Penn v. State
51 So. 3d 622
Fla. Dist. Ct. App.2011Background
- Penn was convicted of third-degree grand theft and placed on 38 months probation.
- She disputed that she took $550 from a man after posing as a licensed accountant.
- Pretrial discussions suggested that the case would be resolved via pretrial intervention, not trial.
- Penn repeatedly expressed a desire to discharge her attorney, but the court did not hear a Nelson-type inquiry.
- Two Ohio-based witnesses were being flown in to testify at trial when the court failed to conduct a Nelson hearing.
- The trial judge did not allow Penn to present or articulate her dissatisfaction with counsel, effectively bypassing the required procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court committed structural error by not conducting a Nelson inquiry | Penn's counsel sought a Nelson hearing for discharge; error | State did not argue a formal discharge motion occurred | Reversed and remanded for new trial |
Key Cases Cited
- Torres v. State, 42 So.3d 910 (Fla. 2d DCA 2010) (Nelson inquiry steps required for discharge requests)
- Maxwell v. State, 892 So.2d 1100 (Fla. 2d DCA 2004) (per se reversal for failure to conduct Nelson inquiry)
- Morrison v. State, 818 So.2d 432 (Fla. 2d DCA 2002) (general dissatisfaction alone not enough to trigger Nelson)
- Tucker v. State, 754 So.2d 89 (Fla. 2d DCA 2000) (need an unequivocal request to discharge counsel)
- Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973) (premise for Nelson inquiry in counsel discharge)