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

Appeal No: 99-0014

Case No: TT97-000860-XX

 

FRANK PHELPS

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

This is an appeal from the county court of Highlands County, Judge Olin Shinholser presiding. Appellant, Frank Phelps, appeals the judgment and sentence of the county court. This court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). The judgment and sentence of the county court are reversed.

I. ISSUES

1. Did the trial judge err by failing to establish on the record that Appellant has knowingly and intelligently waived his right to counsel?

2. Did the trial judge err by proceeding with trial despite Appellant’s absence?

II. STANDARD OF REVIEW

Both issues before this court are questions of law; as such, they are subject to review de novo. Failure to sufficiently establish on the record that a defendant has knowingly and intelligently waived his right to assistance of counsel 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 show that the record below is devoid of facts that show that Appellant has knowingly and intelligently waived his right to assistance of counsel. Faretta v. California, 422 U.S. 806, 835 (S. Ct. 1975).

A defendant has the right to be present at all material stages of trial. Turner v. State, 530 So. 2d 45, 49 (Fla. 1987). Going ahead at trial in a defendant’s absence can be harmful in the circumstance in which the defendant is absent without having waived his right to be present, and such absence thwarts the fundamental fairness of the proceedings. Id. Therefore, the record must show that before his absence, the defendant made a knowing and voluntary waiver of his right to be present at essential stages of trial.

III. FACTS

The facts are not in dispute. Appellant appeared before the trial court on November 23, 1998 for a first appearance hearing. Appellant told the court that he intended to hire his own attorney but that no attorney was present with him. The trial judge then denied Appellant’s request for a bond reduction.

On December 1, Appellant again appeared without counsel. Appellant explained that he had been released from jail one week before the hearing and had not yet retained counsel. Appellant asked for and received a continuance to allow him to retain counsel.

At the pretrial conference on December 28, Appellant again requested time to retain counsel. The trial judge denied the motion for continuance and set the trial docket for a status conference on January 8, 1999 and jury selection on January 11, 1999. The trial judge told Appellant to retain counsel or be prepared to go at trial. (R. 78) On January 8 and 11, Appellant was unrepresented by counsel. Transcripts show that the trial judge never asked about Appellant’s capacity to waive assistance of counsel. (R. 64 and 78)

On January 13, 1999, Appellant failed to appear for trial and the trial judge proceeded in his absence. The transcript contains no waiver of the right to be present. Appellant was represented by counsel at the sentencing hearing on February 22, 1999. The trial judge denied a motion for rehearing based upon substantially the same facts before this court on appeal.

Appellant, Frank Phelps, appeals the ruling of the trial court that found him guilty of driving with a suspended license. Appellant argues that the trial judge failed to conduct a proper Faretta inquiry before allowing him to represent himself. Faretta v. California, 422 U.S. 806 (1975). The state did not file an answer brief in this appeal. Instead, it filed a short response in which it conceded fundamental error.

Before allowing a defendant to represent himself, the trial judge must find that evidence on the record shows the defendant has knowingly and intelligently waived his right to assistance of counsel. Potts v. State, 718 So. 2d 757, 759 (Fla. 1998). After reviewing the record, this court finds that the trial judge failed to make findings which establish that Appellant had the capacity to waive his right to assistance of counsel. Because the absence of such findings requires reversal, Appellant’s second issue is moot.

Accordingly, it is ORDERED that the judgment and sentence of the trial court are REVERSED and REMANDED.

ORDERED January 2000.

Charles B. Curry

Chief Judge