Milo A. Rose v. State of Florida

Supreme Court of Florida
____________
No. SC17-878
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MILO A. ROSE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[July 19, 2018]
PER CURIAM.
Discharged counsel appeals the postconviction court’s order granting Milo
A. Rose’s pro se motion to dismiss postconviction proceedings and discharge
collateral counsel. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the
reasons below, we affirm.
BACKGROUND
In 1985, this Court affirmed Rose’s conviction for first-degree murder and
his death sentence. Rose v. State (Rose I), 472 So. 2d 1155, 1156 (Fla. 1985). In
so doing, we explained the facts as follows:
At approximately 10 p.m. on October 18, 1982, several
witnesses were talking together outside one of their residences.
Testimony at trial revealed that they saw two men walking down the
street. Subsequently they heard the sound of breaking glass and saw
that one of the men . . . was lying on the ground. The other man,
identified by witnesses as Milo Rose . . . was standing over him.
Evidence shows that [Rose] then walked to a nearby vacant lot, picked
up a concrete block, and returned to the man on the ground. [Rose]
raised the block over his head and hurled it down on [the victim’s]
head. He picked up the block and hurled it down a total of five or six
times. The area where the incident occurred was well lighted, so the
witnesses were able to see the man with the concrete block clearly.
[Rose] was living with . . . the victim’s mother [] at the time.
Two other acquaintances were staying with them. On the night of the
incident, these two acquaintances left an apartment which was in the
vicinity where the killing occurred and found [Rose] hitchhiking on a
nearby street. [Rose] got into their truck and stated several times that
he had just killed [the victim]. [Rose] was later found in [the victim’s
mother’s] house and was arrested [and charged with first-degree
murder].
. . . [Rose] was tried by a jury which found him guilty as
charged.
Id. at 1156-57.1
1. Rose’s penalty phase jury recommended a sentence of death, Rose I, 472
So. 2d at 1157, by a vote of nine to three, Rose v. State (Rose III), 774 So. 2d 629,
631 (Fla. 2000). The trial court found three aggravating factors: “(1) the capital
felony was committed while [Rose] was under sentence of imprisonment; (2)
[Rose] was previously convicted of felonies involving the use or threat of violence;
and (3) the murder was committed in a cold, calculated, and premeditated manner.”
Rose I, 472 So. 2d at 1157. After weighing the “evidence of mitigating
circumstances, including [Rose’s] drinking, his history of alcohol abuse, his anti-
social personality disorder, and . . . testimony that he was a good person,” the trial
court found that “there were no statutory or nonstatutory mitigating circumstances
sufficient to outweigh or offset the aggravating circumstances” and followed the
jury’s recommendation and sentenced Rose to death. Id. Rose’s sentence of death
became final in 1985 after “counsel filed a certiorari petition with the United States
Supreme Court, but at Rose’s request, . . . withdrew the petition before it was ruled
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In 1993, this Court affirmed the denial of Rose’s initial motion for
postconviction relief. Rose v. State (Rose II), 617 So. 2d 291, 298 (Fla.), cert.
denied, 510 U.S. 903 (1993).2 In 2000, this Court affirmed the summary denial of
Rose’s first successive motion for postconviction relief. Rose III, 774 So. 2d at
637.
In 2003, discharged counsel, Bjorn E. Brunvand, was appointed to represent
Rose. In 2005, Rose filed a motion to discharge Brunvand and represent himself in
state court proceedings. After conducting a complete Faretta3 inquiry and finding
that Rose “is an intelligent man” who was “waiving his right to counsel knowingly,
intelligently[,] and with his eyes wide open,” the postconviction court granted
Rose’s motion.
Nearly a decade later, Florida Rule of Criminal Procedure 3.851 was
amended to prohibit capital defendants like Rose from representing themselves in
postconviction proceedings in state court. See Fla. R. Crim. P. 3.851(b)(6).
Although counsel was not reappointed to represent Rose in state court, in 2017,
upon.” Rose v. McNeil, 634 F.3d 1224, 1233 (11th Cir.), cert. denied, 565 U.S.
857 (2011).
2. That same year, Rose filed a federal petition for a writ of habeas corpus,
which was held in abeyance “to await . . . the outcome of additional state court
proceedings,” but ultimately denied in 2010. Rose, 634 F.3d at 1240.
3. Faretta v. California, 422 U.S. 806 (1975).
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Brunvand, who represents Rose in federal court, filed a second successive
postconviction motion on Rose’s behalf—against Rose’s wishes—seeking relief
under the United States Supreme Court’s decision in Hurst v. Florida, 136 S. Ct.
