Opinion
Case No. 5D20-1459
07-30-2021
Charles JONES, Appellant, v. STATE of Florida, Appellee.
Charles Jones, Bonifay, pro se. Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
Charles Jones, Bonifay, pro se.
Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
EDWARDS, J. Appellant, Charles Jones, pro se, appeals the postconviction court's denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant further challenges the fact that he was not afforded counsel during the evidentiary hearing. In the same order scheduling the evidentiary hearing, the postconviction court appointed counsel to represent Appellant specifically for the evidentiary hearing. Inexplicably, there was no lawyer representing him at the hearing and the postconviction court then denied Appellant's motion to appoint counsel made at the hearing. For the reasons that follow, we reverse the order denying his motion and remand for an evidentiary hearing, at which Appellant shall be entitled to the assistance of appointed counsel.
The same judge who initially appointed counsel also conducted the evidentiary hearing and signed the court minutes.
Trial and Conviction
In 2016, Appellant was convicted following jury trial of two counts: (1) burglary of a dwelling with an assault or battery under section 810.02(2)(a), Florida Statutes (2015) ; and (2) aggravated burglary causing great bodily harm under section 784.045(1)(a), Florida Statutes (2015). Appellant was sentenced to life imprisonment as to count (1) and five years as to count (2), to be served consecutively. His appeal of those convictions was per curiam affirmed by this Court. Jones v. State , 224 So. 3d 243 (Fla. 5th DCA 2017).
Postconviction Motion
In 2019, Appellant filed the subject motion to vacate and set aside his judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850 in which he alleged that he was prejudiced by ineffective assistance of counsel. He alleged that trial counsel failed to properly investigate the potential testimony of several witnesses and failed to present the testimony of at least two identified witnesses, which suggested or supported a claim that another person committed the crime, and another witness who supposedly would have testified that no battery took place. Appellant claimed trial counsel's acts or omissions, independently and cumulatively, prejudiced Appellant.
Unexplained Absence of Appointed Counsel
Why Appellant did not have an attorney during the hearing is a mystery to this Court given the following circumstances. In its order scheduling the evidentiary hearing, the postconviction court actually appointed the Office of Regional Criminal Conflict Counsel ("RCCC") to represent Appellant "for purposes of the hearing only." The certificate of service for that order indicates a copy was mailed to RCCC's office. Nothing in the record on appeal or the parties’ briefs indicates that RCCC filed anything in this case or that RCCC ever met with or appeared for Appellant, withdrew, or was dismissed. The transcript of the hearing states that no attorney attended the hearing on Appellant's behalf.
At the commencement of the evidentiary hearing, Appellant asked the court to appoint the Public Defender as he was unable to "defend himself." That request was denied, without anybody referring to the previous order appointing RCCC as counsel for Appellant. The postconviction court did not orally acknowledge during the hearing that counsel had previously been appointed. There was no mention in the transcript of trying to find out where Appellant's previously appointed lawyer was. Appellant had to do the best he could, alone.
Appointed counsel's absence from the evidentiary hearing was neither explored nor explained by anyone during the hearing. However, it was later noted in the court's signed minutes of the hearing. The postconviction court minutes cryptically note that counsel was appointed for Appellant, but that counsel was not present. The court minutes in relevant part state:
This cause coming on this day for: Evidentiary Hearing , with Asst State Attorney, div. 12, present and you, the defendant, CHARLES JONES being now Present and represented by OFFICE OF PUBLIC DEFENDER, ESQUIRE Counsel not present. due to Defendant not having Counsel at this time. , you have:
COURT ORDERS:
| Court Minutes | Defendant's Motion for Counsel: Denied. |
| Evidentiary Hearing Held. | |
| Ruling reserved. | |
| Defendant to be returned to the Department of Corrections. |
As can be seen, the portion of the minutes reflecting appointment of the Office of the Public Defender is at odds with the earlier order appointing RCCC, specifically to represent Appellant "for purposes of the evidentiary hearing only." However, as Appellant did not raise the issue of the absence of his appointed counsel, it cannot serve as the basis for reversal.
