          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                            MELISSA DELACRUZ,
                                 Appellant,

                                       v.

                             STATE OF FLORIDA,
                                  Appellee.

                                No. 4D17-2103

                                 [July 3, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; John S. Kastrenakes, Judge; L.T. Case No. 50-2015-CF-007496-AXXX-
MB.

   Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion,
Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   The state charged appellant Melissa Delacruz with crimes arising from the
theft of large sums of money from her employer. During her jury trial, and
without warning, appellant’s attorney informed the trial court he could no longer
continue representation because he had been informed of the possibility that his
fee was paid with funds appellant allegedly stole from a subsequent employer.
Defense counsel requested leave to withdraw from his representation of
appellant, but the trial court denied the motion. We hold that the denial of the
motion was error and reverse.

    Appellant was charged with several counts of grand theft; the state alleged
that she used her employer’s business credit card and business account funds
for unauthorized personal expenses. During trial, defense counsel requested an
ex parte hearing and asked to have the courtroom cleared. The trial court
declined to clear the courtroom and instead offered to use the built-in “white
noise machine,” which blocks the ability for any persons other than those at the
bench to hear the conversation, although the microphones at the bench record
any such conversations. The trial court assured defense counsel “nobody can
hear you except me.” Thereafter, the trial court held multiple ex parte
conferences at sidebar utilizing the white noise machine. Video footage of the
trial provided in the supplemental record shows appellant was not present at the
bench during these discussions. In the privacy of the sidebar conference,
defense counsel explained that an attorney representing appellant’s current
employer called defense counsel’s office, threatening to sue and file a bar
complaint against him if he did not “wire the entire amount of funds” he received
from appellant because she allegedly stole those funds from that employer.

    Defense counsel asserted that he could not advocate as zealously for
appellant as he would in any other situation. In support of this assertion,
defense counsel stated he felt “victimized” by appellant, who put him in a
situation where he was at risk of “being sued by the very actions of the person
that I’m sentinel to defend.” He disclosed that his ability to advocate for
appellant was compromised because he had to argue to the jury that appellant
did not do the things she was accused of when he knew in fact she had. He said
the situation was “affecting [him] materially . . . not a financial materiality but
the human effects.” Due to this predicament, counsel filed a written motion to
withdraw from the case and informed the trial court that he and his client had
irreconcilable differences, that a conflict existed under the Florida Bar rules, and
that the Florida Bar ethics counsel had confirmed to him that a conflict existed.
Defense counsel also informed the court he had retained counsel to represent
him regarding the demand he had received for return of the funds.

   The trial court noted that the motion was based on allegations for which
appellant was presumed innocent, and acknowledged defense counsel was
representing appellant in a professional and effective manner, found that
discharge was not warranted, and denied the motion to withdraw. In reaching
this conclusion, the trial court compared the present case to that of an attorney
continuing legal representation after a client fails to honor a fee agreement:

      [T]he court has come to the conclusion that [what] this is really
      about here is money. And I can’t tell you how many times attorneys
      have been promised to be paid and have failed to have gotten paid
      and the court would deny a motion to withdraw.

      In this case, you were promised to be paid with valid money, and
      maybe it has turned out that you were paid with invalid money. And
      I don’t know what’s going to happen down the road with respect to
      the money that you have earned in this case. . . . But my firm belief
      without giving you legal advice is that’s your money as long as you
      knew and had no reason to believe that it was fraudulently earned.
      But in any event, even if worst-case scenario you were forced to
      relinquish the money, what we basically have here is a case in which
      you are performing services for [Ms.] Delacruz pro bono.



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   The trial court also explained that it might have granted defense counsel’s
motion to withdraw if it had been filed two months before trial began but noted
that the motion was filed during the middle of trial. After resuming open court,
the trial court—in an attempt to ensure appellant’s right to competent counsel—
addressed appellant:

      THE COURT: Ma’am, you know, lost in all of this hullabaloo
      yesterday and today about what’s going on [in an unrelated matter
      involving appellant], and I’m not going to ask you any questions
      about that. I just want to make sure that you’re happy with [defense
      counsel’s] performance in representing you in this matter. Are you?

