Greenwood v. State

Aug 12, 1998
97-2666
Versions:720 So. 2d 548
1998 WL 466780

Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant‘s conviction and sentence, finding that the trial court did not err in failing to conduct a proper Nelson1 inquiry because appellant neither made an unequivocal request to discharge court appointed counsel, nor stated that incompetency was the basis for his unhappiness with counsel. See Woody v. State, 698 So.2d 391, 391 (Fla. 4th DCA 1997). Moreover, appellant proceeded to trial with his counsel and made no attempt to dismiss him or request self-representation. See Davis v. State, 703 So.2d 1055, 1058-59 (Fla.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 2327, 141 L.Ed.2d 701 (1998). Finally, his claim that the trial court erred in failing to advise him of his right of self-representation after it had found that his appointed counsel was rendering effective representation is without merit, as the supreme court has found no such obligation on the part of the trial court. See Watts v. State, 593 So.2d 198, 203 (Fla.), cert. denied, 505 U.S. 1210, 112 S.Ct. 3006, 120 L.Ed.2d 881 (1992).

With respect to his sentence, we affirm appellant‘s due process challenge to section 921.001(5). See Gardner v. State, 661 So.2d 1274, 1276 (Fla. 5th DCA 1995). Secondly, we affirm the length of his sentence based on Mays v. State, 23 Fla. L. Weekly S387, 717 So.2d 515 (Fla. 1998). Although the written judgment of sentence does not conform to the oral pronouncement, no motion to correct the sentence was filed. See Fla.R.Crim.P. 3.800(b). The issue is thus not preserved for appeal. See Fla.R.App.P. 9.140(d); Hyden v. State, 23 Fla. L. Weekly D1342, 715 So.2d 960 (Fla. 4th DCA 1998).

DELL, WARNER and KLEIN, JJ., concur.

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