                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JERRY JEROME HOLMES,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-140

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 31, 2017.

An appeal from the Circuit Court for Duval County.
Mark Hulsey, Judge.

Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Jerry Jerome Holmes, appeals his convictions and sentences for

aggravated battery with a deadly weapon and possession of cannabis, and argues that
the trial court reversibly erred by denying his request to represent himself. Finding

that the trial court incorrectly denied Appellant’s request for self-representation, we

reverse and remand for a new trial.

         At a May 8, 2014, hearing, the trial court conducted a Faretta 1 inquiry, during

which it explained to Appellant the advantages of having a lawyer and the

disadvantages of self-representation. Appellant testified that he was fifty-two years

old, he can read and write, he has no difficulty understanding English, he has a tenth

grade education, he was not currently under the influence of drugs or alcohol, he was

diagnosed with and treated for bipolar disorder and manic depression in 2001, he did

not have any physical problems that would hinder self-representation, he had never

represented himself at trial, and he had read very little about the law and rules

governing a trial. When the trial court asked Appellant whether he was certain that

he did not want an attorney, he stated, “No, sir, I’m not certain, but I know I’m

illiterate to the law . . . .” The trial court found Appellant competent to waive his

right to counsel, and found that he did so knowingly and intelligently. At the end of

the hearing, however, Appellant changed his mind and accepted counsel.

         At a May 28, 2014, hearing, the trial court conducted another Faretta inquiry.

Appellant again testified that he can read and write, he has no difficulty

understanding English, he was not currently under the influence of any drugs or


1
    Faretta v. California, 422 U.S. 806 (1975).
                                            2
alcohol, he had no physical problems that would hinder self-representation, and he

had never represented himself at trial and had not read anything about the law or

rules governing trial. Appellant further testified that he has a tenth grade education,

but then corrected himself and stated he has an eighth grade education; he had been

diagnosed with and treated for paranoid schizophrenia and manic depression, but

had never been hospitalized because of those illnesses; and he was certain he did not

want an appointed attorney. This time, the trial court denied Appellant’s request for

self-representation and announced its ruling as follows:

      The last time we were in court, I think was two or three weeks ago, you
      told me that you did not feel competent to represent yourself in this
      case. Based on the questions and answers you’ve given today, and
      based on that statement less than a month ago, I’m going to find that
      you are not competent to waive counsel . . . .

      A jury convicted Appellant of aggravated battery with a deadly weapon, and

he pled nolo contendere to possession of cannabis. This appeal followed.

      A trial court’s decision on a request for self-representation is reviewed for an

abuse of discretion. McGirth v. State, 209 So. 3d 1146, 1157 (Fla. 2017). A person

accused of a crime has a constitutional right to represent himself or herself. Neal v.

State, 132 So. 3d 949, 950 (Fla. 1st DCA 2014) (citing Faretta v. California, 422

U.S. 806 (1975), and Pasha v. State, 39 So. 3d 1259 (Fla. 2010)). A defendant

seeking to waive the right to counsel must be competent to waive the right, but need

not be competent to represent himself or herself. State v. Bowen, 698 So. 2d 248,

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251 (Fla. 1997). The exception to the general rule is when the accused suffers from

severe mental illness to the point where he or she is not competent to conduct trial

proceedings by himself or herself. Neal, 132 So. 3d at 950-51 (explaining that “[t]he

accused need have no legal experience nor any special ability. It is enough that the

accused understand the right to be represented by counsel and decide voluntarily to

proceed without counsel, assuming severe mental illness does not preclude self-

representation” (citing Indiana v. Edwards, 554 U.S. 164, 178 (2008)). Thus,

      it is error to deny a defendant’s unequivocal request to represent
      himself, regardless of his legal skills or the complexity of the case, if
      the trial court determines that the defendant made a knowing and
      intelligent waiver of the right to counsel and “does not suffer from
      severe mental illness to the point where the defendant is not competent
      to conduct trial proceedings by himself.”

Id. (citing Fla. R. Crim. P. 3.111(d)(3)).

      In Neal, we reversed the appellant’s convictions because the trial court failed

to apply the correct legal standard in denying his request to proceed pro se where it

did not even find whether his request was knowing and intelligent or whether he

suffered from severe mental illness to the point that he was not competent to conduct

trial proceedings by himself. 132 So. 3d at 951. Similarly, in Williams v. State, we

remanded for a new trial upon finding that the trial court failed to conduct a legally

sufficient Faretta hearing where it “did not consider whether Williams’ waiver of

counsel was knowing and intelligent and whether he was mentally competent to

represent himself, and impermissibly denied Williams’ self-representation request
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based on a perceived lack of legal training and experience.” 163 So. 3d 740, 741

(Fla. 1st DCA 2015); see also Wilson v. State, 201 So. 3d 203, 205 (Fla. 2d DCA

2016) (“[T]he judge focused on the defendant’s legal knowledge and denied the

request to proceed pro se expressly because the defendant was not qualified to

represent himself. The court made no finding as to the correct standard—whether

the defendant was knowingly and intelligently waiving his right to counsel.

