5D04-1058 K.E.N. v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-1058

Case Date: 01/31/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

K.E.N., A CHILD, Appellant, v. STATE OF FLORIDA, Appellee. __________________________________________/ Opinion filed February 4, 2005 Appeal from the Circuit Court for Osceola County, Alan S. Apte, Judge. James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D04-1058

MONACO, J. K.E.N. appeals an order by which she was adjudicated delinquent and committed to a high-risk residential program. Because the trial court failed to adhere to the

requirements of Rule 8.165(b), Florida Rules of Juvenile Procedure, regarding the requirements under which a court may accept the waiver of a juvenile to the right of counsel, we reverse.

K.E.N. was placed on probation with the Department of Juvenile Justice for falsely reporting a bomb at school. When she was taken into custody for that offense, her book bag was searched and brass knuckles were found. She was additionally

charged with possession of a weapon on school grounds, pled no contest, and was placed on probation for this offense, as well. Six months later, the State filed a petition for delinquenc y alleging that K.E.N. committed a burglary of a dwelling with an assault or battery. Guilt of this offense

would, of course, trigger a violation of probation for the previous two offenses. At a plea hearing in this third case, the court 1 inquired whether K.E.N. wanted an attorney to represent her: The Court: Are you requesting an attorney to represent you on this case? The Defendant: No sir. The Court: You understand you have an absolute right to be represented by an attorney. If you cannot afford to hire an attorney, I would appoint one to represent you. Do you understand that? The Defendant: Yes, Sir. The Court: Did you and your mom sign a waiver of counsel form or did you even get those forms? The Defendant: No, Sir. She didn't give me nothing. The Court: charges? Alright. How do you wish to plea to these

The Defendant: No contest.

The plea was taken before a different judge than the judge who eventually rendered the disposition order. 2

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The Court: Okay. What I'm going to do is they're going to give you a waiver of counsel form and a plea form. You need to review all those. You and yo ur mom have to sign the waiver of counsel form. You have to sign the plea form and then fill out the blanks as best you can. If there are blanks you don't know how to fill out, then just leave them blank and I'll help you fill them out when you come back up and we'll call this back up in a few minutes. Okay? The Defendant: Okay. Thank you. K.E.N. and her mother later signed the counsel waiver and plea forms. The waiver of counsel form had only a blank in the space where the nature of the delinquency was to be indicated, acknowledged that the child had a right to a lawyer, and read: I understand this right to and offer of a lawyer and, being aware of the effect of this waiver, I knowingly, intelligently, understandingly and of my own free will now choose to and, by the signing of this waiver, do hereby waive my right to a lawyer and elect to proceed in this case without benefit of a lawyer. At the time K.E.N. was 17 years of age and had a ninth grade education. There is no indication in the record regarding whether K.E.N. or her mother had any assistance in understanding or completing the form. Apparently, a "mass plea" was then conducted a short time later, even though K.E.N. had already entered a plea. Only certain portions of the transcript pertaining to K.E.N. are found in the record. The Court: Alright. We're going to go ahead and take the pleas on the cases that were set for pretrial, as well as one of the arraignments. And what I need to do is start on my left and have each of the juveniles state their names for the record and then after the juvenile states their name for the record, I need whoever came up state your name and what relationship you are to the child. Defendant: [K.E.N.]

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K.E.N.'s Mother: [M.D.], her mother. The Court: Alright. I know all of you have been sworn in. I just need to ask you some questions before I can accept the plea. I need the juveniles to respond out loud. They're yes or no questions. You just

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