616 (2016), and this Court’s decision on remand in Hurst v. State (Hurst), 202 So.
3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).
At the hearing on this motion, Rose informed the postconviction court that
he wanted to dismiss postconviction proceedings and discharge Brunvand, who
had not otherwise represented Rose in state court since being discharged in 2005.
It was in this unusual procedural posture that the postconviction court conducted
the inquiry required by Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993), and
rule 3.851(i) to “determine if [Rose] understands the consequences of waiving
collateral counsel and proceedings,” Durocher, 623 So. 2d at 485.
In its order granting Rose’s motion, the postconviction court well explained
its colloquy with Rose:
The Court warned [Rose] that if he chose to dismiss the motion
[seeking Hurst relief] and discharge counsel his postconviction
proceedings would end and counsel would not file additional motions
on his behalf. [Rose] stated several times that he maintains his
innocence and does not want to pursue any legal claims that do not
lead to an evidentiary hearing on his actual innocence. [Rose]
repeatedly expressed his belief that his sentence is invalid and he is
entitled to immediate release from custody, but insisted that he does
not want appointed counsel to represent him and does not want to
pursue the motion counsel filed. The Court warned [Rose] that Rule
3.851 does not allow postconviction defendants to proceed pro se and
explained that if he abandoned the motion, his substantive claims will
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not be ruled upon or reviewed by an appellate court. The Court
pointed out that [Rose’s] waiver of the motion is antithetical to his
ultimate goal of reversing his sentence, but [Rose] maintained that he
does not want to pursue the motion filed by defense counsel and wants
defense counsel discharged from his case.
Finding that Rose “knowingly, intelligently, and voluntarily waived his right
to pursue postconviction relief and his right to appointed collateral counsel,” the
postconviction court granted Rose’s motion to dismiss postconviction proceedings
and discharge collateral counsel. This is discharged counsel’s appeal of the
postconviction court’s order, as required by rule 3.851(i)(8)(B).
ANALYSIS
In Durocher, this Court held that competent capital defendants may waive
the right to postconviction counsel and proceedings but held that a Faretta-type
inquiry is necessary to ensure that the waiver is knowing, intelligent, and
voluntary. 623 So. 2d at 483-85. The procedures for waiving postconviction
counsel and proceedings that this Court established in Durocher have since been
codified in rule 3.851(i), which provides in pertinent part:
(5) If the defendant is found to be incompetent for purposes of
this rule, the court shall deny the motion without prejudice.
(6) If the defendant is found to be competent for purposes of
this rule, the court shall conduct a complete (Durocher/Faretta)
inquiry to determine whether the defendant knowingly, freely and
voluntarily wants to dismiss pending postconviction proceedings and
discharge collateral counsel.
(7) If the court determines that the defendant has made the
decision to dismiss pending postconviction proceedings and discharge
collateral counsel knowingly, freely, and voluntarily, the court shall
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enter an order dismissing all pending postconviction proceedings and
discharging collateral counsel.
Fla. R. Crim. P. 3.851(i). “Under rule 3.851(i), if the trial judge grants the motion,
discharged counsel must seek review in this Court.” Trease v. State, 41 So. 3d
119, 124 (Fla. 2010); see also Fla. R. Crim. P. 3.851(i)(8)(B). This Court reviews
a postconviction court’s ruling regarding a defendant’s competency to waive and
its finding that the waiver was knowing, intelligent, and voluntary for an abuse of
discretion. Trease, 41 So. 3d at 124.
In this case, discharged counsel has not challenged Rose’s competency.
Because “[a] presumption of competence attaches from a determination of
competency to stand trial,” Durocher, 623 So. 2d at 484, absent grounds to believe
that Rose was not competent, the postconviction court was not required to revisit
the issue of Rose’s competency. See Fla. R. Crim. P. 3.851(i)(4) (requiring the
trial judge to appoint experts to examine the defendant and to hold a hearing on the
defendant’s competency only if “the judge concludes that there are reasonable
grounds to believe the defendant is not mentally competent for purposes of this
[rule 3.851(i)]”). Although Rose’s competency is not in dispute, discharged
counsel argues that the postconviction court did not follow the procedure required
by Durocher and rule 3.851(i) and abused its discretion in finding that Rose’s
waiver was knowing, intelligent, and voluntary. We disagree.
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The record establishes that before granting Rose’s motion to discharge
Brunvand in 2005, the postconviction court conducted a complete Faretta inquiry.
When the postconviction court revisited counsel’s discharge in 2017—in light of
the subsequent prohibition against capital defendants’ representing themselves in
state court postconviction proceedings—it inquired as to whether Rose understood
the consequences of waiving postconviction counsel and proceedings. As the
postconviction court explained in the order on appeal, during the colloquy, Rose
expressed his beliefs that the federal courts will eventually recognize that Hurst v.
