DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ASHLEY NICOLE MCKENZIE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D20-453

[December 2, 2020]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Robert E. Belanger, Judge; L.T. Case No. 

562013CF002593AXXXX.

Carey Haughwout, Public Defender, and Claire Victoria Madill, 

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. 

Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant challenges the trial court’s order revoking her probation and 

entering a judgment of conviction for driving under the influence with 

priors, for which she was sentenced to four years in prison. She makes 

multiple claims, none of which merit reversal. The State concedes, 

however, that the written order of revocation must be corrected as it

includes findings of acts of violation for which no evidence was presented. 

We thus affirm, but remand for correction of the order revoking probation.

Appellant was charged in 2012 with driving under the influence which 

was raised to a third-degree felony because of two prior convictions. She 

entered a no contest plea and was sentenced to some jail time plus 

probation. While on probation, she was arrested for a DUI in Texas and 

subsequently convicted of the crime. This triggered the filing of an affidavit 

of violation of probation in Florida in 2018, and appellant was extradited 

from Texas to face the charges. Subsequently, the State filed an amended 

affidavit in 2019 charging appellant with other violations of probation, 
2

including failing to pay court costs, failing to pay costs of supervision, and 

failing to comply with instructions.

Appellant was represented by an assistant public defender. After 

several continuances, the final hearing was set for February 2020. At 3:32 

p.m., the day before the hearing, a private attorney entered her notice of 

appearance on behalf of appellant. The attorney also filed a “notice of 

conflict” and motion to continue the hearing, stating that she would be out 

of the jurisdiction of the court for the next day’s hearing. The private 

attorney sought a continuance. The public defender moved to withdraw 

because of representation by the private attorney.

On the same date, the court denied the continuance after considering 

that the motion to continue was filed the day before the hearing and that 

the case had already been continued multiple times at the behest of the 

defense. However, it noted that counsel must be present so that the court 

could make findings regarding the circumstances. The court also noted 

that the right to counsel must not be used to delay or subvert judicial 

proceedings, citing several cases including Foster v. State, 704 So. 2d 169, 

173 (Fla. 4th DCA 1997). As a result, private counsel moved to withdraw, 

which the court granted.

At the hearing the next day, the public defender raised the continuance 

issue. She noted that appellant had expressed dissatisfaction with her, 

but that she had no good faith basis for requesting a continuance as she 

was prepared for the hearing. The public defender then sought a Nelson1

hearing, but the trial court noted that no motion had been filed for such 

an inquiry. Appellant was allowed to “air her grievances” against the 

public defender, which centered on her claims that the public defender 

failed to do any work on her case, failed to return phone calls, and 

attempted to force her into accepting a plea offer. The court then stated 

that to the extent this was a Nelson hearing, the issues appellant raised 

were not enough to show ineffective assistance of counsel. The court also 

colorfully explained what any attorney representing her would face:

As far as what counsel might do, whether it’s Miss Canty or 

Miss Hogan, they have to play . . . the cards you dealt them. 

And a lot of times in a VOP where you’re on probation, felony 

supervision and there’s no doubt you’re on felony supervision 

and you commit a new crime and you’re actually sentenced 

on the new crime and the State has a certified copy of the 

conviction, which occurred after you were placed on 

1 Nelson v. State, 274 So. 2d 256, 259 (Fla. 4th DCA 1973).
3

probation, you’ve essentially dealt them a royal flush and you 

dealt Miss Hogan two pair and you’re saying Miss Hogan 

should be bluffing more or Miss Hogan should be . . . putting 

in more chips. And the same with Miss Canty. Miss Canty 

would play the exact same hand you dealt her. I don’t find 

any basis to discharge the Public Defender’s Office who has 

been and remains attorney of record.

The court then reiterated its reasons for denying the motion to continue 

the case because of the last minute attempt to switch to private counsel. 

It noted that there had been five continuances. Further, the notice and 

motion filed by private counsel did not state that counsel had a conflict, 

just that she would be out of the jurisdiction of the court. Because the 

private attorney’s office was in Broward County, she was out of the 

jurisdiction but without an actual conflict. The court made the finding 

that the motion to continue was made in bad faith or as a delay tactic.

The judge also found that appellant would not suffer prejudice as a result 

of the denial because of the state of the case:

As far as prejudice goes, it doesn’t matter if I continue this

case and she hired a phalanx of six private attorneys, at the

end of the day, she’s gonna say she was placed on probation,

[the probation officer] instructed her, there’s a Probation

Order in the file, there’s a certified copy of a judgment for a

crime she committed while she’s on felony supervision, so we

can—we can find that out today or we can find it out six

months from now with a different set of attorneys. But there’s 

virtually no prejudice because this is what it is and it will

never change, it will always be what it is.