      APPELLANT: Absolutely. Yes, sir.

    At the end of the state’s case, the trial court again asked appellant whether
she understood “that [defense counsel] was a little concerned about his ability
to advocate for you, right?” Appellant responded affirmatively. No further on-
the-record discussions took place until appellant appeared for sentencing
following conviction. At that time, defense counsel renewed his motion to
withdraw and explained that his previous motion was never based on the
possibility of not getting paid but rather was based on his own victimization by
appellant. Defense counsel said that at trial he felt compelled to “make
arguments that in my mind as I was arguing them I believed to be not accurate.”
Despite these arguments, the trial court again denied the motion. Appellant was
adjudicated guilty and sentenced to twenty years’ imprisonment on one count,
fifteen years’ imprisonment on another, and five years’ imprisonment on a third,
with all sentences to run concurrently. This appeal follows.

   “The decision of a trial court to deny a motion to withdraw will not be
disturbed absent a clear abuse of discretion.” Sanborn v. State, 474 So. 2d 309,
314 (Fla. 3d DCA 1985).

    That said, “[a] criminal defendant’s Sixth Amendment right to effective
assistance of counsel encompasses the right to counsel free of ethical conflicts.”
Toneatti v. State, 805 So. 2d 112, 114 (Fla. 4th DCA 2002). “An actual conflict
of interest can impair the performance of a lawyer and ultimately result in a
finding that the defendant did not receive the effective assistance of counsel.”
Rutledge v. State, 150 So. 3d 830, 835 (quoting Lee v. State, 690 So. 2d 664, 667
(Fla. 1st DCA 1997)). Courts have held that “[a] defense attorney ‘is in the best
position professionally and ethically to determine when a conflict of interest
exists or will probably develop in the course of trial.’” G.B. v. State, 576 So. 2d
889, 890 (Fla. 1st DCA 1999) (quoting Holloway v. Arkansas, 435 U.S. 475, 485
(1978)).




                                        3
   Rule 4-1.7(a)(2) of the Rules Regulating the Florida Bar provides that “a lawyer
must not represent a client if . . . there is a substantial risk that the
representation of 1 or more clients will be materially limited . . . by a personal
interest of the lawyer.” There is an exception if “the lawyer reasonably believes
that the lawyer will be able to provide competent and diligent representation to
each affected client,” and the client gives informed consent in writing or stated
clearly on the record at a hearing. See R. Regulating Fla. Bar 4-1.7(b). The
comment to the rule elaborates on conflicts of interest:

         Loyalty and independent judgment are essential elements in the
      lawyer’s relationship to a client. Conflicts of interest can arise from
      the lawyer’s responsibilities to another client, a former client or a
      third person, or from the lawyer’s own interests. . . .

         An impermissible conflict of interest may exist before
      representation is undertaken. . . . If such a conflict arises after
      representation has been undertaken, the lawyer should withdraw
      from the representation. . . .

      ....

         Loyalty to a client is also impaired when a lawyer cannot
      consider, recommend, or carry out an appropriate course of action
      for the client because of the lawyer’s other responsibilities or
      interests. . . . A possible conflict does not itself preclude the
      representation. The critical questions are the likelihood that a
      conflict will eventuate and, if it does, whether it will materially
      interfere with the lawyer’s independent professional judgment in
      considering alternatives or foreclose courses of action that
      reasonably should be pursued on behalf of the client.

Comment to R. Regulating Fla. Bar 4-1.7 (Loyalty to a client).

