DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ASHLEY NICOLE MCKENZIE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-453
[December 2, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562013CF002593AXXXX.
Carey Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges the trial court’s order revoking her probation and
entering a judgment of conviction for driving under the influence with
priors, for which she was sentenced to four years in prison. She makes
multiple claims, none of which merit reversal. The State concedes,
however, that the written order of revocation must be corrected as it
includes findings of acts of violation for which no evidence was presented.
We thus affirm, but remand for correction of the order revoking probation.
Appellant was charged in 2012 with driving under the influence which
was raised to a third-degree felony because of two prior convictions. She
entered a no contest plea and was sentenced to some jail time plus
probation. While on probation, she was arrested for a DUI in Texas and
subsequently convicted of the crime. This triggered the filing of an affidavit
of violation of probation in Florida in 2018, and appellant was extradited
from Texas to face the charges. Subsequently, the State filed an amended
affidavit in 2019 charging appellant with other violations of probation,
including failing to pay court costs, failing to pay costs of supervision, and
failing to comply with instructions.
Appellant was represented by an assistant public defender. After
several continuances, the final hearing was set for February 2020. At 3:32
p.m., the day before the hearing, a private attorney entered her notice of
appearance on behalf of appellant. The attorney also filed a “notice of
conflict” and motion to continue the hearing, stating that she would be out
of the jurisdiction of the court for the next day’s hearing. The private
attorney sought a continuance. The public defender moved to withdraw
because of representation by the private attorney.
On the same date, the court denied the continuance after considering
that the motion to continue was filed the day before the hearing and that
the case had already been continued multiple times at the behest of the
defense. However, it noted that counsel must be present so that the court
could make findings regarding the circumstances. The court also noted
that the right to counsel must not be used to delay or subvert judicial
proceedings, citing several cases including Foster v. State,
704 So. 2d 169,
173 (Fla. 4th DCA 1997). As a result, private counsel moved to withdraw,
which the court granted.
At the hearing the next day, the public defender raised the continuance
issue. She noted that appellant had expressed dissatisfaction with her,
but that she had no good faith basis for requesting a continuance as she
was prepared for the hearing. The public defender then sought a Nelson 1
hearing, but the trial court noted that no motion had been filed for such
an inquiry. Appellant was allowed to “air her grievances” against the
public defender, which centered on her claims that the public defender
failed to do any work on her case, failed to return phone calls, and
attempted to force her into accepting a plea offer. The court then stated
that to the extent this was a Nelson hearing, the issues appellant raised
were not enough to show ineffective assistance of counsel. The court also
colorfully explained what any attorney representing her would face:
As far as what counsel might do, whether it’s Miss Canty or
Miss Hogan, they have to play . . . the cards you dealt them.
And a lot of times in a VOP where you’re on probation, felony
supervision and there’s no doubt you’re on felony supervision
and you commit a new crime and you’re actually sentenced
on the new crime and the State has a certified copy of the
conviction, which occurred after you were placed on
1 Nelson v. State,
274 So. 2d 256, 259 (Fla. 4th DCA 1973).
2
probation, you’ve essentially dealt them a royal flush and you
dealt Miss Hogan two pair and you’re saying Miss Hogan
should be bluffing more or Miss Hogan should be . . . putting
in more chips. And the same with Miss Canty. Miss Canty
would play the exact same hand you dealt her. I don’t find
any basis to discharge the Public Defender’s Office who has
been and remains attorney of record.
The court then reiterated its reasons for denying the motion to continue
the case because of the last minute attempt to switch to private counsel.
It noted that there had been five continuances. Further, the notice and
motion filed by private counsel did not state that counsel had a conflict,
just that she would be out of the jurisdiction of the court. Because the
private attorney’s office was in Broward County, she was out of the
jurisdiction but without an actual conflict. The court made the finding
that the motion to continue was made in bad faith or as a delay tactic.
The judge also found that appellant would not suffer prejudice as a result
of the denial because of the state of the case:
As far as prejudice goes, it doesn’t matter if I continue this
case and she hired a phalanx of six private attorneys, at the
end of the day, she’s gonna say she was placed on probation,
[the probation officer] instructed her, there’s a Probation
Order in the file, there’s a certified copy of a judgment for a
crime she committed while she’s on felony supervision, so we
can—we can find that out today or we can find it out six
months from now with a different set of attorneys. But there’s
virtually no prejudice because this is what it is and it will
never change, it will always be what it is.
