               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



CHRISTOPHER DELANE DANIELS,                  )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D16-4840
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed July 13, 2018.

Appeal from the Circuit Court for Sarasota
County; Thomas Krug, Judge.

Howard L. Dimmig, II, Public Defender, and
Karen Kinney, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.


VILLANTI, Judge.


             Christopher DeLane Daniels seeks review of his convictions and

sentences for three counts of sale or delivery of cocaine within 1000 feet of a park,
raising a single issue concerning the trial court's failure to conduct a Nelson1 hearing in

response to Daniels' pro se motion entitled "Petition for Nelson Hearing." Because the

trial court erred by not conducting a preliminary inquiry into the basis for Daniels'

petition, we reverse and remand for further proceedings.

              The law concerning the need for a hearing when a defendant seeks to

discharge appointed counsel is clear.

                     In Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA
              1973), the court set forth a procedure for handling a request
              to discharge court-appointed counsel. Maxwell v. State, 892
              So. 2d 1100, 1102 (Fla. 2d DCA 2004).

                     The first step in the procedure is the
                     preliminary Nelson inquiry in which the court
                     ascertains whether the defendant
                     unequivocally requests court-appointed
                     counsel's discharge and the court asks the
                     reason for the request. The answer to the
                     preliminary inquiry determines the next steps.
                     If a reason for the request is court-appointed
                     counsel's incompetence, then the court must
                     further inquire of the defendant and his counsel
                     to determine if there is reasonable cause to
                     believe that court-appointed counsel is not
                     rendering effective assistance and, if so,
                     appoint substitute counsel. If the reasons for
                     the request do not indicate ineffective
                     assistance of counsel, then no further inquiry is
                     required.

              Id. (citations omitted). If there is no need for further inquiry
              or after such inquiry the court determines there is not
              reasonable cause to determine that counsel is ineffective,
              then the court must inform the defendant he or she is not
              entitled to substitute court-appointed counsel and will have
              to exercise his or her right to self-representation. Id. Before
              the court may allow a defendant to represent himself or
              herself, it must conduct a Faretta inquiry to determine that



              1Nelson   v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).


                                            -2-
              the defendant's waiver of the right to court-appointed
              counsel is knowing and intelligent. Id.
                      The preliminary Nelson inquiry is a critical step in the
              procedure for handling a request to discharge counsel.
              Maxwell, 892 So. 2d at 1102. "Depending on the answer to
              the preliminary Nelson inquiry, a complex, multi-faceted
              combined Nelson and Faretta hearing could ensue, or the
              inquiry could end there." Id. The failure to conduct this
              preliminary inquiry in response to a defendant's request to
              discharge court-appointed counsel is a structural defect that
              requires reversal as per se error. Id. at 1103. Simply put,
              the trial court may not remove the possibility of discharging
              court-appointed counsel for incompetence without giving the
              defendant a chance to be heard on the issue. Id.

Mansfield v. State, 227 So. 3d 704, 708 (Fla. 2d DCA 2017) (emphasis added). While

"a Nelson hearing [may be] unwarranted where a defendant presents general

complaints about defense counsel's trial strategy and no formal allegations of

incompetence have been made," Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002),

the need for a preliminary Nelson inquiry arises "when a defendant complains about his

appointed attorney, or it may come up when a defendant asks to dismiss his appointed

counsel," Jones v. State, 74 So. 3d 149, 151 (Fla. 2d DCA 2011). "In either case, the

court must conduct a preliminary inquiry into the reasons for the defendant's

dissatisfaction," id. (citing Nash v. State, 53 So. 3d 1208, 1211 (Fla. 2d DCA 2011)),

and the defendant has the right to be heard on the issue, see Mansfield, 227 So. 3d at

708 (citing Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004)). Moreover,

even when the defendant files a written motion that implicates Nelson, the court may not

rely solely on the written motion but instead is obligated to inquire of the defendant

whether he wishes to discharge appointed counsel and exercise his right to self-

representation. See Jackson v. State, 33 So. 3d 833, 836 (Fla. 2d DCA 2010);

Montgomery v. State, 1 So. 3d 1228, 1230 (Fla. 2d DCA 2009). The court's failure to do



                                            -3-
so constitutes a structural defect that requires reversal as per se error. See Maxwell,

892 So. 2d at 1103; Boaz v. State, 135 So. 3d 506, 508 (Fla. 5th DCA 2014).

              Here, Daniels filed a petition asking specifically for a Nelson hearing and

asserting that appointed counsel had violated Daniels' due process rights by agreeing to

an early trial date for which counsel would not be prepared. Once it reviewed that

petition, rather than denying it without a hearing, the trial court should have convened a

preliminary Nelson inquiry to allow Daniels to be heard concerning whether he was

unequivocally requesting that his court-appointed counsel be discharged and to

ascertain all the reasons for the request. Because Daniels' petition was at least

minimally sufficient on its face, the trial court's failure to conduct the preliminary Nelson

inquiry requires reversal.

              Moreover, contrary to the State's assertion here, the error was not

rendered harmless by the trial court appointing stand-by counsel for Daniels. As this

court has stated, "while the failure to conduct an adequate Nelson inquiry is subject to

an abuse of discretion standard and, presumably, a harmless error analysis, the failure

to conduct any inquiry is per se error." Jackson, 33 So. 3d at 836. Therefore, because

there was a complete absence of any inquiry into the legitimacy of Daniels' complaints

about his attorney, the error was not harmless.

              Reversed and remanded for further proceedings.




KELLY and LUCAS, JJ., Concur.




                                             -4-
