Florida Criminal Law Opinions

AWILDA RODRIGUEZ, Appellant, v. STATE OF FLORIDA, Appellee.

Case Nos. 2D05-1929, 2D 05-3481 CONSOLIDATED

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY: [*1]

Appeal from the Circuit Court for Manatee County; Peter A. Dubensky, Judge.

COUNSEL: James Marion Moorman, Public Defender, and Douglas A. Connor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

JUDGES: NORTHCUTT, Judge. SILBERMAN and LaROSE, JJ., Concur.

OPINION BY: NORTHCUTT

OPINION

NORTHCUTT, Judge.

A jury convicted Awilda Rodriguez of battery on a law enforcement officer and resisting an officer with violence, charges that arose from a tragic encounter with a Manatee County Sheriff’s deputy who was attempting to arrest Mrs. Rodriguez’s husband. She appeals her convictions and an order requiring her to pay costs in case number 2D05-1929; in the consolidated case, 2D05-3841, she challenges the restitution imposed. We reverse on all points.

According to the State’s evidence at trial, the incident began with a dispute in a convenience store parking lot involving a store patron’s accusation that Mr. Rodriguez had bumped her car with a shopping cart. The convenience store manager, who knew Mr. Rodriguez as a regular customer, had suggested that he leave. Mr. Rodriguez did so. A sheriff’s deputy observed the [*2] commotion from another convenience store across the street. A bystander told the deputy that Mr. Rodriguez had been involved in a collision with another car and was leaving the scene. The deputy followed in his patrol car as Mr. Rodriguez drove home. He watched Mr. Rodriguez drive through the gate of his fenced yard and saw Mrs. Rodriguez closing the gate.

The deputy got out of his car and attempted to engage Mr. Rodriguez in a conversation. But Mr. Rodriguez, in a profane way, told the deputy to leave him alone, and he began walking away, toward his home. The deputy decided to arrest Mr. Rodriguez for obstructing his investigation of the hit-and-run accident. By this time, Mrs. Rodriguez was attempting to lock the gate with a chain. The deputy grabbed the chain from her hands, threw it on the ground, and pushed through the gate.

He caught up with Mr. Rodriguez near the front door of the house and took hold of him. As Mr. Rodriguez struggled to escape, Mrs. Rodriguez joined the fray and began striking the deputy. He attempted to stop her attack by using pepper spray. Meanwhile, Mr. Rodriguez broke free and ran into the house. The deputy pursued him inside. At this point, events took [*3] a devastating turn. When the deputy entered the house, Mr. Rodriguez attacked him with an axe. The deputy shot Mr. Rodriguez three times, killing him. Mrs. Rodriguez ran inside and began pummeling the deputy. Other law enforcement officers arrived, and one of them arrested Mrs. Rodriguez.

THE CONVICTIONS

Mrs. Rodriguez’s trial was held in January 2005. She was convicted of resisting an officer with violence, § 843.01, Fla. Stat. (2003), for her attack on the deputy when he was attempting to detain her husband, and battery on a law enforcement officer, § 784.07, Fla. Stat. (2003), for hitting the deputy after her husband died. An element of both crimes is that the law enforcement officer must be lawfully executing a legal duty when the obstruction or the battery takes place. § 843.01 (requiring that the officer be “in the lawful execution of any legal duty”); § 784.07(2) (specifying that the officer be “engaged in the lawful performance of his or her duties”).

At the time of Mrs. Rodriguez’s trial, however, this district’s case law essentially made the issue of whether the officer was engaged in the lawful performance of a legal duty irrelevant if the accused had used violence when battering [*4] or opposing the officer. The Second District had broadly applied section 776.051(1), Florida Statutes, which precludes the defense of justifiable use of force when resisting an arrest regardless of the legality of the arrest, to encounters between citizens and the police that did not involve arrests. See Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002); Nesmith v. State, 616 So. 2d 170, 171-72 (Fla. 2d DCA 1993); cf. Kaigler v. State, 913 So. 2d 1254, 1255 (Fla. 2d DCA 2005)(answering in the negative the question of “whether the illegality of a stop during which a suspect allegedly commits resisting with violence and battery of a law enforcement officer causes a failure of the [lawful execution] elements” of sections 784.07(2) and 843.01), quashed, 944 So. 2d 340 (Fla. 2006), opinion on remand, 947 So. 2d 671 (Fla. 2d DCA 2007). But after Mrs. Rodriguez’s conviction and the commencement of this appeal, the Florida Supreme Court rejected the proposition that section 776.051(1) extended beyond an arrest situation to other types of police-citizen encounters. Tillman v. State, 934 So. 2d 1263, 1266 (Fla. 2006). Noting that the legislature had placed the element of lawful execution [*5] of a legal duty in both section 784.07(2) and 843.01, the court explained that in prosecutions under either statute for crimes committed outside an arrest situation, the State must prove that the officer was acting lawfully. Id. at 1270.

