Harden v. State , 2014 Fla. App. LEXIS 15275 ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed October 1, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D11-3239
Lower Tribunal No. 10-4095B
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Gregg M. Harden,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, John W.
Thornton, Jr., Judge.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney
General, for appellee.
Before SALTER, EMAS and FERNANDEZ, JJ.
FERNANDEZ, J.
Gregg M. Harden appeals his conviction for two counts of attempted
robbery and one count of furnishing false information to a law enforcement officer
during an investigation. Because the trial court committed per se reversible error
when it failed to conduct a Faretta hearing after Harden made several unequivocal
requests to represent himself, we reverse and remand for a new trial. See Faretta v.
California, 422 U.S. 806 (1975).
Harden filed numerous motions and pleadings with the trial court waiving
his right to counsel and requesting self-representation. Harden’s counsel also
confirmed Harden’s desire to represent himself several times during the
proceedings. The trial court chose not conduct a Faretta hearing on Harden’s
requests, but instead postponed the Faretta hearing until after the discovery
process was complete.
Harden also filed multiple motions for speedy trial, notice of expiration
motions, and demands for discharge under the Florida Speedy Trial Rule. All of
these motions were denied either on the merits or because Harden’s appointed
counsel did not adopt them.
On July 5, 2011, sixteen months after his initial request for self-
representation, the trial court conducted a Faretta hearing and concluded that
Harden was competent to represent himself. Harden represented himself at trial
and was convicted on two counts of attempted robbery and one count of furnishing
false information to a law enforcement officer during an investigation.
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The Sixth Amendment grants a defendant the right to proceed without
counsel when he voluntarily and intelligently elects to do so. Faretta, 422 U.S. at
835. The right to self-representation applies at any crucial stage in the
proceedings. See Kearse v. State, 858 So. 2d 348 (Fla. 1st DCA 2003) (holding
that the defendant had the right to represent himself during pre-trial suppression
hearing).
A defendant’s request for self-representation must be unequivocal. See
Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008). Once a defendant makes an
unequivocal request for self-representation, the trial court is obligated to hold a
Faretta hearing to determine whether the defendant is knowingly and intelligently
waiving his right to court-appointed counsel. Id. The failure of a trial court to hold
a Faretta hearing to determine whether the defendant could represent himself is
per se reversible error that entitles a defendant to a new trial. Id. at 379.
Neither the Sixth Amendment nor the Florida Constitution provide a right to
hybrid representation. See Logan v. State, 846 So. 2d 472, 474–75 (Fla. 2003).
Thus, a pro se demand for speedy trial that has not been adopted by the
defendant’s counsel cannot be entertained on the merits. Sams v. State, 849 So. 2d
1172, 1174 (Fla. 3d DCA 2003).
Harden made several unequivocal requests for self-representation as
evidenced by his repeated filings to dismiss his appointed counsel and represent
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himself. After these requests, but prior to the Faretta hearing being held, there
were several crucial stages in the proceedings over a period of sixteen months.
Each crucial stage presented a missed opportunity for Harden to represent himself.
Because the trial court failed to hold a Faretta hearing within a reasonable time
following Harden’s initial and subsequent unequivocal requests for self-
representation it committed per se reversible error. Thus, Harden is entitled to a
new trial.
Reversed and remanded.
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