DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

GIBSON PAUL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D11-2420

[October 15, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Karen Miller, Judge; L.T. Case No. 11CF001695AMB.

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public 

Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, 

Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his convictions and sentences for first degree 

murder with a firearm, aggravated assault with a firearm, shooting into an 

occupied vehicle, and possession of a firearm by a convicted felon.1 He 

raises three issues on appeal. We affirm on all, but write to discuss his 

argument that the court erred in restricting his use of standby counsel.

The charges arose out of an altercation between the defendant and one 

of the victims. The defendant shot and killed the victim in her car, and 

shot another victim. The details of the incident are irrelevant to the issue 

to be addressed.

1 The defendant was also charged with aggravated battery with a firearm, but was 

acquitted on that charge.
2

Pre-trial Hearings

Prior to trial, the defendant was assigned a public defender. Conflicts 

arose between them about how to proceed with the case. The main 

disagreement involved the defendant’s desire to expedite the case for trial. 

While represented, the defendant filed a pro se demand for speedy trial,

which his counsel moved to strike. The defendant then decided to 

represent himself and discharged his counsel.2

After discharging counsel, the defendant again demanded speedy trial. 

Noting that it was his choice, the judge asked the defendant whether he 

thought “it would be beneficial to give [himself] an opportunity to do some 

discovery?” The defendant declared he was ready and had demanded 

speedy trial months ago. The court set the trial with the assigned public 

defender appointed as standby counsel.

At a subsequent hearing before trial, the judge conducted a Faretta3

hearing and explained the defendant’s right to have an attorney represent 

him, and the benefits of having an attorney. Because of their ongoing 

disagreement, standby counsel moved to withdraw:

And Judge, I understand why we are appointed. It’s to assist 

the Court. So I don’t want the Court to think that I am not 

trying to help out with that. I just feel that we were – the 

Public Defender’s Office, we withdrew the last time Mr. Paul 

wanted to represent himself, so the Public Defender’s Office 

withdrew but the Court appointed myself as standby counsel 

which the Court has discretion to do. I just feel – but the 

purpose of that would be to kind of help the process move 

along.

The judge responded, “No, the purpose of standby counsel is if this 

gentleman ever has an epiphany during the course of the trial, someone is 

available to step in at that moment and say okay, I will finish this trial. 

That’s what it would be for.” Standby counsel then explained that he 

would not be able to resume the trial for the defendant should the 

defendant decide to let him take over: “We would not be prepared to go to 

trial. I would waive speedy trial if I were to take over and properly work 

up this case like it should be.” The judge then asked the defendant:

2 The trial judge transferred the case to the Mental Health Division for a 

competency determination before proceeding. The defendant was found

competent to proceed.

3 Faretta v. California, 422 U.S. 806 (1975).
3

THE COURT: [A] lot of people think it’s helpful to do discovery 

in order to prepare for a trial, do you agree with that?

THE DEFENDANT: Yes, ma’am. I went through all of my 

discovery. I done went through my whole case.

THE COURT: Okay. And you are good to go with whatever 

you have, that’s your position?

THE DEFENDANT: Yes, ma’am.

The defendant decided that he did not want his public defender as 

standby counsel: “I don’t want him to standby. I don’t need him standing 

by no one. Period. I don’t know why he is in the Courtroom today anyway.” 

The court granted standby counsel’s motion to withdraw, but before doing 

so, the court found that standby counsel was an experienced criminal 

defense attorney:

THE COURT: And that is at the Defendant’s specific request 

that you not even have standby counsel. Is that what you are 

asking for, sir?

THE DEFENDANT: I asked for co-counsel.

THE COURT: Well, you’re not a lawyer so you can’t have cocounsel.

THE DEFENDANT: If I request to discharge my counsel, why 

would you have him as standby?

THE COURT: In the event that you change your mind and 

you don’t want to represent yourself as a pro se non-lawyer.

THE DEFENDANT: That won’t happen.

Trial and Verdict

On the first day of trial, the court conducted another Faretta hearing, 

reviewing the defendant’s highest level of education, whether he was under 

the influence of drugs or alcohol, and whether he had ever been declared 

incompetent. The court again emphasized the benefits of having an 

attorney. After a brief recess, the court conducted yet another Faretta

hearing. The defendant stated that he wanted to represent himself.
4

At this point, the elected Public Defender for the Circuit intervened. 

