
    Duanne EADY, Appellant, v. STATE of Florida, Appellee.
    No. 96-185.
    District Court of Appeal of Florida, First District.
    March 25, 1997.
    Rehearing Denied May 20, 1997.
    
      Nancy A. Daniels, Public Defender; Raymond Dix, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted by a jury of battery on a law enforcement officer. We affirm the conviction.

The State charged that Eady, an inmate in the Leon County Jail, attacked a corrections officer who came to Eady’s cell and told him it was time to go to court. Eady initially was represented by the office of the public defender on this charge, but, under circumstances that are not clear from the record, that office apparently withdrew and private counsel was appointed.

Several months prior to trial, appellant, dissatisfied with his appointed counsel, asked to have yet another lawyer appointed. After conducting an inquiry into the quality of counsel’s representation, the trial judge, the Hon. Nikki Ann Clark, ruled that such representation had been competent, informed appellant that a new lawyer would not be appointed for him, determined that Eady wanted to represent himself, and then conducted a hearing in conformity with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), State v. Cappetta, 216 So.2d 749, 750 (Fla.1968) cert. denied 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969), and Florida Rule of Criminal Procedure 3.111(d), after which she granted Eady’s request to represent himself.

Over the next several months, appellant filed motions for a continuance and to compel evidence. During a hearing, after which she had denied appellant’s motion for continuance, Judge Clark and appellant had the following exchange:

APPELLANT: So, what it boils down to, Ms. Clark, when you bring me back here and I go to yelling and screaming, are you going to take me out and put me back in jail?
THE COURT: Oh, you bet. If you are yelling and screaming, absolutely. I will not allow yelling and screaming in my courtroom.
APPELLANT: Well, I’m not going to trial. That is what it’s going to have to be.
THE COURT: Well, you may not yell and scream in my courtroom.

Appellant appeared for voir dire, but asked no questions of any potential juror, did not attend bench conferences, and told the court he would not participate. At trial, two days later, the trial court took up appellant’s motion for continuance, filed the day before, and the following exchange occurred outside the presence of the jury:

THE COURT: Is there anything further?
APPELLANT: No, there ain’t nothing further. I’m not going to trial and that is it.
THE COURT: Well, this motion for continuance is denied.
APPELLANT: You may tell your children what to do. You are not going to tell me what to do. You done sucked dick all your mother-fucking life. Now you want—
THE COURT: Well, having said all that, is there any reason I shouldn’t hold you in contempt of Court?
APPELLANT: You can do whatever you want to, but I’m not going to trial. You are not going to force me.

The court found appellant in contempt of court, sentenced him to six months in the Leon County Jail, and ordered him removed from the courtroom. After the judge announced a 15-minute recess, appellant said to her: “You can kiss my ass, you stinking bastard.”

After the recess, Judge Clark again asked appellant if he wanted a lawyer and took his silence as a negative answer. She also told appellant that disruptive behavior would not be tolerated, and if it ensued, “I will remove you from the courtroom and we will have this trial without you.” The following exchange occurred:

APPELLANT: Well, just do that. Just do that where I won’t have to disrupt, because that is I plan on doing, [sic]
THE COURT: If you choose to remove yourself from this trial, you have an absolute right to do that. That is your choice. You may leave.
APPELLANT: That is what I’m going to do.
THE COURT: Then I do want the record to reflect — before I’m willing to allow you to remove yourself voluntarily, I want you to state for the record that is what you want to do.
APPELLANT: What I’m going to state for the record is that I’m not prepared to go to trial and I’m not going to participate in any trial. So you can call it what you want to call it.
THE COURT: Well, you have a right to participate. You have a right to be present. And as long as you are acting right, you can stay and participate in this trial. But, if you act foolish and disruptive, you may not stay and participate in this trial.
And I consider your disruptive behavior a strategic move to grant your continuance, which I have already denied.

The trial court added that appellant could remain so long as he “exercises proper decorum.” She remarked: “However, I will not accept Mr. Eady’s strategic move in order to get another continuance in this case. So I do intend to continue.” The following exchange then occurred:

THE COURT: Anything further, Mr. Eady?
APPELLANT: Yes, you can take me out now.
THE COURT: Pardon me?
APPELLANT. They can take me out of here now.
THE COURT: No. I need you to stay.
APPELLANT: I am telling you, I’m not going to be a part of it.
THE COURT: You need to stay.