The hearing then proceeded with the presentation of the probation
officer who testified that she personally instructed appellant on the
conditions of her probation, the terms of which the court took judicial
notice. The State moved into evidence, without objection, a certified copy
of the Texas judgment and conviction for DUI. The State concluded its
case, and the public defender offered no evidence.
The court found appellant in violation of the condition that the
probationer live without violating the law by committing a new crime,
which the court found to be the most important of the conditions of
probation. Noting that the standard of proof in a violation of probation
proceeding was the greater weight of the evidence, the court found that the
State more than met its burden.
3
While appellant scored 30.4 points and her lowest permissible sentence
was any nonstate prison sanction, the court sentence her to four years,
giving her the benefit of the State’s prior plea offer. Appellant appeals the
judgment and sentence.
Appellant argues that she was deprived of her Sixth Amendment right
to counsel of her choice when the trial court denied her motion for
continuance to allow her private attorney to appear. She did not mention
the Sixth Amendment at trial, but the continuance was requested to
secure counsel of her choice. In any event, the court did not abuse its
discretion in denying the motion for continuance made the afternoon of
the day before trial.
A denial of a motion for continuance to obtain new counsel is reviewed
for an abuse of discretion. Alvarez v. State,
75 So. 3d 420, 422 (Fla. 4th
DCA 2011). A defendant’s right to counsel of his or her choice is not
absolute, and a court’s consideration of any continuance should balance
the defendant’s right with consideration of the impact on the
administration of justice.
Id. Any denial of a continuance to obtain new
counsel must be based upon an adequate inquiry into the circumstances
with findings to assure that the defendant’s constitutional rights were not
being deprived. Deal v. State,
145 So. 3d 212, 214 (Fla. 4th DCA 2014).
Factors relevant to that inquiry include whether the motion is made in bad
faith or for the purposes of delay; whether it would prejudice the State;
and whether the court’s schedule would permit a continuance.
Id.
In this case, the court made an adequate inquiry and articulated
findings which clearly support its decision to deny the motion for
continuance. The court found that the motion was in bad faith or for the
purposes of delay, as five continuances has been requested for various
reasons. The court found that appellant would not be prejudiced because
of the narrow issue before the court, which required only the proof of the
probation conditions and that appellant had subsequently been convicted
of another crime. Furthermore, the public defender stated that she was
prepared for the hearing.
We have frequently addressed this issue. In Tyler v. State,
945 So. 2d
662, 663-64 (Fla. 4th DCA 2007), we noted:
This and other appellate courts have made clear that they will
not permit the right to counsel to be used “for the sake of
arbitrary delay or to otherwise subvert judicial proceedings.”
Foster v. State,
704 So. 2d 169, 173 (Fla. 4th DCA 1997) (citing
Holley v. State,
484 So. 2d 634, 636 (Fla. 1st DCA 1986)).
4
“Judges must be vigilant that requests for appointment of a
new attorney on the eve of trial should not become a vehicle
for achieving delay.”
Id.
Accord Jackson v. State,
979 So. 2d 442, 445 (Fla 4th DCA 2008); Hurtado
v. State,
760 So. 2d 279, 280 (Fla. 4th DCA 2000); Foster,
704 So. 2d at
172–73. Although many of these cases reversed denials of motions for
continuances to obtain new counsel, they did so because the trial court
made no findings that the motion was made in bad faith or for delay. Here,
in contrast, the court made that finding.
Perhaps the case most on point to this fact situation is Bowman v.
United States,
409 F.2d 225 (5th Cir. 1969), cited with approval in Foster.
There, a defendant was being represented by court-appointed counsel.
Id.
at 226. On the morning of trial, the court received a letter requesting a
meeting in chambers.
Id. At that meeting, attended by the prosecutor and
the defendant, the defendant for the first time expressed dissatisfaction
with his counsel, contending that counsel was not spending enough time
on the case.
Id. Defendant sought a continuance to obtain new counsel.
Id. The trial court determined from counsel that he was indeed prepared
to try the case and denied the continuance.
Id. The appellate court
affirmed, noting:
We and other courts of appeals have repeatedly made clear
that the right to counsel ‘cannot be * * * manipulated so as to
obstruct the orderly procedure in the courts or to interfere
with the fair administration of justice.’ Judges must be
vigilant that requests for appointment of a new attorney on
the eve of trial should not become a vehicle for achieving delay.
