DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CURTIS LEROY SHERROD, II,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2023-0881

[October 2, 2024]

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

Beach County; Marni A. Bryson, Judge; L.T. Case No. 50-2022-MM005980-AXXX-MB.

Carey Haughwout, Public Defender, and Christine C. Geraghty, 

Assistant Public Defender, West Palm Beach, for appellant. 

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano, 

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

PER CURIAM.

Appellant Curtis Leroy Sherrod, II (“Defendant”), timely appeals his 

battery conviction. We agree with Defendant’s contention that the trial 

court erred when it failed to conduct an adequate Faretta1 inquiry prior to 

allowing Defendant to represent himself at a pretrial Stand Your Ground 

(“SYG”) hearing. As our Florida Supreme Court has determined that such 

an error is “per se reversible,” we reverse and remand for another SYG 

hearing and (if unsuccessful at the SYG hearing) a new trial. 

Background

Defendant was charged with battery. A public defender was appointed 

to represent him. The public defender filed a motion to dismiss based on 

the SYG law, section 776.032, Florida Statutes (2022). The trial court set 

a hearing on the motion.

1 Faretta v. California, 422 U.S. 806 (1975).
2

At the SYG hearing, Defendant waived his right to counsel without a 

Faretta procedure. The following discussion ensued: 

[PD]: And now turning to [Defendant’s] cases, [Defendant]

wishes to represent himself, Your Honor. And so we would 

ask that you conduct a Faretta Hearing into his capability to 

do that. Just for Your Honor’s background, he did represent 

himself at the federal level already. And so he wishes to do 

that here, as well. So I told him that the inquiry would be 

coming. 

THE COURT: All right. I need to go get a Faretta Hearing 

outline. Sir --

THE DEFENDANT: Yes, ma’am.

THE COURT: -- you have the Public Defender representing 

you now, what’s the reason for the change? 

THE DEFENDANT: The reason for the change, ma’am, is 

since this trial has started, either it be from schedule mishaps 

or perhaps a workload, there’s been some riff in the things, 

the directions I want to go in. Haven’t been able to collect 

certain pieces of information I would like to use in this 

particular hearing. And to be perfectly honest with you, I don’t 

have confidence in her ability to do this the correct way. So I 

feel that I’m more than able with my ability to go ahead and 

handle this myself. 

. . . . 

THE COURT: Fine. You can represent yourself. 

THE DEFENDANT: Thank you. 

THE COURT: Sit down. Thank you. 

[PD]: And then, Your Honor, sorry, just one last matter, just 

for the purposes of Faretta, it just has to be given to him, the 

option to have [a] court[-]appointed attorney at every 

important stage of the trial, so here, at pretrial and then at 

trial. 

THE COURT: Right. 
3

[PD]: So, I guess we could stay on as --

THE COURT: Standby counsel? 

[PD]: -- standby counsel. I’ll be here, but I understand 

[Defendant’s] request to represent himself. 

THE COURT: Okay. The PD will be standby. 

The public defender acted as standby counsel but did not participate 

in the SYG hearing. Defendant testified at the SYG hearing.

After the SYG hearing, the trial court denied Defendant’s SYG motion

to dismiss the criminal charge. Later, the trial court held another pretrial 

hearing, wherein it properly conducted a full Faretta inquiry, and 

Defendant once again chose to represent himself, this time at the coming 

trial. The public defender was discharged as standby counsel. At trial, 

Defendant represented himself, and the jury found him guilty. The State 

did not seek to use Defendant’s prior SYG hearing testimony against him 

at trial. 

Defendant elected to have the public defender represent him at 

sentencing. Defendant was sentenced to twelve months of probation with 

a special condition of 180 days in jail. This timely appeal follows.

Analysis

Defendant argues on appeal that the trial court fundamentally erred 

when it failed to conduct an adequate Faretta hearing at the SYG hearing. 

Specifically, Defendant argues that an SYG hearing is a critical stage of 

the proceedings that requires a Faretta inquiry and that the failure to give 

a Faretta hearing is per se reversible error. Defendant requests reversal of 

the conviction and sentence and remand for a new SYG hearing and a new 

trial if Defendant is not found immune from prosecution.

