       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        ANTHONY WILLIAMS,
                            Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D13-2904

                            [April 29, 2015]

                          CORRECTED OPINION

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No. 312011CF
000634A.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

    Anthony Williams (“Defendant”) faced several charges, including
aggravated battery and tampering with a witness or victim. He appeals
his judgment and sentence on these charges and contends that the trial
court should have allowed him to represent himself at trial. Because the
trial court did not use the correct legal standard in denying Defendant
his right to self-representation, we reverse and remand for a new trial.
Defendant’s remaining points on appeal are hereby rendered moot.

   On the day of trial, defense counsel announced he was ready to
proceed, but that Defendant wanted to discharge him as trial counsel.
Defendant then stated, under oath, that despite defense counsel’s
representations, his attorney was not actually ready for trial.       He
explained that he and defense counsel had never been on good terms,
and that defense counsel had not shared discovery with him, specifically
the content of audio recordings disclosed by the State. In response, the
trial court convened a Nelson1 hearing wherein Defendant stated that his
attorney was not rendering effective assistance of counsel, and he would
be better off representing himself. The trial court noted that defense
counsel and Defendant were not getting along, and while it observed that
defense counsel appeared as though he was ready for trial, it pointed out
that if Defendant wanted to self-represent he had the right to do so, but
he would not be granted either a continuance or assistance to self-
represent.

   The trial court then found defense counsel competent to represent
Defendant, and told Defendant that if he wanted to self-represent it
would conduct a Faretta2 hearing. Defendant informed the trial court
that he wanted to self-represent, but wanted time to prepare. The trial
court again refused to grant Defendant a continuance of the trial.
Defendant, again, elected to self-represent, whereby the trial court
discharged the attorney as Defendant’s trial counsel and conducted a
thorough Faretta hearing.

   The trial court informed Defendant that he had the right to be
represented by a lawyer, that a lawyer would be appointed to represent
him if he was unable to afford one, and that if he wanted a lawyer to
represent him, it would be his previous defense counsel.            When
Defendant replied that he did not want defense counsel to represent him,
the trial court advised him that having a lawyer was valuable and
advantageous because lawyers had experience and knowledge in the
“entire process,” and the trial court went into detail about how a lawyer
can be extremely beneficial. Defendant acknowledged and understood
these warnings.

    The trial court also warned Defendant that it would be unwise and
detrimental for him to self-represent. It advised Defendant that by self-
representing he would not receive any special treatment; he would not be
entitled to a continuance, and because he was in pre-trial custody, his
access to legal research would be limited and he would not receive extra
jail law library privileges. When the trial court asked if he understood
that, Defendant replied, “[t]o some point, sir.” The court then asked,
“Okay. Well, do you understand that or not?” to which Defendant
answered, “I’m going to say yes, sir.”



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

2   Faretta v. California, 422 U.S. 806 (1975).

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    The trial court advised Defendant that if he were to be convicted when
representing himself, he would be unable to seek reversal of his
conviction upon the ground that he lacked legal knowledge or to make a
post-conviction claim of ineffective assistance of trial counsel. When the
trial court asked Defendant if he also understood that, Defendant
responded, “[t]o some extent.” The court then inquired, “[d]o you
understand what the charges are against you?” to which Defendant
replied, “[t]o some extent, sir.” The court went on to ask Defendant what
it was that he did not understand and explained that Defendant could
not represent himself if he did not understand. Defendant attempted to
state what he thought he was charged with, that being in his words
“battery, possession of a firearm and making phone calls.” When the
court advised Defendant that “There’s no such crime as making phone
calls,” Defendant replied that the charge was tampering with a witness.

   The court then explained that the maximum sentence was thirty years
on each one of his charges. Defendant responded, “that’s a little
confusing, that one right there, sir.”

  At that point, the court stated that it did not feel Defendant was
competent to represent himself:

      [THE COURT]: You know what, I find from the evidence you
      are not competent to represent yourself. You’re not familiar
      with the, you don’t have anywhere near the legal knowledge
      or to even attempt to have a normal trial in this case. I’m
      not going to discharge Mr. Hunt under these circumstances.
      You just are not qualified to represent yourself. I’m just not
      going to do it. In that case, let’s set this case for trial.