Id. at 226–27 (quoting United States v. Llanes,
374 F.2d 712, 717 (2d Cir.
1967)). Similarly, in this case, appellant raised dissatisfaction of counsel
for the first time on the morning of the hearing. The trial court made
sufficient inquiry and determined that the motion to continue was in bad
faith or for the purpose of delay. The trial court did not abuse its discretion
in denying the motion for continuance.
Appellant also contends that the court failed to follow the proper Nelson
procedures for an inquiry where a defendant seeks to discharge counsel.
However, a Nelson inquiry is required only where a defendant is seeking to
discharge counsel and to obtain new court-appointed counsel. See Jackson
v. State,
979 So. 2d 442, 444 (Fla. 4th DCA 2008); Foster,
704 So. 2d at
172. Here, as in Jackson and Foster, appellant did not request new court-
appointed counsel but sought to be represented by private counsel.
5
In another attack on the proceedings at trial, appellant contends that
the court prejudged her case and that this court should remand for
proceedings in front of another judge. Because this issue was not raised
below, we would have to find fundamental error to reverse. Mansueto v.
State,
148 So. 3d 813, 815 (Fla. 4th DCA 2014). We find no error,
fundamental or otherwise, in the court’s comments. The court did not
show predisposition when it rightly noted that the case was
straightforward, requiring proof of the probation order and a certified copy
of the Texas judgment. It simply noted “we can find that out today or we
can find it out six months from now with a different set of attorneys.” That
statement was not a predisposition to rule against appellant but to explain
what proof would be presented.
The remaining issues which claim to be errors as to the finding of
violation were not preserved and, in any event, were not error.
Appellant also claims that her scoresheet included 1.6 points for the
Texas conviction as part of a “prior record.” We agree that this was error.
Section 921.0021(5), Florida Statutes (2018), defines “prior record” as “a
conviction for a crime committed by the offender, as an adult or a juvenile,
prior to the time of the primary offense.” (Emphasis added). Upon
revocation of probation, “[s]entences imposed after revocation of probation
or community control must be imposed according to the sentencing law
applicable at the time of the commission of the original offense.” Fla. R.
Crim P. 3.704(d)(31). “To be scored as prior record the offense must have
been committed prior to the commission of the primary offense.” Sanders
v. State,
35 So. 3d 864, 871 (Fla. 2010).
Here, the primary offense was the 2012 Florida DUI conviction. The
Texas conviction occurred well after the primary offense. Therefore, for
purposes of the scoresheet those points should not have been included as
a prior record.
Id.
Nevertheless, a scoresheet error is harmless where “the record
conclusively shows that the trial court would have imposed the same
sentence using a correct scoresheet.” Brooks v. State,
969 So. 2d 238, 241
(Fla. 2007). A review of the sentencing convinces us beyond any doubt
that the court would have imposed the same sentence in this case.
6
We find no merit in appellant’s claim that the court considered an
improper factor—namely incapacitation—in sentencing her. 2 While the
prosecutor argued that because of appellant’s many DUI convictions she
was a danger and incarceration was necessary to protect the public, the
trial court did not make any statement regarding protection of the public.
But, even if the court had, such a consideration would have been entirely
proper. See State v. Brewer,
767 So. 2d 1249, 1253 (Fla. 5th DCA 2000)
(Harris, J., concurring) (explaining that the four penological goals in
sentencing are: retribution, deterrence, incapacitation and rehabilitation);
Charles v. State,
204 So. 3d 63, 66-67 (Fla. 4th DCA 2016) (collecting cases
that discuss legitimate sentencing considerations, including
incapacitation and protection of society). Protecting society is a legitimate
consideration in sentencing.
Finally, as the State concedes, the written order of revocation must be
amended to reflect that the court found appellant in violation only for
committing the new law offense. We agree and remand for the trial court
to strike the findings for violation of condition (1), which the court
dismissed at the hearing. The court did not find violations of the remaining
conditions, and no evidence was presented as to these: condition (5) (to
the extent that this violation was based upon the illegal consumption of
alcohol); both findings as to condition (2); condition (10); condition (3);
condition (4); and condition (7). Therefore, they also must be stricken from
the order of revocation.
As to any remaining issues not specifically addressed in this opinion,
we affirm.
Affirmed but remanded to correct order of revocation.
LEVINE, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2We consider this issue preserved, because the rule 3.800(b)(2) motion filed
during the pendency of this appeal included this argument.
7
