              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT

JEROME J. DAVIS, DOC # D82350,                )
                                              )
             Appellant,                       )
                                              )
v.                                            )         Case No. 2D15-3102
                                              )
STATE OF FLORIDA,                             )
                                              )
             Appellee.                        )
                                              )

Opinion filed November 22, 2017.

Appeal from the Circuit Court for Polk
County; Roger A. Alcott, Judge.

Howard L. Dimmig, II, Public Defender, and
Marie-Louise Samuels Parmer, Special
Assistant Public Defender, Bartow, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.


LaROSE, Chief Judge.

             Jerome James Davis appeals his final judgment and sentences. We have

jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse and remand for a new trial

because the trial court failed to conduct adequate Nelson1 and Faretta2 hearings.


             1Nelson    v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
             2Faretta   v. California, 422 U.S. 806 (1975).
              A jury convicted Mr. Davis of burglary with an assault or battery, in

violation of section 810.02, Florida Statutes (2013), false imprisonment, in violation of

section 787.02, Florida Statutes (2013), and stalking, in violation of section 784.048,

Florida Statutes (2013). The trial court sentenced him to life in prison for the burglary,

five years in prison for the false imprisonment, and twelve months in jail for the stalking.

              Mr. Davis argues that the trial court failed to conduct adequate Nelson and

Faretta hearings before it allowed him to represent himself. The State concedes that

Mr. Davis is entitled to a new trial. Mr. Davis also argues that the trial court violated his

right to a speedy trial. Finally, Mr. Davis asserts that the trial court made numerous

improper evidentiary rulings.

                                         Background

              Mr. Davis appeared for his jury trial with his lawyer from the Public

Defender's office. Mr. Davis told the trial court that he wanted to discharge his lawyer.

              [M]y communications with [my defense counsel] are
              inadequate. I have tried to tell you that I've asked the
              witnesses to come in my behalf, which [my defense counsel]
              has said that she didn't have time to deposition [sic] them.
              When I asked her who she depositioned [sic], she says I
              don't have time for that. She wants to tell me how she's
              going to run my life. Honorable Alcott, I wouldn't care what --
              what the State thinks of me or you think of me at this point.
              This is my life. I don't have time to sit down and argue with
              [my defense counsel].
                      I believe that I can go off of just the police report. I
              believe, Your Honor, with no disrespect to you or the State --
              you guys are college educated, you've -- you've done a lot of
              time in criminal activity -- if you just simply go over the police
              reports, okay, you will be able to see that this female is lying.
              And you would not even -- how would you say -- take her
              studious [sic]. And I -- and I do hope that you do that in
              between now and jury selection in time that we go to the
              court [sic]. All I ask for you, sir, is for you to cut this bracelet
              off of me and give me a belt and let me pick my jury. I have


                                             -2-
              no time to argue with [my defense counsel]. She's
              dismissed, period.
                     And also Honorable Ojeda, if you want to call him and
              ask him -- I went through this before -- excuse me of raising
              my hands above my shoulders, sir, but how would you say --
              I have -- I've represented myself successfully before. So if
              you need to call Honorable Ojeda to show that I'm
              competent or whatever, but I shouldn't have to be going
              through --
                     ....
                     And [my defense counsel] never has showed me
              anything that she's doing. She just expects me to just -- just
              happily go on whatever she says. No ma'am. God -- God
              bless you.

              The trial court asked Mr. Davis if he wanted to discharge his lawyer and

represent himself. Mr. Davis responded: "I have to sir. Under the circumstances, I don't

. . . have a choice." The trial court then asked Mr. Davis if he was ready to pick a jury

that day; Mr. Davis responded affirmatively. The trial court then asked, "and you've

prepared your Defense and you're ready to proceed today . . . with your Defense?"

Again, Mr. Davis responded affirmatively. The trial court then stated:

                      Mr. Davis, you're certainly entitled to represent
              yourself. But I need to have a clear understanding that
              you're -- have an attorney appointed and available to you,
              who I found to be an effective attorney, and you're certainly
              entitled to discharge her and go forward on your own if you
              want to.

The trial court then asked Mr. Davis if he had ever selected a jury before, and Mr. Davis

stated that he had. The trial court did not inquire further into Mr. Davis's ability to

represent himself. It stated: "[Defense counsel] based upon his desire to represent

himself, I'll discharge the Office of the Public Defender. And we'll bring in the jury." Mr.

