree. discharge When a defendant requests that the court-appointed attorney for

his

ineffective assistance, the court is obligated to determine whether adequate grounds exist for the attorney's discharge. See Hardwick v. State, 521 So. 2d 1071, 1074-1075 (Fla. 1988) (specifically adopting the procedure of Nelson v. State). Hardwick, the Florida Supreme Court held that a motion In to

discharge counsel for incompetence requires that the trial court inquire into the actual effectiveness of counsel. asked the trial court to discharge counsel. even clearly demonstrate that Davila was Davila never

The record does not dissatisfied with

counsel.

Therefore, pursuant to Hardwick, no further inquiry by See Windom v. State, 656 So. 2d

the trial court was necessary.

432, 437 (Fla. 1995)(No further inquiry required where it was not clear that the defendant had moved to discharge counsel due to incompetence); Bowden v. State, 588 So. 2d 225, 230 (Fla. 1991)(No further inquiry necessary when defendant merely

2

Faretta v. State, 422 U.S. 806 (1975). 4

expressed dissatisfaction with counsel's performance). A trial judge is required to conduct a Faretta inquiry prior to allowing a defendant to proceed in a criminal trial without counsel. State v. Young, 626 So. 2d 655, 656 (Fla. 1993).

Davila never expressed a desire to proceed to trial without counsel, and in fact readily proceeded with the trial

represented by court-appointed counsel.

Because there was no

unequivocal request for self-representation, Davila was not entitled to an inquiry on the subject of self-representation under Faretta. See Davis v. State, 703 So. 2d 1055 (Fla. 1997).

In this case, Davila seemed to acquiesce in counsel's continued representation when, after the court's discussion, Davila stated "okay," with regard to resuming trial with the same defense counsel. Davila's reliance on Marti v. State, 756 So. 2d 224 (Fla. 3d DCA 2000) is a misplaced written because motion Marti, to prior to his jury court

selection,

filed

discharge

appointed attorney and the court denied the motion without making any inquiry of defendant or counsel. The court

nevertheless found the error harmless. We therefore affirm.

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