        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                              ROBERT DEAL,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-641

                             [August 20, 2014]


                          CORRECTED OPINION

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case Nos.
502009CF010942AMB, 502010CF008449AMB, 502010CF008451AMB.

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

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   On appeal from the trial court’s revocation of probation, Robert Deal
argues that the trial court erred by: (1) denying his motion for continuance
to retain private counsel; (2) relying on hearsay in finding that he left his
county of residence; (3) finding that the State proved he had the ability to
pay costs and willfully failed to do so; and (4) entering written revocation
of probation orders which do not conform to the trial court’s oral
pronouncements. Because we reverse as to the first argument, the
remainder of the arguments are moot.

    This appeal involves three cases in which Deal entered into negotiated
pleas for possession of cocaine with intent to sell and sale of oxycodone.
In each case, Deal’s probation officer filed violation of probation affidavits
listing various allegations. After the violation of probation hearing was
scheduled, the defense was granted a continuance, and the matter was
reset for approximately one month later. At the request of the trial court,
it was agreed that the violation of probation hearing was limited to the
technical violations of probation, with the remaining substantive
allegations set off for future resolution.

   At the outset of the violation of probation hearing, Deal’s assistant
public defender informed the trial court that Deal wanted to retain private
counsel and that Deal’s mother was present to address the trial court on
the matter. Deal’s mother requested a continuance in order to retain
private counsel for her son. She explained that she had interviewed with
a private attorney, provided his name, and stated that she had spoken to
him twice in the past four days, although he was not present at the hearing
because he was appearing in court out of town for another case. When
asked, Deal’s mother indicated that she had paid him a retainer fee and
explained that he had instructed her to request a continuance and call
him as soon as one had been obtained. Deal’s assistant public defender
then adopted the request for a continuance.

   The trial court did not make any further inquiry and did not question
Deal personally. When asked, the State informed the trial court that the
matter had been continued once before, but neither objected to, nor agreed
to another continuance. The trial court then denied Deal’s request for a
continuance, without indicating its reasoning for doing so and noted that
the State was proceeding on only the technical charges that day, and that
the substantive charges would be heard at a later date. The trial court
further stated that:

      THE COURT: [I]f [private counsel] wants to jump on board and
      handle the second half of it, you’re welcome to do that, if you
      can come up with an agreement with him. I don’t know how
      far down the road you’ve gotten as far as hiring him.

(emphasis added).

   At the conclusion of the hearing, the trial court found that Deal violated
several conditions of his probation. The trial court revoked his probation
and sentenced him to 48 months in prison with credit for 366 days. By
the time of sentencing, the State had dropped the allegations on the
substantive violations.

   On appeal, the denial of a motion for continuance to retain counsel of
choice is reviewed for an abuse of discretion. Alvarez v. State, 75 So. 3d
420, 422 (Fla. 4th DCA 2011).

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   “The Sixth Amendment of the United States Constitution protects the
right of a criminal defendant to be represented by the attorney of his or
her own choosing.” Id. (citing Wheat v. United States, 486 U.S. 153 (1988)).
Notably, however, this right is not absolute. This Court has previously
explained that “a defendant does not have an absolute right to a particular
lawyer and that it is within a trial court’s discretion to deny a defendant’s
request for particular counsel when there is a ‘countervailing public
interest in the fair and orderly administration of justice.’” Id. (quoting
Foster v. State, 704 So. 2d 169, 173 (Fla. 4th DCA 1997)).

   Still, any denial of an accused’s request for a continuance to retain
counsel of choice must be based on an adequate inquiry into the
surrounding circumstances and “proper findings to show that the
defendant’s constitutional right is not being arbitrarily denied.” Id. at 423
(reversing for new trial where trial court denied a day-of-trial request for
substitution of counsel and motion to continue without sufficient inquiry
or proper findings). The trial court’s ruling should focus on balancing “the
defendant’s right to counsel of his own choosing with considerations of
judicial administration.” Id. at 422. In this regard, we have previously
considered several relevant factors, including: whether the motion is being
made in bad faith or as a delay tactic; whether a continuance would
prejudice the State; or whether the court’s schedule would not permit a
continuance. See id. (citing Jackson v. State, 979 So. 2d 442, 445 (Fla.
4th DCA 2008)).

   In this case, the trial court below failed to consider any of these
circumstances before denying Deal’s motion for continuance to retain
private counsel. The trial court made no finding that Deal was acting in
bad faith or requesting a continuance for the purpose of delaying the
administration of justice. In addition, there does not appear to be anything
in the record that would support such a finding. Based on the exchange
between Deal’s mother and the trial court, it appears that private counsel
had been retained. Deal’s mother communicated his request to obtain a
continuance and his court-appointed counsel adopted the request. The
State did not object to the request nor did it argue that it would be
prejudiced if a continuance were granted. Without ever questioning Deal,
himself, on the motive for seeking to retain private counsel, the trial court
simply denied the motion, apparently concluding that Deal would not be
prejudiced in proceeding with his current counsel for the first half of the
case. The trial court’s suggestion that Deal’s counsel of choice could “jump
on board and handle the second half of it” erroneously deprived Deal of
his right to be defended by his counsel of choice. See U.S. v. Gonzalez-
Lopez, 548 U.S. 140 (2006).

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   Therefore, having failed to make an adequate inquiry into the
surrounding circumstances and to make a clear finding that Deal’s
constitutional right was not being arbitrarily denied, we hold that the trial
court erred in denying his motion for a continuance to retain private
counsel. Accordingly, we reverse and remand for a new violation of
probation hearing.

   Reversed and remanded.

GROSS, GERBER and CONNER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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