Accordingly, we must reverse . . . .”); Williams v. State, 163 So. 3d 694, 697-98

(Fla. 4th DCA 2015) (remanding for a new trial upon concluding that the trial court

applied the incorrect legal standard in denying the appellant’s request for self-

representation where it based its ruling on a finding that he lacked competence to

represent himself due to insufficient legal knowledge and never made findings as to

whether he knowingly, voluntarily, and intelligently sought waiver of his right to

counsel and whether he suffered from severe mental illness to the point where he

was incompetent to conduct the proceedings by himself).

      As such, Appellant correctly argues that the trial court applied the incorrect

legal standard in denying his request for self-representation. First of all, the trial

court did not make findings as to whether Appellant sought to waive his right to

counsel knowingly and intelligently or whether he suffered from severe mental

illness to the point where he was not competent to conduct trial proceedings by

himself. Rather, the trial court expressly based its ruling on Appellant’s statement

                                          5
at the May 8th hearing that he did not feel competent to represent himself and his

answers at the May 28th hearing.

      Given that Appellant did not state during the May 8th hearing that he did not

feel competent to represent himself, the trial court may have been referencing his

statement about being “illiterate to the law.” Appellant’s lack of legal training and

experience, however, was an impermissible basis for denying his request for self-

representation.   See Bowen, 698 So. 2d at 251; Williams, 163 So. 3d at

697; Williams, 163 So. 3d at 741.

      Additionally, the trial court did not specify which of Appellant’s answers at

the May 28th hearing led to its finding that he was not competent to waive counsel,

contrary to its finding twenty days earlier.      The State argues on appeal that

Appellant’s conflicting testimony about his education level and testimony about his

mental illnesses justified the denial of his request for self-representation. With

regard to Appellant’s conflicting testimony about his education level, the trial court

made no statement indicating that such testimony led to the change in its finding or

played any role in its ultimate decision. In fact, Appellant’s conflicting testimony

about his education seems insignificant given that he was recalling events from

decades earlier; he indicated he could read, write, and understand English; and the

hearing transcripts reflect that he was articulate and understood the consequences of

his decision. See McKinney v. State, 850 So. 2d 680, 682 (Fla. 4th DCA 2003) (“If

                                          6
lack of education and legal skills were a basis for denying self-representation, few,

if any, criminal defendants would ever qualify to represent themselves.”). Cf. State

v. Bowen, 698 So. 2d 248, 252 (Fla. 1997) (“[N]o citizen can be denied the right of

self-representation-or any other constitutional right-because he or she has only a

high school diploma.”).

      As for Appellant’s testimony about his mental health diagnoses, the State

relies on the distinguishable cases of Visage v. State, 664 So. 2d 1101 (Fla. 1st DCA

1995), and Da Silva v. State, 966 So. 2d 1013 (Fla. 4th DCA 2007). In Visage, we

held that the trial court did not err by denying the appellant’s request for self-

representation because the record indicated that he “was handicapped by more than

merely a lack of legal experience.” 664 So. 2d at 1101-02. A suggestion of mental

incompetency had been filed, the trial court had a psychiatric report prepared and

was aware that the appellant had a psychiatric history that included a suicide attempt

and hospitalization, and, “[m]ore importantly, the appellant had been diagnosed with

bipolar disorder for which he was presently taking anti-depressant, tranquilizing and

anti-manic medications.” Id. at 1102 (rejecting the appellant’s assertion that the trial

court did not rely on his mental condition in rending its ruling). Likewise, in Da

Silva, the Fourth District found no error in the trial court’s denial of the appellant’s

request to represent himself where the court relied on the “reports of medical experts

that he suffers from schizophrenia.” 966 So. 2d at 1015-16.

                                           7
      Here, in contrast, the trial court did not rely on Appellant’s mental illnesses in

rendering its ruling—the court did not mention Appellant’s mental health, much less

make a finding that he suffered from severe mental illness that rendered him

incompetent to conduct the trial. In fact, the trial court granted Appellant’s request

for self-representation during the May 8th hearing, while being aware that he had

been diagnosed with certain mental disorders. Nor could the trial court have relied

on Appellant’s diagnoses of mental illnesses in denying his request to proceed pro

se because there was no evidence that, at the time of the hearing, he suffered from

severe mental illness to the point where he was not competent to conduct trial

proceedings by himself. Appellant received his diagnoses in 2001, well over a

decade prior to the hearing; he was never hospitalized for those illnesses; there were

no psychiatric reports; and there was no evidence indicating that he was presently

suffering from any mental illness.

      For the foregoing reasons, we conclude that the trial court erred by denying

Appellant’s request to proceed pro se.          Therefore, we reverse Appellant’s

convictions and remand for a new trial.

      REVERSED and REMANDED.


LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR.




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