She advised the court that she had spoken with the defendant and told 

him that if he wanted standby counsel, it would be the assigned public 

defender because no one else knew anything about the case. The 

defendant then decided that he did, in fact, want standby counsel. The 

court reappointed the same public defender as standby counsel.

The defendant conducted his own opening statement, with the State 

lodging an objection after his first sentence. The defendant responded, 

“I’m going to need more time.” The court reminded the defendant that he 

had demanded a speedy trial and it was time for opening statement.

After the defendant cross-examined the first witness, the court held a 

sidebar with the State and the defendant. While it is unclear from the 

record, it appears that the defendant began consulting with standby 

counsel:

THE COURT: Mr. [Paul], you are entitled to represent 

yourself. You are entitled to have standby counsel. You don’t 

have anything in the middle. So if and until you elect to bring 

[your standby counsel] back on board, you can’t consult back 

and forth. He’s either in or off, so do you want him to 

represent you?

THE DEFENDANT: I got the names confused of the officers.

THE COURT: Well, I don’t know what to help you with. You 

can either be represented by an attorney or not.

THE DEFENDANT: So, what, waive my trial? Is it going to 

waive?

THE COURT: That witness has gone. Whether you want to 

call him back, that’s up to you, but you can’t straddle the 

fence. You either have [standby counsel] or you don’t. He is 

not consulting with you. I’m going to have him sit in the back 

of the courtroom up until the time—

THE DEFENDANT: If I say I want an attorney, I go stop?

THE COURT: No.

THE DEFENDANT: That’s what I thought. I was going to 

continue my trial if I bring him on I thought, that’s what I 
5

thought.

THE COURT: You want [standby counsel] to assist you or 

not?

THE DEFENDANT: Yes, ma’am.

THE COURT: You do or you do not?

THE DEFENDANT: Yes, ma’am.

THE COURT: Okay. [Standby counsel].

[STANDBY COUNSEL]: If that—this is what I talked about last 

week.

THE DEFENDANT: I want to continue.

[STANDBY COUNSEL]: In order for me to properly represent 

Mr. Paul, work has to be done, we have to take depositions.

THE COURT: That’s not the way it’s going to work. Mr. Paul 

made the decision, he has been in court every single time. We 

have gone through the colloquy. We talked about the 

education, the fact that he reads, writes English. We talked 

about the pros of having a lawyer, couldn’t really think of any 

pros of him representing himself. I advised him all along that, 

yes, he understands that question every time he comes into 

court, yes, he understands. We have had it three times today, 

yes, I understand that. Then if at any point Mr. Paul changes 

his mind, you step in, you go forward. Mr. Paul has created 

this situation.

[STANDBY COUNSEL]: I understand that, Judge. I am not 

trying to argue with the Court. I am in no position to take 

over a first degree murder. I have had the case six weeks. I 

am not in a position to effectively represent Mr. Paul in going 

forward right now.

The defendant requested to have his standby counsel represent him.

Standby counsel immediately moved for a mistrial reiterating that he 

was unprepared. The judge denied the motion. Standby counsel then 

requested a continuance until the next morning, to which the State 
6

objected due to witnesses who had travelled to be at trial that day. The 

court denied the motion for continuance. The trial continued with standby 

counsel now representing the defendant.

After the State presented the testimony of another witness, standby 

counsel again moved for mistrial, “I am not prepared to effectively crossexamine this particular witness.” The trial court denied the motion. At 

the end of the first day, standby counsel again moved for mistrial:

THE COURT: Do you have any type of authority that would 

support that the fact that this gentleman has been through 

umpteen Faretta hearings, has always said – even went so far 

as to say that he didn’t even want you involved as standby 

counsel. He’s been evaluated to see whether he’s competent. 

He’s competent, it’s his choice. He can make his choice, he 

made it, so this is the position that he’s in. We are going to 

go forward. I’m not frustrated or anything with you. I 

understand you are laying a record. This is the position that 

Mr. Paul has found himself in based on the decision that Mr. 

Paul has made throughout the course of these proceedings.

[STANDBY COUNSEL]: It’s just a matter of Defense being 

prepared for trial, that’s all. I’m being ineffective.