Florida overturned his conviction and sentence and that future death warrant
litigation in his case will allow him to revisit the issue of his guilt. Critically,
however, the postconviction court explained, and Rose acknowledged, that he is
betting his life on beliefs that are contrary to the law and that his postconviction
waiver would abandon the Hurst claim that discharged counsel filed on his behalf.4
4. The following exemplifies the postconviction court’s exchanges with
Rose:
THE COURT: [I]f you stopped your postconviction
proceedings and dismissed your collateral counsel, if tomorrow
morning the governor signed a death warrant, there would be nothing
standing between you and the death chamber. Do you understand
that? Is that clear enough for you?
THE DEFENDANT: I understand that.
THE COURT: Okay.
THE DEFENDANT: And they can do that. I don’t believe
that’s true.
....
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Our precedent is clear that “we cannot deny [Rose] his right to control his
destiny,” Durocher, 623 So. 2d 484, by overturning the waiver of postconviction
proceedings and counsel that Rose clearly desired, so long as the waiver was
knowing, intelligent, and voluntary. On this record, we find no abuse of discretion
in the postconviction court’s finding that it was after conducting the inquiry
required by Durocher and rule 3.851. Cf. Robertson v. State, No. SC16-1297,
2016 WL 7043020, at *2-3 (Fla. Dec. 1, 2016) (affirming postconviction court’s
order dismissing postconviction proceedings and discharging collateral counsel
where the record established the defendant understood that his waiver meant that
“his right to pursue postconviction proceedings would be forever lost,” that “he
would become warrant-eligible,” that his waiver “was permanent and that he could
not change his mind in the future,” and that “by waiving postconviction
THE COURT: How do you think if you stop postconviction
proceedings and you dismiss collateral counsel that there will be—
that it would happen that you would not be executed?
THE DEFENDANT: I’ve told you before. I’m of the same
opinion of Justice Pariente, that my sentence has already been
reversed or overturned, you know, that the United States Supreme
Court has already overturned my sentence by ruling it unconstitutional
[in Hurst v. Florida].
THE COURT: Do you understand that Justice Pariente has not
come to the prison to unlock your cell door and escort you out to the
parking lot?
THE DEFENDANT: Well, I mean—
THE COURT: And that’s not going to happen.
THE DEFENDANT: I’m of the same opinion. If she’s
wrong[,] I’m gonna be wrong too.
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proceedings, he was losing permanently his right to take advantage of any changes
that may occur in the law”).
CONCLUSION
The postconviction court followed the procedures outlined in Durocher and
rule 3.851(i) and did not abuse its discretion in finding that Rose’s waiver was
knowing, intelligent, and voluntary. Therefore, we affirm the postconviction
court’s order granting Rose’s motion to dismiss postconviction proceedings and
discharge collateral counsel.5
It is so ordered.
CANADY, C.J., and LEWIS, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., dissents with an opinion, in which POLSTON, J., concurs.
QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
5. We note that Rose filed a responsive brief pursuant to rule 3.851
(i)(8)(B). Rose does not contest the validity of the Durocher hearing. However,
he asks this Court to “send[] this case back to the trial court” to address discharged
counsel’s alleged ineffectiveness in failing to raise certain claims pertaining to his
alleged actual innocence and further seeks relief against discharged counsel for
“filing fraudulent motions” and “ignoring [his] instructions not to file anything in
his name other than issues pertaining to actual innocence.” To the extent Rose is
requesting that we reopen the postconviction proceedings he validly waived, we
deny his request. See Trease, 41 So. 3d at 126.
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PARIENTE, J., dissenting.
I dissent because I conclude that the postconviction court erred in finding
that Rose’s postconviction waiver was knowing, intelligent, and voluntary. While
I recognize that this Court reviews a postconviction court’s order finding a
knowing, intelligent, and voluntary waiver of postconviction under the deferential
abuse of discretion standard, this Court cannot abdicate its duty in ensuring that the
waiver is in fact unequivocal. See Trease v. State, 41 So. 3d 119, 124 (Fla. 2010).
Because the transcript in this case makes clear that Rose did not fully understand
the consequences of waiving postconviction, specifically as to any future change in
law including the retroactivity of Hurst,6 Rose’s waiver was not unequivocal.
Accordingly, I would reverse the postconviction court’s order and reinstate
discharged counsel.