The State does not address Defendant’s “critical stage” argument. 

Instead, the State contends that Defendant was sufficiently “legally savvy” 

so as not to require a full Faretta inquiry and that any error was harmless.

We agree with Defendant that the SYG hearing was a critical stage of 

the proceedings and the trial court erred in not conducting a full Faretta

hearing when Defendant requested self-representation at the SYG hearing. 

We further acknowledge the Florida Supreme Court has determined that
4 

Faretta violations at a critical stage of the criminal proceeding are “per se 

reversible error.” Thus, harmless error analysis is not available here. 

A. An SYG Hearing is a “Critical Stage” of a Criminal Process 

Florida’s SYG law grants immunity to anyone who justifiably “uses or 

threatens to use force.” Acostafigueroa v. State, 373 So. 3d 908, 911 (Fla. 

4th DCA 2023) (quoting § 776.032(1), Fla. Stat. (2022)). The statute 

effectively “grants defendants a substantive right to assert immunity from 

prosecution and to avoid being subjected to a trial.” Dennis v. State, 51 

So. 3d 456, 462 (Fla. 2010). The proper way to assert this immunity is 

through a motion to dismiss. Id.

Faretta applies at every “critical stage” in a criminal proceeding.2 

Woodbury v. State, 320 So. 3d 631, 650–51 (Fla. 2021) (quoting Knight v. 

State, 770 So. 2d 663, 670 n.6 (Fla. 2000)); see also Fla. R. Crim. P. 

3.111(d). Cases analyzing whether a particular proceeding is a “critical 

stage” have emphasized that the overarching question is whether there are 

consequences to a defendant’s constitutional rights or when the outcome 

of a proceeding can cause a defendant prejudice. See, e.g., Bell v. Cone, 

535 U.S. 685, 695–96 (2002) (‘“[A] critical stage’ [is] a phrase [the Court] 

used [in earlier cases] to denote a step of a criminal proceeding, such as 

arraignment, that held significant consequences for the accused.” 

(internal citations omitted)); Traylor v. State, 596 So. 2d 957, 968 (Fla. 

1992) (“[A] ‘crucial stage’ is any stage that may significantly affect the 

outcome of the proceedings.”). 

The benefits of legal representation at an SYG hearing are similar to 

those discussed in Coleman v. Alabama, 399 U.S. 1, 8 (1970). SYG defense 

counsel would have the opportunity to observe the strengths and 

weaknesses in the parties’ cases, particularly on the claim of self-defense, 

and could structure a game plan for the next stage of the proceedings, be 

it plea negotiations or trial. SYG defense counsel could also assist the 

defendant in avoiding SYG hearing pitfalls that would lead to the 

defendant starting a trial at a disadvantage. Thus, we find an SYG hearing 

to be a critical stage of a criminal proceeding.

2 The State has not argued that an SYG hearing is not a critical stage of the 

criminal proceedings—the State’s answer brief “agree[s] for purposes of this 

appeal that an evidentiary hearing on a Stand Your Ground motion is a critical 

stage of a proceeding for purposes of the Sixth Amendment right to counsel . . . 

and a crucial stage of the proceeding for purposes of article I, section 16 of the 

Florida Constitution.” (citations omitted).
5 

B. The Right to Choose or Reject Criminal Defense Counsel 

“with Eyes Open” 

“Under the United States Supreme Court’s ruling in Faretta, an accused 

has the right to self-representation at trial.” Tennis v. State, 997 So. 2d 

375, 377 (Fla. 2008). “[T]he Sixth and Fourteenth Amendments include a 

‘constitutional right to proceed without counsel when’ a criminal defendant 

‘voluntarily and intelligently elects to do so.’” Indiana v. Edwards, 554 

U.S. 164, 170 (2008) (quoting Faretta, 422 U.S. at 807). The trial court 

has an obligation to ensure that a defendant who elects to waive counsel 

does so “with eyes open” by making the defendant “aware of the dangers 

and disadvantages of self-representation.” Faretta, 422 U.S. at 835 

(quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942)); Mosley 

v. State, 349 So. 3d 861, 867 (Fla. 2022). “[T]he ‘purpose of the “knowing 

and voluntary” inquiry’ under Faretta ‘is to determine whether the 

defendant actually does understand the significance and consequences of 

a particular decision and whether the decision is uncoerced.’” Noetzel v. 

