NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

LEONARD LEA WILSON

, ) ) Appellant

, ) )

v. ) Case No. 2D 15

- 2684 ) STATE OF FLORIDA, ) ) Appellee

. ) )

Opinion filed September 28, 2016.

Ap peal from the Circuit Court for Highlands County; J. Dale Durrance

, J udge.

Amanda Peterson of Law Offices of Peterson, P.A., Mulberry, for Appellant.

Leonard Wilson, pro se.

Pamela Jo Bondi , Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Leonard Lea Wilson challenges the revocation of his probation for

aggravated assault with a deadly weapon. Wilson's appellate counsel filed this appeal- 2

-

pursuant to Anders v. California

, 386 U.S. 738 (1967), and In re Appellate Court

Response to Anders Bri efs

, 581 So. 2d 149 (Fla. 1991). This court subsequently

ordered merits briefing on two issues: the adequacy of the Faretta 1 inquiry at the

probation violation hearing and the apparent discrepancies between the conditions

alleged to have been violated in the affidavit of violation of probation, repeated in the

order of revocation of probation, and the conditions as listed in the order of probation

and the order of modification of probation. 2 Because the trial court focused on Wilson's

legal acumen and not whether his waiver of counsel was knowing and voluntary, we

must reverse the revocation of Wilson's probation.

At the probation violation hearing, defense counsel advised the court that

W ilson wished to represent himself. The court verified with Wilson that he did in fact

wish to discharge counsel and represent himself. The court then extensively

questioned Wilson about his knowledge of court procedure and rules and briefly about

1 Faretta v. California

, 422 U.S. 806 (1975)

.

2 In the order directing briefing, this court advised that should counsel
determine that a motion pursuant to Florida Rule of Criminal Procedure 3.800( b) would
be necessary, such motion was required to be filed prior to the filing of the initial brief.
We n ote that despite the language of our briefing order directing counsel's attention to the discrepancies between the affidavit and the revocation order and advising that, if

necessary, coun sel should file a rule 3.800(b) motion with the trial court prior to filing the brief with this court, counsel failed to do so . Thus, although counsel briefed the discrepancy issue, it is not preserved. See Hines v. State , 125 So. 3d 999 , 1000 (Fla. 2d DCA 2013) (affirming revocation of probation in an Anders appeal and n oting that counsel's argument that the revocation order incorrectly stated the conditions violated was not preserved for review where counsel did not file a rule 3.800(b)(2) motion). However, because the inadequacy of the Faretta inquiry requires reve rsal of the
revocation order , we do not address the discrepancy issue further.- 3

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his gen eral education level. Finding that Wilson was not qualified to represent himself,

the court denied Wilson's request.

In Thompson v. State , 37 So. 3d 939 , 940 (Fla. 2d DCA 2010), this court

reversed the revocation of Thompson's probation based on the court's failure to

determine whether Thompson's request to represent himself was knowingly and

intelligently made. Instead, the trial court focused on "whether Thompson was capable

of representing himself" and on his "technical legal knowledge" o f the pr oceedings. Id.

"But possessing legal skills is not a precondition for exercising the right of self

representation." Id. at 939. In that regard, Florida Rule of Criminal Procedure

3.111(d)(3), incorporating the dictates of Faretta v. California

, 422 U.S . 806 (1975),

provides:

Regardless of the defendant's legal skills or the

complexity of the case, the court shall not deny a defendant's unequivocal request to represent himself or herself, if the court makes a determination of record that the
defendant h as made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.

A defendant's "technical legal knowledge , as such, [is] not relevant to an assessment of

his knowing exercise of the right to defend himself." Thompson , 37 So. 3d at 940

(alteration in original) (quoting Faretta , 422 U.S. at 836); see also Fleck v. State , 956

So. 2d 548, 549 (Fla. 2d DCA 2007) ("[A] defendant does not need to possess the

technical legal knowledge of an attorney before being permitted to proceed pro se."

(quoting Hill v. State , 688 So. 2d 901, 905 (Fla. 1996) ) ) . Rather, "the competence that

is required of a defendant seeking to waive his right to counsel is the competence to- 4

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waive the right , not the competence to represent himself." Fleck , 956 So. 2d at 549

(quoting Hill , 688 So. 2d at 905).

Here, just as in Thompson , the judge focused on the defendant's legal

knowledge and denied the request to proceed pro se expressly because the defendant

was not qualified to represent himself. The court made no finding as to the correct

standard

— whether the defendant was knowingly and intelligently waiving his right to

counsel. Accordin gly, we must reverse the revocation of Wilson's probation and

remand for further proceedings.

Reversed and remanded.

WALLACE and MORRIS, JJ., Concur.