Davis proceeded to represent himself for jury selection that day.




                                             -3-
               Two days later, Mr. Davis and the State returned for trial. The trial court

asked:

               And because this is a critical stage in the proceedings and,
               Mr. Davis, you're here today without a lawyer, I want to again
               advise you[.] [Y]ou have a right to have a lawyer to help you
               and represent you, if you want one. You indicated to us
               Monday that you wanted to discharge your lawyer and go
               without an attorney. Do you still want to do it that way?

Mr. Davis replied that he did not want his appointed lawyer.

               Mr. Davis noted that the investigating detective was not on the State's

witness list. Mr. Davis knew about the detective because the State provided the case

report with the detective's name in discovery. The trial court found the State's failure to

list the detective was inadvertent. The detective was not subpoenaed for trial. The

State tried to contact him but he was unavailable. Mr. Davis wanted the detective

present. Consequently, the trial court discharged the jury and, over Mr. Davis's

objection, continued the case. The trial court directed the State to subpoena the

detective for trial.

               Subsequently, Mr. Davis filed a notice of expiration of speedy trial and

sought discharge. The trial court denied his request for discharge. The trial court found

that Mr. Davis was partially responsible for the delay in the start of trial. More

specifically, Mr. Davis moved to discharge his counsel on the day of jury selection and

later insisted that the investigating detective be at the trial.

               The trial court later empaneled a second jury and conducted a two-day

trial. The jury found Mr. Davis guilty of (1) burglary, as charged; (2) false imprisonment,

a lesser included offense of the kidnapping count charged; and (3) stalking, a lesser

included offense of the aggravated stalking count charged.

                                              -4-
              The trial court appointed the Public Defender's office to represent Mr.

Davis for sentencing. Again, Mr. Davis asked the trial court to discharge appointed

counsel. The trial court conducted a Nelson hearing. The trial court asked Mr. Davis

why he thought his counsel was ineffective. Mr. Davis responded that his counsel failed

to challenge the scoresheet or get a presentence investigation report (PSI). His

appointed counsel responded that she told Mr. Davis that the trial court denied her

request for the PSI. She also stated that she told Mr. Davis that she would challenge

the scoresheet at sentencing. The trial court found that appointed counsel was not

ineffective. It allowed Mr. Davis to proceed pro se for sentencing.

                                        Discussion

                               Nelson and Faretta Hearings

              "[W]here the defendant has clearly alleged attorney incompetence and

has unequivocally expressed his desire to discharge his counsel, then the court's failure

to conduct a Nelson inquiry is reversible error." Finfrock v. State, 84 So. 3d 431, 434

(Fla. 2d DCA 2012). "Generally, this court reviews whether a trial court conducted an

adequate Nelson hearing under the abuse of discretion standard." Id. "[W]hile the

failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion

standard and, presumably, a harmless error analysis, the failure to conduct any inquiry

is per se error." Jackson v. State, 33 So. 3d 833, 836 (Fla. 2d DCA 2010).

              On the day of the first jury selection, Mr. Davis clearly stated his

dissatisfaction with counsel. See Torres v. State, 42 So. 3d 910, 912 (Fla. 2d DCA

2010) ("Preliminarily, the court must determine whether the defendant's request to

discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the

request."). The trial court did not ask counsel to respond to Mr. Davis's allegations. It

                                            -5-
simply found counsel to be effective without any inquiry "to determine if there is

reasonable cause to believe that court-appointed counsel is not rendering effective

assistance." Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004). The trial

court determined counsel was effective and asked Mr. Davis if he wanted to discharge

his counsel and represent himself. Mr. Davis answered that he had no other choice,

and the trial court discharged his counsel. This exchange was not an adequate Nelson

hearing. See Torres, 42 So. 3d at 913 ("[T]he trial court improperly assumed that

Torres' dissatisfaction with counsel was not based on counsel's incompetency or that a

Nelson hearing, if conducted, would have dispelled any notion of counsel's

incompetency."). The only Nelson hearing conducted was at Mr. Davis's later

sentencing hearing. Therefore, we must reverse and remand for a new trial. See

Laramee v. State, 90 So. 3d 341, 344-45 (Fla. 5th DCA 2012) (holding that trial court's

failure to hold a Nelson hearing when defendant made a clear and unequivocal request

to discharge his attorney and then to conduct a Faretta hearing after the defendant

made "an unequivocal and clear request for self-representation" required reversal).