State, 328 So. 3d 933, 948 (Fla. 2021) (quoting Godinez v. Moran, 509 U.S. 

389, 401 n.12 (1993)). 

“[T]here are no ‘magic words’ under Faretta. Rather, [t]he accused must 

only be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that he knows what he is 

doing and his choice is made with eyes open.” Id. (cleaned up). Here, as 

set forth above, the trial court did not conduct any such inquiry with

Defendant. 

Defendant’s reply brief contends “the State analogizes the court’s 

failure to engage in the Faretta inquiry here to cases where abbreviated 

inquiries were found to be adequate because the record showed the 

defendant ‘had proven himself sufficiently sophisticated in his knowledge 

of the courts and the law that a formal Faretta inquiry was not required.’ 

Davis v. State, 10 So. 3d 176, 178 (Fla. 5th DCA 2009).” We agree with 

Defendant that “[t]his analogy does not withstand scrutiny.” 

We have excused non-compliance with Faretta where a defendant has 

proven himself sufficiently sophisticated in his knowledge of the courts 

and the law that a formal Faretta inquiry was not required. See Morgan v. 

State, 991 So. 2d 984, 988 (Fla. 4th DCA 2008). Other courts have also 

excused a full inquiry for defendants with some legal education. Davis, 10 

So. 3d at 179. However, “[t]his is clearly the exception and not the rule.” 

Id. at 178. 
6 

The record in the instant case does not indicate that the trial court 

dispensed with an adequate Faretta inquiry due to Defendant’s “legal 

knowledge, familiarity with the court system, or presentation of cases 

before the court.” Id. The trial court certainly did not make express 

findings to support such a ruling. “Faretta still requires the judge to make 

a sufficient record that indicates how the defendant’s background, 

including his age, mental status, and education, affects his competency to 

waive his right to counsel.” Beaton v. State, 709 So. 2d 172, 174 (Fla. 4th 

DCA 1998). 

Accordingly, we reject the State’s argument that the trial court’s

abbreviated (to say the least) Faretta inquiry was sufficient. Moreover, the 

trial court did not cure this error when it subsequently conducted a proper 

Faretta pre-trial hearing. Cf. Allen v. State, 322 So. 3d 589, 597 (Fla. 2021) 

(holding that a “nunc pro tunc Faretta inquiry”—questioning the defendant 

“as to whether, if the offer of counsel had been [made at the proper point], 

he would have accepted the offer”—followed by the defendant’s 

representation that he “would have continued to exercise his right to selfrepresentation,” is sufficient to “cure[] the error.”).

C. Florida Supreme Court Precedent Dictates Reversal and 

Remand for a “Do-Over” 

In Tennis, the Florida Supreme Court declared that a trial court’s failure 

to hold a Faretta hearing is “per se reversible error.” 997 So. 2d at 379. 

Tennis, in turn, relied upon the following Florida cases and parentheticals 

to reach this conclusion: State v. Young, 626 So. 2d 655, 657 (Fla. 1993) 

(“[T]he United States Supreme Court decision in Faretta and our rule 

3.111(d) require a reversal when there is not a proper Faretta inquiry.”); 

Rodriguez v. State, 982 So. 2d 1272, 1274 (Fla. 3d DCA 2008) (holding that 

court’s failure to conduct Faretta hearing was reversible error); Goldsmith 

v. State, 937 So. 2d 1253, 1256–57 (Fla. 2d DCA 2006) (holding that the 

denial of the right of self-representation is not amenable to harmless error 

analysis). The Florida Supreme Court recently reiterated this precedent, 

stating that, in the face of an unequivocal and timely demand for selfrepresentation, a trial court’s failure to “conduct a Faretta inquiry to 

determine whether the defendant is knowingly and intelligently waiving 

his right to counsel . . . is per se reversible error.” Mosley, 349 So. 3d at 

867. Thus, without recourse to harmless error resolution, we are 

compelled to reverse. 

