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

                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT

R.M.,                              )
                                   )
           Appellant,              )
                                   )
v.                                 )                      Case No. 2D17-4409
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed November 28, 2018.

Appeal from the Circuit Court for Sarasota
County; Rochelle T. Curley and Charles E.
Williams, Judges.

Howard L. Dimmig, II, Public Defender,
and Pamela H. Izakowitz, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Donna S. Koch,
Assistant Attorney General, Tampa, for
Appellee.


BADALAMENTI, Judge.


             R.M. appeals an adjudication of delinquency and an order of commitment

to the Department of Juvenile Justice for violations of the terms of his probation. We

reverse because the record does not establish a proper waiver of the juvenile's right to

counsel.
              As background, R.M. was placed on a term of probation after the trial

court withheld adjudication for the offenses of burglary of an unoccupied conveyance

and petit theft. Thereafter, the State filed several affidavits of violation of probation

alleging that R.M. violated his probation by repeatedly absconding from supervision.

The case proceeded to a plea hearing where R.M. was unaccompanied by a parent,

guardian, or an adult relative. At the hearing, R.M. informed the trial court that he

wanted to waive his right to counsel and admit to the violations. After briefly inquiring

into R.M.'s desire to waive his right to counsel and conducting a plea colloquy, the trial

court accepted his waiver of counsel, found that he was "freely and voluntarily"

admitting to the violations, and set a date for R.M.'s disposition hearing. R.M.'s written

waiver of counsel and plea forms were submitted to the trial court at that hearing.

              R.M. was unaccompanied by counsel at his subsequent disposition

hearing. The trial court accepted the State's disposition recommendation, adjudicated

him delinquent, and committed him to the Department of Juvenile Justice for placement

in a nonsecure residential program. On appeal, R.M. argues that the trial court

fundamentally erred by failing to make a proper inquiry into his waiver of counsel as

required by Florida Rule of Juvenile Procedure 8.165.

              Florida Rule of Juvenile Procedure 8.165(a) requires the court to "appoint

counsel as provided by law unless waived by the child at each stage of the proceeding."

Subsection (b)(2) explains that "[a] child shall not be deemed to have waived the

assistance of counsel until the entire process of offering counsel has been completed

and a thorough inquiry into the child's comprehension of that offer and the capacity to

make that choice intelligently and understandingly has been made." (Emphasis added.)




                                             -2-
Subsection (b)(3) further requires that "[t]he assigned attorney shall verify on the written

waiver and on the record that the child's decision to waive counsel has been discussed

with the child and appears to be knowing and voluntary." (Emphasis added.) In

summary, to determine whether a juvenile is knowingly and intelligently waiving his right

to counsel, the trial court must:

              (1) inform the juvenile of the benefits he would relinquish and
              the danger and disadvantages of representing himself, (2)
              determine whether the juvenile's choice [to waive the
              assistance of counsel] was made voluntarily and intelligently,
              and (3) determine whether any unusual circumstances
              existed which would preclude the juvenile from exercising his
              right to represent himself.

C.K. v. State, 909 So. 2d 602, 604 (Fla. 2d DCA 2005) (alteration in original) (quoting

D.C.W. v. State, 775 So. 2d 363, 364 (Fla. 2d DCA 2000)); accord L.D.S.J. v. State,

14 So. 3d 289, 290 (Fla. 1st DCA 2009).

              Our supreme court has explained that "[r]ule 8.165 is not merely

procedural in nature, but contains guidelines to ensure that the substantive right to

counsel is protected." State v. T.G., 800 So. 2d 204, 211 (Fla. 2001). "[T]he waiver of

counsel inquiry is especially significant in juvenile cases because children may not fully

comprehend the importance of counsel or the consequences of waiving the right to

counsel." Id. at 212 (citing P.L.S. v. State, 745 So. 2d 555, 557 (Fla. 4th DCA 1999)).

Thus, a trial court's failure to conduct a thorough inquiry into a juvenile's waiver of

counsel constitutes fundamental error. Id. at 213.

              Here, the trial court attempted to comply with rule 8.165 by informing R.M.

of selected ways in which an attorney could assist him at an adjudicatory hearing. For

example, the trial court advised R.M. that an attorney could "advise him on whether or




                                             -3-
not [R.M.] should contest the charges," "help [R.M.] get [his] case ready for trial or for a

hearing if [R.M.] wanted one," "get [R.M.'s] witnesses to court," and "advise [R.M.] on

what direction [R.M.] should take in [his] case."

