          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2591
                 _____________________________

ANDREW ELSWICK,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Clay County.
Michael S. Sharrit, Judge.

                       December 10, 2018


RAY, J.

     Andrew Elswick was convicted of aggravated battery with a
deadly weapon after he stabbed someone with a knife during a
drunken encounter. He was sentenced to twenty years in prison,
with a fifteen-year mandatory minimum sentence as a habitual
violent felony offender. In this direct appeal, he argues the trial
court erred by finding him competent to stand trial and by failing
to conduct an adequate Faretta * inquiry before trial. For the
reasons that follow, we affirm.



    * Faretta v. California, 422 U.S. 806 (1975) (holding that a
criminal defendant has the right to represent himself, but the
trial court has an obligation to ensure that the defendant’s
                               Facts

     Elswick’s competency to proceed in his criminal case
vacillated before trial. In late 2015, the trial court appointed a
mental health expert to evaluate him at the suggestion of defense
counsel. Consistent with the expert’s recommendation, the court
found him competent to proceed. The following year, defense
counsel’s concerns about Elswick’s competency surfaced again,
and Elswick was reevaluated. This time the experts concluded he
was incompetent to proceed. He was adjudicated incompetent and
committed to a mental health treatment facility. After a few
months of treatment, the treatment facility issued its competency
evaluation to the court, opining that Elswick’s competence had
been restored. The court held an evidentiary hearing on
competency in late 2016. Faced with conflicting expert opinions,
the court ultimately found Elswick competent to proceed. The
case was reset for trial.

     At a pretrial hearing in January 2017, Elswick indicated a
desire to represent himself at trial. The trial court conducted a
Faretta inquiry, ruled that Elswick had knowingly and
voluntarily waived his right to court-appointed counsel, and
appointed standby counsel. Further pre-trial hearings were held
on April 3 and April 17, 2017, during which the court renewed
the offer of counsel on multiple occasions and stressed the risks of
proceeding pro se. Jury selection took place on April 24, 2017,
and the trial began the next day. At jury selection and prior to
opening statements, the trial court renewed the offer of counsel.
During trial, the court twice asked Elswick if he wished to have
the help of appointed counsel. After conferring with standby
counsel, he rejected both offers. The jury ultimately found
Elswick guilty as charged. After the verdict, he asked for counsel
to be reappointed for sentencing.

                             Analysis

    We first address Elswick’s contention that the trial court
erred by finding him competent to stand trial because the

waiver of court-appointed counsel is knowing, voluntary, and
intelligent).

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competency evaluation relied on by the State’s expert was nearly
three months old at the time of the competency hearing. He relies
on In re Commitment of Reilly, 970 So. 2d 453, 455-56 (Fla. 2d
DCA 2007), where the Second District held that a “stale,” six-
month-old competency report was not sufficient evidence to
justify a finding that the defendant was incompetent to proceed,
as it could not speak to the defendant’s present mental state. See
also Washington v. State, 162 So. 3d 284, 289 (Fla. 4th DCA 2015)
(holding that trial court abused its discretion by relying on three
competency reports ranging from six months to one year old). But
here, the competency evaluation was only three months old, and
the State’s expert continued to observe Elswick for another
month after the completion of the report so he would have been
aware of any changes in Elswick’s competency. And while there
was a battle of the experts at the competency hearing, the court
gave more weight to the State’s expert based on his extensive
interaction with Elswick, as compared to the defense expert who
had only interviewed Elswick twice; the fact that the defense
expert equated Elswick’s implausible defense with delusional
disorder, which the court rejected; and the court’s personal
observations and interactions with Elswick. We conclude that the
trial court’s competency determination is supported by
competent, substantial evidence.

