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


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

FRANKLIN KINGLANDS JOHNSON, III,            )
                                            )
             Appellant,                     )
                                            )
v.                                          )      Case No. 2D16-1316
                                            )
STATE OF FLORIDA,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed June 27, 2018.

Appeal from the Circuit Court for
Hillsborough County; Thomas P. Barber,
Judge.

Howard L. Dimmig, II, Public Defender,
and Joanna Beth Conner, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Elba Caridad Martin,
Assistant Attorney General, Tampa, for
Appellee.


CRENSHAW, Judge.


             Franklin Johnson appeals his judgment and sentences for battery on a law

enforcement officer and obstructing or opposing an officer with violence. He argues that
the court failed to offer counsel, failed to conduct an adequate Faretta1 inquiry, and

erred in accepting his waiver of the right to counsel at various critical stages.2 Because

the court failed to offer counsel to Johnson and failed to conduct a Faretta inquiry before

permitting him to represent himself during plea negotiations, which is a critical stage, we

reverse.

              "Every person accused of [a] crime has a right to have counsel to aid him

in his defense . . . ." Cutts v. State, 45 So. 491, 492 (Fla. 1907) (quoting Barnes v.

Commonwealth, 23 S.E. 784 (Va. 1895), overruled in part by Council v. Commonwealth,

94 S.E. 245 (Va. 1956)). This right attaches at a critical stage of the proceedings, and

the defendant—if unrepresented—must be informed of this right and the consequences

of a waiver. Wilson v. State, 76 So. 3d 1085, 1087-88 (Fla. 2d DCA 2011) (quoting

Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992)). Conversely, the defendant has the

right to conduct his own defense. Art. 1, § 16, Fla. Const.; see also Faretta v.

California, 422 U.S. 806, 821 (1975) ("The Sixth Amendment, when naturally read . . .

implies a right of self-representation."). If the defendant chooses to avail himself of this

right and waive the assistance of counsel, the court must inquire of the defendant to

determine whether the waiver is knowing and intelligent. Tennis v. State, 997 So. 2d

375, 378 (Fla. 2008). If the court then finds that the waiver is knowing and intelligent

the defendant must be permitted to represent himself. Traylor, 596 So. 2d at 968.




              1Faretta   v. California, 422 U.S. 806 (1975).
              2The    terms "critical stage" and "crucial stage" are used interchangeably. Sims v.
State, 135 So. 3d 1098, 1101 (Fla. 2d DCA 2013). "[A] 'crucial stage' is any stage that may
significantly affect the outcome of the proceedings." Traylor v. State, 596 So. 2d 957, 968 (Fla.
1992).

                                             -2-
"[T]he waiver is only valid at that stage and the court must renew the offer of counsel at

each crucial stage as long as the defendant is unrepresented." Hyden v. State, 117 So.

3d 1, 4 (Fla. 2d DCA 2011); see also Fla. R. Crim. P. 3.111(d)(5).

              Johnson represented himself throughout the entire proceedings. He

argues that the first Faretta inquiry on June 9, 2015, was inadequate; that he was not

offered counsel at the competency hearing on September 1, 2015, or at the follow up to

the competency hearing on November 9, 2015; and that the court erred in accepting his

waiver of the right to counsel at the second Faretta inquiry on February 1, 2016, prior to

jury selection. We agree with Johnson that the failure to offer counsel and conduct a

Faretta inquiry at the November 9, 2015, hearing was error. As such, we need not

address his remaining claims.

              At the November 9, 2015, hearing the court initially reiterated the concerns

it had regarding Johnson's competency, noted that both doctors had found Johnson

competent following their evaluations on September 1, 2015, and made its own finding

that Johnson was competent. The court then entertained plea negotiation during which

the State offered five years' prison, which Johnson rejected. The court also scheduled

the pretrial conference for January 26, 2016, and trial for the first week in February. At

no point did the court extend to Johnson the assistance of counsel or conduct a Faretta

inquiry.

              "[T]he plea bargaining stage is a critical one." Alcorn v. State, 121 So. 3d

419, 422 (Fla. 2013); see also Padilla v. Kentucky, 559 U.S. 356, 373 (2010) ("[W]e

have long recognized that the negotiation of a plea bargain is a critical phase of

litigation for purposes of the Sixth Amendment right to effective assistance of counsel."




                                           -3-
(citing Hill v. Lockhart, 474 U.S. 52, 57 (1985))); see also Missouri v. Frye, 566 U.S.

134, 144 (2012) ("In today's criminal justice system . . . the negotiation of a plea

bargain, rather than the unfolding of a trial, is almost always the critical point for a

defendant. . . . [A] plea agreement can benefit both parties. In order that these benefits

can be realized, however, criminal defendants require effective counsel during plea

negotiations. 'Anything less . . . might deny a defendant effective representation by

counsel at the only stage when legal aid and advice would help him.' " (quoting Massiah

v. United States, 377 U.S. 201, 204 (1964))). Because plea negotiation is a critical

stage and Johnson was unrepresented, the court should have offered him the

assistance of counsel and if waived, inquired of him to determine whether the waiver

was knowing and intelligent before permitting him to engage in plea negotiation with the

State. See Segal v. State, 920 So. 2d 1279, 1280 (Fla. 4th DCA 2006) ("[O]nce counsel

has been waived under Faretta, the offer of assistance of counsel must be renewed by

the court at each subsequent stage of the proceedings." (citing Fla. R. Crim. P.

3.111(d)(5); Traylor, 596 So. 2d at 968)). "Faretta and [Florida Rule of Criminal

Procedure] 3.111(d)(2) place the duty on the trial court to safeguard an accused's right

to self-representation." Betts v. State, 157 So. 3d 376, 380 (Fla. 2d DCA 2015).

              The court's failure to offer counsel and properly safeguard Johnson's right

to self-representation at the point of plea negotiation was not harmless. "Failure to

renew the offer of counsel at a critical stage and conduct a Faretta inquiry if the

defendant rejects the renewed offer is per se reversible error." Alexander v. State, 224

So. 3d 804, 806 (Fla. 2d DCA 2017) (emphasis omitted) (quoting Brooks v. State, 180




                                             -4-
So. 3d 1094, 1096 (Fla. 1st DCA 2015)); Howard v. State, 147 So. 3d 1040, 1043 (Fla.

1st DCA 2014) (stating the same principle). Thus, Johnson is entitled to a new trial.

             Reversed and remanded for new trial.


SILBERMAN and SLEET, JJ., Concur.




                                          -5-
