01-3533 DAVIS V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 01-3533 DAVIS V. STATE

Case Date: 12/26/2002

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, 2002

PLEDGE DAVIS, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** **

**

CASE NO. 3D01-3533 LOWER TRIBUNAL NO. 00-15264 **

Opinion filed December 26, 2002. An Appeal from the Circuit Court for Dade County, Ellen L. Leesfield, Judge. Bennett H. Brummer, Public Defender, and Sheryl J. Lowenthal, Special Assistant Public Defender, for appellant. Richard E. Doran, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and LEVY and GREEN, JJ.

LEVY, Judge.

Defendant appeals his convictions on the ground that the

trial

court

failed

to

inquire

into

the

potential

conflict

involving defendant's counsel.

We disagree with defendant's

argument on appeal that the trial court's failure to inquire into the conflict involving defense counsel requires automatic reversal. Defendant relies on Thomas v. State, 785 So. 2d 626

(Fla. 2d DCA 2001) and Lee v. State, 690 So. 2d 664 (Fla. 1st DCA 1997) to support his argument. However, this argument was

specifically dismissed by the Supreme Court of the United States in Mickens wherein the Court explained: [Defendant]'s proposed rule of automatic reversal when there existed a conflict that did not affect counsel's performance, but the trial judge failed to make the Sullivan[1]-mandated inquiry, makes little policy sense. As discussed, the rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel's performance

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