After the jurors were sworn, the judge, in her preliminary remarks to the jury, commented: “Mr. Eady has chosen to serve as his own attorney in this matter. That’s Mr. Eady’s constitutional right to represent himself.” Whereupon appellant remarked: “Mr. Eady has also chosen not to proceed with this trial today because I’m unprepared. And Nikki Clark and you can shove this trial up your ass.” The judge thereupon ordered appellant removed from the courtroom.

Appellant was out of the courtroom during the opening statement and during most of the direct examination of the first witness, the victim. He was returned so that the victim could identify appellant as his attacker. The following exchange occurred:

THE COURT: Mr. Eady, you have been removed from the courtroom because you were disruptive. I wanted to invite you again to participate in this trial.
APPELLANT: Your honor, don’t bother me no more. I don’t want to be here. All right. I done told you. Just leave me alone.
THE COURT: Hush. Just hush. No, don’t you leave. I need you to stay in here.
Let the jury come in. And as soon as the jury has a chance to see Mr. Eady, whisk Mr. Eady out of here because he doesn’t want to participate.
Bring the jury in, please.
You stop acting like that.
APPELLANT: You stink. This whole place sucks.
THE COURT: You better hush your mouth.
APPELLANT: This is my life.
THE COUET: It’s my court.
APPELLANT: You just run your court and leave me alone. You let white Frank Sheffield —
THE COUET: Mr. Eady, you cannot be disruptive in this courtroom. I’m going to ask the bailiff to remove you if you don’t hush.
APPELLANT: I told you I don’t want to keep coming back. Why you keep bringing me back?

After the in-court identification, appellant was removed from the courtroom without further comment, and was not returned. The judge remarked:

Now, I do want the record to reflect that I’m not going to ask Mr. Eady to come back in here because of his disruptive behavior. He has cussed at the Court on numerous occasions. He has cussed the jury more than once. He has been so wholly disruptive that I believe his presence is going to thwart justice. And, for that reason, I’m not going to inquire any further if Mr. Eady wants to participate in this trial. I’m going to consider his disruptive behavior a voluntary removal and no participation in this trial.

Appellant did not return to the courtroom and the jury found him guilty as charged. Appellant twice represented himself at sentencing hearings, stating that he did not want to be represented by an attorney.

Eady now claims that the trial court erred regarding his self-representation. We reject his arguments (1) that the Faretta inquiry was inadequate, (2) that the offer of new counsel was not renewed at each stage of the proceedings, (3) that his removal from the courtroom violated his constitutional right to representation, and (4) that the totality of the circumstances demands reversal. Only the third issue merits discussion.

It is settled law that a criminal defendant, “so long as he is mentally competent and sui juris,” has a constitutional right to represent himself. Kearse v. State, 605 So.2d 534, 538 (Fla. 1st DCA 1992) rev. denied 613 So.2d 5 (Fla.1993); see, also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), State v. Cappetta, 216 So.2d 749, 750 (Fla.1968) cert. denied 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969). It also is settled that such a right, once properly invoked and granted, may be waived. See, e.g., Kearse; Myles v. State, 582 So.2d 71 (Fla. 3d DCA 1991), quashed on other grounds, 602 So.2d 1278 (Fla.1992).

In this instance, appellant, by asking to be removed from the courtroom and not to be returned, explicitly waived his right to participate in his trial. Moreover, it is apparent from the record that he did so deliberately in a calculated, if unsuccessful, effort to achieve a delay. It also is strongly inferential that by engaging in unprovoked obstreperous and insulting conduct that was certain to result in his removal from the courtroom, he was attempting to goad Judge Clark into committing reversible error.

Far from finding error, we applaud Judge Clark’s restraint in dealing with a defendant who used language that is vile even by today’s relaxed standards, and who attempted to manipulate the legal system by abusing procedures that were established to protect the interests of citizens charged with crimes. In State v. Roberts, 677 So.2d 264 (Fla.1996), the supreme court recently held that strict application of such procedures should be avoided when to do so would produce an “absurd result” and would reward a defendant who was attempting to “ ‘frustrate orderly proceedings_ ’” 677 So.2d at 265, 266; quoting Jones v. State, 449 So.2d 253, 257 (Fla.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

While we acknowledge that such an extraordinary circumstance as occurred here is undesirable, the situation was of appellant’s own making. We find it significant that, other than to maintain that the trial court did not follow proper procedures regarding self-representation, he does not argue that his non-participation during voir dire was a deprivation of any constitutional right. There is no functional difference, however, between a defendant who announces he will not participate and then sits mutely at the counsel table, and one who is not present in the courtroom because of his own improper conduct.