In this case it was undisputed that Mrs. Rodriguez committed her violent acts prior to her arrest, not in connection with the arrest. Therefore, Tillman’s clarification of the law applies to this pending case. See Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992)(holding that any decision of the Florida Supreme Court “announcing a new rule of law, or merely applying an established rule of law to a new or different factual situation, must be given retrospective application by the courts of this state in every case pending on direct review or not yet final”); see also J.H.M. v. State, 945 So. 2d 642, 644 (Fla. 2d DCA 2006)(applying Tillman to a pending case); Yarusso v. State, 942 So. 2d 939, 942 (Fla. 2d DCA 2006) (same); State v. Roy, 944 So. 2d 403, 406 (Fla. 3d DCA 2006) (same). Accordingly, we must determine whether the State’s evidence against Mrs. Rodriguez proved that the deputy was lawfully executing a legal duty at the time of their encounter. [*6] n1

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Mrs. Rodriguez concedes that her trial counsel did not move for a judgment of acquittal on this basis. It is, however, fundamental error to convict a defendant when the State has failed to prove an element that is essential to the commission of the crime. F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003)(stating that when the evidence is totally insufficient as a matter of law to establish the commission of a crime, that argument need not be preserved. “Such complete failure of the evidence meets the requirements of fundamental error. . . .”); see also Kirschner v. State, 915 So. 2d 624, 625 (Fla. 2d DCA 2005); M.C.M. v. State, 754 So. 2d 844, 845 (Fla. 2d DCA 2000); Hornsby v. State, 680 So. 2d 598, 598 (Fla. 2d DCA 1996). While Smith, 598 So. 2d at 1066, dictates that a defendant “must have timely objected at trial if an objection was required to preserve the issue for appellate review,” such an objection is unnecessary if the error was fundamental. Cf. Leveritt v. State, 896 So. 2d 704, 705 n.2 (Fla. 2005)(remanding for a determination of whether fundamental error existed, but implying that if the error were fundamental, Smith would require that the change in the law be applied [*7] to the pending case).
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Tillman instructs that when determining whether the evidence proved the “lawful execution” elements of sections 784.07(2) and 843.01, we must apply the “legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” 934 So. 2d at 1271; see also Yarusso, 942 So. 2d at 942. Therefore, in this case we scrutinize the law governing a police officer’s entry into a citizen’s residence or onto its curtilage to effect an arrest.

If a law enforcement officer does not have consent, a search warrant, or an arrest warrant, he may not enter a private home or its curtilage except when it is justified by exigent circumstances. Tillman, 934 So. 2d at 1272; see also State v. Rickard, 420 So. 2d 303, 306 (Fla. 1982)(stating that a warrantless search or seizure may not be conducted in a protected area such as a backyard); Glass v. State, 736 So. 2d 788, 789 (Fla. 2d DCA 1999). The exigent circumstances exceptions are “few in number and carefully delineated,” and they include pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting [*8] fires. Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005)(internal citations omitted).

None of these limited exceptions applied in this case. Granted, the deputy entered the Rodriguez property in pursuit of Mr. Rodriguez. But Mr. Rodriguez was not a fleeing felon, nor could the deputy have believed that he was. Rather, the deputy thought that Mr. Rodriguez had left the scene of a motor vehicle accident. Even if this had been true, and even if the supposed accident had caused damage to a vehicle or property, Mr. Rodriguez’s illegal flight from the scene would have been punishable only as a misdemeanor. See § 316.061, Fla. Stat. (2003).