Appellant and the Evidentiary Hearing
It is important to note that Appellant is not sophisticated nor well-educated—allegedly reading at fourth-grade level. During the evidentiary hearing, where he reluctantly represented himself, the postconviction court repeatedly admonished him to avoid testifying himself as he cross-examined witnesses and encouraged him to simply ask questions. From this Court's review of the hearing transcript, it certainly appears that Appellant was unprepared, clearly challenged, and possibly unable to represent himself without the assistance of counsel.
Had the postconviction court denied Appellant's original request for appointment of postconviction counsel, we would review that decision for abuse of discretion. See Mullis v. State , 864 So. 2d 1246, 1247 (Fla. 5th DCA 2004) (citing Russo v. Akers , 724 So. 2d 1151 (Fla. 1998) ). But it granted Appellant's original request for appointment of counsel for the evidentiary hearing. The same standard of review applies for the postconviction court's denial of Appellant's request for counsel at the outset of the hearing.
"[A]lthough there is no absolute right to counsel in post-conviction relief proceedings, the [c]ourt before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant." Graham v. State , 372 So. 2d 1363, 1365 (Fla. 1979).
The question in each proceeding of this nature ... should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner's claims. ... The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel.
Id. at 1365–66.
"The determination that an evidentiary hearing is necessary in itself implies that three of the four elements are involved. Evidentiary hearings are adversarial in nature, and the rules of evidence and procedure are mystifyingly complex to all but the most sophisticated non-lawyers." Williams v. State , 472 So. 2d 738, 740 (Fla. 1985).
A postconviction court's denial of a request for appointment of postconviction counsel has been reversed where the appellant was unable to go forward with the burden of proving his initial allegation, irrespective of the merits of those allegations, because of his lack of sophistication or education, even where the issues are not complex or novel. See Henderson v. State , 919 So. 2d 652, 655 (Fla. 1st DCA 2006) ; Williams , 472 So. 2d at 740 (reversing denial of appointment of counsel in collateral proceeding where appellant had only second-grade education, was semi-literate and unsophisticated, and "the judge repeatedly had to instruct [the appellant] in examination techniques and to restrain him from testifying himself when he was supposedly questioning witnesses"); Rogers v. State , 702 So. 2d 607, 608–09 (Fla. 1st DCA 1997) (holding that postconviction court erred in denying request for counsel where motion for postconviction relief had been prepared by prison law clerk, he had only ninth-grade education, appellant claimed that trial counsel had been ineffective in several regards, and postconviction court had to explain to appellant rules regarding examination of witnesses, and admonish him not to offer his own testimony when questioning witness)); see also Witherspoon v. State , 634 So. 2d 208, 209–10 (Fla. 4th DCA 1994) (reversing postconviction court's denial of motion for postconviction relief and remanding with instructions to appoint counsel to assist appellant at new evidentiary hearing where there was no information as to appellant's education or ability to represent himself in adversary proceeding, appellant failed to present any expert testimony, and appellant brought multiple claims of ineffective counsel including failing to call witnesses on his behalf and not objecting to erroneous jury instruction); Gordon v. State , 529 So. 2d 1129, 1130 (Fla. 5th DCA 1988) (holding that postconviction court's failure to consider appointing counsel for petitioner in evidentiary hearing was improper where record revealed petitioner's lack of education and sophistication); Davis v. State , 499 So. 2d 24, 26 (Fla. 4th DCA 1986) (finding petitioner entitled to appointment of counsel and new evidentiary hearing where record had no information concerning petitioner's ability to represent himself, petitioner did not present any expert testimony concerning competency of his trial counsel, and record indicated that an attorney's cross-examination of counsel may have shown petitioner was entitled to new trial).
Given the applicable law and considering Appellant's lack of sophistication, limited education, the potentially complex evidentiary hearing which necessitated subpoenaing witnesses, we find that the postconviction court abused its discretion when it denied Appellant's request for counsel made at the outset of the evidentiary hearing.
For the foregoing reasons, we reverse and remand for a new hearing on Appellant's motion, at which Appellant shall be entitled to the assistance of appointed counsel. Based upon our decision, we need not address, at this time, Appellant's final argument, that appellate counsel should have been appointed to represent him before this Court.
REVERSED and REMANDED, with instructions.
SASSO and NARDELLA, JJ., concur.