THE TENTH JUDICIAL CIRCUIT COURT
FOR HARDEE, HIGHLANDS AND
POLK COUNTY, FLORIDA

Appeal No: BB-30

Case No: TT99-000179-AA

 

MICHAEL ANDRADE,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

__________________________

This matter is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant, Michael Andrade, argues that the trial court failed to adequately inquire regarding his right to waive assistance of counsel. This court has jurisdiction. Fla. R. App. P. 9.030(c). The judgment and sentence of the county court are reversed.

I. ISSUE

Did the trial court err by failing to conduct a sufficient inquiry regarding Appellant’s capacity to knowingly, and intelligently waive his right to assistance of counsel before the court accepted his plea?

Whether Appellant knowingly, and intelligently waived his right to assistance of counsel before entering a plea is a question of law. Failure to sufficiently establish a defendant’s capacity to enter a plea is reversible error. Young v. State, 626 So. 2d 655 (Fla. 1993); Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995). To succeed on appeal, Appellant must demonstrate that the trial judge failed to make the proper findings on the record regarding Appellant’s capacity to waive his right to assistance of counsel. Faretta v. California, 422 U.S. 806, 835 (S. Ct. 1975).

On April 22, 1999, Appellant appeared without counsel before the county court of Polk County for arraignment on a count of driving under the influence of alcohol. The trial judge advised Appellant of the charge against him and the maximum penalty. Appellant entered a plea of no contest without advice of counsel. The court then inquired whether Appellant was under the influence of any drug or alcohol. Appellant stated that he takes medications daily for chronic pain and a nervous condition, but indicated that he understood that he was waiving his right to counsel. Despite the discussion of Appellant’s medication, the transcript shows that the trial judge did not inquire about Appellant’s age, education, ability to read or write, or his experience with criminal proceedings during the hearing.

It is fundamental error for a trial judge to accept a plea without conducting a proper inquiry under Faretta. Young, 626 So. 2d at 657. Before a trial judge may accept a plea, he or she must first establish that the defendant has the mental and intellectual capacity to respond to questions regarding the right to counsel. Young, 626 So. 2d at 657; Fla. R. Crim. P. 3.111. The facts must show that the defendant has "knowingly and intelligently" waived his right to counsel. Faretta, 422 U. S. at 835. The inquiry must include the defendant’s age, level of education, exposure to criminal proceedings, and mental state. Bowen v. State, 677 So. 2d 863, 866 (Fla. 2d DCA 1996).

Appellee acknowledges that a trial judge cannot accept a plea until he or she finds that the defendant has the capacity to make a "competent and intelligent" waiver. (Answer Brief at 3) Appellee further acknowledges that a defendant’s "age, mental state, lack of knowledge or education" can establish whether a defendant has the capacity to make a knowing and intelligent waiver. Id. However, Appellee concludes that the trial judge "received an adequate amount of information" and no exhaustive explanation was needed because the record shows that the defendant was aware of the dangers of self representation. Id. at 7.

Appellee reasons that if the trial court erred, an improperly conducted Faretta inquiry is subject to a harmless error analysis, and cites Mincey v. State, 684 So.2d 236 (Fla. 1^st DCA 1996) as authority for this position. Mincey held that after conducting a Faretta inquiry and permitting a defendant to represent himself, the failure to renew the offer of counsel at each subsequent stage of the proceedings was harmless error. Mincey, 684 So.2d at 238. However, it is the failure to conduct a proper Faretta inquiry in the first instance which is the matter before this court and which is reversible error. Young, 626 So. 2d at 657. Thus, Appellee’s reliance on Mincey is misplaced.

Appellee further argues that the language in Faretta which addresses the dangers of self representation is permissive, and the failure to fully conform with every step in the procedure is harmless error. (Answer Brief at 5) Appellee cites this court’s opinion in Robinson v. State, for support of this argument. 5 Fla. L. Weekly Supp. 291 (Fla. 10^th Cir. 1997). The distinction between a defendant’s competency to represent himself and his capacity to understand the implications of such a decision is a critical one, and one which Appellee fails to make. Bowen, 677 So. 2d at 865. The trial court could satisfy the requirements of Faretta without addressing the dangers of self-representation in Robinson because the record established that Robinson had represented herself in plea hearings in some of her six prior convictions. In that case, the transcript established a factual basis for the court’s finding that the defendant understood and waived her right to counsel.

The essential finding in a Faretta hearing is that the defendant has made an informed decision to waive his right to counsel. 422 U.S. at 835. To arrive at that finding, the trial judge must elicit certain information on the record to support the premise that the defendant has knowingly and intelligently waived the right to counsel. Bowen, 677 So. 2d at 866. In holding that Anthony Faretta had a right to represent himself, the Court found that "[t]he record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will." 422 U.S. at 835. Therefore, age, education, mental status, and experience with criminal proceedings must be subjects of inquiry. Bowen, 677 So. 2d at 866.

Appellant appeared for an arraignment on April 22, 1999. The trial judge informed Appellant of the charges and the maximum penalty. Although the trial judge inquired whether Appellant was impaired by prescription medications, that information is not sufficient to establish that Appellant had the capacity to make a knowing and intelligent waiver of his right to counsel. The record also shows that the trial judge failed to inquire as to the Appellant’s age, education, experience with criminal proceedings which, along with the discussion of Appellant’s mental state, would establish whether Appellant demonstrated his capacity to make an informed decision to waive his right to counsel.

It is hereby ORDERED that the judgment and sentence are REVERSED and REMANDED for proceedings consistent with this opinion..

ORDERED January 2000

Charles B. Curry

Chief Judge