              Critically, though, the "record is devoid of any discussion regarding

whether [R.M.] had an opportunity, and whether that opportunity was meaningful, to

confer with an attorney regarding his right to counsel, as required by rule 8.165(a)."

L.D.S.J., 14 So. 3d at 290–91 (concluding that trial court failed to ensure that juvenile

knowingly and intelligently waived his right to counsel where there was no indication

that the juvenile discussed his decision with a parent, guardian, or attorney). Even

more, the trial court failed to inquire about R.M.'s comprehension of the trial court's offer

of counsel, his capacity in making the choice of whether to waive counsel, or the

existence of any unusual circumstances which would preclude the juvenile from

exercising the right of self-representation. See Fla. R. Juv. P. 8.165(b)(2), (b)(4);

L.D.S.J., 14 So. 3d at 291. Further compounding the error, it is undisputed that no

"parent, legal custodian, [or] responsible adult relative" was present when the written

waiver of counsel was submitted to the trial court at the change of plea hearing. Fla. R.

Juv. P. 8.165(b)(3). And there is no record evidence that an attorney assigned by the

court to assist the child "verif[ied] . . . on the record that [R.M.'s] decision to waive

counsel ha[d] been discussed with [R.M.] and appear[ed] to be knowing and voluntary,"

as required by rule 8.165(b)(3).1 See L.D.S.J., 14 So. 3d at 291. Accordingly, we



              1Although  the transcript indicates that an assistant public defender was
present in the courtroom during R.M.'s plea hearing, there is no indication in the record
that this was the attorney assigned by the court to assist R.M. It would contravene the
plain and ordinary language of rule 8.165(b)(3) to assume that the mere presence of
any attorney who happened to be in a courtroom when a trial court submitted a child's


                                              -4-
conclude that the trial court committed fundamental error by failing to make the

necessary inquiries set forth in rule 8.165 and ultimately finding that R.M. had knowingly

and voluntarily waived his right to counsel. See id.; see also C.K., 909 So. 2d at 604

("The trial court's failure to comply with rule 8.165 . . . constituted fundamental error.").

              Because R.M.'s waiver of counsel was invalid as a matter of law, his plea

admitting to the violations of his probation entered without advice of counsel is also

deemed involuntary as a matter of law. See C.K., 909 So. 2d at 604 (citing T.G.,

800 So. 2d at 213).2 Therefore, we reverse the order of delinquency and remand to the

trial court "so that it can properly advise [R.M.] of his right to assistance of counsel,

ensure by a thorough inquiry that any waiver is free and intelligent, and allow [R.M.] to

enter a new plea if appropriate." T.G., 800 So. 2d at 213; see also C.K., 909 So. 2d at

604 ("Therefore, we reverse the order of delinquency and remand for a new

adjudicatory hearing at which C.K. shall be permitted to enter a new plea following a

proper colloquy and offer of counsel.").

              As noted in J.M.B. v State, 800 So. 2d 317, 319 (Fla. 2d DCA 2001), our

court continues to "recognize that the juvenile court judge must contend with an




waiver of counsel form also "discussed with the child" his or her decision to waive
counsel. And it would be absurd to extend that assumption to also include that this
attorney found the child's waiver of counsel to be "knowing and voluntary." Fla. R. Juv.
P. 8.165(b)(3); see also L.D.S.J., 14 So. 3d at 291 (explaining that an unidentified
individual's oral indication at a revocation hearing that he had reviewed the waiver of
counsel form with appellant did not relieve the trial court of the obligation to ensure that
the child intelligently and voluntarily waived his right to counsel). It is also noteworthy
that the transcript indicates that R.M. was proceeding pro se.
              2Because   R.M.'s plea is invalid, we need not address R.M.'s remaining
argument that the court committed fundamental error at his disposition hearing by failing
to renew his offer of counsel.


                                             -5-
unusually heavy docket, and was dealing, in this case, with a juvenile who was no

stranger to the ways of the juvenile justice system." Ultimately, as we concluded in

J.M.B., "due process must be provided." Id.

             Reversed and remanded.



KHOUZAM and SALARIO, JJ., Concur.




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