Neither was the deputy’s entry onto the property justified by his intention to arrest Mr. Rodriguez for obstructing the accident investigation. The deputy testified that he had “walked to the gate and greeted both subjects and asked them . . . just asked them or attempted to talk to them to ask them what was going on.” In response, Mr. Rodriguez told the deputy to get off his property and began walking toward the house. At that point, Mr. Rodriguez had not committed an obstruction because the deputy had only attempted to engage him in a consensual citizen [*9] encounter. Mr. Rodriguez was under no obligation to remain and talk unless or until the deputy communicated an intention to detain him. See Yarusso, 942 So. 2d at 943. But even if the deputy had done so, the offense of obstructing an officer in the performance of his legal duty is only a misdemeanor. See § 843.02.

In Johnson v. State, 395 So. 2d 594, 596 (Fla. 2d DCA 1981), we held that law enforcement has no authority to enter a building to make a warrantless arrest for a misdemeanor, especially when the building to be entered is a person’s home. Thus, even assuming Mr. Rodriguez committed a misdemeanor in the deputy’s presence by refusing to cooperate with his investigation, the deputy could not legally enter his home to arrest him for that crime. As was the case in Tillman, the deputy here was unlawfully inside the Rodriguezes’ fenced yard and residence when he scuffled with Mrs. Rodriguez. See Tillman, 934 So. 2d at 1272 (”The zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling.”).

As we have seen, the State’s evidence did not merely fail to prove that the deputy was engaged in the lawful [*10] performance of a legal duty; it affirmatively proved the contrary. Because the State’s proof did not establish the crimes for which Mrs. Rodriguez was convicted, we must reverse her convictions. See F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003). While the evidence did not prove that there was an unlawful battery on a law enforcement officer under section 784.07, it did establish the lesser included crime of simple battery under section 784.03(1). Therefore, we remand with directions to the circuit court to adjudicate Mrs. Rodriguez guilty of that crime, a first-degree misdemeanor. Cf. Roy, 944 So. 2d at 406. Concerning the charge of obstructing a law enforcement officer with violence, the evidence failed to prove either that crime or its lesser included offense, obstructing an officer without violence pursuant to section 843.02. On remand the circuit court shall enter a judgment of acquittal of that charge.

THE RESTITUTION ORDER

The court ordered Mrs. Rodriguez to pay $ 29,341.56 in restitution for the injuries the deputy suffered as a result of her husband’s axe attack. At the hearing, defense counsel argued that the court did not have jurisdiction to impose restitution because [*11] Mrs. Rodriguez had filed an appeal of her convictions. Alternatively, counsel asserted that the State had not shown the necessary nexus between Mrs. Rodriguez’s crimes and the deputy’s injuries. No evidence was presented, but the court ordered restitution in the amount of the deputy’s insurer’s claim.

As Mrs. Rodriguez maintained, the circuit court lost jurisdiction to enter the restitution order when she filed her notice of appeal. See Fuller v. State, 786 So. 2d 1269, 1269 (Fla. 2d DCA 2001); see also Marro v. State, 803 So. 2d 906, 907 (Fla. 4th DCA 2002). Accordingly, we reverse the order.

Generally, when we strike an order of restitution the trial court may hold a new hearing on remand to determine the proper amount of restitution and enter a new order. See Fuller, 786 So. 2d at 1269; see also Marro, 803 So. 2d at 907. Of course, the court may do so in this case. But we note that our reversal of Mrs. Rodriguez’s conviction for obstructing a law enforcement officer will change the complexion of the hearing, particularly as it relates to the expenses associated with the injuries Mr. Rodriguez inflicted on the deputy. In the initial hearing the State posited that Mrs. Rodriguez’s interference [*12] with the deputy’s effort to detain her husband allowed Mr. Rodriguez to escape, to obtain the axe, and to wound the deputy. Thus, the State maintained that Mrs. Rodriguez’s obstruction offense had a significant relationship with the deputy’s injuries and restitution for the cost of his medical treatment was proper under section 775.089(1)(a)(1), Florida Statutes (2003)(stating that restitution shall be ordered for the victim’s “[d]amage or loss caused directly or indirectly by the defendant’s offense”).

Whether Mrs. Rodriguez’s obstruction of the deputy had a significant relationship to the deputy’s injuries is debatable under the test articulated in Schuette v. State, 822 So. 2d 1275, 1282 (Fla. 2002)(equating the significant relationship test with the requirement of proximate causation between the criminal act and the resulting damages, and noting that both a “but for” causation requirement and a significant relationship requirement are included in the analysis). But we need not reach that issue because we have reversed her conviction for obstruction. While we have directed the court to enter a judgment for simple battery, any restitution must be limited to damages caused directly [*13] or indirectly by that crime, which was committed after Mr. Rodriguez injured the deputy.