THE COURT: Well, I don’t think that the ineffective—the fact 

that Mr. Paul elected to discharge his lawyer, demand a 

speedy trial, go to trial without having any discovery, that’s 

his choice, because we had multiple, multiple Faretta

hearings. And, in fact, when he filed the Nelson hearing 

because you said you wanted to take the time to prepare for 

the case, I didn’t even let him have the Nelson hearing until 

he was evaluated to see whether or not he was competent.

Whether it’s a good decision or bad decision to represent 

himself, that is a decision that he’s entitled to make and he 

made that.

On the second day of trial, standby counsel renewed his motion for 

mistrial:

[STANDBY COUNSEL]: The Defense got appointed with no 

preparation done in this case whatsoever. Yesterday I was 

cross-examining witnesses I don’t even know who they are.

THE STATE: Judge, I think this was not unexpected, and the 
7

defendant put himself in this position by demanding speedy 

trial, by asking to represent himself and by having the trial 

started, and even one or two witnesses, I don’t remember how 

many already testified, by the time, he has now decided to 

have a lawyer. So because he has put himself in this position, 

he is not entitled to change the way that the Court is able to 

administer justice by asking for a continuance, trying to 

establish error. So we would object to any motion for mistrial 

being granted.

The court denied the motion.

After the State rested, standby counsel moved for a judgment of 

acquittal arguing that the State failed to make a prima facie case. The 

judge denied the motion. The defendant briefly testified that he was 

already out of state when the shooting occurred. Standby counsel again 

moved for a judgment of acquittal. The judge denied the motion.

The jury found the defendant guilty of first degree murder with a 

firearm, aggravated assault with a firearm, shooting into an occupied 

vehicle, and possession of a firearm by a felon. The court sentenced the 

defendant to life in prison on the murder charge.

4

On appeal, the defendant argues that the trial court misunderstood the 

role of standby counsel and erred in not allowing him to ask questions or 

otherwise communicate with his standby counsel. He contends that,

because of the court’s improper restriction, he was forced to give up his 

constitutionally guaranteed right to represent himself. The State responds

that the trial court clearly advised the defendant of the reason she was 

appointing standby counsel, which she had the discretion to do, and that 

this issue is not preserved and is based on speculative grounds.

Preservation

A defendant must preserve issues for appellate review by first raising 

them in the trial court. Harrell v. State, 894 So. 2d 935, 939 (Fla. 2005). 

Here, the defendant did not object to the trial court’s restriction on his 

access to standby counsel. In fact, on more than one occasion, the 

4 The court also sentenced the defendant to twenty consecutive years for the 

aggravated assault with a firearm charge, fifteen consecutive years for the 

shooting into an occupied vehicle charge, and fifteen years for the felon in 

possession of a firearm charge, with a three year minimum mandatory to run 

concurrent with the murder charge.
8

defendant discharged standby counsel. This claim is therefore

unpreserved for our review. See McKenzie v. State, 29 So. 3d 272, 283 

(Fla. 2010) (finding the defendant’s claim that the trial court improperly 

restricted his access to standby counsel was unpreserved because 

defendant failed to object on those grounds).

Even if the defendant had challenged the restricted use of standby 

counsel, we see no error in the trial court’s appointment of standby 

counsel for the purpose of conducting the trial should the defendant 

change his mind about his representation. We review trial court decisions 

regarding the right to self-representation for an abuse of discretion. Neal 

v. State, 60 So. 3d 1132, 1134–35 (Fla. 4th DCA 2011).

The Role of Standby Counsel

With some limitation, a defendant in a criminal trial has the right to 

self-representation. Faretta v. California, 422 U.S. 806, 834 (1975). A

defendant who decides to represent himself bears the entire responsibility 

for his defense, even if he is appointed standby counsel. Behr v. Bell, 665 

So. 2d 1055, 1056–57 (Fla. 1996).

A defendant has no constitutional right to standby counsel. Jones v. 

State, 449 So. 2d 253, 258 (Fla. 1984). And the trial court has the 

discretion to appoint standby counsel. Id. No defendant has a

constitutional right to “hybrid representation.” Sheppard v. State, 17 So. 

3d 275, 279–80 (Fla. 2009).

A criminal defendant is entitled to change his mind regarding selfrepresentation, but it is “implicit in Faretta that the right to appointed 

counsel, like the obverse right to self-representation, is not a license to 

abuse the dignity of the court or to frustrate orderly proceedings, and a 

defendant may not manipulate the proceedings by willy-nilly leaping back 

and forth between the choices.” Brown v. State, 45 So. 3d 110, 115–16 

(Fla. 1st DCA 2010) (quoting Jones, 449 So. 2d at 259). In fact, standby 

counsel’s role has been described as “assist[ing] the court in conducting 

orderly and timely proceedings.” Behr, 665 So. 2d at 1056.