   At the time of the court’s ruling there was insufficient time left in the
day for a jury to be selected in Defendant’s case. Defense counsel was
granted a continuance, and the trial was reset for one month later.
When the trial ultimately commenced, Defendant again sought to
discharge defense counsel. The trial court advised Defendant that the
matter had been previously addressed, that trial would commence that
morning, and he should have sought to discharge defense counsel before
then.   After Defendant’s trial, the jury returned a verdict finding
Defendant guilty as charged.

   The Sixth Amendment grants criminal defendants the right to self-
representation. State v. Bowen, 698 So. 2d 248, 250 (Fla. 1997) (citing
Faretta v. California, 422 U.S. 806, 834 (1975)). Under Bowen, “once a
court determines that a competent defendant of his or her own free will

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has ‘knowingly and intelligently’ waived the right to counsel, the dictates
of Faretta are satisfied, the inquiry is over, and the defendant may
proceed unrepresented.” Id. at 251.

   In Faretta, the court held that:

      Although a defendant need not himself [or herself] have the
      skill and experience of a lawyer in order competently and
      intelligently to choose self-representation, he [or she] should
      be made aware of the dangers and disadvantages of self-
      representation, so that the record will establish that “[the
      defendant] knows what he [or she] is doing and his [or her]
      choice is made with eyes open.”

Faretta, 422 U.S. at 835. Similarly, in Hill v. State, 688 So. 2d 901, 905
(Fla. 1996), the Florida Supreme Court stated that:

      [A] defendant does not need to possess the technical legal
      knowledge of an attorney before being permitted to proceed
      pro se. As the Supreme Court stated in Godinez v. Moran,
      509 U.S. 389, 399, 113 S.Ct. 2680, 2686-87, 125 L.Ed.2d
      321 (1993), “the competence that is required of a defendant
      seeking to waive his right to counsel is the competence to
      waive the right, not the competence to represent himself.”

   The trial judge stated on the record that he was denying Defendant’s
request to represent himself due to a lack of competency, premised on
the fact that he did not possess sufficient legal knowledge. However,
possession of legal skills or knowledge is not the legal equivalent to
competency, and as such is not a precondition for exercising the right of
self-representation. See Wheeler v. State, 839 So. 2d 770, 772 (Fla. 4th
DCA 2003); see also McKinney v. State, 850 So. 2d 680, 682 (Fla. 4th
DCA 2003); Beaton v. State, 709 So. 2d 172, 174 (Fla. 4th DCA 1998).
Therefore, the trial court applied the wrong legal standard, finding that
Defendant was incapable of adequately representing himself, rather than
lacking competence to waive his right to counsel.

    The trial court never made a finding under Faretta that Defendant
knowingly, voluntarily, and intelligently sought to waive his right to
counsel. See Neal v. State, 132 So. 3d 949, 950-51 (Fla. 1st DCA 2014).
Nor did the court find that Defendant suffered from a “severe mental
illness to the point where [he was] not competent to conduct trial
proceedings by [himself],” so as to fall within the exception to the general
rule explicated in Indiana v. Edwards, 554 U.S. 164, 178 (2008). This

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was error. “Under Faretta, ‘[t]he test is not whether the defendant is
competent to represent himself adequately, but whether he is competent
to make the decision to represent himself.’ ” Smith v. State, 956 So. 2d
1288, 1289 (Fla. 4th DCA 2007) (alteration in original) (quoting Wilson v.
State, 724 So. 2d 144, 145 (Fla. 1st DCA 1998)). Florida Rule of
Criminal Procedure 3.111(d)(3) also states, “[r]egardless of the
defendant’s legal skills or the complexity of the case, the court shall not
deny a defendant’s unequivocal request to represent himself or herself, if
the court makes a determination of record that the defendant has made
a knowing and intelligent waiver of the right to counsel . . . .”