              "Under Faretta and our 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). "When an accused

manages his own defense, he relinquishes, as a purely factual matter, many of the

traditional benefits associated with the right to counsel. For this reason, in order to

represent himself, the accused must 'knowingly and intelligently' forgo those

relinquished benefits." Faretta v. California, 422 U.S. 806, 835 (1975). A defendant



                                            -6-
does not need to have the skill or experience of a lawyer to competently and intelligently

choose to represent himself. Id. However, the defendant "should be made aware of the

dangers and disadvantages of self-representation, so that the record will establish that

'he knows what he is doing and his choice is made with eyes open.' " Id. (quoting

Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

              The trial court allowed Mr. Davis to represent himself without conducting

any further inquiry as to his knowledge of the disadvantages of self-representation.

Torres, 42 So. 3d at 912 ("If the defendant seeks to represent himself, the court must

conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently

waiving his right to counsel."). Mr. Davis told the court that he had represented himself

successfully before. However, this does not waive the trial court's duty to conduct a

Faretta inquiry. See Eib v. State, 191 So. 3d 977, 979 (Fla. 2d DCA 2016) ("As part of

the Faretta inquiry, '[t]rial courts are . . . required to instruct defendants about the

disadvantages and dangers associated with self-representation.' " (alteration in original)

(quoting Goldsmith v. State, 937 So. 2d 1253, 1256 (Fla. 2d DCA 2006))).

              The State concedes that the "trial court erred in failing to conduct a more

detailed Faretta inquiry." A new trial is necessary.

                                    Speedy Trial Violation

              Mr. Davis argues that the trial court violated his right to a speedy trial by

continuing the trial. Mr. Davis seeks discharge from his judgment and sentences. Mr.

Davis began his self-representation on the day of jury selection. He told the trial court

that he was prepared to proceed. Yet, on the day testimony was to begin, he inquired

about the absence of the investigating detective from the State's witness list. The State

inadvertently excluded the detective. The officer was not subpoenaed and did not
                                              -7-
respond to calls that morning. Because Mr. Davis wanted the witness present, the trial

court rescheduled the trial and directed the State to make this witness available for trial.

              A trial court's decision to extend the speedy trial period is reviewed for an

abuse of discretion. See Routly v. State, 440 So. 2d 1257, 1261 (Fla. 1983). To

determine whether a speedy trial violation has occurred we may look at "(1) the length

of the delay, e.g., whether the delay is presumptively prejudicial; (2) the reason for

delay; (3) whether the appellant has timely asserted his rights[;] and (4) the existence of

actual prejudice as a result of the delay." Howell v. State, 418 So. 2d 1164, 1171 (Fla.

1st DCA 1982). The State filed an information against Mr. Davis on July 3, 2012. It

appears that Mr. Davis timely asserted his right to speedy trial. Mr. Davis filed a notice

of expiration of speedy trial time on December 20, 2012. He stated that the last day of

the recapture period was January 7, 2013. The trial began on April 30, 2013, and

concluded on May 6, 2013. Therefore, there was about a ten-month delay between the

time of filing the information and the end of trial. We do not find that this delay was

presumptively prejudicial. State v. Polk, 993 So. 2d 581 (Fla. 1st DCA 2008) (finding

that ten-month delay was not presumptively prejudicial). Here, it is clear that Mr.

Davis's decision to represent himself and demand the presence of the investigating

detective was at least partially responsible for the delay. Further, Mr. Davis has not

demonstrated how the delay actually prejudiced him.

                                    Evidentiary Rulings

              Because Mr. Davis will receive a new trial, we do not address his issues

concerning the trial court's evidentiary rulings.




                                             -8-
                                       Conclusion

              The trial court did not violate Mr. Davis's speedy trial rights. However, and

as the State concedes, the failure of the trial court to conduct proper Nelson and Faretta

hearings requires a new trial.

              Reversed and remanded for a new trial.



LUCAS and BADALAMENTI, JJ., Concur.




                                           -9-