The hearing then proceeded with the presentation of the probation 

officer who testified that she personally instructed appellant on the 

conditions of her probation, the terms of which the court took judicial 

notice. The State moved into evidence, without objection, a certified copy 

of the Texas judgment and conviction for DUI. The State concluded its 

case, and the public defender offered no evidence.

The court found appellant in violation of the condition that the 

probationer live without violating the law by committing a new crime, 

which the court found to be the most important of the conditions of 

probation. Noting that the standard of proof in a violation of probation 

proceeding was the greater weight of the evidence, the court found that the 

State more than met its burden.
4

While appellant scored 30.4 points and her lowest permissible sentence 

was any nonstate prison sanction, the court sentence her to four years, 

giving her the benefit of the State’s prior plea offer. Appellant appeals the 

judgment and sentence.

Appellant argues that she was deprived of her Sixth Amendment right 

to counsel of her choice when the trial court denied her motion for 

continuance to allow her private attorney to appear. She did not mention 

the Sixth Amendment at trial, but the continuance was requested to 

secure counsel of her choice. In any event, the court did not abuse its 

discretion in denying the motion for continuance made the afternoon of 

the day before trial.

A denial of a motion for continuance to obtain new counsel is reviewed 

for an abuse of discretion. Alvarez v. State, 75 So. 3d 420, 422 (Fla. 4th 

DCA 2011). A defendant’s right to counsel of his or her choice is not 

absolute, and a court’s consideration of any continuance should balance 

the defendant’s right with consideration of the impact on the 

administration of justice. Id. Any denial of a continuance to obtain new 

counsel must be based upon an adequate inquiry into the circumstances 

with findings to assure that the defendant’s constitutional rights were not 

being deprived. Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA 2014). 

Factors relevant to that inquiry include whether the motion is made in bad 

faith or for the purposes of delay; whether it would prejudice the State; 

and whether the court’s schedule would permit a continuance. Id.

In this case, the court made an adequate inquiry and articulated 

findings which clearly support its decision to deny the motion for 

continuance. The court found that the motion was in bad faith or for the 

purposes of delay, as five continuances has been requested for various 

reasons. The court found that appellant would not be prejudiced because 

of the narrow issue before the court, which required only the proof of the 

probation conditions and that appellant had subsequently been convicted 

of another crime. Furthermore, the public defender stated that she was 

prepared for the hearing.

We have frequently addressed this issue. In Tyler v. State, 945 So. 2d 

662, 663-64 (Fla. 4th DCA 2007), we noted:

This and other appellate courts have made clear that they will 

not permit the right to counsel to be used “for the sake of 

arbitrary delay or to otherwise subvert judicial proceedings.”

Foster v. State, 704 So. 2d 169, 173 (Fla. 4th DCA 1997) (citing 

Holley v. State, 484 So. 2d 634, 636 (Fla. 1st DCA 1986)).
5

“Judges must be vigilant that requests for appointment of a 

new attorney on the eve of trial should not become a vehicle 

for achieving delay.” Id.

Accord Jackson v. State, 979 So. 2d 442, 445 (Fla 4th DCA 2008); Hurtado 

v. State, 760 So. 2d 279, 280 (Fla. 4th DCA 2000); Foster, 704 So. 2d at

172–73. Although many of these cases reversed denials of motions for 

continuances to obtain new counsel, they did so because the trial court 

made no findings that the motion was made in bad faith or for delay. Here, 

in contrast, the court made that finding.

Perhaps the case most on point to this fact situation is Bowman v. 

United States, 409 F.2d 225 (5th Cir. 1969), cited with approval in Foster. 

There, a defendant was being represented by court-appointed counsel. Id. 

at 226. On the morning of trial, the court received a letter requesting a 

meeting in chambers. Id. At that meeting, attended by the prosecutor and 

the defendant, the defendant for the first time expressed dissatisfaction 

with his counsel, contending that counsel was not spending enough time 

on the case. Id. Defendant sought a continuance to obtain new counsel.

Id. The trial court determined from counsel that he was indeed prepared 

to try the case and denied the continuance. Id. The appellate court 

affirmed, noting:

We and other courts of appeals have repeatedly made clear 

that the right to counsel ‘cannot be * * * manipulated so as to 

obstruct the orderly procedure in the courts or to interfere 

with the fair administration of justice.’ Judges must be 

vigilant that requests for appointment of a new attorney on 

the eve of trial should not become a vehicle for achieving delay.