   Although we have found no case directly on point, we are persuaded by the
analysis in Williams v. State, 622 So. 2d 490 (Fla. 4th DCA 1993). In Williams,
we decided that a public defender should have been allowed to withdraw where
the state called the public defender’s investigator as a witness, which
compromised the public defender’s ability to effectively cross-examine him. Id.
at 491-92. To decide the case, we relied on rule 4-1.7 and its comments;
specifically, the rule referencing a lawyer’s responsibilities to a third person and
the above-quoted portion of the comment that a lawyer’s ability to carry out their
duties may be impaired by other responsibilities or interests. Id. at 491. We
agreed with the public defender that withdrawal was required where he believed
that he could not adequately represent his client due to other loyalties (i.e.,
loyalty to his investigator). Id. In so holding, we noted “[a] public defender


                                         4
should be permitted to withdraw where the public defender determines that the
client’s interests are so adverse or hostile that they cannot be represented
without conflict of interest.” Id. (citing Babb v. Edwards, 412 So. 2d 859 (Fla.
1982)).

         We reject the state’s argument that the trial court correctly
      denied the motion because [the investigator] and appellant’s
      interests were neither conflicting nor adverse, therefore there was
      no actual conflict. The public defender’s argument was that his own
      interests, not those of [the investigator], were adverse to appellant’s
      interests in that he believed it was in his best interest not to destroy
      the working relationship he had with his investigator by subjecting
      him to harsh cross-examination. . . .

         Based on appellant’s counsel’s perceived conflict between his
      own interests and appellant’s interests, we conclude that the trial
      court reversibly erred in denying appellant’s trial counsel’s motion
      to withdraw.

Id. at 492 (alteration added).

    The state avers that defense counsel did a laudable job representing appellant
such that any error in denying the motion to withdraw was harmless. See State
v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). While defense counsel presented
a vigorous defense for his client throughout trial, despite being placed in this
untenable position, we disagree that the error was harmless. Defense counsel
told the court that his ability to zealously advocate for appellant was
compromised because his arguments to the jury were inconsistent with the
knowledge he gained. Defense counsel further expressed deep concern that “this
[situation] subject[ed his] law firm to a lawsuit, [or] a bar complaint,” even if it
turned out that the current employer’s claim had no merit.

    Although the trial court equated this situation to that of a fee dispute between
attorney and client where the denial of a motion to withdraw may be warranted,
that comparison is inapt. See Brooks v. State, 980 So. 2d 1095, 1095-96 (Fla.
4th DCA 2008) (finding trial court’s denial of motion to withdraw based on
client’s nonpayment did not depart from the essential requirements of law where
the motion was filed on the eve of trial and there was not ample time for the
client to procure new counsel). Here, defense counsel claimed appellant placed
him in a situation where he feared that he would be a target of both litigation
and a potential Bar investigation related to the fee paid to him. Defense counsel’s
concerns went beyond the mere possibility of nonpayment.

   Under these circumstances, defense counsel established an actual conflict of
interest, and the trial court should have permitted defense counsel to withdraw.


                                         5
Based on the foregoing, we reverse and remand for a new trial. As a result, there
is no need to address appellant’s other points on appeal, including the issue
relating to appellant’s non-participation in the ex parte sidebar conferences
between her attorney and the trial judge. 1

    Reversed and remanded for new trial.

MAY and CIKLIN, JJ., concur.

CIKLIN, J., concurs specially with opinion

CIKLIN, J., specially concurring.

    While I agree with the majority opinion and our decision to reverse, I believe
the primary error in this case was the defendant’s de facto exclusion from her
own trial. I write separately to call attention to a scenario that could easily repeat
itself. A scenario fraught with serious constitutional implications that—in my
opinion—could lead to a reversal every time.

    During repeated ex parte bench conferences between defense counsel and the
trial judge, defense counsel expressed his distaste for continued representation
of the appellant. The appellant had a Sixth Amendment right to participate in
these discussions, yet she was not present at the bench and the record reflects
she could not hear what was being said. The appellant might as well have been
in the courthouse coffee shop because she would have been just as “absent” from
the proceedings.

   “[O]ne of a criminal defendant’s most basic constitutional rights is the right
to be present in the courtroom at every critical stage in the proceedings.”
Jackson v. State, 767 So. 2d 1156, 1159 (Fla. 2000). “This right extends to ‘any
stage of the criminal proceeding that is critical to its outcome if [the defendant’s]
presence would contribute to the fairness of the procedure.’” Id. (alteration in
original) (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)).

