Taylor v. StateTaylor v. State
John Henry Taylor, Jr., appeals a final judgment adjudicating him guilty of first-degree felony murder.1 Of the several issues
Taylor was charged with first-degree murder of Terry Durham, and the court appointed a public defender to represent him. Five days before trial was to commence, Taylor‘s attorney filed a motion for continuance stating that he needed additional time to complete discovery and that Taylor would waive speedy trial upon the court‘s granting the motion. The attorney explained at a hearing on this motion that he needed the additional time to investigate a crucial change in the testimony of one of the state‘s key witnesses, LaPorshal Austin. The court recognized that Taylor opposed his attorney‘s motion for continuance and grantеd the motion against Taylor‘s wishes.
Subsequent to this hearing, Taylor, acting pro se, filed several pleadings and letters with the court requesting recusal of the trial judge on grounds of prejudice, appointment of a different attorney to represent him because the attorney then representing him had obtained a continuance оver his objection, and discharge of the charged offense on the ground that his right to a speedy trial had been violated. Taylor reiterated at a subsequent motion hearing that he did not want his court-appointed attorney to represent him any longer. The trial judge recalled at the hearing that he had granted the motion for сontinuance over Taylor‘s objection, and stated that, “in a sense I sort of crammed it down Mr. Taylor‘s throat, being continued even though he didn‘t want it.” The judge then told Taylor that he was “going to break the speedy trial rule.” At that time, the public defender moved to withdraw from representing Taylor, alleging an irreconcilable conflict with Taylor and a consequent duty to withdraw. Taylor again stated to the court that he wanted to fire the attorney, and stated that he understood that if the court granted his request, the case would have to be rescheduled for a date 6 months later. The court denied the attorney‘s request to withdraw and denied Taylor‘s motion that the attorney bе removed from his case. Taylor then sought to disqualify the presiding judge, asserting that the trial judge had stated in open court that he was going to “step down” from the case because he was prejudiced. The judge denied making the statement, accused Taylor of calling him a liar, and abruptly ended the hearing.
Taylor‘s appointed counsel subsequently filed an emergency motion for a temporary restraining order requesting that the court prohibit all parties from contacting witness LaPorshal Austin. The motion alleged, inter alia, that the prosecutor had violated
The case proceeded to a jury trial. Evidence was presented to establish that on
After the public defender‘s office filed an Anders brief on appeal, Taylor filed a pro se brief. He argued that he was deprived of due process by being convicted of a crime not charged, and that the state did not prove the felony-murdеr charge beyond a reasonable doubt. We affirm these issues without discussion. However, the newly-appointed public defender‘s brief presents five additional issues that require discussion.3
The first point raised in this brief argues that the trial court denied Taylor his constitutional right to a speedy trial when it granted his attorney‘s motion for continuancе over Taylor‘s own objections. We have found no Florida case determining whether a criminal defendant‘s right to a speedy trial4 is waived when the trial court, over the defendant‘s express objections, grants a continuance requested by the defendant‘s counsel on the ground that he is not prepared for trial. In State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977), the fourth district stated that the right to a speedy trial is waived when the defendant or his attorney requests a continuance. Abrams further states that the acts of an attorney on behalf of his client are binding on the client even if done against the client‘s wishes. 350 So.2d at 1105. This second statement is only dictum, however, because the facts recited in Abrams do not show that the continuance requested by the defendant‘s attornеy was obtained against the defendant‘s wishes. Rather, it appears that the defendant in Abrams did not assert a violation of the speedy trial rule until after the continuance had been obtained and the statutory speedy trial period had expired. Therefore, although Abrams contains a statement supporting the state‘s position that Taylor‘s right to a speedy trial was waived by his attorney‘s request fоr a continuance, that decision is not dispositive of the precise issue raised by this appeal.
Our research has revealed two out-of-state cases that address the narrow issue presented here. In Townsend v. Superior Court, 15 Cal.3d 774, 126 Cal. Rptr. 251, 543 P.2d 619 (1975), the supreme court of California held that a defendant‘s counsel effectively waived his client‘s statutory right to a sрeedy trial by obtaining continuances of the defendant‘s trial date over the defendant‘s specific objections. The court stated that the constitutional right to a speedy trial is “undeniably ‘as fundamental as any of the rights secured by the Sixth Amendment‘” and “counsel may not waive this constitutional right over his client‘s objections.” 126 Cal. Rptr. at 256, 543 P.2d at 624. However, the court distinguished the Sixth Amеndment right from the statutory implementation of the constitutional right requiring trial within 60 days and held that the latter “cannot properly be termed ‘fundamental’ ... and therefore beyond counsel‘s primary control.” Id. Noting that the case presented a confrontation between the “right to a speedy trial constitutionally guaranteed and statutоrily implemented,” and the right to competent, adequately prepared counsel, the court concluded that the defendant‘s right to be represented by counsel who was prepared for trial outweighed his right to have a trial
We adopt the rationale stated in Townsend and Carr. Here, appellant‘s counsel requested a continuance because one of the state‘s key witnesses, who had originally stated that she did not see the shooting, changed to a new story stating that she saw the shooting and that someone other than Taylor fired the shot. Taylor‘s counsel moved for a continuаnce on the ground that he needed time to pursue questions raised by this new story.
