DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CRAVELYN HOOKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-1044
[December 10, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 2011CF013078AMB.
Carey Haughwout, Public Defender, and Richard B. Greene, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
The circuit court denied a defendant’s unequivocal request to represent
himself because he was not “qualified” to do so by his “training, education,
and experience.” This ruling violated the defendant’s right to self-
representation under Faretta v. California, 422 U.S. 806 (1975). We
reverse the judgment of conviction and remand for a new trial.
Cravelyn Hooker was charged with a form of sexual battery contrary to
section 794.011(8)(b), Florida Statutes (2010). After a jury trial, he was
convicted of the lesser included offense of lewd or lascivious battery.
Several months before trial began, at a pretrial motion hearing, Hooker
told the trial judge, “I’d like to exercise my sixth amendment right to go
pro se . . . .” When the court asked Hooker to repeat himself, Hooker said,
“I say I like to go ahead and represent myself, just go ahead and take my
sixth amendment right and represent myself, go pro se at this time.”
The judge questioned Hooker and learned that he had “finished up past
twelfth grade” and had attended some college at Florida Memorial where
he “studied to be an air conditioner refrigeration repairman.” Regarding
his legal experience, Hooker said he had never been through a trial and
explained that he was frustrated with counsel over delays; he felt counsel
was “holding [him] back.” The judge said he did not understand why
Hooker would want to go to trial “without a lawyer to help” him. Hooker
responded, “No, I rather just go ahead and just go pro se.”
The trial judge denied Hooker’s request to represent himself, stating:
Well, I don’t think you’re qualified to represent yourself by
your training, education and experience. I think you need a
lawyer. I don’t think there’s any reason to not have a lawyer.
So, I don’t think you’re capable of doing that. So, I’m going to
deny that request.
The Faretta Legal Framework
Subject to some limitations, an accused has the right to self-
representation at trial. Faretta, 422 U.S. at 834. “A defendant’s choice to
invoke this right ‘must be honored out of that respect for the individual
which is the lifeblood of the law.’” Tennis v. State, 997 So. 2d 375, 377-78
(Fla. 2008) (quoting Faretta, 422 U.S. at 834)).
It is a defendant’s unequivocal request for self-representation that
triggers a trial judge’s obligation to conduct a Faretta inquiry. See id. at
378 (pronouncement that defendant wanted to proceed pro se, coupled
with two separate pro se motions requesting self-representation “was an
unequivocal and clear request for self-representation”); Herron v. State,
113 So. 3d 852, 853-54 (Fla. 2d DCA 2012) (holding that defendant’s two
handwritten motions to dismiss attorney and represent himself was an
unequivocal request for self-representation); Laramee v. State, 90 So. 3d
341, 344 (Fla. 5th DCA 2012) (holding that defendant’s statement, “I’m
going pro-se—I’m filing. I refuse to go to court with somebody who ain’t
seen me at all . . . ” was an unequivocal and clear request for self-
representation).
The purpose of a Faretta hearing is “‘to determine whether the
defendant is knowingly and intelligently waiving his right to court-
appointed counsel.’” McCray v. State, 71 So. 3d 848, 864 (Fla. 2011)
(quoting Tennis, 997 So. 2d at 378); Edwards v. Arizona, 451 U.S. 477,
482 (1981). “Whether this standard is met in a given case is a fact-specific
determination which must take into account all of the surrounding
circumstances, including the background, experience and conduct of the
accused.” Morgan v. State, 991 So. 2d 984, 987 (Fla. 4th DCA 2008) (citing
Edwards, 451 U.S. at 482).
In conducting such a hearing, “the trial court is obligated to inquire
about the defendant’s age, education, and legal experience” id. at 987, and
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must warn the defendants “of the perils and pitfalls of self-representation,”
id. at 988. “Faretta instructs that ‘[a]lthough a defendant need not himself
have the skill and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be made aware of the
dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes
open.’” McKinney v. State, 850 So. 2d 680, 681 (Fla. 4th DCA 2003)
(quoting Faretta, 422 U.S. at 835).
The likelihood that a defendant would incompetently represent himself
is not a valid reason to deny his unequivocal request for self-
representation. See id. at 681; Tarver v. State, No. 2D12-5345, 2014 WL
4086806, at *1 (Fla. 2d DCA Aug. 20, 2014). “Under Faretta, ‘[t]he test is
not whether the defendant is competent to represent himself adequately,
but whether he is competent to make the decision to represent himself.’”
Smith v. State, 956 So. 2d 1288, 1289 (Fla. 4th DCA 2007) (quoting Wilson
v. State, 724 So. 2d 144, 145 (Fla. 1st DCA 1998)). As Florida Rule of
Criminal Procedure 3.111(d)(3) provides:
Regardless of the defendant’s legal skills or the complexity of
the case, the court shall not deny a defendant’s unequivocal
request to represent himself or herself, if the court makes a
determination of record that the defendant has made a
knowing and intelligent waiver of the right to counsel, and
does not suffer from severe mental illness to the point where
the defendant is not competent to conduct trial proceedings
by himself or herself.
Here, Hooker’s request to represent himself was unequivocal. In
conducting the abbreviated Faretta inquiry,1 the trial court focused on
whether Hooker was competent to represent himself rather than on
whether his waiver of his right to counsel was knowing and intelligent.
The trial court precluded Hooker from representing himself for an invalid
reason and never reached the issue that the Faretta hearing is supposed
to resolve.
We reject the State’s contention that Hooker waived the Faretta issue
by his failure (1) to file pro se motions, (2) to request new counsel, and (3)
to further indicate that he wanted to represent himself. Also, the State
faults Hooker for proceeding to trial with his appointed counsel. After an
unequivocal request for self-representation, a defendant’s abandonment of
1We do not reach the issue of whether the Faretta inquiry would have been
adequate had the trial court allowed the defendant to represent himself.
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the request must be demonstrated by record evidence that the defendant
is vacillating on the issue or that he has abandoned his request altogether.
This was essentially the holding of Lindsey v. State, 69 So. 3d 363 (Fla.
5th DCA 2011). In Lindsey, the defendant sought to dismiss his court-
appointed counsel, stating that his counsel was discriminating against
him. Id. at 364. The court held a Nelson2 hearing and determined that
counsel was not providing ineffective assistance. Id. When the defendant
asserted he wanted to proceed pro se, the court conducted an abbreviated
Faretta hearing. Id. On appeal, the court determined that the defendant’s
request was unequivocal, as demonstrated by the trial court’s launch into
a Faretta hearing. Id. at 365. Conceding that the trial court applied the
wrong standard, the State nevertheless argued the defendant waived any
self-representation argument by proceeding to trial with appointed
counsel. Id. The fifth district disagreed, holding that “the passage of a few
months and a subsequent trial do not amount to a waiver.” Id. at 366.
The court took into account the fact that the defendant “never agreed to
have his appointed counsel continue to represent him” and that “the trial
judge never revisited the issue to determine whether [the defendant]
continued in his desire to proceed alone.” Id. at 365-66.
The facts in the instant case are similar to those of Lindsey. Hooker
made an unequivocal request to discharge his counsel and represent
himself, which the trial court denied. As in Lindsey, waiver is not
demonstrated by the fact that Hooker proceeded to trial with appointed
counsel; Hooker never expressly agreed that he had withdrawn his request
to proceed pro se and the trial judge never revisited the self-representation
issue with him.
For these reasons we reverse and remand for both a new trial and new
Faretta hearing.
DAMOORGIAN, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
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