IN THE SUPREME COURT OF FLORIDA CASE NUMBER D.C.A. CASE NO RONALD LEE CRAIG, Petitioner, THE STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NUMBER D.C.A. CASE NO RONALD LEE CRAIG, Petitioner, v. THE STATE OF FLORIDA, Respondent. *********************************************************** ON PETITION FOR DISCRETIONARY REVIEW *********************************************************** BRIEF ON JURISDICTION OF PETITIONER J. RAFAEL RODRIGUEZ Specially Appointed Attorney for Ronald Lee Craig LAW OFFICES OF J. RAFAEL RODRIGUEZ 6367 Bird Road Miami, Florida (305) (305) (FAX)

2 TABLE OF CONTENTS TABLE OF CITATION OF AUTHORITIES......iii Page(s) INTRODUCTION STATEMENT OF THE CASE.2 QUESTIONS PRESENTED... 5 WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL IS IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT HOLDING THAT A NELSON HEARING IS NOT APPLICABLE WHERE DEFENDANT S LAWYER WAS NOT COURT-APPOINTED (I) SUMMARY OF ARGUMENT....6 ARGUMENT CONCLUSION CERTIFICATE OF SERVICE APPENDIX ii

3 TABLE OF CITATION OF AUTHORITIES Cases Page(s) Branch v. State, 685 So.2d 1250 (Fla. 1997)..5,6,7,8,10 Comer v. State, 730 So.2d 769 (Fla. 1 st DCA 1999).8 Hardwick v. State, 521 So.2d 1071 (Fla. 1988) 6 Jenkins v. State, 385 So.2d 1356 (Fla. 1980) 7 Lockett v. State, 547 So.2d 1292 (Fla. 5 th DCA 1989). 7 McLain v. State, 343 So.2d 939 (Fla. 2d DCA 1977)...7 Myers v. Fla. Parole & Probation Comm., 705 So.2d 1000 (Fla. 4 th DCA 1998).7 Nelson v. State, 274 So.2d 256 (Fla. 4 th DCA 1973).6 Stallworth v. Moore, 827 So.2d 974 (Fla. 2002)...7 Stevenson v. State, 843 So.2d 1044 (Fla. 2d DCA 2003)..7 Constitution Article V, Section 3(b)(3), Florida Constitution..6,7 Statute Section , Florida Statutes Section (4), Florida Statutes Section (1)(a)1, Florida Statutes...2 Section (1), Florida Statutes...2 iii

4 Section (1), Florida Statutes... 2 Rule Rule 9.030(a)(2)(iv), Florida Rules of Appellate Procedure..6 iv

5 IN THE SUPREME COURT OF FLORIDA CASE NUMBER D.C.A. CASE NO RONALD LEE CRAIG, Petitioner, v. THE STATE OF FLORIDA, Respondent. *********************************************************** ON PETITION FOR DISCRETIONARY REVIEW *********************************************************** BRIEF ON JURISDICTION OF PETITIONER INTRODUCTION Petitioner was the Defendant in the trial court and Respondent, the State of Florida, was the prosecution. The parties will be referred to as they stood in the lower court. The symbol "R" will designate the record on appeal, "SR" will designate the supplemental record on appeal, and "T" will designate the trial transcript. The symbol "A" will be used to designate the appendix to this brief. 1

6 STATEMENT OF THE CASE On December 15, 2000, an information was filed against Defendant in Circuit Court Case No , charging Defendant with possession with intent to sell, manufacture or deliver cocaine, in violation of (1)(a)1, Florida Statutes, and giving a false name or false means of identification upon arrest, in violation of Section (1), Florida Statutes. (R. 9-12). Defendant entered a plea on the information and was placed on a one year probationary term. (R ). On May 15, 2001, an affidavit of violation of probation was filed against Defendant, alleging an offense of possession of cocaine. (R ). On June 13, 2001, an additional affidavit of violation of probation was filed against Defendant, alleging offenses of aggravated stalking and assault. (R. 27). On June 28, 2001, an information in this case was filed against Defendant in Circuit Court Case No , charging Defendant with one count of aggravated stalking, in violation of Section (4), Florida Statutes [Count 1]; four counts of violation of injunction against domestic violence, in violation of Section , Florida Statutes [Counts 2 thru 5]; and one count of tampering with a witness, victim or informant, in violation of Section (1), Florida Statutes [Count 6]. (R ). On September 17, 2001, Defendant entered a nolo contendere plea on all six counts. The court sentenced Defendant to two (2) years community control on the felony counts and suspended entry of sentence on the misdemeanor counts. (R. 235; R ; R ). 2