THE ORDER ON COSTS

We also reverse the order imposing costs on Mrs. Rodriguez. A significant portion of the costs were assessed because she was found guilty of felonies. Owing to our reversal of the felony convictions, some of those costs may not apply. We also note that the form costs order employed by the circuit court does not contain any citations to statutory authorities for the costs imposed. On remand, the circuit court shall revisit the imposition of costs in light of this decision. Any cost imposed shall be supported by a citation to the statute authorizing it either orally or in the written costs order. See Miller v. State, 912 So. 2d 1282, 1283 (Fla. 2d DCA 2005).

Mrs. Rodriguez raised a number of issues concerning the original costs assessment in a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), but the circuit court denied the motion. Because we are reversing the order for other reasons, we do not address the various contentions made in her motion. Mrs. Rodriguez is free to argue any of them, if applicable, on remand.

CONCLUSION

We reverse Mrs. Rodriguez’s conviction [*14] for battery on a law enforcement officer and remand to the circuit court to enter a conviction for the lesser included offense of battery under section 784.03(1). We reverse Mrs. Rodriguez’s conviction for obstructing a law enforcement officer with violence and direct the circuit court to enter a judgment of acquittal on that charge. We reverse both the restitution order and the order imposing costs and remand with directions to conduct new hearings on those matters in light of this decision.

SILBERMAN and LaROSE, JJ., Concur.

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MARIO BAKER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-1640

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; W. Douglas Baird, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   CASANUEVA, Judge. WHATLEY J., and FOSTER, ROBERT A. JR., ASSOCIATE JUDGE, Concur.

OPINION BY:   CASANUEVA

OPINION  

CASANUEVA, Judge.

Mario Baker appeals his conviction for felony battery n1 raising three issues. First, Mr. Baker argues that the trial court should have granted his motion for judgment of acquittal because neither the evidence presented nor the allowable inferences from that evidence were sufficient to sustain a conviction for battery. Second, Mr. Baker claims, citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that his Sixth Amendment confrontation right was violated when the trial court allowed into evidence an audio tape recording of the 911 call the victim made. Finally, Mr. Baker contends the trial court erred by denying his motion for a new trial based on newly discovered evidence. We decline to address the second issue raised because we agree with Mr. Baker that even with the disputed 911 tape  [*2]  in evidence, the State failed to establish a prima facie case of battery. Because the trial court erred in denying Mr. Baker’s motion for judgment of acquittal, Mr. Baker’s third issue is moot.

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§ 784.03, Fla. Stat. (2005).
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The main evidence the State presented at trial was the audio recording of a call made to a 911 operator by the alleged victim of the crime, Mr. Baker’s girlfriend. She told the operator: “My boyfriend just, um, bit me and took my phone and stuff,” but she declined the need for any medical attention. The 911 operator dispatched a police officer to the victim’s home, who observed and photographed a small bite mark on the victim’s forearm. At the trial, the police officer authenticated the photographs of the bite mark but did not testify as to any conversation he had with the victim, although he did say that when he arrived the victim was crying. The victim herself did not appear to testify at trial. Therefore, there was no testimony surrounding the circumstances leading up to the biting. The State’s proof of the various elements of battery thus consisted of the victim’s above quoted remarks to the 911 operator, the officer’s testimony about what he observed on the  [*3]  victim’s arm and her demeanor, and the photograph of the bite mark. The trial court denied the motion for judgment of acquittal and submitted the case to the jury, who found Mr. Baker guilty of battery. Because Mr. Baker had at least one prior conviction for battery, he was adjudicated guilty of felony battery.

“The rule is well established that the prosecution, in order to present a prima facie case, is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted.” Baugh v. State, 32 Fla. L. Weekly S171, S172 (Fla. April 26, 2007)(quoting Williams v. State, 560 So. 2d 1304, 1306 (Fla. 1st DCA 1990)). We review de novo the denial of a motion for acquittal. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

