NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
D.A.C., )
)
Appellant, )
)
v. ) Case No. 2D15-1965
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 26, 2016.
Appeal from the Circuit Court for Charlotte
County; Paul Alessandroni and John Burns,
Acting Circuit Judges.
Howard L. Dimmig, II, Public Defender,
and Judith Ellis, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Chelsea A. Alper,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
D.A.C. appeals the orders adjudicating him delinquent in three cases. The
State appropriately concedes that the trial court abused its discretion by denying
D.A.C.'s motion to withdraw his plea in case number 2015-CJ-34 and that the trial
court's failure to comply with Florida Rule of Juvenile Procedure 8.165 in case numbers
2014-CJ-615 and 2014-CJ-655 constituted fundamental error. We reverse the
adjudications of delinquency and remand the cases to the trial court so that it can
properly advise D.A.C. of his right to the assistance of counsel, ensure by a thorough
inquiry that any waiver of counsel is voluntary and intelligent, and allow D.A.C. to enter
new pleas if appropriate.
I. Procedural background
On October 29, 2014, D.A.C., a fourteen-year-old child, was charged with
two counts of misdemeanor battery in case number 2014-CJ-615, one against his
mother and one against his stepmother. D.A.C. filed an affidavit of indigence on
November 17, 2014, and the public defender was appointed to represent him. The
public defender filed a notice of appearance on November 24, 2014. During a very
short December 15 hearing, the trial court granted the public defender's request for a
continuance, and the case was reset for a case management conference on January
12, 2015. The clerk's minutes for the December 15 hearing contain a notation that
states: "Did not qualify for P.D. Strike appointment of P.D." The transcript of the
hearing does not reflect that this occurred on the record.
In the meantime, on December 18, 2014, D.A.C. was charged with
another count of misdemeanor battery against his stepmother in case number 2014-CJ-
655. At his January 5, 2015, arraignment, the trial court was presented with a
document indicating that D.A.C. wanted to waive his right to an attorney and represent
himself. The following occurred:
THE COURT: Did you read this document?
THE DEFENDANT: Yes, sir.
THE COURT: Did you go over this document with your
mom?
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THE DEFENDANT: Yes, sir.
THE COURT: And folks, that's what you want to do, is that
right?
UNIDENTIFIED SPEAKER: Yes, sir.
THE COURT: Yes? Okay. All right. So I'll go ahead and
indicate that you've—have you been threatened or coerced
in any manner not to get an attorney?
THE DEFENDANT: No, sir.
THE COURT: All right. And this is your decision, is that
right?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I'll go ahead and indicate that you've
freely, knowingly and voluntarily waived your right to an
attorney. So you're here for an arraignment on a charge of
battery. How do you wish to proceed today?
THE DEFENDANT: No contest.
THE COURT: So you wanted to enter a plea, is that right?
Do you have a plea form? Have you executed a plea form?
After the Department of Juvenile Justice (DJJ) informed the trial court that
D.A.C. was represented by counsel in another case, the trial court accepted D.A.C.'s no
contest plea in case number 2014-CJ-655 and set sentencing for January 12, 2015, at
the case management conference scheduled for case number 2014-CJ-615. The trial
court then asked the prosecutor to conduct the plea colloquy, and when she finished,
the trial court announced: "We will take judicial notice of the court file, accept the plea,
find that it's made freely, knowingly and voluntarily."1 The docket reflects that D.A.C.
1We note that rule 8.080(c) states that the trial court "shall address the
child personally" when conducting the plea colloquy and accepting the child's plea.
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and his mother signed a document titled "I choose to represent myself." The document
contained a portion designated for an attorney to verify that D.A.C.'s decision was made
"after having a meaningful opportunity to confer with an attorney regarding my right to
counsel and the consequences of representing myself," and that portion was left blank.
On January 12, 2015, the hearings were reset to January 26, 2015, at
D.A.C.'s mother's request. At the January 26, 2015, hearing, D.A.C. was not
represented by counsel in either case. The trial court asked: "Do y'all waive his right
to—you waived [his] right to an attorney previously, correct?" D.A.C. responded
affirmatively, and the trial court informed D.A.C. that if he could not afford an attorney,
the court would appoint one. The trial court asked: "Do you wish the services of the
court—court appointed attorney or do you want to stand on your waiver of a right to an
attorney?" D.A.C. responded that he would represent himself. The prosecutor informed
the trial court that D.A.C. was recently charged with another crime and asked the trial
court to continue the hearing so that it could "wrap everything up" at once. The trial
court continued the hearings to February 24, 2015.
On February 5, 2015, D.A.C. was charged in case number 2015-CJ-34
with criminal use of personal information for using his mother's cell phone to purchase
game applications. His arraignment was also set for February 24, 2015.