7 Defendant also entered an admission to the affidavit of violation of probation in Case No (R ). The court placed Defendant on the same two-year term of community control imposed in Case No The circuit court revoked the probation imposed in Case No (R. 31). Defendant did not appeal from the judgment and conviction entered in Case No On October 22, 2001, an affidavit for violation of community control was filed against Defendant. The affidavit alleged that on October 20, 2001, Defendant violated his community control by committing an act of aggravated stalking, by violating a domestic violence injunction, by failing to remain confined to his approved residence, by failing to follow his community control schedule and by failing to stay away from the victim, Emily Anderson. These violations resulted in his arrest in Circuit Court Case No (R ; R ). On April 14, 2003, the court conducted a hearing on the community control violation. The Court announced it was not violating Defendant s community control on allegation K4, which alleged that Defendant violated community control by aggravated stalking and by violating a domestic violence injunction. (R. 33; R. 201). The Court did announce Defendant violated his community control by failing to remain in his residence. (R. 201). At the conclusion of the hearing, the court found that Defendant violated his community control by failing to remain confined to his approved residence on October 20, 2001, at 12:52, by failing to keep to his home schedule, and 3

8 by failing to stay away from the victim, Emily Anderson, by having contact with her, as alleged in allegations 1A, 1B and 1.7, respectively. (R. 33; R ). On September 29, 2003, October 20, 2003, and October 27, 2003, the court conducted a competency hearing on Defendant. (1SR: 2SR; 3SR). At the onset of the hearing on September 29 th, the court denied Defendant s request for a Nelson inquiry. (1SR. 3-6; 4SR.). 1 Following the competency hearing, the court found that Defendant was competent. (3SR. 12). On December 5, 2003, the court conducted a sentencing hearing on Defendant s case. The court sentenced Defendant on the revocation of his community control to ten (10) years imprisonment on Counts 1 and 6 of the underlying information in Circuit Court Case No (R. 110; R ). This sentence was concurrent with Circuit Court Case No (R. 8; R. 237; R. 286). Defendant appealed. On appeal, Defendant raised two issues, claiming the court erred in not conducting a Nelson inquiry and abused its discretion in revoking Defendant s community control. On January 25, 2006, the Third District Court of Appeal found no merit to Defendant's contention that the trial court abused its 1 The circuit court struck Defendant s pro se post-conviction relief motion claiming his attorney, Mr. Gerson, was ineffective for not arguing his underlying probation case. The court reasoned that Mr. Gerson could not be ineffective because he was not Defendant s counsel on the original case. (5SR.) At Defendant s sentencing hearing, Mr. Gerson acknowledged that Defendant had filed a motion against him. (R. 113). 4

9 discretion in denying his motion for a Nelson hearing, noting that he was represented by privately retained counsel. The appellate court cited to this Court s opinion in Branch v. State, 685 So.2d 1250, 1252 (Fla. 1996). [Appendix 1-2]. The Court also found no merit to Defendant s remaining challenges to the revocation of community control. The Court, however, did remand the case to the trial court solely for the entry of a written order of revocation in accordance with its oral pronouncements. Defendant filed a motion for clarification and/or motion for certification of a question of great public importance, on grounds that the record reflected that Defendant himself was indigent and that his family, who had originally retained trial counsel, was no longer paying for the services of trial counsel. (2SR. 3-4; 2SR. 28; 3SR. 13). On March 7, 2006, the Third District Court of Appeal denied Defendant's motion for clarification and/or motion for certification of a question of great public importance. [Appendix 3] QUESTION PRESENTED WHETHER THE DECISION OF THE DISTRICT COURT OF APPEAL IS IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT HOLDING THAT A NELSON HEARING IS NOT APPLICABLE WHERE DEFENDANT S LAWYER WAS NOT COURT-APPOINTED (I) 5

10 SUMMARY OF ARGUMENT The decision of the district court of appeal is in direct conflict with the decision of this Court holding that a Nelson hearing is not applicable where the defendant s lawyer was not court-appointed. The decision of the Third District is in direct and express conflict with the decision of this Court in Branch v. State, 685 So.2d 1250 (Fla. 1996) because the appellate court did not take into consideration the fact that although Defendant s counsel was originally retained by his family, the lawyer was no longer being paid and Defendant had nothing to do with his retained representation. Article V, Section 3(b)(3), Florida Constitution; Rule 9.030(a)(2)(iv), Florida Rules of Appellate Procedure. ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IS IN DIRECT CONFLICT WITH THE DECISION OF THIS COURT HOLDING THAT A NELSON HEARING IS NOT APPLICABLE WHERE DEFENDANT S LAWYER WAS NOT COURT-APPOINTED (I) The trial court erred in failing to conduct a proper and complete Nelson 2 inquiry when Defendant lodged complaints about his attorney. This Court has jurisdiction to review decisions of the district courts of appeal which directly conflict 2 Nelson v. State, 274 So.2d 256 (Fla. 4 th DCA 1973), adopted by Hardwick v. State, 521 So.2d 1071 (Fla. 1988). 6

