Wilson v. State , 2016 Fla. App. LEXIS 14454 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LEONARD LEA WILSON, )
)
Appellant, )
)
v. ) Case No. 2D15-2684
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed September 28, 2016.
Appeal from the Circuit Court for Highlands
County; J. Dale Durrance, Judge.
Amanda Peterson of Law Offices of
Peterson, P.A., Mulberry, for Appellant.
Leonard Wilson, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes, Assistant
Attorney General, Tampa, for Appellee.
BLACK, Judge.
Leonard Lea Wilson challenges the revocation of his probation for
aggravated assault with a deadly weapon. Wilson's appellate counsel filed this appeal
pursuant to Anders v. California, 386 U.S. 738 (1967), and In re Appellate Court
Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991). This court subsequently
ordered merits briefing on two issues: the adequacy of the Faretta1 inquiry at the
probation violation hearing and the apparent discrepancies between the conditions
alleged to have been violated in the affidavit of violation of probation, repeated in the
order of revocation of probation, and the conditions as listed in the order of probation
and the order of modification of probation.2 Because the trial court focused on Wilson's
legal acumen and not whether his waiver of counsel was knowing and voluntary, we
must reverse the revocation of Wilson's probation.
At the probation violation hearing, defense counsel advised the court that
Wilson wished to represent himself. The court verified with Wilson that he did in fact
wish to discharge counsel and represent himself. The court then extensively
questioned Wilson about his knowledge of court procedure and rules and briefly about
1Faretta v. California, 422 U.S. 806 (1975).
2In the order directing briefing, this court advised that should counsel
determine that a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) would
be necessary, such motion was required to be filed prior to the filing of the initial brief.
We note that despite the language of our briefing order directing counsel's attention to
the discrepancies between the affidavit and the revocation order and advising that, if
necessary, counsel should file a rule 3.800(b) motion with the trial court prior to filing the
brief with this court, counsel failed to do so. Thus, although counsel briefed the
discrepancy issue, it is not preserved. See Hines v. State, 125 So. 3d 999, 1000 (Fla.
2d DCA 2013) (affirming revocation of probation in an Anders appeal and noting that
counsel's argument that the revocation order incorrectly stated the conditions violated
was not preserved for review where counsel did not file a rule 3.800(b)(2) motion).
However, because the inadequacy of the Faretta inquiry requires reversal of the
revocation order, we do not address the discrepancy issue further.
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his general education level. Finding that Wilson was not qualified to represent himself,
the court denied Wilson's request.
In Thompson v. State, 37 So. 3d 939, 940 (Fla. 2d DCA 2010), this court
reversed the revocation of Thompson's probation based on the court's failure to
determine whether Thompson's request to represent himself was knowingly and
intelligently made. Instead, the trial court focused on "whether Thompson was capable
of representing himself" and on his "technical legal knowledge" of the proceedings. Id.
"But possessing legal skills is not a precondition for exercising the right of self-
representation." Id. at 939. In that regard, Florida Rule of Criminal Procedure
3.111(d)(3), incorporating the dictates of Faretta v. California, 422 U.S. 806 (1975),
provides:
Regardless of the defendant's legal skills or the
complexity of the case, the court shall not deny a
defendant's unequivocal request to represent himself or
herself, if the court makes a determination of record that the
defendant has made a knowing and intelligent waiver of the
right to counsel, and does not suffer from severe mental
illness to the point where the defendant is not competent to
conduct trial proceedings by himself or herself.
A defendant's "technical legal knowledge, as such, [is] not relevant to an assessment of
his knowing exercise of the right to defend himself." Thompson, 37 So. 3d at 940
(alteration in original) (quoting Faretta, 422 U.S. at 836); see also Fleck v. State, 956
So. 2d 548, 549 (Fla. 2d DCA 2007) ("[A] defendant does not need to possess the
technical legal knowledge of an attorney before being permitted to proceed pro se."
(quoting Hill v. State, 688 So. 2d 901, 905 (Fla. 1996))). Rather, "the competence that
is required of a defendant seeking to waive his right to counsel is the competence to
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waive the right, not the competence to represent himself." Fleck, 956 So. 2d at 549
(quoting Hill, 688 So. 2d at 905).
Here, just as in Thompson, the judge focused on the defendant's legal
knowledge and denied the request to proceed pro se expressly because the defendant
was not qualified to represent himself. The court made no finding as to the correct
standard—whether the defendant was knowingly and intelligently waiving his right to
counsel. Accordingly, we must reverse the revocation of Wilson's probation and
remand for further proceedings.
Reversed and remanded.
WALLACE and MORRIS, JJ., Concur.
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