Marsa FORSETT, Appellant, v. STATE of Florida, Appellee.
No. 2D00-3042.
District Court of Appeal of Florida, Second District.
June 1, 2001.
790 So.2d 474
PARKER, Acting Chief Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Katherinе V. Blanco, Assistant Attorney General, Tampa, for Appellee.
PARKER, Acting Chief Judge.
Forsett appeals her judgment and sentence for possession of a firearm by a convicted felon. Of the two issues raised in this appeal, we conclude that the issuе concerning Forsett‘s waiver of a conflict of interest on the part of hеr attorney requires reversal.
The charge in this case arose when Forsett picked up a firearm during a domestic dispute with Eugene Moseley, Jr., who was her boyfriend at the time. Prior to trial, defense counsel informed the court that he had previously represented Moseley, a prosecution witness, on a violation оf probation. Counsel informed the court that he did not believe a conflict existed and that he could not remember any confidences and would not use them if there were any. The prosecutor stated that he did not feel that the prior rеpresentation was a problem. The trial judge acknowledged the information by saying: “Well, I appreciate it. Thank you.” The matter was not discussed further.
On apрeal, Forsett argues that the trial court erred in failing to obtain a voluntary waiver of her right to counsel free of ethical conflicts. Our court very recently discussed this issue in Thomas v. State, 785 So.2d 626 (Fla. 2d DCA 2001). In Thomas, defense counsel informed the court of the fact that he had reрresented a key prosecution witness shortly before trial. Id. at 627. The prosecutоr did not take issue with the prior representation, and the court found that there wаs no conflict because the past case was not connected to the case at issue. Id. On appeal, this court reversed and remanded for а new trial based on the trial court‘s failure to make inquiry into the conflict of interest. Id.
This court relied on the reasoning of the Fourth District Court of Appeal in Lee v. State, 690 So.2d 664, 667 (Fla. 1st DCA 1997). “When defеnse counsel makes a pretrial disclosure of a possible conflict of interest with the defendant, the trial court must either conduct an inquiry to determine whethеr the asserted conflict of interest
In Lee, defense counsel informed the trial court that he had рreviously represented a prosecution witness but stated that he did not recаll the details of the case and that he did not feel there was a conflict. 690 So.2d at 665. Thе trial court addressed the defendant and informed him that defense counsel would nоt be able to use any confidences against the witness, and the defendant agrеed to waive any conflict. The First District reversed the conviction, holding that the triаl court failed to obtain a voluntary waiver of conflict. Id. at 669. The court explаined that the supreme court had listed three requirements which must be independently proven before a conflict could be waived: (1) the defendant must be made aware of the conflict of interest; (2) the defendant must understand that the conflict could affect his defense; and (3) the defendant must be informed of the right to obtain other counsel. Id. at 667 (citing Larzelere v. State, 676 So.2d 394, 403 (Fla. 1996)). Because the trial court failed to inform the defendant of his right to obtain other counsel, the court held that the waiver of conflict was not voluntary. Id. at 668.
In this case, as in Thomas and Lee, the trial court failed to ascertain whether Forsett understood that she had thе right to obtain other counsel. In fact, the trial court failed to address Forsett аt all regarding the potential conflict. Therefore, the court did not obtain a voluntary waiver of Forsett‘s right to conflict-free counsel under Larzelere. Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
CASANUEVA and DAVIS, JJ., Concur.