At the February 24, 2015, hearing, the court asked D.A.C. if he was
represented by counsel for case number 2015-CJ-34 and if he knew that he was
entitled to the services of the public defender if he could not afford an attorney. Before
D.A.C. could respond, the prosecutor told the court that D.A.C. did not previously qualify
for a public defender. D.A.C. told the trial court that he did not believe that he qualified
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for public defender services but told the trial court that he intended to hire an attorney
for this case. Immediately thereafter, the trial court asked for his pleas in case numbers
2014-CJ-615 and 2015-CJ-34. D.A.C. responded no contest. The trial court asked the
prosecutor to "inquire with regard to [D.A.C.'s] waiver of rights," and the prosecutor
conducted a plea colloquy.
After the trial court and DJJ discussed D.A.C.'s placement options, the
public defender spoke as a friend of the court. He pointed out that the mother's
interests were adverse to D.A.C.'s because she was a victim in two of the cases, and he
asked whether the trial court informed D.A.C. that he would be entitled to the
appointment of counsel for this reason and whether D.A.C.'s waiver of counsel was truly
free and not influenced by his mother. The court responded: "Yes, I did. It was one of
the first things I asked him." The court asked D.A.C. to respond, and D.A.C. replied "I
don't know." But after the court explained that it could appoint an attorney to represent
him, D.A.C. told the court that he wanted counsel. The court appointed the public
defender and ordered a review of all three cases in forty-eight hours.
At the February 26, 2015, review hearing, the public defender pointed out
that there were no written plea forms signed for any of the three cases and that the
waiver of attorney form in case number 2014-CJ-655 lacked the attorney verification.
When the public defender asked whether D.A.C.'s mother attempted to retain an
attorney to represent her son, she responded that "as the victim I do not feel that I
should have to provide an attorney for his wrongdoings" and that she had previously
expressed that opinion to both her son and to the trial court. When the public defender
asked the trial court the status of the pleas, the trial court stated that D.A.C. pleaded no
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contest in each case and that if the public defender had "a problem with the way the
plea was entered," then he could file the appropriate motions and set them for hearing.
The public defender filed a motion to withdraw D.A.C.'s pleas in the three
cases, pointing out the following: that D.A.C. was not represented by counsel when he
entered his pleas; that D.A.C. did not sign plea forms; that no properly executed waiver
of counsel was filed in any of the cases; that D.A.C.'s mother apparently influenced his
decision to plead no contest; that D.A.C.'s mother's interests were adverse to D.A.C.'s
and she refused to help D.A.C. obtain counsel; and that according to the testimony,
D.A.C. has been diagnosed with seven mental health disorders. At the hearing on the
motion, D.A.C. argued only to withdraw the plea in case number 2015-CJ-34. The court
denied the motion, stating that D.A.C. entered his plea freely, voluntarily and
intelligently, was in control of his faculties during all the discussions with the court, and
seemed to be very bright. The trial court then committed D.A.C. to the DJJ for
placement in a nonsecure commitment program with post-commitment juvenile
probation. The court ruled that the placement could be modified by court order if the
mother's insurance would pay for inpatient mental health treatment. The court later
amended the disposition order by adding: "the motion to withdraw the plea from the
Public Defender is denied."
II. Analysis
Florida Rule of Juvenile Procedure 8.165, titled "Providing Counsel to
Parties," states:
(a) Duty of court. The court shall advise the child of the
child's right to counsel. The court shall appoint counsel as
provided by law unless waived by the child at each stage of
the proceeding. Waiver of counsel can occur only after the
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child has had a meaningful opportunity to confer with
counsel regarding the child's right to counsel, the
consequences of waiving counsel, and any other factors that
would assist the child in making the decision to waive
counsel. This waiver shall be in writing.
(b) Waiver of counsel.
(1) The failure of a child to request appointment of counsel at
a particular stage in the proceedings or the child's
announced intention to plead guilty shall not, in itself,
constitute a waiver of counsel at any subsequent stage of
the proceedings.
(2) A child shall not be deemed to have waived the
assistance of counsel until the entire process of offering
counsel has been completed and a thorough inquiry into the
child's comprehension of that offer and the capacity to make
that choice intelligently and understandingly has been made.
(3) If the child is entering a plea to or being tried on an
allegation of committing a delinquent act, the written waiver
shall also be submitted to the court in the presence of a
parent, legal custodian, responsible adult relative, or
attorney assigned by the court to assist the child, who shall
verify on the written waiver that the child's decision to waive
counsel has been discussed with the child and appears to be
knowing and voluntary.
(4) No waiver shall be accepted where it appears that the
party is unable to make an intelligent and understanding
choice because of mental condition, age, education,
experience, the nature or complexity of the case, or other
factors.
(5) If a waiver is accepted at any stage of the proceedings,
the offer of assistance of counsel shall be renewed by the
court at each subsequent stage of the proceedings at which
the party appears without counsel.