While in the proper instance it may be the more prudent practice for the judge to appoint “standby counsel” to step in if the defendant cannot continue representing himself, it is not constitutionally required. Jones v. State, 449 So.2d at 257; see, also Behr v. Bell, 665 So.2d 1055 (Fla.1996). In Behr the supreme court stated that the office of public defender could be appointed to serve this function, and suggested that instances such as this one were the only times in which that procedure should be followed. In this instance, however, appellant had already, in his words, “got rid of’ his public defender prior to having outside counsel, and had no right to have another lawyer appointed, so standby counsel was not an available option.

Appellant, faced with a virtually defenseless ease, concocted a trial “strategy” of attempting to delay his trial. Just as the state cannot impose legal counsel upon a competent defendant, it likewise cannot dictate what tactics and stratagems a pro se defendant should employ. Appellant’s absence from the courtroom was, in effect, the final part of his trial strategy, and he must now live with the consequences.

MINER and MICKLE, JJ., concur.

WEBSTER, J., dissents with opinion.

WEBSTER, Judge,

dissenting.

I share the majority’s view that appellant’s conduct in the trial court was reprehensible. I also share the majority’s view that the trial judge is to be commended for the patience and dignity with which she responded to appellant’s conduct. However, I am unable to agree that no reversible error occurred. Accordingly, respectfully, I dissent.

As the majority opinion reflects, appellant was initially represented by the public defender’s office. For reasons that are not clear from the record, the public defender was permitted to withdraw, and private counsel was appointed to represent appellant. That attorney requested that appellant be examined to determine whether he was competent to proceed. The psychologists who examined appellant both concluded that he was competent to proceed. However, both noted that appellant had previously been found incompetent, and committed to a mental institution for several months, based upon a diagnosis of paranoid schizophrenia.

Appellant requested that the attorney appointed to represent him be discharged, and that another be appointed, because the attorney was not providing him with satisfactory representation. At the hearing on the motion, appellant expounded at some length on the reasons why he felt that he was not receiving effective assistance from his attorney. After listening to appellant, and to his attorney’s response, the trial judge found that appellant had received competent assistance from counsel, and told appellant that another attorney would not be appointed. The record then reflects the following colloquy between the trial judge and appellant:

THE COURT:.... [Y]ou have a couple of choices here.... If you want to discharge Mr. Sheffield and proceed on your own, then that’s something that I will consider. Is that what you want to do?
THE DEFENDANT: No, I want to discharge Mr. Sheffield and I want me a competent attorney, and I’m going to get me another attorney if I get rid of Sheffield.
THE COURT: Do you want to represent yourself?
THE DEFENDANT: I can’t represent myself. Frank Sheffield is not going to represent me.
THE COURT: Then I’m not going to allow you to discharge Mr. Sheffield unless you tell me you want to represent yourself, but I’m not going to appoint a new attorney to represent you.
THE DEFENDANT: What you’re trying to do is make me say to the Court that I find — I just want to represent myself.
THE COURT: That’s what I’m telling you. I’m not trying to get you [to] say that.
THE DEFENDANT: ... I want him off my ease. He’s not going to represent me. I don’t care if I rot in jail a thousand years, he’s not going to represent me, and you can’t make him represent me.
THE COURT: You want to represent yourself?
THE DEFENDANT: Just let me represent myself. Just get him off my ease.
THE COURT: You want to represent yourself?
THE DEFENDANT: Yeah, I want to represent myself.
THE COURT: How old are you, Mr. Eady?
THE DEFENDANT: I’m 35.
THE COURT: How far did you go in school?
THE DEFENDANT: I finished school. I’ve got a diploma.
THE COURT: Have you ever gone to law school?
THE DEFENDANT: No.
THE COURT: Do you have any special training in how to represent yourself?
THE DEFENDANT: I would like for you to uphold my civil rights. I’m indigent, and I have a right to have a lawyer and if I don’t want a lawyer I don’t want to have him. So all the rest of that — if I’m not competent to do whatever, I can write you a motion.
THE COURT:.... It’s not the safest thing in the world to go to trial without an attorney. I mean, if my ear breaks down and I am driving down the street and a mechanic comes by and wants to fix it, and I say no, I’ll fix it myself and my car blows up a block later, I have nobody to blame but myself.
You understand what I’m saying? I’m going to suggest that you keep Mr. Sheffield because you don’t have [a] right to have the attorney of your choice. But if you’re telling me that you want to represent yourself, I want to make sure that you’re doing that freely and that you know what you’re doing.
THE DEFENDANT: Yeah, I’m going to represent myself for the courts — before the courts. I want me another lawyer.
THE COURT:.... I’m not giving you another lawyer.
THE DEFENDANT: All right.
THE COURT: Now, if you represent yourself, you understand the Court is not going to be able to help you during your trial. It will be just you, and you have to examine your witnesses and cross examine the witnesses and present opening argument and closing argument. You understand all that?
THE DEFENDANT: Yeah, I understand that.
THE COURT: All right. Mr. Eady, I’m not going to grant any further continuances, and you’re going to represent yourself and I’m not going to help you. You understand that, don’t you? And since you don’t have the right to another attorney, I’m going to allow you to represent yourself.

