        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          FRANKLIN P. JONES,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D18-656

                               [May 29, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 17-
000393CFAXMX.

   Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

LEVINE, J.

    The issue presented for our review is whether the trial court made
findings sufficient to demonstrate that the defendant’s constitutional right
to retaining the counsel of his choice was not arbitrarily denied. We find
that where appellant was transported to the county just five days before
trial, appellant became aware of that trial date only a few days before trial,
and appellant’s counsel of choice appeared on the day of trial requesting
a two- to three-day continuance, the trial court erred in not granting the
brief continuance for appellant to retain counsel of choice. Based on the
facts of this case, we reverse and remand for a new trial.

   Appellant was charged in Martin County with DUI, driving with a
suspended license, possession of cannabis, possession of drug
paraphernalia, resisting an officer without violence, and three counts of
high speed or wanton fleeing. While appellant was being held in Palm
Beach County on unrelated charges, the public defender’s office
represented appellant and, although appellant was not present, told the
court that appellant was “fine” with scheduling this case for a January 29
trial.

   Five days before trial, appellant was transported from Palm Beach
County to Martin County for trial. On Monday, the day of trial, appellant’s
public defender told the trial court that appellant had a private attorney
present whom appellant wanted to represent him. Although the public
defender had met with appellant two or three times, was “familiar with
everything” in the case, and “in theory” could proceed to trial, he was
requesting a continuance for private counsel to take over appellant’s
representation. The public defender stated that after agreeing on January
2 to the January 29 trial date, he had not sent anything to appellant letting
him know that the trial had been set for January 29. The public defender
further stated that appellant became aware of the trial date only after
meeting with the public defender the Thursday before.

    The private attorney stated that she would like a continuance for two
or three days so as to prepare for trial. The state responded that one of its
law enforcement witnesses was expected to be unavailable on Thursday
for the birth of his child. The state did not explain whether the witness
would be unavailable beyond Thursday. Appellant again expressed his
desire to continue the trial in order to hire the private attorney. The trial
court responded that the attorneys were prepared and ready to go to trial
and that “it’s not like we have unprepared lawyers. If we have an
unprepared lawyer I would be continuing it.” The trial court denied
appellant’s request for a brief continuance in order to hire counsel of his
choosing.

   The case proceeded to trial. After the trial, appellant was convicted of
possession of cannabis, resisting arrest without violence, driving with a
suspended license, and a single count of high speed or wanton fleeing.
From these convictions, this appeal ensues.

   We review a defendant’s request to discharge court-appointed counsel
in favor of private counsel of his choice under the abuse of discretion
standard. Bentz v. State, 251 So. 3d 201, 204 (Fla. 4th DCA 2018). A
wrongful denial of the right to be represented by a privately retained lawyer
of defendant’s choice, however, is prejudicial per se. Foster v. State, 704
So. 2d 169, 174 (Fla. 4th DCA 1997).

   It is of course axiomatic that “[t]he 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.” Alvarez v. State,
75 So. 3d 420, 422 (Fla. 4th DCA 2011); see also Fla. Const., art. I, § 16.

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Although a criminal defendant has a Sixth Amendment right to select his
own attorney, that right is not unfettered, nor is it absolute. See Wheat v.
United States, 486 U.S. 153, 159 (1988). One limitation on the right to
counsel of choice is related to considerations of judicial administration.
Foster, 704 So. 2d at 173. Furthermore, a criminal defendant does not
have the right to “delay or otherwise subvert judicial proceedings.”
Jackson v. State, 979 So. 2d 442, 444 (Fla. 4th DCA 2008) (citation
omitted).

    Nonetheless, a request for a substitution of counsel on the eve of trial
cannot be arbitrarily denied. Alvarez, 75 So. 3d at 423. “[A] trial court
ruling on a request for substitution on the eve of trial should focus on the
balancing of the defendant’s right to counsel of his own choosing with
considerations of judicial administration.” Id. at 422. “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.” Bentz, 251 So. 3d at 205.

   Thus, regardless of when a request for substitution is made, the trial
court must engage in an “adequate inquiry into the surrounding
circumstances and make proper findings to show that the defendant’s
constitutional right is not being arbitrarily denied.” Deal v. State, 145 So.
3d 212, 214 (Fla. 4th DCA 2014) (citation and quotation marks omitted).
The “[f]actors to be considered by the trial court include 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.” Valcarcel v. State, 201 So. 3d 795, 798
(Fla. 4th DCA 2016) (citation and quotation marks omitted).

    Applying these factors to the present case, it is apparent that the trial
court erred in denying the request for a short continuance in order for
private counsel of appellant’s choosing to prepare to represent appellant
at trial. Since appellant only found out that the trial was set for Monday,
January 29 on the preceding Thursday, the request for private counsel to
have a continuance for two to three days would appear not to be in bad
faith or delay. Once appellant was made aware of the Monday trial date,
private counsel was contacted, was in the process of being retained, and
would have been ready for trial in two to three days.

   As to prejudice to the state, the state only placed on the record that one
of its law enforcement witnesses would not be available on one day,
Thursday. The state did not claim on the record that the witness would
not be available on that Friday, on the following Monday, or on some other
day. The trial court could have proceeded with trial after a two- to three-

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day continuance without prejudicing the state and accommodating the
state’s concern that one witness would not be available that Thursday for
trial.

   Finally, as to whether the court’s schedule would not permit a
continuance, the trial court had already agreed to a continuance if the
public defender was not “prepared” to proceed with trial. Since the public
defender was “prepared,” the trial court denied the motion to continue.
But the fact remains the trial court’s schedule was flexible enough to
accommodate a continuance, only for a different stated reason.

   Significantly, appellant did not merely want a second opinion or
“another set of eyes to review his case” like the defendant in Bentz, 251
So. 3d at 205. Appellant wanted the private attorney of his choosing to be
his lawyer for the imminent trial. He had a specific attorney in court
asking for a brief continuance, once again unlike Bentz, where the
defendant “did not identify a specific lawyer.” Id.

   In summary, we find that the trial court abused its discretion in not
granting a short continuance. The court did not make “proper findings”
that the state would be prejudiced by the delay, that the request for
continuance was made in bad faith, or that the trial court’s schedule would
not permit a continuance. See Deal, 145 So. 3d at 214. Accordingly, we
reverse and remand for a new trial.

   Reversed and remanded.

GROSS and TAYLOR, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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