Conclusion 
7 

Defense counsel informed the court that Defendant wished to represent 

himself at the SYG hearing. The court announced that it was “go[ing] to

get a Faretta Hearing outline.” The court apparently failed to do so as it

granted Defendant’s request to proceed pro se without asking questions 

about his ability to self-represent and without making him “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.’” Faretta, 422 U.S. at 835 (quoting Adams, 317 U.S. at 279). As 

explained herein, this was error at a critical stage of the criminal 

proceeding. Neither defense counsel nor the prosecutor placed the court 

on notice of the deficiency of the Faretta “hearing”—the three collectively 

dropped the ball. 

Although the trial court provided a proper Faretta inquiry at 

Defendant’s trial, our supreme court’s determination that Faretta

violations are “per se reversible error” precludes us from engaging in 

harmless error analysis and potentially “conserving scarce judicial 

resources by avoiding pointless retrials.” United States v. Roy, 855 F.3d 

1133, 1142 (11th Cir. 2017). Thus, we are compelled to reverse 

Defendant’s judgment and sentence and remand for a “do over” as 

requested by Defendant on appeal. 

Reversed and remanded. 

MAY and KUNTZ, JJ., concur.

FORST, J., concurs specially with opinion. 

FORST, J., concurring. 

I concur with the reversal in the instant case. The trial court erred in 

failing to hold a Faretta hearing before the SYG proceeding. The trial court 

had an opportunity to “cure” this error and failed to do so. This error is 

“per se reversible” because it occurred at a “critical stage of the criminal 

proceeding” and because the Florida Supreme Court has foreclosed 

“harmless error” analysis for Faretta violations, a determination that I 

believe should be reconsidered. 

A. An SYG Hearing is a Critical Stage of a Criminal Proceeding 

The U.S. Supreme Court has never provided a list of which proceedings 

in a criminal case constitute “critical stages.” See Van v. Jones, 475 F.3d 

292, 312 (6th Cir. 2007). Nor have Florida courts. Nonetheless, no 

shortage of caselaw has identified a particular proceeding as a “critical” or 

“crucial” stage of the proceedings requiring an adequate Faretta hearing. 
8 

See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (post-indictment 

interrogation); Iowa v. Tovar, 541 U.S. 77, 81 (2004) (plea hearing); 

Gardner v. Florida, 430 U.S. 349, 358 (1977) (sentencing process); United 

States v. Wade, 388 U.S. 218, 236–37 (1967) (post-indictment live lineup); 

Dickerson v. State, 228 So. 3d 658, 660 (Fla. 5th DCA 2017) (Williams rule 

hearing); Kearse v. State, 858 So. 2d 348, 349 (Fla. 1st DCA 2003) (motion 

to suppress hearing). 

Courts have also identified other proceedings that are not “critical.” 

See, e.g., United States v. Ash, 413 U.S. 300, 321 (1973) (post-indictment, 

pretrial photographic lineup); Gilbert v. California, 388 U.S. 263, 267 

(1967) (taking of a handwriting exemplar); Montgomery v. State, 176 So. 

2d 331, 334 (Fla. 1965) (routine preliminary hearings); Birlkey v. State, 

220 So. 3d 431, 434 (Fla. 4th DCA 2017) (hearing on motion to continue).

Over fifty years ago, the U.S. Supreme Court dealt with a state’s failure 

to provide the defendants with appointed counsel at an Alabama preindictment preliminary hearing held “to determine whether there is 

sufficient evidence against the accused to warrant presenting his case to 

the grand jury and, if so, to fix bail if the offense is bailable.” Coleman v. 

Alabama, 399 U.S. 1, 8 (1970). The Court deferred to the Alabama 

appellate court’s determination “that in cases where the accused has no 

lawyer at the hearing the Alabama courts prohibit the State’s use at trial 

of anything that occurred at the hearing.” Id. at 9. The Court nonetheless 

held “it does not follow that the Alabama preliminary hearing is not a 

‘critical stage’ of the State’s criminal process.” Id. 