The Supreme Court of the United States touched upon the role of 

standby counsel in both Faretta and McKaskle v. Wiggins, 465 U.S. 168 

(1984). In Faretta, the Court recognized that a trial court may “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. In McKaskle, the Court further explained:
9

A defendant’s Sixth Amendment rights are not violated when 

a trial judge appoints standby counsel—even over the 

defendant’s objection—to relieve the judge of the need to 

explain and enforce basic rules of courtroom protocol or to 

assist the defendant in overcoming routine obstacles that 

stand in the way of the defendant’s achievement of his own 

clearly indicated goals. Participation by counsel to steer a 

defendant through the basic procedures of trial is permissible

. . . .

McKaskle, 465 U.S. at 184.

Our supreme court discussed standby counsel in State v. Knight, 866 

So. 2d 1195 (Fla. 2003). There, the state appealed an order vacating a 

death sentence and granting the defendant a new sentencing proceeding. 

Id. at 1198. The defendant cross-appealed and filed a petition for writ of 

habeas corpus, asserting five claims of ineffective assistance of appellate 

counsel. Id. at 1203. One of those claims was the failure to raise any 

issues regarding the limitation on his use of standby counsel during the 

trial. Id.

The court reviewed the transcript and found that the defendant 

specifically refused assistance of standby counsel and “wanted to make 

sure that there was no insinuation or appearance that [standby counsel]

was in any way acting as his counsel.” Id. at 1205. The court found it 

clear that the defendant did not want it to appear that he had acquiesced 

to the limited role that his standby counsel performed. Id. The court 

denied the petition. Id. at 1210.

Similarly here, the defendant refused standby counsel and, in fact, had 

discharged his lawyer before and after his lawyer was appointed as 

standby counsel. “I don’t want him to standby. I don’t need him standing 

by no one. Period. I don’t know why he is in the Courtroom today anyway.” 

We fail to see how any limitation on the use of standby counsel can now 

be argued when the defendant made clear that he did not want standby 

counsel.

We acknowledge the herculean effort of the public defender to help this 

defendant before and during the trial. At every turn, the public defender 

gave sage advice to forgo a demand for speedy trial, to properly prepare for 

trial, and undertake discovery. Unfortunately, that advice went unheeded 

by the defendant.

We also acknowledge the patience and diligence of the trial judge to 
10

insure the defendant was competent, aware of the advantages of having 

counsel and the disadvantages of representing himself, and give him 

multiple opportunities to reconsider his decision. In the end, the 

defendant chose to represent himself. The outcome was not unexpected. 

Given the defendant’s choice, which is guaranteed by the Constitution, we 

see no error in the court’s handling of standby counsel or any of the other 

issues raised.

Affirmed.

CIKLIN, J., concurs specially with opinion.

LEVINE, J., concurs specially with opinion, in which CIKLIN, J., concurs.

LEVINE, J., concurring specially.

I concur because there is no evidence in the record that the trial court’s 

statements or actions actually prevented appellant from consulting with 

standby counsel. However, I write to emphasize that the trial court defined 

the role of standby counsel too narrowly by highlighting only one of the 

two purposes for appointing such counsel as enunciated by the United 

States Supreme Court.

As quoted by the majority, the trial court stated that standby counsel 

had only one purpose. During a pretrial hearing, the trial judge said, “No, 

the purpose of standby counsel is if this gentleman ever has an 

epiphany during the course of the trial, someone is available to step in at 

that moment and say okay, I will finish this trial. That’s what it would 

be for.” (emphasis added). The trial court later reiterated this during the 

trial when it informed appellant that he could either represent himself or 

have standby counsel fully represent him, but could not “have anything in 

the middle.” The court told appellant, “[I]f and until you elect to bring 

[counsel] back on board, you can’t consult back and forth,” and that 

“[y]ou either have [counsel] or you don’t. He is not consulting with you. 

