# Third District Court of Appeal

State of Florida

Opinion filed July 13, 2016.

Not final until disposition of timely filed motion for rehearing.

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No. 3D13-3178

Lower Tribunal No. 12-20107

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### Karaka Andreau Campbell

,

Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Victoria R.

Brennan, and Marisa Tinkler-Mendez

, Judges.

Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant

Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Brent J. Kelleher

, Assistant

Attorney General, for appellee.

Before ROTHENBERG, LAGOA, and SALTER, JJ.

LAGOA, J.Karaka Andreau Campbell (“Campbell”) appeals from the trial court’s order

denying his pro se motion for a Nelson 1 hearing as legally insufficient. While we

agree that the trial court erred in failing to conduct a preliminary Nelson inquiry

and denying Campbell’s motion in chambers, we nonetheless affirm as Campbell’s

claim became moot when he accepted new counsel prior to trial. Sweet v. State

,

624 So. 2d 1138 (Fla. 1993). Accordingly, we affirm the trial court’s order.

I. FACTUAL & PROCEDURAL HISTORY

The State charged Campbell with two counts of burglary of an occupied

dwelling stemming from an August 11, 2012, incident where he attempted to enter

automobiles parked on private property. On June 24, 2013, Campbell filed a

motion for a Nelson hearing, seeking to discharge his assistant public defender,

Akivia Bassaragh (“Bassaragh”), and have new counsel appointed. The motion

reads in full as follows:

Comes now Karaka Campbell, defendant, pro se, pursuant to the Sixth

Amendment to the United States Constitution and moves the court for

a Nelson Hearing an [sic] determination considering ineffective

assistance of counsel. In support thereof defendant states the

following:

(1) That trial counsel has failed to protect defendants [sic] procedural

safeguards and constitutional rights by failing to investigate and assert

plausible lines of defenses to wit:

Counsels [sic] waiver and failure to file a motion to dismiss pursuant

to Fla. R. Crim. P. 3.191(c)(4) [sic]. 2

1 Nelson v. State

, 274 So. 2d 256 (Fla. 4th DCA 1973).

2 Rule 3.191(c)(4) does not exist.

2(2) That defendant has standing to move for dismissal of charges and

counsel’s failure to timely file the 3.191(c)(4) [sic] motion is

considered a waiver.

Wherefore defendants [sic] prays the court will conduct a Nelson in

order to determine whether counsel has waived rights afforded to him

and whether counsels [sic] representation is in accordance with the

Sixth Amendment to the U. S. Constitution.

On June 28, 2013, the trial court denied Campbell’s motion for a Nelson

hearing in chambers as “legally insufficient.” During the five-month period

between the denial of Campbell’s motion and the start of Campbell’s trial,

Bassaragh conducted discovery and filed pretrial motions on Campbell’s behalf,

including a demand for speedy trial in both August 2013 and November 2013. 3 On

December 3, 2013, the first day of Campbell’s trial, assistant public defenders

Robert Valdes (“Valdes”) and Elsa Hernandez (“Hernandez”) replaced Bassaragh

and represented Campbell during his trial and subsequent proceedings. Notably,

Campbell proceeded to trial without voicing any objection to Valdes or Hernandez.

A jury found Campbell guilty of both counts of burglary and Campbell was

sentenced to fifteen years and one day in state prison. This appeal followed.

II. ANALYSIS

Campbell asserts that the trial court’s summary denial of his motion for a

Nelson hearing as legally insufficient is per se reversible error. Specifically,

3 Campbell was represented by assistant public defender Julia Izquierdo, rather

than by Bassaragh, at hearings held on September 9th and 10th, 2013.

3Campbell claims that his motion presents a legally sufficient claim of ineffective

assistance of counsel that the trial court was obligated to investigate. We review

whether a trial court conducted an adequate Nelson

inquiry for an abuse of discretion. Generally, the trial

court’s ruling may also be reviewed to determine whether

the error was harmless. However, a court’s failure to

conduct any preliminary Nelson hearing is per se error

such that a harmless error test does not apply.

Torres v. State

, 42 So. 3d 910, 912 (Fla. 2d DCA 2010) (citations omitted).

In Hardwick v. State

, 521 So. 2d 1071, 1075 (Fla. 1988), the Florida

Supreme Court adopted Nelson as the proper standard when a defendant maintains

that appointed counsel is ineffective and requests that new counsel be appointed.

Nelson requires that

where a defendant

. . . makes it appear to the trial judge

that he desires to discharge his court appointed counsel,

the trial judge, in order to protect the indigent’s right to

effective counsel, should make an inquiry of the

defendant as to the reason for the request to discharge.

Nelson

, 274 So. 2d at 258.

The mere expression of a desire to discharge appointed counsel necessitates

an inquiry “as to the reason for the request to discharge.” Id. ; see also Marti v.