   However, “[t]he constitutional right to be present does not extend to bench
conferences involving purely legal matters because the defendant’s presence
would be of no assistance to counsel.” Rutherford v. Moore, 774 So. 2d 637, 647
(Fla. 2000).

1We decline to reach the constitutional question presented in the concurring opinion
because there are other grounds upon which to dispose of this case. See Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (“It is not the habit of the court to decide
questions of a constitutional nature unless absolutely necessary to a decision of the
case.” (Citations omitted)); accord Gaudet v. Fla. Bd. of Prof’l Eng’rs, 900 So. 2d 574,
581 (Fla. 4th DCA 2004); State v. Efthimiadis, 690 So. 2d 1320, 1322 (Fla. 4th DCA
1997).
                                           6
    In support of her assertion that she was entitled to be present at the bench
during the ex parte conferences, the appellant relies on Sims v. State, 135 So. 3d
1098 (Fla. 2d DCA 2013). In that case, on the second day of trial, after defense
counsel cross-examined a state witness, the defense attorney, prosecutor, and
trial judge met in chambers to discuss the possibility that defense counsel was
impaired. Id. at 1099-1100. The prosecutor disclosed that people in the
courtroom had voiced concerns that defense counsel’s speech and
comprehension seemed abnormal. Id. at 1100. The trial court was likewise
concerned and asked counsel whether she had been consuming alcohol. Id.
Defense counsel denied the allegations and explained that she had a “knock-
down drag-out” with another judge and that she was taking vitamins and aspirin
for a cold. Id. The trial court noted that jury selection had been a “bizarre
experience.” Id. Defense counsel asked the trial court to declare a mistrial, but
the court declined. Id. The next day, trial resumed, and defense counsel
appeared to be competent during the remainder of the proceedings. Id. The jury
returned a verdict for a lesser offense. Id.

   On appeal, Sims argued he had a constitutional right to be present during
the in-chambers conference. Id. The Second District agreed and explained that
“the trial judge and the attorneys were not discussing purely legal issues,” but
instead were “trying to determine whether Mr. Sims’ attorney was competent to
proceed and, if not, why she was impaired.” Id. at 1101. In doing so, “[t]hey
were addressing a factual issue relating to Mr. Sims’ right to have competent
counsel at this trial.” Id. The court found the conference was thus a critical
stage of the proceedings, and it observed that nothing in the record indicated
that Sims was aware of the subject of the conference or that he knowingly waived
his right to attend. Id.

   The appellate court further found that “[t]he harm that Mr. Sims established
was the deprivation of his Sixth Amendment [r]ight to presence.” Id. at 1102.
The court based its finding of harm on the fact that the judge and attorneys
“addressed the competence of Mr. Sims’ counsel under circumstances where
neither the trial court nor the assistant state attorney was convinced that
defense counsel was capable of representing the defendant at that moment in
time.” Id. The appellate court also reasoned that if Sims had participated in the
conference, the trial judge would have had to appoint him independent counsel,
who likely would have advised him to move for a mistrial. Id. The Second District
opined that such a motion would have been meritorious. Id.

   Sims is obviously factually distinguishable from the instant case in that there
was no issue here of defense counsel being under the influence of a substance.
But, as in Sims, the private discussions here went to the core of the appellant’s
right to effective representation. Defense counsel asserted that he felt victimized
by the appellant’s actions and could not advocate for her because she had


                                        7
subjected him to a potential lawsuit.

   This is not a case where purely legal issues were discussed during the
conferences and where the appellant could not have offered any valuable input.
See Seibert v. State, 64 So. 3d 67, 85-86 (Fla. 2010) (finding no error where
defendant was absent from hearings where legal argument was offered on
various motions, including motion to continue and motion to appoint mitigation
expert in addition to mental health experts and investigators already appointed,
and where legal argument was offered on issue of whether a special master
should be appointed to conduct an in camera review of letters). Clearly, if the
appellant had been present at the bench for the discussions and had been
appointed independent counsel, important decisions could have been made and
entered upon the record. The appellant may have sought to discharge counsel
and either retain new counsel or have counsel appointed to represent her. It
appears that a request to discharge counsel could very well have warranted relief.
The defendant had a constitutional right to be present for these crucial
conversations.