The crime of battery is defined in section 784.03(1)(a), Florida Statutes (2005), and occurs when a person: “(1) actually and intentionally touches or strikes another person against the will of the other; or (2) intentionally causes bodily harm to another person.” For the State to overcome a defense motion for judgment  [*4]  of acquittal, the State had to present prima facie evidence that Mr. Baker intentionally bit the victim and this biting was against her will, or that Mr. Baker intended to harm her. See Beard v. State, 842 So. 2d 174 (Fla. 2d DCA 2003); Byrd v. State, 789 So. 2d 1169 (Fla. 3d DCA 2001); Nash v. State, 766 So. 2d 310 (Fla. 4th DCA 2000). Here, the State presented prima facie evidence only that Mr. Baker was the perpetrator. The State failed to present any evidence that the alleged touching–the bite–was intentional and against the victim’s will. The State’s case was deficient primarily because the victim did not testify; the evidence from the victim was limited to the 911 call. Her remarks to the 911 operator fall short of providing the necessary proof that the biting was not consensual and that it was intentional. Cf. Rosen v. State, 940 So. 2d 1155 (Fla. 5th DCA 2006) (holding that the trial court correctly denied a motion for judgment of acquittal for battery where the victims testified that the defendant touched them against their will). Taken altogether, the evidence in the 911 recording, the officer’s testimony, and the photograph of the bite mark fail to fulfill all the elements  [*5]  of battery.

Because the State failed to present a prima facie case of battery, the trial court should have granted Mr. Baker’s motion for judgment of acquittal. Accordingly, we reverse Mr. Baker’s conviction and vacate his sentence for battery.

Conviction reversed, sentence vacated, and case remanded with instructions to discharge Mr. Baker.

WHATLEY J., and FOSTER, ROBERT A. JR., ASSOCIATE JUDGE, Concur.

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ANDREW L. HARDEN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-1484

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

June 29, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

3.800 Appeal from the Circuit Court for Seminole County, O.H. Eaton, Judge.
Harden v. State, 937 So. 2d 1114, 2006 Fla. App. LEXIS 14189 (Fla. Dist. Ct. App. 5th Dist., 2006)

DISPOSITION:  

AFFIRMED.

COUNSEL:   Andrew L. Harden, Quincy, Pro se.

No Appearance for Respondent.

JUDGES:   SAWAYA, ORFINGER and LAWSON, JJ., concur.

OPINION  

PER CURIAM.

Andrew L. Harden appeals the trial court’s order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motions and directing him to show cause why he should not be barred from filing further pro se proceedings. We affirm.

After a jury trial, Harden was convicted of attempted second-degree murder with a weapon and robbery with a deadly weapon. At his original sentencing, a dispute arose over whether points could properly be scored for legal constraint on his sentencing guidelines scoresheet. The trial court determined that the points could be assessed, and as a result, his scoresheet tally with the legal constraint points placed his sentence in a higher cell. The court then sentenced him to 27 years in prison with each count to be served concurrently.

On appeal, this court reversed Harden’s sentence and remanded for resentencing, determining that the trial court should not have assessed points for legal constraint because he was not under legal constraint for sentencing guidelines  [*2]  purposes. Harden v. State, 655 So. 2d 187 (Fla. 5th DCA 1995). At resentencing, the trial court again imposed an aggregate prison sentence of 27 years. According to Harden, the court “achieved this result by going into the permitted range.” Harden appealed his resentencing to this court, claiming that the trial court abused its discretion, but this court upheld the resentencing. Harden v. State, 670 So. 2d 963 (Fla. 5th DCA 1996). Before filing the instant motions, Harden had filed two prior rule 3.800(a) motions to correct an illegal sentence, but the trial court denied them, and this court affirmed in Harden v. State, 757 So. 2d 511 (Fla. 5th DCA 2000), and Harden v. State, 937 So. 2d 1114 (Fla. 5th DCA 2006).

In the instant motions, n1 Harden again takes issue with the sentence he received upon resentencing. He even acknowledges that the claim he presently raises was previously raised in the appeal of his resentencing but rejected by this court. However, Harden nonetheless claims that he is entitled to relitigate the issue and be resentenced because otherwise a manifest injustice would result. For support, he cites to State v. McBride, 848 So. 2d 287 (Fla. 2003), which stated that  [*3]  collateral estoppel would not be invoked to bar relief when its application would result in a manifest injustice.

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We reject the additional argument raised in Harden’s amended motion as meritless without further discussion.
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We reject Harden’s argument that he is entitled to relitigate the sentence he received at resentencing. In our view, he has failed to demonstrate that a miscarriage of justice somehow occurred in the instant case just because the trial court imposed the same sentence as before. At resentencing, there was nothing to bar the trial court from reimposing the same sentence because, as indicated, the 27-year-sentence was still within the permitted range of the guidelines, even without the legal constraint points.