Rose was sentenced to death following a jury’s nonunanimous
recommendation for death by a vote of nine to three. Rose v. State (Rose I), 472
So. 2d 1155, 1156 (Fla. 1985); majority op. at 2 note 1. His conviction and
sentence were final before the Hurst retroactivity cutoff date set by this Court. See
generally Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513(2017); Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 416. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
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(2017) (setting the United States Supreme Court’s decision in Ring v. Arizona, 536
U.S. 584 (2002), as the proper cutoff).
This Court recently held, over Justice Lewis’s dissent, that a valid waiver of
postconviction proceedings and counsel precludes the defendant from taking
advantage of any future change in the law, including Hurst relief. See generally
State v. Silvia, 235 So. 3d 349 (Fla. 2018). At the hearing on Rose’s waiver in this
case, Rose acknowledged that this Court’s current case law did not entitle him to
resentencing pursuant to Hurst. However, Rose made clear that he wished to retain
the right to raise a Hurst-related claim in the future if there were favorable changes
in the law from either this Court or the United States Supreme Court. Despite
Rose’s clear desire to preserve and raise future claims, the postconviction court
found Rose’s postconviction waiver knowing, intelligent, and voluntary.
Although Rose sought to dismiss the motion filed by his discharged counsel,
the record as a whole shows that Rose neither fully understood that he was waiving
nor agreed to waive any right to bring claims based on future favorable changes in
the law. The following exchange between Rose and the postconviction court
illustrates Rose’s confusion regarding the implications of waiving his right to
postconviction proceedings and counsel:
THE COURT: But that is not what I’m trying to explain to you, Mr.
Rose, and I’m beginning to think that you don’t quite understand the
nature of the situation you’re in. As it stands right now here today,
if . . . you stopped your postconviction proceedings and dismissed
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your collateral counsel, if tomorrow morning the governor signed a
death warrant, there would be nothing standing between you and the
death chamber. Do you understand that? Is that clear enough for
you?
THE DEFENDANT: I understand that.
....
THE COURT: Okay. But, Mr. Rose, do you understand that if you
end postconviction proceedings and dismiss collateral counsel, as it is
right now, the way the law is, that is gonna to be your situation? Is
that something—
THE DEFENDANT: Okay. . . . I’m doing it.
THE COURT: Okay. And you accept that?
THE DEFENDANT: I’m ending postconviction proceedings right
now.
THE COURT: Okay. But the request is to stop them because—
THE DEFENDANT: I’ve stopped them.
THE COURT: Okay. But do you understand that and you’re . . .
accepting that . . . this is the end of it for you. Is that what you’re
trying to tell me?
THE DEFENDANT: I’m accepting that’s the end of it for you, not
for me, for you. . . . No longer gonna have a voice in this.
THE COURT: How do you think if you stop postconviction
proceedings and you dismiss collateral counsel that . . . you would not
be executed?
THE DEFENDANT: I’ve told you before. I’m of the same opinion
of Justice Pariente, that my sentence has already been reversed or
overturned, you know, that the United States Supreme Court has
already overturned my sentence by ruling it unconstitutional.
THE COURT: Do you understand that Justice Pariente has not come
to the prison to unlock your cell door and escort you out to the parking
lot? . . . And that’s not going to happen.
THE DEFENDANT: I’m of the same opinion. If she’s wrong . . . ,
I’m gonna be wrong too. Okay?
(Emphasis added.) In addition to this excerpt, Rose reiterated several times at the
hearing on his waiver his belief that his death sentence is unconstitutional under
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Hurst despite this Court’s retroactivity holdings. Specifically, Rose stated that he
would stay apprised of the law and may have a claim in the future, stating:
THE COURT: So you just want to wait to see if the U.S. Supreme
Court—
THE DEFENDANT: Right.
THE COURT: clarifies the law in your favor?
THE DEFENDANT: Yes, sir. Thank you. Yes, sir. Thank you.
On this record, which makes clear that Rose did not properly understand that
“his waiver of postconviction proceedings was permanent and that he could not
change his mind in the future,” I am unable to conclude that Rose’s waiver was
knowing, intelligent, and voluntary. Robertson v. State, 2016 WL 7043020, *2
(Fla. Dec. 1, 2016). Therefore, I would hold that the postconviction court abused
its discretion in finding that Rose’s waiver was valid.
Accordingly, I dissent.
POLSTON, J., concurs.
An Appeal from the Circuit Court in and for Pinellas County,
William H. Burgess III, Judge - Case No. 521982CF008683XXXXNO
Bjorn E. Brunvand and J. Jervis Wise of Brunvand Wise, P.A., Clearwater,
Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa Martin,
Assistant Attorney General, Tampa, Florida,
for Appellee
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