   The state asserts that the appellant “ratified” her absence from the sidebar
discussions when she confirmed for the trial court that she was aware of the
discussions and was still satisfied with counsel’s representation. See Garcia v.
State, 492 So. 2d 360, 364 (Fla. 1986) (finding that defendant’s exclusion from
bench conference involving jury question was later ratified by defendant in
statements he and counsel made to the trial court and thus there was no error).
To support its argument of ratification and waiver, the state relies on the
colloquies between the court and the appellant regarding her satisfaction with
defense counsel’s representation.       However, for purposes of the Sixth
Amendment, it must be clearly apparent from these colloquies and the record
before us that the appellant was aware of the depth of defense counsel’s mistrust
and contempt for his client and his palpable distaste for any type of continuing
representation.

    The state similarly relies on defense counsel’s indication to the trial court that
he addressed the matter with the appellant. But defense counsel did not make
it clear that he expressed to the appellant the angst and apprehension he felt
about the dire situation. Instead, in response to the trial court’s question
regarding whether the appellant knew about the subsequent employer’s
allegations, defense counsel informed the court that he had “to let the client
know what’s going on now or else she would be like, ‘What’s going on with the
judge and I have no idea.’” He also indicated that he informed the appellant of
the allegations. Defense counsel’s statements do not negate the possibility that
he simply informed the appellant that he was required to inform the trial court
of a potential conflict of interest. This appellant had a constitutional right to be
present at all crucial stages of her trial where “[her] absence might frustrate the
fairness of the proceedings.” See Garcia, 492 So. 2d at 363. The discussions
that took place at the bench were not administrative or procedural and because
                                          8
the appellant’s presence would have had a reasonably substantial relationship
to her opportunity to present an effective defense, her presence was essential.
Alternatively, the defense attorney and the trial judge were required to show a
valid, informed waiver of the appellant’s fundamental right to be present during
the numerous times that defense counsel approached the bench without his
client. Accordingly, any attempt to invoke or prove waiver of the important
constitutional right to be present for trial must be far more gleanable from the
record than exists here.

    The state asserts that defense counsel did a laudable job representing the
appellant and thus any error was harmless. 2 I cannot agree with that analysis
because fundamental fairness was thwarted where the appellant was deprived
of the opportunity to be present at the bench conferences, to have knowledge of
defense counsel’s assertion that his ability to advocate for the appellant was
compromised, and to thereafter seek relief based on that full, complete, on-the-
record knowledge. See Sims, 135 So. 3d at 1102.

   The majority declines to entertain this issue based on the proposition that it
should not do so where the case can be decided on other grounds. But the
maxim upon which it relies primarily involves cases where the constitutionality
of a statute was challenged. There is no statutory challenge here. While this
court can certainly decline to address one ground asserted on appeal where
disposition on another ground renders the other ground moot, it is not required
to do so. I would find on these facts that the trial court erred in not granting the
motion to withdraw and in excluding the appellant from the bench conferences
once it became apparent that she was constitutionally entitled to be present.

                                 *         *          *

    Not final until disposition of timely filed motion for rehearing.




2 The appellant did not object to the error below. However, case law indicates that this
type of error is subject to harmless error analysis even when the error is not raised
before the trial court. In Sims, 135 So. 3d at 1099, a communication took place in the
judge’s chambers during a trial recess called by the trial court. The Second District
opined that where a defendant’s absence during a critical stage of the proceedings is not
raised until appeal and is thus unpreserved, “the notion that [the error] should be
treated as a fundamental error, with the burden shifted to the defendant to prove the
error was harmful, is questionable. Fundamental error assumes that the defendant had
the opportunity to object and did not.” Id. at 1102 (citation omitted).


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