555 So. 2d 929 | Fla. Dist. Ct. App. | 1990
Reynolds Brooks appeals his convictions for armed robbery, kidnapping with a weapon, burglary of an occupied conveyance with a weapon, and unlawful possession of a weapon while engaged in a criminal offense. Brooks argues that the trial court erred in failing to conduct an inquiry concerning his request to discharge his court-appointed counsel. We reverse.
In Hardwick v. State, 521 So.2d 1071 (Fla.), cert denied, — U.S. -, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988), the Florida Supreme Court approved the procedure set forth in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), to be applied when a defendant seeks to discharge court-appointed counsel:
If incompetency of counsel is assigned by the defendant as the reason, or a reason, the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare the defense. If no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record and advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.
Hardwick, 521 So.2d at 1074-75; see Johnston v. State, 497 So.2d 863 (Fla.1986) (trial court must examine defendant’s reasons to support motion for discharge of counsel
Here, appellant filed several written motions alleging conflict of interest and requesting dismissal of his counsel. The judge summarily denied the motions. Prior to the commencement of trial, defendant orally renewed the motion to dismiss counsel.
The state contends that the court was not required to conduct a hearing where defendant’s ground for dismissing counsel —counsel’s hostility toward him — was not related to attorney competence. In addition, the state points out that the court considered and denied defendant’s earlier motions to dismiss counsel, and argues that the court properly relied on its observations of defense counsel’s efforts in evaluating defendant’s motions. We disagree with these contentions for several reasons.
First, we reject the state’s assertion because defendant alleged not only that counsel was hostile, but also that he was ineffective.
Having decided that the court’s failure to conduct a hearing constituted error, we must determine whether the error was harmless. See Williams. “The state ... has the burden of proving ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the verdict.’ ” Ciccarelli v. State, 531 So.2d 129, 131 (Fla.1988) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986)). This court is required to reverse appellant’s convictions “unless the state can prove beyond a reasonable doubt that the error was harmless.” Ciccarelli, 531 So.2d at 131. Where the state does not present “a prima facie case of harmlessness in its argument the court need go no further.” Ciccarelli. Here, the state argues only that the trial court did not err. It does not argue that the error was harmless. Because we are unable to say that the error was harmless beyond a reasonable doubt, we reverse the conviction and remand for a new trial.
Reversed and remanded.
. Brooks also requested permission to act as co-counsel. The court granted him permission, but limited the extent of his participation. The court instructed Brooks to call to counsel’s attention any objection, and stated that the court would then discuss the matter outside the jury's presence. See Raulerson v. Wainwright, 732 F.2d 803 (11th Cir.1984); see also Frazier v. State, 453 So.2d 95 (Fla. 5th DCA 1984).
. Defendant stated: Mr. Carter here hasn’t presented me with any kind of effective counsel, legal counsel.
.The Court: What is the nature of the conflict? Do you have a conflict with your attorney or does he have a conflict with you?
The Defendant: I have a conflict with him. Undoubtedly he has one with me because nothing is getting done and I can’t see why I should continuously be held under conditions ... that I sustained injuries....
. Brooks’ assertion that his convictions and sentences for both armed robbery and display of a weapon while engaged in a criminal offense constitute an impermissible dual punishment for a single act is a correct statement of the law. Hall v. State, 517 So.2d 678 (Fla.1988).