I’m going to have him sit in the back of the courtroom up until the 

time . . . .” (emphasis added). At that point, appellant stated that he 

wanted counsel to represent him. Appellant’s counsel moved for a mistrial 

several times based on his unpreparedness and alternatively requested a 

continuance, but the trial court denied all his requests. It is clear that the 

trial court felt that appellant could either have the standby counsel 

represent him as his counsel or have standby counsel on standby and not 

consult or speak with appellant.

In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme 

Court recognized the role of standby counsel. “Of course, a State may—
11

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 selfrepresentation is necessary.” Id. at 834 n.46 (emphasis added) (citing 

United States v. Daugherty, 473 F.2d 1113, 1124–26 (D.C. Cir. 1972)).

In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Supreme Court 

further explained the purposes and functions of standby counsel. The 

court stated that standby counsel could assist “the pro se defendant in 

overcoming routine procedural or evidentiary obstacles to the completion 

of some specific task, such as introducing evidence or objecting to 

testimony, that the defendant has clearly shown he wishes to complete.” 

Id. at 183. Further, standby counsel may help the “defendant’s 

compliance with basic rules of courtroom protocol and procedure,” as well 

as “steer a defendant through the basic procedures of trial.” Id. at 183–

84. See also United States v. Bertoli, 994 F.2d 1002, 1018–19 (3d Cir. 

1993) (“Essentially, standby counsel has two purposes—to act as a safety 

net to insure that the litigant receives a fair hearing of his claims and to 

allow the trial to proceed without the undue delays likely to arise when a 

layman presents his own case. Alternately, we can identify at least four 

functions that standby counsel can serve: (1) Standby counsel must be 

available if and when the accused requests help. (2) Standby counsel must 

be ready to step in if the accused wishes to terminate his own 

representation. (3) The court may appoint standby counsel in order to 

explain and enforce the basic rules of courtroom protocol to the accused. 

(4) The court may appoint standby counsel in order to overcome routine 

obstacles that may hinder effective pro se representation.”) (citations 

omitted).

Of course, “Faretta does not require a trial judge to permit ‘hybrid’ 

representation” nor is standby counsel constitutionally required. 

McKaskle, 465 U.S. at 183. However, where the trial court appoints 

standby counsel, it needs to be mindful of the two objectives and roles of 

standby counsel as referenced in Faretta and McKaskle: one, to aid the 

accused if and when the accused requests help; two, to be available to 

represent the accused when the accused withdraws his right to selfrepresentation.

Clearly, standby counsel is envisioned as having a greater role than 

merely being silent at the back of the courtroom ready to participate, if 

and only when the defendant acquiesces to waiving his right to selfrepresentation and allowing standby counsel to take over as counsel. 

Because this is what the trial court here proposed, I find the court was too 

narrow in its construct of standby counsel. Nevertheless, although implied 
12

in the record, there is no evidence that the court actually prevented 

appellant from speaking with standby counsel. Thus, I concur and write 

only to highlight that once standby counsel is appointed, a trial court 

should not prevent a defendant from seeking the aid and assistance of 

standby counsel to “explain and enforce the basic rules of courtroom 

protocol” and to overcome “routine procedural or evidentiary obstacles” 

that “may hinder effective pro se representation” such as introducing 

evidence or objecting to testimony. Bertoli, 994 F.2d at 1019; see 

McKaskle, 465 U.S. at 183; Faretta, 422 U.S. at 834 n.46.

CIKLIN, J., concurring specially.

I also write separately to caution readers of this opinion that the 

majority opinion does not either expressly or impliedly affirm or in any way 

endorse the trial court’s apparent suggestion that—once a trial judge 

exercises his or her discretion to appoint standby counsel—the court may 

then attach a metaphorical asterisk by imposing limitations on the 

defendant’s access to his attorney’s advice and counsel.

As a trial judge for over fourteen years, I can appreciate the trial court’s

exasperation quite understandably caused by the maddening 

indecisiveness of the defendant—perhaps even bordering on an intentional 

manipulation of the proceedings. Indeed, this is one of those situations 

that best demonstrates the exceedingly difficult job of a Florida trial judge. 

A truly wonderful, rewarding, and gratifying occupation indeed but one 

which can also cause many a sleepless night and test the patience and 

stamina of even the most Job-like jurist.

Because it is not clear from the record that the defendant actually tried 

to consult with standby counsel, I concur with the majority and affirm the 

conviction.

And I wholeheartedly join with Judge Levine in offering a cautionary 

warning to our trial court colleagues.

* * *

Not final until disposition of timely filed motion for rehearing.