       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          LUKE PETRUSCHKE,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-3180

                              [May 18, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 09-
019779CF10A.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   After the reversal of appellant’s conviction in Petruschke v. State, 125
So. 3d 274 (Fla. 4th DCA 2013), appellant was convicted upon retrial. We
reverse, because the trial court erred in not granting his unequivocal
request to represent himself after the “complex, multi-faceted hearing”
required in this area of the criminal law. Jones v. State, 658 So. 2d 122,
126 (Fla. 2d DCA 1995) (Altenbernd, J., concurring).
   Appellant told the court about his dissatisfaction with his lawyer. Prior
to trial, appellant wrote letters to the trial judge claiming there was “an
acute conflict of interest between the defendant and his court appointed
counsel.” The conflict arose from counsel’s refusal to request certain
discovery and failure to depose witnesses. Also, counsel had not consulted
with appellant on the defense strategy or “developed interrogatories for the
jury pool.” Appellant was unhappy that, after the trial judge denied a
motion for recusal, defense counsel refused to file a petition for writ of
prohibition. Appellant’s view was that his attorney was required to carry
out his every request. The court refused to compel counsel to file the writ.
There was no further discussion of the issue and the jury was brought in
for voir dire.
    Appellant revived the representation issue when he wrote the trial judge
another letter, moving “for leave to proceed as self-counsel/with
appointment of standby counsel.” Appellant invoked his constitutional
right to represent himself and claimed he was “suffering from ineffective
assistance of his court appointed counsel.” Appellant expressed a desire
for standby counsel to safeguard his “constitutional right to an adequate
opportunity to prepare an effective defense by being available to give
meaningful technical assistance as to court procedures and on matters of
law, in the event that termination of self-representation becomes
necessary.”
    At a hearing, the trial judge explained to appellant the very limited role
of standby counsel and went on to conduct the detailed inquiry required
by Faretta v. California, 422 U.S. 806 (1975). Appellant confirmed that he
understood he had the right to a lawyer and counsel had been appointed
to represent him. He expressed his desire to not have a lawyer and instead
represent himself. Appellant had not previously represented himself and
understood a lawyer’s legal knowledge and experience would equip the
lawyer to recognize if appellant’s rights had been violated and to apply the
rules of evidence. Appellant understood he did not have the same
understanding as a lawyer regarding the introduction of evidence or other
legal “grey areas.” Appellant understood that there were “a lot of
advantages to having a lawyer and a lot of disadvantages” to his self-
representation.
   The questioning continued and appellant stated he understood the
seriousness of the charges, that he faced a maximum penalty of life
imprisonment, and that he would receive no special consideration if he
represented himself. Appellant acknowledged that he might not recognize
the possibility of lesser included offenses. He obtained his legal experience
from research and understood that when sent back to jail each night
during trial, he might not have time to do research. Appellant understood
that at trial he would be called on to make legal arguments and cross-
examine witnesses. Appellant conceded that jury instructions were
governed by complicated legal principles that he might not fully
comprehend. Finally, appellant understood that if he dug himself into a
legal hole by his self-representation, he might lose certain appellate rights.
   Despite all of this, appellant said he wanted to represent himself.
   The judge then turned to appellant’s request to discharge defense
counsel and conducted a hearing under Nelson v. State, 274 So. 2d 256
(Fla. 4th DCA 1973). The court asked appellant to specify why he felt he

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was not being adequately represented, beyond his assertion that he would
not get a fair trial. Appellant said that his counsel spoke to appellant’s
mother without permission. Appellant reiterated his desire for a petition
for writ of prohibition directed at the trial judge’s denial of a motion to
recuse, which counsel refused to file. Defense counsel stated he had
permission to speak to appellant’s mother in order to update her on the
case, but he did not speak to anyone else. Counsel noted he had been an
attorney for 23 years, had tried numerous cases, and was ready to
proceed.
    The trial court ruled that counsel would continue to represent
appellant. The judge made no specific findings, simply stating the motion
to remove defense counsel was denied and counsel would be representing
appellant “during the course and scope of the trial.”
   The court made no reference to appellant’s Faretta request.
   It appears the trial judge combined the Faretta and Nelson, rulings,
even though they involve distinct issues.
    When a defendant wants to discharge counsel, saying that the lawyer
is ineffective, the trial court conducts a Nelson inquiry to determine
whether appointed counsel is rendering effective legal assistance to the
defendant. If the court finds that there is reasonable cause to believe that
court appointed counsel is not rendering effective assistance to the
defendant, the court should “appoint a substitute attorney who should be
allowed adequate time to prepare the defense.” Nelson, 274 So. 2d at 259.
If there is no reasonable basis for a finding of ineffective representation,
the court should “advise the defendant that if he discharges his original
counsel the State may not thereafter be required to appoint a substitute.”
Id.
    If a defendant has made an unequivocal request to represent himself,
the purpose of a Faretta hearing is to “determine whether the defendant is
knowingly and intelligently waiving his right to court-appointed counsel.”
McCray v. State, 71 So. 3d 848, 864 (Fla. 2011) (quoting Tennis v. State,
997 So. 2d 375, 378 (Fla. 2008)); see Fla. R. Crim. P. 3.111(d)(2)-(3).
Where a defendant is “made aware of the dangers and disadvantages of
self-representation,” “the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835
(quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
The likelihood that a defendant would incompetently represent himself is
not a valid reason to deny an unequivocal and knowing request for self-
representation. E.g., Hooker v. State, 152 So. 3d 799, 802 (Fla. 4th DCA
2014).


                                    -3-
   Here, the trial court’s Nelson inquiry disclosed nothing that supported
appellant’s allegation that defense counsel was rendering ineffective
assistance. The trial judge correctly did not discharge him. See Pasha v.
State, 39 So. 3d 1259, 1262 (Fla. 2010). However, the trial judge did make
several errors. The judge did not inform appellant that if he persisted in
his desire to discharge counsel, no substitute attorney would be
appointed. Additionally, the trial judge did not address appellant’s
unequivocal Faretta request after the Nelson ruling, failing to make any
findings under Faretta. See Williams v. State, 163 So. 3d 694, 698 (Fla.
4th DCA 2015). Appellant had previously been declared competent and
the trial judge’s detailed Faretta inquiry demonstrated appellant’s request
to exercise his right to self-representation was unequivocal, the only two
grounds to deny a Faretta request. See Fla. R. Crim. P. 3.111(d)(3); see
also Pasha, 39 So. 3d at 1262 (stating a Faretta request after discharging
competent counsel is presumed an unequivocal exercise of right to self-
representation). “[B]oth the Florida and the United States Supreme Courts
require that courts honor a defendant’s request for self-representation, if
the defendant knowingly and intelligently waives the right to counsel.”
McKinney v. State, 850 So. 2d 680, 682 (Fla. 4th DCA 2003). The error in
this case is structural and not subject to harmless error review. Williams,
163 So. 3d at 699.
   Reversed and remanded for a new trial.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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