State

, 756 So. 2d 224, 229 (Fla. 3d DCA 2000) (“Clearly, Nelson contemplates an

immediate dialogue with a defendant who makes the motion.”). Where the reason

for the desired discharge is counsel’s alleged incompetence, the court “should

make a sufficient inquiry of the defendant and his appointed counsel to determine

4whether or not there is reasonable cause to believe that the court appointed counsel

is not rendering effective assistance to the defendant.” Nelson

, 274 So. 2d at 259.

“It is at this point that the extent of the inquiry will be governed by the specificity

of the defendant’s claim as to his lawyer’s incompetence.” Marti

, 756 So. 2d at

229 (citing Lowe v. State

, 650 So. 2d 969 (Fla. 1994)). Significantly, however, a

trial court need not make a Nelson inquiry where a defendant merely expresses

dissatisfaction with his attorney or makes generalized complaints about defense

counsel’s trial strategy. Morrison v. State

, 818 So. 2d 432, 440 (Fla. 2002). 4

In the present case, Campbell took issue with the fact that his public

defender had not filed a motion to dismiss under Florida Rule of Criminal

Procedure 3.190(c)(4). On its face, the motion cited Nelson and requested

substitute counsel because Campbell believed his current trial counsel was

ineffective. That ineffectiveness, according to Campbell, stemmed from counsel’s

representation

— specifically, counsel’s failure to file the motion to dismiss.

Campbell’s motion for a Nelson hearing was facially sufficient, as it made a clear

and unequivocal statement that Campbell wished to discharge his appointed

4 See also, e.g.

, Sexton v. State

, 775 So. 2d 923, 931 (Fla. 2000) (defendant’s

disagreement with attorney’s trial strategy and preparation did not support

contention that attorney was incompetent); Dunn v. State

, 730 So. 2d 309, 311

(Fla. 4th DCA 1999) (“[A] trial court does not err in failing to conduct an inquiry

where the defendant does not make an unequivocal request for counsel’s discharge

or a formal allegation of incompetence, but merely expresses dissatisfaction with

his counsel.”).

5counsel based on a detailed claim of incompetence. See Malone v. State

, 852 So.

2d 412, 416 (Fla. 5th DCA 2003) (holding that trial court’s duty to perform Nelson

inquiry was triggered by defendant’s request for substitute counsel based on

counsel’s failure “to file certain requested motions”). Therefore, the trial court did

err in failing to conduct a Nelson inquiry and denying Campbell’s motion in

chambers.

Nevertheless, the Florida Supreme Court held in Sweet that even when the

defendant had unequivocally requested discharge of appointed counsel and the trial

court failed to conduct a Nelson hearing following the request, “the failure was

rendered moot by [defendant’s] subsequent acceptance of and satisfaction with

new counsel.” 624 So. 2d at 1141 (citing Scull v. State

, 533 So. 2d 1137, 1139-41

(Fla. 1988) (failure to adequately inquire into request to discharge attorney

rendered moot by defendant’s subsequent expressions of satisfaction with

attorney’s performance)); accord Thompson v. State

, 174 So. 3d 453, 457 (Fla. 1st

DCA 2015) (adopting holding in Sweet ). We are not persuaded by defense

counsel’s attempt to distinguish Sweet at oral argument. 5 In Sweet

, the defendant

5 At oral argument, defense counsel asserted that Sweet would only be applicable

to a situation where a defendant filed a motion for a Nelson hearing concerning his

or her counsel, but subsequently expressed satisfaction with the same counsel

. However, the facts of Sweet do not involve the same counsel. The Florida

Supreme Court in Sweet explicitly stated, “Sweet ultimately proceeded to trial in

May of 1991 with a different attorney

, and at his sentencing Sweet spontaneously

pronounced his satisfaction with counsel’s performance.” 624 So. 2d at 1141

(emphasis added).

6ultimately proceeded to trial with a different attorney, and at his sentencing he

spontaneously announced his satisfaction with counsel’s performance. 624 So. 2d

at 1141. Therefore, while the defendant in Sweet unequivocally requested

discharge of his prior counsel at a pretrial hearing, and the trial court failed to

conduct an adequate Nelson inquiry, the Supreme Court concluded that the trial

court’s error was rendered moot by the defendant obtaining subsequent

representation from new counsel. Id. Indeed, the Sweet Court stressed that even

where the trial court did make an adequate inquiry into the reason for the

defendant’s dissatisfaction with a different, prior attorney, “if the trial court had

erred in its handling of this proceeding, the same analysis would apply

. . . and any

error would have been rendered moot.” Id. at n.2.

The purpose of Campbell’s Nelson motion was to obtain new counsel. At

trial, Campbell was represented by two public defenders

— other than Bassaragh.

Campbell, therefore, received the relief he previously requested, despite the trial

court’s error. Our review of the record confirms that Campbell never brought any

complaints regarding his new counsel to the trial court’s attention. “[Campbell]

cannot now complain after the fact when he received an unfavorable verdict.”

Thompson

, 174 So. 3d at 457. Because Campbell’s motion was rendered moot by

his subsequent acceptance of and satisfaction with new counsel, we affirm.

Affirmed.

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