          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        TERRY LEE BENTZ, JR.,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-2877

                             [July 25, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Michael Mirman, Judge; L.T. Case No.
432017CF000034B.

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

  Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction of (1) possession of
hydromorphone and (2) possession of drug paraphernalia. He argues the
trial court abused its discretion by failing to question him about the
circumstances surrounding his request for private counsel and failing to
make requisite findings supporting the denial of his request. We disagree
and affirm.

   The State charged the defendant with possession of hydromorphone
and possession of drug paraphernalia. At his first hearing, he was
appointed a public defender, waived speedy trial, and moved for a
continuance. The court granted the motion, and two subsequent defense
motions for continuance.

   The matter proceeded to trial. Just before jury selection, defense
counsel announced he was ready for trial, but advised the court that the
defendant “indicated to me this morning that he wished to hire private
counsel, uh, so that’s-that’s where we stand. But I am ready if necessary.”
Defense counsel told the court that he knew the defendant “wanted to hire
private counsel.”

      THE DEFENDANT: Your Honor, I just wanted a new fresh set
      of eyes to look at my situation that I have.

      THE COURT: Your case is 217 days old, that’s the problem.

      THE DEFENDANT: I spoke to a couple of attorneys over the
      last couple of weeks –

      THE COURT: Yeah.

      THE DEFENDANT: And they said that they would do their
      best to get in and get everything taken care of as rapidly as
      possible. They said that –

      THE COURT: The Florida Supreme Court on felonies still has
      it in their mind that I’m supposed to resolve all of them within
      six months and you’re beyond that, so you’re well beyond
      where the case should be at this time, so we’re ready to try the
      case. We’ll be picking a jury this morning and trying the case
      tomorrow. All right, so let me temporarily pass that case and
      we’ll come back to the other cases.

    Without further comment, the parties proceeded to jury selection and
a jury was sworn. When court reconvened the next day, the defendant
failed to appear. The court found the defendant had voluntarily absented
himself and proceeded with the trial, pursuant to Florida Rule of Criminal
Procedure 3.180(c)(1)–(2). The jury found the defendant guilty on both
counts. The trial court sentenced him in absentia to 43 months
imprisonment.

   The defendant now appeals and argues the court erred in handling his
request for private counsel by failing to: (1) inquire about his request for
private counsel; and (2) make the requisite findings to support the denial.
The State responds that the trial court properly denied the request for new
counsel because it was last-minute—the case had been pending for 217
days. It also suggests the court conducted a sufficient inquiry, and made
the appropriate findings on the record. The State further argues that
because the defendant failed to request a continuance, he failed to
preserve the issue.

   We review the denial of the defendant’s request to discharge his court-

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appointed attorney and substitute private counsel of his choice for an
abuse of discretion. Foster v. State, 704 So. 2d 169, 172 (Fla. 4th DCA
1997).

   The State argues the defendant failed to preserve the issue because he
did not move for a continuance to “finalize the retention of counsel,” citing
Guillen v. State, 189 So. 3d 1004 (Fla. 3d DCA 2016). There, the Third
District held that the denial of a motion for a continuance was not
preserved because defense counsel failed to renew the motion at the start
of trial and expressed he was ready to proceed. Id. at 1008. Because
Guillen only addressed preservation of the denial of a motion for
continuance, it does not support a lack of preservation here.

    In fact, we previously reviewed the denial of a request for private
counsel without the defendant having moved for a continuance. See Evans
v. State, 741 So. 2d 1190, 1191 (Fla. 4th DCA 1999). There, we affirmed
the denial of defendant’s request to substitute private counsel. Id. at 1192.
We discussed our prior decision in Foster, where we noted that the
defendant “had failed to raise any specific deficiency in counsel’s
performance, that appointed counsel was ready for trial, and that the
defendant had given no reason for waiting until the morning of trial before
bringing his dissatisfaction to the trial court’s attention.” Foster, 704 So.
2d at 173.

    In short, the defendant did not fail to preserve the issue for review by
failing to request a continuance.

   On the merits, the defendant argues the trial court’s insufficient inquiry
and findings on his request for private counsel warrant a reversal. The
State responds that the last-minute nature of the request, the length of
time the case had been pending, and the court’s reference to the Rules of
Judicial Administration warrant an affirmance. We agree with the State.

   The Sixth Amendment’s right to counsel creates a presumption favoring
a defendant’s choice of counsel. Wheat v. United States, 486 U.S. 153, 160
(1988). But, this right is not absolute. Id. at 159. “[T]he essential aim of
the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Id.

   When ruling on a request for substitution of counsel, a trial court
should focus on balancing “the defendant’s right to discharge his attorney
and obtain another against the court’s interest in judicial administration
and avoiding unreasonable delay.” Jackson v. State, 979 So. 2d 442, 444

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(Fla. 4th DCA 2008). The presumption favoring a defendant’s choice of
counsel is rebutted when the latter interest outweighs the former. Id.

   Generally, a court should conduct an adequate inquiry into the
surrounding circumstances and make findings to ensure that its denial of
the request is not arbitrary. Valcarcel v. State, 201 So. 3d 795, 797-98
(Fla. 4th DCA 2016).

   In balancing the defendant’s right to counsel of choice against the
court’s interest in judicial administration, the court should consider if:

      (1) the request was made in bad faith or as a delay tactic;

      (2) the State will suffer prejudice; and

      (3) the court’s schedule will allow a continuance.

Id. at 798; see also Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA 2014).

   The court’s inquiry should be extensive enough to ascertain the
surrounding circumstances and “make a clear finding that [the
defendant’s] constitutional rights were not arbitrarily denied.” Valcarcel,
201 So. 3d at 798. The court may question the defendant or defense
counsel to determine the reason for making the request. See id.; Deal, 145
So. 3d at 213, 215.

   Although requests for substitution of counsel on the eve of trial are
disfavored, we have held that this fact alone does not dispose of the
balancing test to be undertaken. Alvarez v. State, 75 So. 3d 420, 422 (Fla.
4th DCA 2011). Admittedly, the trial court’s inquiry here was de minimus.
When the court was advised of the defendant’s preference to investigate
private counsel, the trial court simply reminded him that 217 days had
passed and his counsel was ready for trial.

    From the record, we can detect that the defendant made his request for
private counsel on the day of trial. He had not retained a lawyer, but
simply indicated that he wanted another set of eyes to review his case. He
suggested that the lawyers he had talked to would hurry to be ready for
trial quickly. He did not identify a specific lawyer, did not suggest the
public defender’s representation was inadequate, and did not indicate he
could not work with the public defender. The court identified three prior
defense continuances, and the Florida Supreme Court’s goal of resolving
felony cases within six months as reflected in the Rules of Judicial
Administration. And, the next day, the defendant failed to appear for trial.

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   We affirm because even though the trial court’s inquiry could certainly
have been more thorough and the findings more specific, this last-minute
attempt to postpone his trial without more detail did not warrant the
granting of such a motion.

   Affirmed.

WARNER and FORST, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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