     We next address Elswick’s contention that the trial court
erred by failing to conduct an adequate Faretta inquiry before
allowing him to represent himself at trial. “Under Faretta and
[Florida Supreme Court] precedent, once an unequivocal request
for self-representation is made, the trial court is obligated to hold
a hearing, to determine whether the defendant is knowingly and
intelligently waiving his right to court-appointed counsel.” Tennis
v. State, 997 So. 2d 375, 378 (Fla. 2008). “For a criminal
defendant’s right to choose the manner of representation to be
meaningful, this right ‘must apply at least at each crucial stage of
the prosecution,’ which is ‘any stage that may significantly affect
the outcome of the proceedings.’” Brown v. State, 113 So. 3d 134,
141 (Fla. 1st DCA 2013) (quoting Traylor v. State, 596 So. 2d 957,
968 & nn.23-24 (Fla. 1992)). Accordingly, where a defendant has
properly waived the right to counsel, the trial court may proceed
with that stage of the proceeding without further offer of counsel,
but the offer must be renewed at each subsequent crucial stage

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where the defendant appears without counsel. Traylor, 596 So. 2d
at 968; Fla. R. Crim. P. 3.111(d)(5). “Trial in every case is a
critical stage.” Lamb v. State, 535 So. 2d 698, 699 (Fla. 1st DCA
1988).

     Elswick does not challenge the adequacy of the Faretta
inquiry conducted during the pretrial hearing in January 2017,
at which the trial court found that he knowingly and voluntarily
waived his right to be represented by counsel at trial. Instead, he
argues he was entitled to another full Faretta inquiry at the start
of trial, which occurred approximately three months later. We
disagree, and find the decision of Knight v. State, 770 So. 2d 663
(Fla. 2000), instructive.

      In Knight, the defendant requested to represent himself at
his upcoming trial on charges that included first-degree murder.
770 So. 2d at 664. The trial court conducted a full Faretta hearing
at a pretrial hearing in October 1997 and found that the
defendant had validly waived counsel for the guilt phase of his
trial. Id. at 666. The defendant went to trial in March 1998 and
was subsequently convicted and sentenced to death. Id. at 669.
On appeal, the defendant argued the trial court reversibly erred
by failing to renew the offer of counsel at the beginning of the
trial. Id. In rejecting this claim, the supreme court noted the trial
court did in fact renew its offer of counsel at the start of trial, but
held it was not required to do so. The court explained its
reasoning:

    First, the October 31 waiver was in regard to Knight’s
    trial phase representation. As such, the beginning of the
    trial was not a subsequent stage of the proceeding. See
    Lamb v. State, 535 So. 2d 698 (Fla. 1st DCA 1988)
    (stating the pretrial hearing on the waiver of counsel
    addressed Lamb’s competence and ability to appear pro
    se at the trial stage, and the fact that the trial occurred
    three weeks later is immaterial). Second, Knight had
    [court-appointed counsel] present as standby counsel
    during the entire guilt phase of the trial. Knight
    willingly accepted [court-appointed counsel] as standby
    counsel and consistently relied upon him. Standby
    counsel is a constant reminder to a self-representing

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    defendant of his right to court-appointed counsel at any
    stage of the proceeding. See Harrell v. State, 486 So. 2d
    7 (Fla. 3d DCA 1986); see also McCarthy v. State, 731
    So. 2d 778, 781 (Fla. 4th DCA 1999); Mincey v. State,
    684 So. 2d 236, 238 (Fla. 1st DCA 1996). Accordingly,
    Knight’s claim that the court erred by not renewing the
    offer of court-appointed counsel is without merit.

Id. at 669-70 (footnotes omitted).

    Elswick, like the defendant in Knight, waived his right to
counsel for the trial phase of his criminal prosecution after a full
Faretta inquiry conducted at the January 2017 pretrial hearing.
The court’s advisories at that hearing fully anticipated and
encompassed Elswick’s trial phase representation, so the court
was not obligated to conduct another full Faretta inquiry each
time Elswick appeared in court during the trial phase. Further,
Elswick willingly accepted and relied upon standby counsel
throughout trial, a constant reminder of his right to court-
appointed counsel.

     The trial court also took additional steps to ensure that
Elswick’s decision to proceed without counsel was made “with
eyes open.” See Potts v. State, 718 So. 2d 757, 759-60 (Fla. 1998).
After the initial Faretta inquiry, the court reiterated its offer of
counsel to Elswick at two pretrial hearings, before jury selection,
before opening statements, during trial when Elswick was having
trouble properly entering his exhibits into evidence, and after the
State rested. The court repeatedly explained the dangers of self-
representation, and Elswick often rejected appointed counsel
after consulting with standby counsel. We find no Faretta error in
this case.

    AFFIRMED.

ROBERTS and KELSEY, JJ., concur.




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              _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
              _____________________________


Andy Thomas, Public Defender, and Megan Long, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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