Id. at 226–27 (quoting United States v. Llanes, 374 F.2d 712, 717 (2d Cir. 

1967)). Similarly, in this case, appellant raised dissatisfaction of counsel 

for the first time on the morning of the hearing. The trial court made 

sufficient inquiry and determined that the motion to continue was in bad 

faith or for the purpose of delay. The trial court did not abuse its discretion 

in denying the motion for continuance.

Appellant also contends that the court failed to follow the proper Nelson

procedures for an inquiry where a defendant seeks to discharge counsel. 

However, a Nelson inquiry is required only where a defendant is seeking to 

discharge counsel and to obtain new court-appointed counsel. See Jackson 

v. State, 979 So. 2d 442, 444 (Fla. 4th DCA 2008); Foster, 704 So. 2d at 

172. Here, as in Jackson and Foster, appellant did not request new courtappointed counsel but sought to be represented by private counsel.
6

In another attack on the proceedings at trial, appellant contends that 

the court prejudged her case and that this court should remand for 

proceedings in front of another judge. Because this issue was not raised 

below, we would have to find fundamental error to reverse. Mansueto v. 

State, 148 So. 3d 813, 815 (Fla. 4th DCA 2014). We find no error, 

fundamental or otherwise, in the court’s comments. The court did not 

show predisposition when it rightly noted that the case was 

straightforward, requiring proof of the probation order and a certified copy 

of the Texas judgment. It simply noted “we can find that out today or we 

can find it out six months from now with a different set of attorneys.” That 

statement was not a predisposition to rule against appellant but to explain 

what proof would be presented.

The remaining issues which claim to be errors as to the finding of 

violation were not preserved and, in any event, were not error.

Appellant also claims that her scoresheet included 1.6 points for the 

Texas conviction as part of a “prior record.” We agree that this was error. 

Section 921.0021(5), Florida Statutes (2018), defines “prior record” as “a 

conviction for a crime committed by the offender, as an adult or a juvenile, 

prior to the time of the primary offense.” (Emphasis added). Upon 

revocation of probation, “[s]entences imposed after revocation of probation 

or community control must be imposed according to the sentencing law 

applicable at the time of the commission of the original offense.” Fla. R. 

Crim P. 3.704(d)(31). “To be scored as prior record the offense must have 

been committed prior to the commission of the primary offense.” Sanders 

v. State, 35 So. 3d 864, 871 (Fla. 2010).

Here, the primary offense was the 2012 Florida DUI conviction. The 

Texas conviction occurred well after the primary offense. Therefore, for 

purposes of the scoresheet those points should not have been included as 

a prior record. Id.

Nevertheless, a scoresheet error is harmless where “the record 

conclusively shows that the trial court would have imposed the same 

sentence using a correct scoresheet.” Brooks v. State, 969 So. 2d 238, 241 

(Fla. 2007). A review of the sentencing convinces us beyond any doubt 

that the court would have imposed the same sentence in this case.
7

We find no merit in appellant’s claim that the court considered an 

improper factor—namely incapacitation—in sentencing her.2 While the 

prosecutor argued that because of appellant’s many DUI convictions she 

was a danger and incarceration was necessary to protect the public, the 

trial court did not make any statement regarding protection of the public. 

But, even if the court had, such a consideration would have been entirely 

proper. See State v. Brewer, 767 So. 2d 1249, 1253 (Fla. 5th DCA 2000)

(Harris, J., concurring) (explaining that the four penological goals in 

sentencing are: retribution, deterrence, incapacitation and rehabilitation);

Charles v. State, 204 So. 3d 63, 66-67 (Fla. 4th DCA 2016) (collecting cases 

that discuss legitimate sentencing considerations, including 

incapacitation and protection of society). Protecting society is a legitimate 

consideration in sentencing.

Finally, as the State concedes, the written order of revocation must be 

amended to reflect that the court found appellant in violation only for 

committing the new law offense. We agree and remand for the trial court 

to strike the findings for violation of condition (1), which the court 

dismissed at the hearing. The court did not find violations of the remaining 

conditions, and no evidence was presented as to these: condition (5) (to 

the extent that this violation was based upon the illegal consumption of 

alcohol); both findings as to condition (2); condition (10); condition (3);

condition (4); and condition (7). Therefore, they also must be stricken from 

the order of revocation.

As to any remaining issues not specifically addressed in this opinion, 

we affirm.

Affirmed but remanded to correct order of revocation.

LEVINE, C.J., and ARTAU, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2 We consider this issue preserved, because the rule 3.800(b)(2) motion filed 

during the pendency of this appeal included this argument.