OSCAR A. TORO, SR. v. STATE OF FLORIDA , 238 So. 3d 894 ( 2018 )


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  •                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    OSCAR TORO,                                  )
    )
    Appellant,                      )
    )
    v.                                           )         Case No. 2D16-4349
    )
    STATE OF FLORIDA,                            )
    )
    Appellee.                       )
    )
    Opinion filed February 16, 2018.
    Appeal from the Circuit Court for
    Hillsborough County; Chet A. Tharpe,
    Judge.
    Oscar Toro, pro se.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Andrew Tetreault,
    Assistant Attorney General, Tampa,
    for Appellee.
    LUCAS, Judge.
    Oscar Toro appeals from an order denying his motion for postconviction
    relief after an evidentiary hearing in which he appeared pro se following the discharge of
    his court-appointed counsel. The State has conceded error. Mr. Toro was previously
    deemed entitled to appointment of counsel for his postconviction motion. See Williams
    v. State, 
    472 So. 2d 738
    , 740 (Fla. 1985); Graham v. State, 
    372 So. 2d 1363
    , 1365-66
    (Fla. 1979). We held in Freeman v. State, 
    65 So. 3d 553
    (Fla. 2d DCA 2011), that after
    such a finding has been made, a defendant who wishes to discharge court-appointed
    postconviction counsel and proceed pro se must have the benefit of a hearing
    conducted "within the rubric of Faretta[ v. California, 
    422 U.S. 806
    (1975)]." 
    Freeman, 65 So. 3d at 557
    (quoting Rose v. Crosby, No: 8:93-CV-1169-T-23EAJ, 
    2006 WL 4701821
    at *1 (M.D. Fla. Apr. 26, 2006)). Because the postconviction court's statement
    to Mr. Toro that he could either proceed with his court-appointed counsel or represent
    himself does not satisfy what was contemplated in Freeman, we must accept the State's
    concession.
    Our decision in Freeman did not articulate any particular inquiries that
    would satisfy a hearing conducted "within the rubric of Faretta," id.;1 however, we agree
    with Mr. Toro that what transpired between Mr. Toro and the postconviction court below
    was insufficient.2 As we explained in Freeman, a postconviction court has discretion to
    1We   borrowed this term from a federal magistrate judge's report and
    recommendation. See Rose, 
    2006 WL 4701821
    at *1. We note that the Rose order
    approving the report did not purport to impose a requirement for a hearing "within the
    rubric of Faretta" when a defendant expresses dissatisfaction with appointed
    postconviction counsel. 
    Id. That language
    was simply a prefatory reference explaining
    the kind of hearing the magistrate judge conducted that preceded the reported findings.
    
    Id. Thus, our
    decision in Freeman should not be read to require a full Faretta hearing in
    circumstances such as those before us.
    2THE   COURT: You need to tell me whether you want
    to go forward with the hearing today with Ms.
    Lakeman or fire her and represent yourself and we
    will have a hearing at some point in the future with
    you representing yourself. Which of those two things
    do you want to do?
    Following this, Mr. Toro stated that he would proceed pro se.
    -2-
    permit a defendant in a noncapital postconviction proceeding to proceed pro se. 
    Id. But it
    is incumbent upon the postconviction court, when undertaking such a discretionary
    act, to have an informed basis for its discretionary ruling. 
    Id. ("[T]he exercise
    of that
    discretion must be informed by the facts and circumstances of the individual
    case . . . ."). The most meaningful way for a postconviction court to arrive at an
    informed basis to issue a ruling when a defendant requests to discharge appointed
    postconviction counsel (and facilitate an appellate court's review of that decision) is for
    the postconviction court to engage in some type of discourse with the defendant. Id.;
    see also Jones v. State, 
    69 So. 3d 329
    , 335 (Fla. 4th DCA 2011) (recognizing that
    proper exercise of postconviction court's discretion to permit defendant to proceed pro
    se requires "[s]ome inquiry into the voluntary and intelligent nature of a movant's
    decision to seek self-representation" but holding that a "formal Faretta" hearing is not
    required). The postconviction court's brief dialogue with Mr. Toro did not—indeed, could
    not—reveal an informed basis from which the court could have concluded that Mr.
    Toro's decision to proceed pro se was "voluntary and intelligent." See 
    Jones, 69 So. 3d at 335
    ; see also 
    Freeman, 65 So. 3d at 557
    ("An uninformed exercise of discretion is, by
    definition, arbitrary, fanciful, or unreasonable." (citing Canakaris v. Canakaris, 
    382 So. 2d
    1197, 1203 (Fla. 1980))). Accordingly, we are compelled to reverse the
    postconviction court's order and remand for further proceedings. See 
    id. Reversed and
    remanded.
    NORTHCUTT and MORRIS, JJ., Concur.
    -3-