         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                          Nos. 1D16-368
                               1D16-369
                               1D16-370
                  (Consolidated for disposition)
                 _____________________________

SYLVESTER HOOKS,

    Appellant,

    v.

STATE OF FLORIDA,
    Appellee.
                  ___________________________

On appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.

                       February 28, 2018


 ON MOTION FOR REHEARING, REHEARING EN BANC, AND/OR
             CERTIFICATION OF CONFLICT

PER CURIAM.

    DENIED.

ROWE and OSTERHAUS, JJ., concur; WINOKUR, J., concurs with
opinion.

                  ___________________________
WINOKUR, J., concurring.

    We certified a question of great public importance to resolve
an apparent conflict in case law regarding the specificity of
questions that must be asked to ensure a voluntary waiver of
counsel. Hooks asks that we also certify conflict. I concur in the
denial of this motion, including his request for rehearing and
rehearing en banc.

     I write separately to emphasize two points. First, Hooks
claims we have overlooked that the Supreme Court “approved” a
standard Faretta colloquy as part of the 1998 amendment to
Florida Rule of Criminal Procedure 3.111(d) and “added” the
standard colloquy to the rule. In fact, the model colloquy is not
part of Rule 3.111. The Court only asked the Criminal Procedure
Rules Committee to make suggestions for standardizing Faretta
inquiries. Amendment to Florida Rule of Criminal Procedure
3.111(d)(2)-(3), 719 So. 2d 873 (Fla. 1998). The Court’s request
was passed to the Conference of Circuit Judges, which developed
a model colloquy. Id. The Court attached the model colloquy as an
appendix to its opinion amending the rule in order to make it
available to trial judges. Id. The Court neither “approved” the
model colloquy nor “added” it to Rule 3.111. While the model
colloquy is useful, it does not establish an enforceable standard
for ensuring an adequate waiver of counsel. See Neal v. State, 60
So. 3d 1132, 1135 (Fla. 1st DCA 2011) (noting that “[w]hile the
model colloquy contained in the rules is very helpful, failure to
follow it to the letter does not compel a finding that a defendant
has not made a knowing and intelligent choice of self-
representation.”); Vega v. State, 57 So. 3d 259, 262 (Fla. 5th DCA
2011) (“trial courts are not bound to follow the model Faretta
colloquy suggested by the supreme court”).

     Second, Hooks argues that we have overlooked the trial
court’s failure to ask him numerous questions about, for instance,
his age, his education, his “mental status,” and his experience in
criminal proceedings, and that without answers to these
questions the court failed to ensure that he was competent to
waive counsel. I note that he does not claim that his answers to
any of these questions would have suggested that he was not

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competent to waive counsel. In fact, the record shows the
opposite. Before jury selection, Hooks gave a clear statement
regarding the issues in the case and his defense theory. Hooks
actively participated in jury selection, making two cause
challenges and a peremptory strike. Hooks gave a coherent
opening statement, cross-examined all four of the State’s
witnesses, actively participated in sidebar discussions, moved for
judgment of acquittal after the State rested, and gave a cogent
closing argument. The court confirmed at every critical stage of
the proceeding that Hooks wished to continue representing
himself, until sentencing, when Hooks chose to be represented by
stand-by counsel. At sentencing, the court indicated that Hooks
appeared to be a “pretty intelligent guy,” and called him
“articulate.” Hooks asks that we reverse the trial court not
because the court allowed an incompetent defendant to represent
himself, but because the court failed to ask a list of questions that
would have shown what the record already shows, and what even
Hooks himself does not dispute.

     Unlike a plea colloquy, where the case is usually over soon
after the defendant enters the waiver (of trial), a Faretta inquiry
allows the case to proceed after the defendant enters the waiver
(of counsel). Thus—and again unlike a guilty plea—the court has
ample opportunity after the waiver of counsel to determine
whether the defendant appears competent. In my view the
questions to ascertain competency prior to the waiver are far
more important in the plea context than in the waiver-of-counsel
context. * Here, nothing that occurred at trial would have given
the trial court any indication that, perhaps, Hooks had not been
competent to waive counsel.

    I recognize that the Florida Supreme Court has held that
Faretta and Rule 3.111(d) “require reversal when there is not a
proper Faretta inquiry.” State v. Young, 626 So. 2d 655, 657 (Fla.
    *
      This does not include, of course, the situation where the
defendant waives counsel and enters a guilty plea at the same
time. But in this circumstance, the court must also comply with
the requirements for ensuring a valid guilty plea, irrespective of
the requirements for ensuring a valid waiver of counsel.

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1993). See also Case v. State, 865 So. 2d 557, 559 (Fla. 1st DCA
2003) (citing Young for the proposition that “[w]hen a defendant
waives the right to counsel, the trial court’s failure to perform an
adequate Faretta inquiry is per se reversible error”). As such,
Hooks is not obligated to show that he was incompetent.
However, the United States Supreme Court has held that a court
is required to make a competency determination when a
defendant seeks to waive his or her right to counsel “only when a
court has reason to doubt the defendant’s competence.” Godinez
v. Moran, 509 U.S. 389, 401 n.13 (1993). In other words, a
defendant who is plainly competent cannot show prejudice from
the court’s failure to ask questions to confirm that he is
competent. Nothing else demonstrates more that this case is an
example of “Simon Says” jurisprudence, where judgments are to
be reversed not because a party suffered prejudicial error, but
because the court failed to say the right words the right way.

    In this case, the trial court adequately determined that
Hooks’ waiver of counsel was voluntary. As Hooks has failed to
demonstrate that we overlooked any law or facts, his motion
should be denied.

                 _____________________________


Andy Thomas, Public Defender, Kasey Lacey, Assistant Public
Defender, Steven Seliger, Assistant Public Defender, and
Danielle Jorden, Assistant Public Defender, Tallahassee, for
Appellant.

Pamela Jo Bondi, Attorney General, Jason Rodriguez, Assistant
Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




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