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

Appeal No: BB-24

Case Nos: MM97-00374A-LD
&   MM97-00397A-LD

JAMES LOVETT,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

__________________________

This matter is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant, James Lovett, 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 1, 1999, Appellant appeared without counsel before the county court of Polk County for arraignment on two counts of trespass after warning. The trial judge advised Appellant of the charges against him and the maximum penalty. The court noted that Appellant was not represented by counsel and informed him of the offer made by the state. The trial judge told Appellant that he had the right to an attorney and that he could plead not guilty if he didn’t want to plead guilty or no contest. (R. at 7) Appellant entered a plea without the advice of counsel. The court then inquired whether Appellant was under the influence of any drug or alcohol, and whether his plea was coerced. (R. at 9) This court notes that 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 the 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 argues that the record establishes that Appellant understood his rights, and knowingly waived them. In support of his position Appellee refers to facts which are not contained in the record below. (Answer Brief at 6) For purposes of appeal, this court cannot consider facts which are not contained in the transcript of hearing. Jones, 658 So. 2d at 125.

Appellee further argues that a 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. Young, which speaks more directly to the matter before this court, held that the failure to conduct a proper Faretta inquiry in the first instance is reversible error. Young, 626 So. 2d at 657. Thus, Appellee’s reliance on Mincey is misplaced.

Finally, Appellee argues that the language in Faretta regarding the warning against self-representation is permissive. He cites this court’s opinion in Robinson v. State, for support of his argument that the trial court’s failure to fully conform with every step in a Faretta inquiry procedure is harmless error. Robinson v. State, 5 Fla. L. Weekly Supp. 291 (Fla. 10^th Cir. 1997). This argument fails for two reasons. First, the issue in Robinson turned on whether the trial court could satisfy the requirements of Faretta without addressing the dangers of self-representation. In Robinson, this court held that it could because the record established that Robinson had represented herself in plea hearings in some of her six prior convictions. In that case, the record hearing showed a factual basis for the court’s finding that the defendant understood and waived her right to counsel.

Second, the record must contain the factual basis of a finding that the defendant has knowingly and intelligently waived the right to counsel. 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. Bowen, 677 So. 2d at 865. 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. 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 state, and experience with criminal proceedings must be subjects of inquiry. Bowen, 677 So. 2d at 866.

In the proceeding below, the record shows that Appellant appeared before the trial court on April 1, 1999 for arraignment on two counts of trespass after warning. The trial judge informed Appellant of the charges and the maximum penalty. The record shows that the trial judge inquired as to Appellant’s understanding of the charges against him, the penalty, his right to an attorney, and whether he was under the influence of any drug or alcohol. The record also shows that Appellant indicated his understanding of the charges against him, and his choice to enter a plea. However, the record shows that the trial judge failed to inquire as to the Appellant’s age, education, experience with criminal proceedings or any other matter that would establish that Appellant demonstrated his capacity to make an informed decision to waive his right to counsel.

Accordingly, it is ORDERED that the judgment and sentence are REVERSED and REMANDED for proceedings consistent with this opinion..

ORDERED January 2000

Charles B. Curry

Chief Judge