County Criminal Court: CRIMINAL PROCEDURE --- Counsel --- Trial court erred in failing to conduct Faretta hearing where no written order of no incarceration was filed. Judgment and sentence reversed. Boyd v. State, No. CRC 07-7 APANO, (Fla. 6th Cir. App. Ct. April 9, 2008).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

MARK W. BOYD

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 07-7 APANO

                                                                       UCN522007AP000007XXXXCR

STATE OF FLORIDA

            Appellee.

_____________________________/

 

Opinion filed __________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer

 

Joseph T. Hobson, Esquire

Attorney for appellant

 

Scott M. Alexander, Esquire

Assistant State Attorney

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant, Mark Boyd’s, appeal from a judgment and sentence entered by the Pinellas County Court following his petty theft conviction following a non-jury trial. The defendant claims the trial court erred in not conducting a Faretta hearing prior to allowing him to represent himself at trial. After reviewing the briefs and record, this Court agrees.

            The defendant claims the trial court should, pursuant to Faretta v. California, U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), have inquired whether or not his decision to represent himself was made knowingly and intelligently. The record reveals that the trial court did not make this inquiry; either before trial or at sentencing.

            The State acknowledges no Faretta hearing was held, but argues that it did not matter because the defendant was not entitled to legal representation. That, however, is incorrect. Any defendant facing possible jail time if convicted is entitled to representation. Although Fla.R.Crim.P. 3.111(b) provides that counsel need not be provided for the defense of a misdemeanor prosecution “if the judge, at least 15 days prior to trial, files in the cause a written order of no incarceration,” the record shows that such a document was never filed. Thus, the defendant did have a right to counsel on his misdemeanor charge.

            In Case v. State, 865 So.2d 557 (Fla. 1st DCA 2004), the county court’s failure to conduct a Faretta hearing was considered per se reversible error where the court failed to issue a written order of no incarceration even though, as in the case at bar, no jail time was given as part of the sentence. Accordingly, based upon that authority, this Court has no choice but to reverse the judgment and sentence.

            IT IS THEREFORE ORDERED that this Court reverses the judgment and sentence, and remands the case to the trial court.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day

 

of April, 2008.             

                                                                                   

                                                                                   

________________________                                                ________________________

        Michael F. Andrews                                                                   Raymond O. Gross

        Circuit Court Judge                                                                     Circuit Court Judge        

                                                                                                                                                                                                _________________________

                                                           R. Timothy Peters

                                                         Circuit Court Judge

 

cc:        Office of the State Attorney

            Joseph T. Hobson, Esquire

Honorable Robert Dittmer