Davis v. State , 2015 Fla. App. LEXIS 4212 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed March 25, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-505
Lower Tribunal No. 07-21141
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Stevenland Dwayne Davis,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Habeas Corpus.
Stevenland Dwayne Davis, in proper person.
Pamela Jo Bondi, Attorney General, for respondent.
Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
EMAS, J.
Stevenland Davis filed a petition for writ of habeas corpus, alleging that he
was denied his constitutional right to effective assistance of appellate counsel for
failing to raise, on direct appeal, the trial court’s denial of Davis’ unequivocal
request for self-representation. Claims of ineffective assistance of appellate
counsel are analyzed through the same lens as claims of ineffective assistance of
trial counsel, applying a corresponding version of the two-pronged test established
in Strickland v. Washington, 466 U.S. 668 (1984). See Wilson v. Wainwright, 474
So. 2d 1162, 1163 (Fla. 1985). To be entitled to relief, Davis must:
1. Allege specific errors or omissions which demonstrate that “appellate
counsel’s performance deviated from the norm or fell outside the range of
professionally acceptable performance;” and
2. Establish that this constitutionally-deficient performance prejudiced
defendant in that it “compromised the appellate process to such a degree as to
undermine confidence in the fairness and correctness of the appellate result.”
Id.A defendant has a constitutional right to represent himself if he makes an
unequivocal request and a knowing, voluntary and intelligent waiver of his right to
court-appointed counsel. Faretta v. California, 422 U.S. 806 (1975); McCray v.
State, 71 So. 3d 848 (Fla. 2011). However, such a right must be asserted timely or
it may be deemed waived. See United States v. Singleton, 107 F.3d 1091 (4th Cir.
1997); Laramee v. State, 90 So. 3d 341 (Fla. 5th DCA 2012); Thomas v. State, 958
So. 2d 995 (Fla. 5th DCA 2007). A review of the record indicates that trial had
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already commenced at the time of Davis’ request. The jury had been selected and
sworn, opening statements had been presented, and the State’s first witness had
already completed her testimony when Davis made his request. There is no
question that the request for self-representation, while unequivocal, was untimely.
In Laramee, our sister court suggested in dicta that an untimely request for
self-representation may be summarily denied. Laramee, 90 So. 3d at 345. But see
Lyons v. State, 437 So. 2d 711 (Fla. 1st DCA 1983) (holding that decision on an
untimely request for self-representation rests in the sound discretion of the trial
court); Thomas, 958 So. 2d at 996 (same, citing Lyons); McCray, 71 So. 3d at 870(same, and citing with approval Thomas and Lyons). See also Singleton, 107 F. 3d
at 109 (holding that “if a defendant proceeds to trial with counsel and asserts his
right to self-representation only after trial has begun, that right may have been
waived, and its exercise may be denied, limited, or conditioned. Accordingly, after
trial has begun with counsel, the decision whether to allow the defendant to
proceed pro se rests in the sound discretion of the trial court.”).
We need not decide whether summary denial of an untimely request is
proper because, in the instant case, the trial court did not summarily deny the
request; instead it colloquied Davis about the reasons for, and the timing of, such a
request. Following this inquiry, which our review reveals was adequate, the trial
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court properly exercised its broad discretion and denied Davis’ request for self-
representation at that point in the trial.
Under these circumstances, there is no merit in Davis’ claim that appellate
counsel was constitutionally deficient for failing to raise this claim on direct
appeal. See Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000) (holding that
appellate counsel cannot be deemed ineffective for failing to raise a meritless issue
on appeal) and cases cited.
Petition denied.
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