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Fla. R. Juv. P. 8.165 (2015).2 "Rule 8.165 is not merely procedural in nature, but
contains guidelines to ensure that the substantive right to counsel is protected." State v.
T.G., 800 So. 2d 204, 211 (Fla. 2001). The detailed inquiry and waiver verified by
counsel are required by rule 8.165 to determine whether a waiver of counsel was made
"knowingly and intelligently in consideration of [the juvenile's] age, education,
experience, mental condition, and the nature and complexity of the case." Id. at 212
(quoting P.L.S. v. State, 745 So. 2d 555, 557 (Fla. 4th DCA 1999)). The supreme court
explained that
if it appears from the face of the record that the trial court did
not comply with the specific procedures of rule 8.165,
including conducting a 'thorough inquiry into the child's
comprehension of that offer [of the assistance of counsel]
and the capacity to make that choice intelligently and
understandingly,' any subsequent plea should be deemed
involuntary as a matter of law and the appellate court would
have the authority to reverse absent a motion to withdraw or
a contemporaneous objection.
Id. at 213 (alteration in original) (quoting Fla. R. Juv. P. 8.165(b)(2)).
A. Case number 2014-CJ-655
The unverified "I choose to represent myself" form and the trial court's five
questions to D.A.C. are inadequate to constitute the "thorough" waiver of counsel
required by rule 8.165(b)(2). See T.G., 800 So. 2d at 211 ("Although the inquiry for
juveniles must be at least equal to that accorded adults, courts should be even more
2EffectiveJanuary 1, 2016, subdivision (b)(3) ("Waiver of Counsel") was
amended to clarify that the attorney assigned by the court to assist a child who is
waiving counsel must verify on the written form and on the record that the attorney and
the child discussed the child's decision to waive counsel and that the child's decision
appears to be knowing and voluntary. In re Amendments to the Florida Rules of
Juvenile Procedure, 175 So. 3d 263, 264 (Fla. 2015).
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careful when accepting a waiver of counsel from juveniles."); A.S. v. State, 62 So. 3d
695, 697 (Fla. 2d DCA 2011) (holding fundamental error occurred because the trial
court failed to inquire thoroughly whether the juvenile understood her right to counsel
and had the capacity to intelligently choose to waive counsel and failed to obtain the
required verified written waiver); G.T. v. State, 948 So. 2d 900, 902 (Fla. 2d DCA 2007)
(holding fundamental error occurred because "[m]erely informing a juvenile of the role of
counsel and asking the juvenile if he understands that he is giving up his right to
counsel does not constitute the 'thorough inquiry' concerning the juvenile's
comprehension of the offer of counsel that is mandated by rule 8.165(b)(2)"). The trial
court's failure to comply with rule 8.165(b)(2) constituted fundamental error, and this
court is required to reverse the adjudication of delinquency.3
B. Case number 2014-CJ-615
The record demonstrates that the trial court wholly failed to comply with
rule 8.165 on this charge. It conducted no inquiry; instead it incorrectly asserted that
D.A.C. had previously waived his right to counsel in this case. This was fundamental
error that requires this court to reverse the adjudication of delinquency.
C. Case number 2015-CJ-34
3We note that if the trial court had conducted the thorough inquiry required
by rule 8.165, D.A.C. would have been informed that his mother's financial status and
her feeling that she would not "have to provide an attorney for his wrongdoings" do not
affect his right to counsel. Section 985.033(3), Florida Statutes (2015), states that if a
child's parent is not indigent but refuses to employ counsel, the trial court "shall order
the parents or legal guardian to obtain private counsel." If a parent willfully fails to
comply with the trial court's order, the parent "shall be punished by the court in civil
contempt proceedings." If the parent still refuses to obey the court order, the trial court
is authorized to appoint counsel for the child and impose costs of representation.
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In this case, D.A.C. asserted his right to counsel, but the trial court
immediately accepted his uncounseled no contest plea. D.A.C. moved to withdraw his
plea, and the trial court denied the motion, finding D.A.C. entered his plea freely,
voluntarily, and intelligently. The record does not support this finding. Rather, it
demonstrates that the trial court denied D.A.C. his due process right to counsel. The
plea was involuntary for this reason, and the trial court abused its discretion by denying
D.A.C.'s motion to withdraw his plea.
III. Conclusion
The record demonstrates that the trial court failed to comply with the
specific procedures of rule 8.165 in case numbers 2014-CJ-615 and 2014-CJ-655 and
that D.A.C. did not waive his right to counsel in case number 2015-CJ-34. Accordingly,
D.A.C.'s pleas are involuntary as a matter of law. We reverse the adjudications of
delinquency and remand the cases to the trial court to properly advise D.A.C. of his right
to the assistance of counsel, to ensure by a thorough inquiry that any waiver is
voluntary and intelligent, and to allow D.A.C. to enter new pleas if appropriate.
KELLY, CRENSHAW, and MORRIS, JJ., Concur.
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