    The trial court’s decision appeared to be based on the lack of clarity in
some of Defendant’s responses during the Faretta colloquy. Yet, when
asked if he understood what the charges were against him, the
Defendant replied, “[t]o some extent, sir,” before providing a reasonably
good description of those charges, though not letter-perfect in the legal
sense. Defendant also expressed some confusion when it was explained
that the maximum sentence was thirty years (instead of fifteen years) on
each one of his charges, but only after the State explained it had filed a
notice to seek habitual felony offender status, thus qualifying Defendant
for enhanced sentences. Neither of these responses demonstrated a lack
of competency to waive counsel.

    There were no other circumstances present to justify the court’s
denial. The trial court made no finding that Defendant was improperly
attempting to either delay or frustrate the proceedings as a basis for its
ruling. See Smith v. State, 677 So. 2d 370, 371 (Fla. 2d DCA 1996)
(recognizing that a trial court need not “ ‘allow a defendant to delay and
continually frustrate his trial’ ”) (quoting State v. Young, 626 So. 2d 655,
657 (Fla. 1993)). Likewise, nothing appears in the record to suggest that
Defendant has ever engaged in any previous behavior designed for these
purposes. See Haram v. State, 625 So. 2d 875, 875 (Fla. 5th DCA 1993)
(finding that trial court did not err by refusing to allow appellant to
represent himself where appellant “was not desirous of representing
himself, but instead wished to further delay the proceedings which had
already stretched 17 months from arrest to trial,” and “had previously
caused two attorneys to be discharged from his case”). When a trial
judge is presented with answers to Faretta questioning such that it
appears the decision is not being made knowingly or intelligently, or
when faced with a defendant whose equivocal responses suggest
gamesmanship, the proper course is to exercise caution and decline to
accept a waiver of counsel. As we opined in Wheeler, any other view
would allow defendants to make equivocal responses and then win a
reversal on appeal no matter which way the trial court ruled; on one

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hand, the trial court’s acceptance of an equivocal response could be
considered the denial of the right to counsel, while on the other, the
failure to accept equivocal or uncertain responses could be considered
the denial of the right to self-representation. See Wheeler, 839 So. 2d at
774. “Such ‘heads I win, tails you lose’ tactics” should be rejected. Id.
(citing Thomas v. State, 406 So. 2d 538, 539 (Fla. 4th DCA 1981)). While
Defendant’s equivocal answers may have been properly considered for
whether he was knowingly, intelligently, and voluntarily waiving counsel,
the record shows this was not the basis for the court’s decision.

    The error here is structural and not subject to harmless error review.
See United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006)
(recognizing the denial of the right of self-representation as one of a
limited number of structural defects which “defy analysis by harmless-
error standards because [it affects] the framework within which the trial
proceeds” (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)
(internal quotation marks omitted))); McKaskle v. Wiggins, 465 U.S. 168,
177 n.8 (1984) (“Since the right of self-representation is a right that when
exercised usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to ‘harmless error’ analysis.
The right is either respected or denied; its deprivation cannot be
harmless.”).

   We recognize that presiding over a criminal case with a pro se
defendant facing multiple charges can present “a difficult and
challenging responsibility for a trial judge.” See Tennis v. State, 997 So.
2d 375, 380 (Fla. 2008). However, Defendant unequivocally stated on
the record that he understood the disadvantages of self-representation,
including the risks and complexities of his particular case. “A criminal
defendant who is competent to choose self-representation may not be
denied that choice, even though the decision for self-representation will
most certainly result in incompetent trial counsel.” Eggleston v. State,
812 So. 2d 524, 525 (Fla. 2d DCA 2002). Though a trial judge may be
tempted to rescue a defendant from representing himself and having a
fool for a client, the court’s proper role is to provide protection to the
unwary, not the foolhardy; to protect the unwitting, not the reckless.

   Because the trial court applied the wrong standard in resolving this
issue, we reverse Defendant’s judgment and sentence and remand for a
new trial. In the event Defendant again expresses the desire to represent
himself on remand, the trial court should conduct another Faretta
inquiry and employ the proper legal standard. If the court finds that
Defendant is competent to make this election, and that his decision is


                                     6
knowingly, intelligently, and voluntarily made, he should be allowed to
represent himself at the trial.

   Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.

                          *          *      *

   Not final until disposition of timely filed motion for rehearing.




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