Opinion
No. SC12–509.
2012-11-27
David Byron RUSS, Appellant(s) v. STATE of Florida, Appellee(s).
James L. Driscoll, Jr., discharged counsel for David Byron Russ, a prisoner under sentence of death, appeals the circuit court's order finding Russ competent to discharge his postconviction counsel and waive postconviction proceedings filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Seeart. V, sec. 3(b)(1), Fla. Const.
After this Court affirmed Russ's death sentence on direct appeal, see Russ v. State, 73 So.3d 178 (Fla.2011), James L. Driscoll, Jr., was appointed as postconviction counsel for Russ. On November 1, 2011, Russ filed a pro se motion indicating that he wanted to terminate postconviction counsel and proceedings. After a hearing pursuant to Durocher v. Singletary, 623 So.2d 482, 485 (Fla.1993) (requiring trial courts to evaluate defendants to determine if they understand the consequences of waiving collateral counsel and proceedings), the circuit court found Russ competent and issued an order discharging counsel and dismissing postconviction proceedings.
Discharged counsel does not assert that Russ is incompetent; however, discharged counsel notes that counsel's silence on the matter should not be taken as proof of Russ's competency. “[T]he relevant test for competency in the context of waiving collateral counsel and collateral proceedings in Florida is whether the person seeking waiver has the capacity to ‘understand[ ] the consequences of waiving collateral counsel and proceedings.’ “ Trease v. State, 41 So.3d 119, 124–25 (Fla.2010) (quoting Slawson v. State, 796 So.2d 491, 502 (Fla.2001)). This Court reviews the postconviction court's determination of the defendant's competency during a Durocher hearing for abuse of discretion. Alston v. State, 894 So.2d 46, 54 (Fla.2004). “The party challenging the defendant's waiver request bears the burden of proving that the defendant is incompetent.” Trease, 41 So.3d at 125 (quoting Slawson, 796 So.2d at 502).
In this case, the transcript of the Durocher hearing reflects that the trial court conducted a Faretta-typeevaluation of Russ, eliciting that Russ completed the ninth grade, started the tenth grade, later received his General Educational Development diploma and a college scholarship, and was not on medication or any other drugs. Russ also confirmed to the circuit court that he did not believe himself to have any mental defects, and that he understood the consequences of his waiver. Additionally, Russ has previously been found competent to stand trial and then to waive his right to trial when he entered his guilty plea, which this Court affirmed on appeal. Russ, 73 So.3d at 200;see Durocher, 623 So.2d at 484 (“A presumption of competence attaches from a determination of competency to stand trial.”). Thus, the trial court did not abuse its discretion in finding Russ competent to waive postconviction counsel and proceedings.
Discharged counsel contends that because Russ filed a motion to waive postconviction counsel and proceedings before counsel had filed any postconviction claims, counsel has not had adequate time to investigate Russ's case to determine what postconviction claims are available. Accordingly, discharged counsel claims Russ's waiver is not fully intelligent or voluntary because he does not have a clear understanding of what claims he is waiving. This Court reviews the postconviction court's determination of whether the defendant's waiver of further postconviction counsel and proceedings was intelligent, knowing, and voluntary, for abuse of discretion. Trease, 41 So.3d at 124.
The transcript reflects that Russ was fully aware of and understood the consequences of waiving postconviction counsel and proceedings. The colloquy provides that the trial court repeatedly stressed the implications of dismissing postconviction counsel and proceedings. Russ stated on the record that just like he waived his right to a jury trial, he wanted to take responsibility for his actions and was willing to face the consequences of those actions, including his death sentence. Russ also affirmed that his decision to waive postconviction proceedings was reached on his own, with no outside pressure. He affirmed that he was not coerced or threatened to make this decision, and that his decision was voluntary.
The colloquy conducted during Russ's Durocher hearing follows the procedure outlined in this Court's decisions in Durocher and Trease. See Durocher, 623 So.2d at 485;Trease, 41 So.3d at 122. Russ's responses to the questions posed by the trial court demonstrate that he comprehended his legal options and the consequences of his waiver. Based on the colloquy conducted and the answers provided by Russ, the trial court did not abuse its discretion in determining that Russ knowingly, intelligently, and voluntarily waived his right to postconviction counsel and proceedings.
Finally, discharged counsel asserts that should Russ change his mind regarding his waiver of postconviction rights before time limitations expire, counsel would have a very limited time to adequately investigate claims and represent Russ in postconviction proceedings. Discharged counsel's concern is unfounded. This Court has held that absent “attacking the validity of the prior waiver [,] ... ‘a mere change of mind is an insufficient basis for setting aside a previous waiver.’ “ Trease, 41 So.3d at 126 (quoting James v. State, 974 So.2d 365, 368 (Fla.2008)).
Accordingly, we affirm the circuit court's order finding Russ competent to discharge postconviction counsel and waive postconviction proceedings.
It is so ordered.