Plainly the guiding hand of counsel at the preliminary hearing 

is essential to protect the indigent accused against an 

erroneous or improper prosecution. First, the lawyer’s skilled 

examination and cross-examination of witnesses may expose 

fatal weaknesses in the State’s case that may lead the 

magistrate to refuse to bind the accused over. Second, in any 

event, the skilled interrogation of witnesses by an experienced 

lawyer can fashion a vital impeachment tool for use in crossexamination of the State’s witnesses at the trial, or preserve 

testimony favorable to the accused of a witness who does not 

appear at the trial. Third, trained counsel can more effectively 

discover the case the State has against his client and make 

possible the preparation of a proper defense to meet that case 

at the trial. Fourth, counsel can also be influential at the 

preliminary hearing in making effective arguments for the 

accused on such matters as the necessity for an early 

psychiatric examination or bail. 
9 

Id.

As discussed in the majority opinion, the benefits of legal 

representation at an SYG hearing are similar to those discussed in 

Coleman. I thus agree that an SYG hearing is a critical stage of a criminal 

proceeding with respect to an individual’s Sixth Amendment rights. 

B. The Florida Supreme Court Should Reconsider its “Per Se 

Reversal” Rule 

i. Historically, a Pre-Trial Faretta Violation was Not Per 

Se Reversible Error 

As discussed above, the United States Supreme Court in Coleman 

declared that the trial court erred when it failed to provide the accused 

parties appointed counsel at a preliminary hearing. 399 U.S. at 9–10. 

However, the Court did not hold that this constitutional violation 

necessitated reversal and a new trial. The Court remanded the case to the 

trial court to address: 

. . . the question of the relief to which petitioners are entitled. 

The trial transcript indicates that the prohibition against use 

by the State at trial of anything that occurred at the 

preliminary hearing was scrupulously observed. But on the 

record it cannot be said whether or not petitioners were 

otherwise prejudiced by the absence of counsel at the 

preliminary hearing. That inquiry in the first instance should 

more properly be made by the Alabama courts. The test to be 

applied is whether the denial of counsel at the preliminary 

hearing was harmless error under Chapman v. California, 386 

U.S. 18 (1967). 

Id. at 10–11 (internal citations and footnote omitted). 

Shortly after Coleman, a Florida appellate opinion contrasted Coleman’s 

remedy for denial of appointed counsel at a preliminary hearing with the 

remedy imposed for a denial of appointed counsel at trial: 

It must be remembered that the decision in Coleman v. 

Alabama is not the harbinger of hope to those whose 

conviction is preceded by a preliminary hearing in which the 

defendant was not represented by counsel as was the case in 

the aftermath of the decision in Gideon v. Wainwright, 372 
10

U.S. 335. In [G]ideon no consideration was given to the 

question of prejudice or harm resulting from the absences of 

trial counsel. Thus, failure to be represented by counsel at 

trial resulted in a new trial in all cases, no matter how clear 

and convincing the proof of guilt was and without regard to 

the defendant’s ability to demonstrate harm and prejudice by 

such denial of counsel. In Coleman, however, the Supreme 

Court was careful to consider the question of the relief to 

which a defendant who had been denied counsel at the 

preliminary hearing is entitled. The court resolved the 

question of appropriate relief by remanding the case to the 

Alabama state courts for a proceeding to determine whether 

denial of counsel was harmless error and provided that a 

conviction could be reinstated upon a finding that no harm or 

prejudice resulted from lack of counsel. 

Harrison v. Wainwright, 243 So. 2d 427, 429 (Fla. 1st DCA 1971). 