No additional questions were asked of appellant regarding the matter of self-representation.

Florida Rule of Criminal Procedure 3.111(d)(2) states that no waiver of the right to counsel shall be accepted until a “thorough inquiry has been made into ... the accused’s capacity to make an intelligent and understanding waiver”; and rule 3.111(d)(3) requires that, in determining whether the accused possesses the “capacity to make an intelligent and understanding waiver,” the trial court must inquire about such matters as the accused’s “mental condition, age, education, experience [and] the nature or complexity of the case.” This rule was adopted “[t]o implement” the decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). State v. Young, 626 So.2d 655, 656 (Fla.1993). In Faretta, the Court said:

When an accused manages his own defense, he relinquishes ... many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego those relinquished benefits_ Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”

422 U.S. at 835, 95 S.Ct. at 2541 (citations omitted).

I am of the opinion that the Faretta inquiry conducted by the trial judge was inadequate. The only questions asked related to appellant’s age and education. The trial judge was also aware of appellant’s mental condition, although she apparently gave no weight to the fact that appellant was suffering from paranoid schizophrenia, and had previously been found to be incompetent. No effort was made to ascertain appellant’s previous contacts with the criminal justice system and, more particularly, his previous experience with felony proceedings. Moreover, other than the rather curious attempt to draw an analogy by reference to the repair of a broken-down car, the trial judge made no effort to warn appellant of the overwhelming dangers of self-representation, the seriousness of the charge against him or the potential sentence he might face if found guilty. See Taylor v. State, 610 So.2d 576 (Fla. 1st DCA 1993), and eases cited therein. I am unable to find in the record any indication that appellant comprehended either the significance of his decision or the magnitude of the task that he would be taking on. Therefore, I conclude that the record does not demonstrate the required “intelligent and understanding waiver” by appellant of his right to counsel.

The fact that, as the majority suggests, appellant may have deliberately pursued such a course, hoping to delay the proceedings or to create error, does not excuse the failure to conduct a proper Faretta inquiry. In State v. Young, 626 So.2d 655 (Fla.1993), the court was presented with precisely that issue. It held that, notwithstanding a deliberate attempt by a defendant “to frustrate and delay the trial” (id. at 656), an intelligent and voluntary waiver of the right to counsel may not be presumed absent a proper Faret-ta inquiry. Moreover, the failure to perform a proper Faretta inquiry constitutes per se reversible error — i.e., it is not subject to a harmless error analysis. Id. at 657.

I am also of the opinion that reversible error occurred when appellant’s trial took place in his absence, and without anyone present to represent him. The trial judge was certainly justified in ordering appellant removed from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).. However, at that point, appellant’s interests were left completely unrepresented. That could easily have been avoided. In Faretta, the Court said that “the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct,” and that “a State may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46 (citations omitted). See also Jones v. State, 449 So.2d 253, 257 (Fla.1984) (approving trial court’s decision to appoint standby counsel, over defendant’s objection, who might “represent defendant in the event it became necessary to restrict or terminate self-representation by shackling and gagging defendant or by removing him from the courtroom”). Had the trial judge availed herself of one of these options when it became apparent, prior to trial, that appellant was not going to cooperate in any way, the problem could have been avoided and appellant’s rights preserved. It seems to me that what occurred here violates fundamental concepts of justice in our society and, therefore, requires reversal notwithstanding appellant’s obstructive conduct. 
      
      . Appellant’s appointed trial counsel.
     
      
      . Our examination of the record discloses no error in the trial and no attempt by the prosecution to take advantage of appellant's absence. In fact the judge suggested that one member of the jury, who had friends in law enforcement and who had previously been a military policeman, be excused for cause. The State had no objection, and appellant’s only contribution was to reiterate that he did not wish to participate in voir dire.
     
      
      . He apparently told his appointed counsel that he attacked the guard because he did not want to go to court and because the guard "was invading his space.”
     