11 with decisions of this Court. Article V, Section 3(b)(3), Florida Constitution. Defendant submits that the district court s opinion below conflicts with this Court s decision in Branch, supra, because the district court did not take into consideration the fact that Defendant s counsel, originally retained by his family, was no longer being paid and Defendant had nothing to do with his retained representation. 3 The trial court conducted an insufficient hearing on Defendant's complaints concerning his attorney. Although Mr. Gerson was privately-retained, the record shows that Defendant s family had paid him for his representation and that Defendant himself had nothing to do with his retainer. (2SR. 3-4; 2SR. 28). Defendant informed the court during the competency hearing that Mr. Gerson was the family lawyer, and stated: I ain t got no money to pay him. (2SR. 28). Mr. Gerson presented a motion for indigent costs before the court. (3SR. 13). Indeed, Mr. Gerson informed the court during the proceedings that the family had run out of money because the case had taken so much time. (2SR. 4). Under these circumstances, it is apparent that Defendant was indigent and could not afford to pay for an attorney; that 3 Of course, the decision below is not an unelaborated per curiam decision, which would normally not be subject to discretionary review. See Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980); Stallworth v. Moore, 827 So.2d 974, (Fla. 2002). The district court s decision upholding the revocation of community control, moreover, is in conflict with the decisions of other district courts of appeal on the issue of whether an arrest alone is a sufficient basis to revoke community control. See, e.g., McLain v. State, 343 So.2d 939 (Fla. 2d DCA 1977); Lockett v. State, 547 So.2d 1292 (Fla. 5 th DCA 1989); Myers v. Fla. Parole & Probation Comm., 705 So.2d 1000 (Fla. 4 th DCA 1998); Stevenson v. State, 843 So.2d 1044 (Fla. 2d DCA 2003). See Article V, Section 3(b)(3), Florida Constitution. 7

12 Defendant s family was no longer able to pay for the services of an attorney; and that Defendant was requesting court-appointed counsel to substitute for Mr. Gerson. As such, a Nelson inquiry was appropriate. 4 Compare Branch v. State, supra, at 1252 (Nelson inquiry not required where counsel was privately retained and defendant was not seeking to discharge counsel). See also Comer v. State, 730 So.2d 769, 772 (Fla. 1 st DCA 1999)(Nelson inquiry not required where defendant indicated his family was financially able to hire other counsel). In the present case, Defendant filed a Motion to Conduct Nelson Hearing. (4SR.) In his motion, Defendant asserted that his attorney, Mr. Paul Gerson, failed to conduct and maintain meaningful communication or consultation concerning the legal theory of the defense to be developed and used in Defendant s case. (4SR. 1). Defendant claimed that Mr. Gerson failed to adopt Defendant s motion claiming ineffective assistance of counsel at his original plea, and that Mr. Gerson failed to argue that Defendant could not comprehend the nature and consequences of his plea on the original case due to the psychotropic medication Defendant was taking. (4SR. 1). Defendant also maintained that Mr. Gerson failed to acknowledge receipt of Defendant s correspondence; failed to keep Defendant reasonably informed on the 4 Notably, Defendant had been represented by an assistant public defender on the underlying community control cases. (R. 1; R. 234; R. 268). Additionally, Defendant was appointed counsel after his sentencing (R. 4; R. 50; R ; R. 241), and was deemed insolvent for purposes of appeal after his sentencing. (R. 288). The trial court did not decline to conduct a Nelson inquiry on the basis that Mr. Gerson was privately retained. 8

13 case; and deliberately misinformed Defendant and Defendant s family and exhibited a hostile attitude toward Defendant. (4SR. 1-2). Defendant also averred that Mr. Gerson had not provided copies of the court s rulings as requested and copies of the motions filed on behalf of Defendant. (4SR. 2). In addition, Defendant stated that Mr. Gerson had failed to be honest on matters pertaining to the case and strategy planning. (4SR. 2). As relief, Defendant requested a Nelson Hearing and an order dismissing Mr. Gerson as his attorney and an opportunity to obtain non-hostile counsel. (4SR. 3). 5 Rather than take the opportunity to question Defendant and Mr. Gerson about the complaints, the trial court simply found that the allegations were insufficient. Indeed, the court informed Mr. Gerson that Defendant did not want to fire him. In reality, Defendant had stated unequivocally in his motion that he wanted an order dismissing Mr. Gerson as his attorney and an opportunity to obtain non-hostile counsel. Defendant wanted to terminate his contract with Mr. Gerson. Defendant s requests could not be clearer. Mr. Gerson had not had an opportunity to look at Defendant s motion and informed the court that if, in fact, Defendant was firing him, he would move to withdraw from the case. Without much explanation, the court stated it would not grant a motion to withdraw even if you file it. (1SR. 6). 5 In his motion, Defendant expressed a desire to terminate the contract he had with Mr. Gerson in order to prevent any further hostility that would undermine his chance for proper representation. (4SR. 2). 9

14 Based on the foregoing, it is clear that a conflict exists between the decision of the Third District Court of Appeal in this case and the decision of this Court in Branch v. State, 685 So.2d 1250 (Fla. 1996). The court below has taken a position directly at odds with this Court's precedent and warrants discretionary review. CONCLUSION For the foregoing reasons, Petitioner requests this Court to grant discretionary review in this cause. Respectfully submitted, LAW OFFICES OF J. RAFAEL RODRIGUEZ 6367 Bird Road Miami, FL (305) (305) (FAX) By: J. RAFAEL RODRIGUEZ FLA. BAR NO CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to Thomas C. Mielke, Esq., Office of the Attorney General, 444 Brickell Avenue, Suite 950, Miami, FL 33131, on this day of April, J. RAFAEL RODRIGUEZ 10