221 So. 3d 633
Fla. Dist. Ct. App.2017Background
- Appellant was charged by information (burglary, grand theft, dealing in stolen property, pawnbroker false information); an assistant state attorney signed the information and handled initial prosecution filings and discovery, including a plea offer.
- That prosecutor ceased appearing for the state in April 2014; one year later she was retained by appellant as his private defense counsel and did not disclose her prior prosecutorial role to the court.
- At trial, evidence (victim/pawnshop testimony and tapes of admissions) led to appellant’s conviction on all counts; the grand theft count was nolle prossed before trial.
- After conviction but before sentencing, appellant moved to discharge counsel and for a mistrial upon learning his trial lawyer had been the original prosecutor; the lawyer later said she could not ethically continue, and appellant waived counsel (Faretta) and proceeded pro se on a mistrial motion.
- At sentencing appellant raised additional complaints; the trial court did not rule on the earlier mistrial motion before sentencing. Appellant appealed, alleging ineffective assistance/conflict of interest apparent on the face of the record.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether a former prosecutor representing the same defendant in the same case creates a per se conflict requiring reversal | The switch creates an automatic (per se) conflict and presumed prejudice (citing Ziegenhagen) | No per se rule; Cuyler/Hunter require showing actual conflict and adverse effect | Court refused to adopt per se rule; Cuyler/Hunter controls — no per se reversal |
| Whether an actual conflict existed | Implied actual conflict by dual role (prosecutor then defense counsel) | Even if assumed, appellant must show adverse effect on representation | Court assumed first prong for argument but found no showing of adverse effect |
| Whether the record shows the conflict adversely affected counsel’s performance | Counsel’s prior role compromised representation; prejudice presumed | Appellant must identify specific record evidence of compromised interests; mere possibility insufficient | Appellant failed to identify any specific adverse effect; Sixth Amendment claim fails |
| Whether the trial court had a duty to inquire sua sponte about the potential conflict | Trial court knew/should have known and should have inquired to protect rights | Even if court should have inquired, appellant still must show conflict affected performance | Court held that lack of inquiry does not relieve appellant of proving adverse effect; no evidence of prejudice |
Key Cases Cited
- Cuyler v. Sullivan, 446 U.S. 335 (establishes test requiring an actual conflict that adversely affected counsel’s performance)
- Hunter v. State, 817 So.2d 786 (Fla. 2002) (applies Cuyler in Florida; defendant must show actual conflict and adverse effect)
- Mickens v. Taylor, 535 U.S. 162 (requires showing that conflict adversely affected counsel’s performance)
- Ziegenhagen v. United States, 890 F.2d 937 (7th Cir. 1989) (advocates per se rule for prosecutor switching to defense)
- Brown v. State, 894 So.2d 137 (Fla. 2004) (reiterates need for specific record evidence of impaired interests)
- Alexis v. State, 180 So.3d 929 (Fla. 2015) (court must still find adverse effect where trial court failed to inquire)
- Faretta v. California, 422 U.S. 806 (recognition of right to self-representation)