“As the [U.S.] Supreme Court has repeatedly held, the vast majority of 

constitutional errors that occur at a criminal trial, including Sixth 

Amendment violations, should be examined for prejudicial effect and those 

errors do not require reversal if they are harmless.” United States v. Roy, 

855 F.3d 1133, 1167 (11th Cir. 2017). Roy included a lengthy quote from 

Arizona v. Fulminante, 499 U.S. 279 (1991), which detailed sixteen cases 

in which the U.S. Supreme Court “applied harmless-error analysis to a 

wide range of errors and . . . recognized that most constitutional errors 

can be harmless.” Roy, 855 F.3d at 1167–68 (quoting Fulminante, 499 

U.S. at 306–07). The court in Roy next makes a point worthy of repeating 

here: “There is no good reason why those 16 types of constitutional 

violations, some of which involve the right to counsel, are subject to review 

for harmless error but the violation in this case should not be.” Id. at 

1168. 

ii. Non-Faretta Errors Related to SYG Hearings Have Been 

Treated as Harmless Errors 

An SYG hearing is not a vindication of a constitutional right. Cruz v. 

State, 189 So. 3d 822, 829 (Fla. 4th DCA 2015). “[T]he entire purpose of 

this immunity [hearing] is to provide a mechanism by which a person who 

is asserting lawful self-defense may have the defense heard early in the 

process to avoid the time and expense of a trial.” Valdes v. State, 320 So. 

3d 235, 239 (Fla. 3d DCA 2021) (alterations in original) (quoting Mency v. 

State, 292 So. 3d 1, 2 (Fla. 1st DCA 2019) (Roberts, J., concurring)). 
11

The SYG hearing also does not have preclusive effect. The denial of a 

pretrial SYG motion to dismiss does not prejudice a defendant from 

making the SYG immunity argument at trial. Tover v. State, 106 So. 3d 

958, 959 (Fla. 4th DCA 2013); see also Acostafigueroa, 373 So. 3d at 913 

(“By not filing the motion to dismiss at or before arraignment, petitioner 

did not waive his right to raise his claim before trial.”). 

Further, errors impacting an SYG hearing have been found to be 

harmless if cured by a trial. For example, the failure to hold an SYG 

immunity hearing is harmless error if a later jury denies the defense. See 

Boston v. State, 326 So. 3d 673, 677 (Fla. 2021). And while improper 

burden shifting by a trial court is a fundamental error during a trial, 

improper burden shifting at an SYG hearing is not fundamental error if 

the burdens are properly applied at a later jury trial. Compare id.

(misstating burden at an SYG hearing is harmless error), with Kennedy v. 

State, 59 So. 3d 376, 381 (Fla. 4th DCA 2011) (“[F]undamental error 

occurs where a jury instruction incorrectly defines a disputed element of 

the crime in such a way as to reduce the state’s burden of proof.”). 

In Little v. State, 302 So. 3d 396 (Fla. 4th DCA 2020), the trial court 

improperly placed the burden of proof at an SYG hearing on the defendant. 

Id. at 398. The SYG motion to dismiss was denied and the defendant 

subsequently was convicted after trial. Id. at 399–401. We found the trial 

court erred, holding “the burden should have been on the State to rebut 

Defendant’s prima facie claim of self-defense by clear and convincing 

evidence.” Id. at 406. We stated: 

[S]ince “[t]he State’s trial burden of overcoming the 

defendant’s self-defense claim by proof beyond reasonable 

doubt is heavier than its pretrial burden of overcoming the 

defendant’s self-defense immunity claim by clear and 

convincing evidence,” the error with respect to the burden of 

proof at the SYG hearing can be “cured if the State establishes 

the defendant’s guilt at trial by proof beyond a reasonable 

doubt.” 

Id. at 407 (quoting Boston v. State, 296 So. 3d 580, 583 (Fla. 1st DCA 

2020)). In light of the jury’s guilty verdict, we concluded “the burden of 

proof error at the SYG hearing was cured and there is no need to remand 

this case for another hearing.” Id. 

But for the Florida supreme court’s “per se reversible error” precedent, 

it would be reasonable to similarly conclude in this case that the deficient 

Faretta hearing had been cured at trial and no need exists to remand for 
12

another SYG hearing (and perhaps a second trial). Should the opportunity 

arise, our supreme court may want to revisit the “per se” ruling. 

* * * 

Not final until disposition of timely filed motion for rehearing.