The brief next argues that the trial court erred in denying Taylor‘s motion for judgment of acquittal on the state‘s charge of robbery.5 It contends that the evidence showed Tаylor was attempting to obtain his own money from Durham at the time of Durham‘s death, and thus was insufficient to prove the crime of robbery. See Simkovitz v. State, 340 So.2d 959 (Fla. 3d DCA 1976) (essential element of crime of larceny is that property stolen must have been the property of one other than the thief). This argument is not persuasive for the following reasons. “Ownership,” as used in thе context of the crime of theft, is a term of art meaning any possession that is rightful as against a thief, and such element is satisfied by proof of temporary possession or control of the property taken or by proof of a custodial interest in that property. R.C. v. State, 481 So.2d 14 (Fla. 1st DCA 1985). In this case, evidence was presented that Taylor shot Durham while trying to force Durham to give him money that Durham supposedly owed him for selling fake cocaine. The evidence showed that the money Taylor forced from Durham at gun point was within Durham‘s custody, control, and temporary possession, and that Durham disputed Taylor‘s right to possess the money. This evidence was sufficient to satisfy the adverse ownership element of the crime of robbery. The trial court properly denied Taylor‘s motion for judgment of acquittal as to robbery.
The third point raised is that the trial court erred in denying Taylor‘s motion to have the trial judge recuse himself from the case. Contrary to the state‘s assertion, the record reflects that this motion was properly before the trial court for consideration. When a defendant files a motion for disqualification of a judge, that judge may determine only the legal sufficiency of the motion.
The fourth point raised argues that the trial court erred in failing to conduct an adequate inquiry into the prosecutor‘s subpoenaing and examining LaPorshаl Austin without notifying defense counsel. On the record before us we conclude that this occurrence constituted a clear breach of Florida Rule of Criminal Procedure 3.220(b)(3),6 and required the trial court to conduct an inquiry covering
at least such questions as whether the state‘s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it havе upon the ability of the defendant to properly prepare for trial.
Richardson v. State, 246 So.2d 771, 775 (Fla. 1971). The transcript of the hearing on Taylor‘s motions regarding this discovery violation reveals that none of the inquiries required by Richardson was conducted and contains no finding by the trial court as to whether the state violated
The fifth point argues that the trial court erred in failing to inform Taylor of his right to represent himself after Taylor moved to dischаrge his court-appointed counsel. In Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), approved, Hardwick v. State, 521 So.2d 1071 (Fla.), cert. denied, ___ U.S. ___, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988), the court stated that where a defendant makes it appear to the trial judge before trial that he desires to discharge his court-appointed counsel, the court is to inquire into the reason for the defendant‘s request and if such reason is incompetency, the trial judge is to makе a sufficient inquiry to determine whether there is reasonable cause to believe that the court-appointed counsel is not rendering effective assistance to the defendant. 274 So.2d at 258. Further,
if no reasonable basis appears for a finding of ineffective representation, the trial court should so state on the record аnd advise the defendant that if he discharges his original counsel the State may not thereafter be required to appoint a substitute.
274 So.2d at 258-259. In Chiles v. State, 454 So.2d 726 (Fla. 5th DCA 1984) the fifth district, when faced with a situation similar to the instant case, stated
If the judge concluded that no reasonable basis existed for a finding of ineffective assistance, he should have informed Chiles that if he discharged counsel, the state would not be required to appoint a substitute. See Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983). Had this procedure been followed and Chiles been advised that substitute counsel would not be appointed, he could have insisted on dismissal of Saunders [his court-appointed attorney] and chosen to exercise his right to represent himself provided his demand to do so was unequivocal.
454 So.2d at 726-727 (emphasis added).
In the case before us, the trial court mаde a sufficient inquiry into the reason Taylor desired to discharge his counsel and found that the attorney was rendering effective assistance in the case.7 However, a determination of competency of counsel does not fully satisfy the duties imposed on the trial court. The trial judge erred in failing to advise Taylor that his attornеy could be discharged but the state would not be required to appoint substitute counsel and that Taylor had the right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
REVERSED and REMANDED.
JOANOS and THOMPSON, JJ., concur.