Accordingly, we warn Harden that if he again attempts to challenge his sentence, we will likely issue an order pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999), requiring him to show cause why he should not be barred from further pro se filings and for consideration of disciplinary action pursuant to section 944.279(1), Florida Statutes (2006).

AFFIRMED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.

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TERRY ALTON WEST, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D04-4461

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

June 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Polk County; Michael E. Raiden, Acting Circuit Judge; J. Michael McCarthy, Dennis P. Maloney, and Roger A. Alcott, Judges.

DISPOSITION:  

Reversed and remanded for a new trial.

COUNSEL:   Byron P. Hileman, Winter Haven, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   NORTHCUTT, Judge. SALCINES, J., and COBB, WARREN H., ASSOCIATE SENIOR JUDGE, Concur.

OPINION BY:   NORTHCUTT

OPINION  

NORTHCUTT, Judge.

Terry Alton West appeals following his conviction for the lesser charged offense of attempted manslaughter. We find no merit in West’s claim that his speedy trial rights were violated. However, we agree with his assertion that the trial court erred by failing to inquire into West’s pro se request to discharge his attorney. We reverse and remand for a new trial.

West filed a pro se motion seeking to discharge his court-appointed attorney and to have new counsel appointed. In this motion, West stated that his attorney was “not doing anything” to help the case and had not done several things that West asked him to do. The motion then recited Supreme Court cases and their announced standards for effective legal representation and the potential  [*2]  for ineffective assistance of counsel, and it concluded with the statement that “this is the case” with West’s attorney. The trial court at no time inquired into this issue and never ruled on West’s pro se motion.

“Generally, a court’s failure to conduct a Nelson inquiry is reversible error if the defendant has clearly alleged attorney incompetence and has unequivocally stated he wishes to discharge his counsel.” Reid v. State, 826 So. 2d 414, 415 (Fla. 2d DCA 2002) (referring to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)). In Reid, the defendant’s pro se motion asserted that his attorney “wasn’t in compliance with the duty of a court-appointed attorney” and cited the rules of professional conduct governing lawyer competence, diligence, and communication. Id. This court found that the motion sufficiently alleged incompetence and the defendant’s desire to discharge counsel, and we reversed because “Reid was never given any opportunity to explain why his counsel was not competently representing him.” Id. Likewise in this case, West’s pro se motion unequivocally sought to discharge his attorney and asserted that his attorney was not providing effective assistance. Thus, the court  [*3]  erred in failing to inquire into the basis for this motion.

The State argues that a defendant has no right to hybrid representation and that West’s pro se motion was superseded by an earlier motion, filed not by his attorney of record but by a different attorney in the public defender’s office and requesting the court to appoint a conflict attorney on the sole issue of speedy trial. While pro se pleadings filed by a represented defendant are generally a nullity, a pro se motion to discharge counsel is an exception to this rule. Logan v. State, 846 So. 2d 472, 476 (Fla. 2003). Furthermore, we do not agree that the earlier motion, directed solely to a speedy trial issue, can be regarded as superseding a later motion that did not mention speedy trial.

The State also argues that West failed to adequately allege incompetence as the grounds to discharge his attorney. But we conclude that the assertions in the pro se motion were sufficient to require the trial court to make a preliminary Nelson inquiry. See Maxwell v. State, 892 So. 2d 1100 (Fla. 2d DCA 2004) (explaining that court’s preliminary inquiry under Nelson must ascertain whether the defendant unequivocally seeks discharge of counsel  [*4]  and the reasons therefor). Accordingly, we reverse.

Reversed and remanded for a new trial.

SALCINES, J., and COBB, WARREN H., ASSOCIATE SENIOR JUDGE, Concur.

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JAMES CANNON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-3992

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

June 29, 2007, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for St. Johns County, J Michael Traynor, Judge.

DISPOSITION:  

AFFIRMED.

COUNSEL:   Rick Sichta, of Tassone & Sichta, P.A., Jacksonville, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, C.J., ORFINGER and TORPY, JJ., concur.

OPINION  

PER CURIAM.

See Leeman v. State, 357 So. 2d 703, 705 (Fla. 1978) (reiterating that an offense must be charged “in the very language of the statute, or in language of equivalent import”).

AFFIRMED.

PLEUS, C.J., ORFINGER and TORPY, JJ., concur.

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