Jordan v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

RUDY TAVION JORDAN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2024-1440

March 25, 2026

Appeal from the Circuit Court for Hillsborough County; Kimberly K.

Fernandez, Judge.

Blair Allen, Public Defender, and Megan Olson, Assistant Public

Defender, Bartow; and Joanna Beth Conner, Assistant Public Defender,

Bartow (substituted as counsel of record), for Appellant.

Rudy Jordan, pro se.

James Uthmeier, Attorney General, Tallahassee, and Clara V. Murga,

Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Rudy Tavion Jordan appeals from his judgment and sentences for

possession of a controlled substance, in violation of section 893.13(6)(a),

Florida Statutes (2022), and fleeing and attempting to elude a law

enforcement officer, in violation of section 316.1935(1), Florida Statutes

(2022). He was convicted following a jury trial and sentenced to four

years in prison on each count, concurrent. Because the trial court erred

in denying Jordan a continuance upon retaining private counsel and in

failing to subsequently conduct a Faretta1 inquiry, we reverse.

Jordan was charged with possession and fleeing and attempting to

elude in June 2023. Shortly after the information was filed, Jordan

retained private counsel. Private counsel represented Jordan in multiple

pending cases until he moved to withdraw on December 5, 2023,

because, among other reasons, Jordan had been charged with new

offenses and his bond had been revoked, making it impossible for Jordan

to continue to pay private counsel. The public defender was then

appointed to represent Jordan.

The record establishes that on December 11, 2023, the court set a

trial date of June 4, 2024. On January 12, 2024, Jordan filed a pro se

motion for a Nelson2 and Faretta hearing and a motion to discharge his

attorney, the public defender. The record does not reflect a ruling on

either motion.

After the filing of the pro se motions, Jordan retained new private

counsel; counsel filed a notice of appearance on May 8, 2024. At a

pretrial hearing on May 28, 2024, private defense counsel appeared on

Jordan's behalf. Private counsel advised the court that she was not

ready for trial in the case, specifying that discovery and depositions

remained outstanding. Jordan's public defender, also present for the

pretrial hearing, advised that while private counsel had filed a notice of

appearance in the case, the public defender "was aware of the [c]ourt's

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

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

2

procedure on when it was filed, and that likely [the public defender]

would continue to keep th[e] case." After Jordan stated that he had

private counsel, the court explained, "[U]nless [private counsel] is going

to tell me she can be ready for trial on th[e] case next week, I'm going to

have [the public defender] continue to represent you." The court then

recited an inaccurate history of the case, stating that the trial had been

continued multiple times and that Jordan had waited eleven months to

retain counsel. There is no explanation as to the court's procedure or

why the public defender would likely continue representing Jordan

despite his having retained private counsel who had filed a notice of

appearance, witness list, and other documents in the case.

Jordan advised the court that he had a motion to suppress and

motion to dismiss that he wanted to be heard but the public defender

would not adopt them and that he was "willing to go pro se in order to"

have the motions heard. The court stated that Jordan could represent

himself but that the trial would not be continued. Jordan then told the

court that he did not feel he was ready for trial and that he felt that he

was being forced to trial.

The court asked Jordan—not counsel—whether he wanted

witnesses identified in private counsel's witness list to testify at the trial.

Jordan reiterated that he did not wish to have the public defender

represent him and that he was not otherwise prepared for trial. The

court responded: "You've told me four times. Your position is clear for

the appellate record. Your position is clear that—that [the public

defender] is ready to go to trial. You're choosing not to go to trial with

her." (Emphasis added.) Ultimately, despite the court's awareness that

Jordan did not wish to have the public defender represent him and

wanted to represent himself, that witnesses provided by private counsel

3

had not previously been deposed, and that the public defender was

unwilling to adopt Jordan's motion to suppress, neither a Faretta inquiry

nor a Nelson hearing was held. The court did direct that Jordan was to

be brought over the next morning to conduct a Faretta inquiry.

That inquiry did not occur. The next morning the court asked

about the motions that Jordan believed needed to be adopted, filed, and

set for hearing. Jordan reiterated that he needed depositions done and

motions to be heard and that because the public defender was not doing

those things, he wanted to proceed pro se: "And I—the reason I want to

go pro se is because I clearly have—like they're not representing me."

Without conducting a Faretta inquiry, the court proceeded to ask Jordan

about the legal basis for the search that resulted in the possession

charge and whether he had case law to support his position. After the

court stated that it would hear Jordan's pro se motion to suppress on the

morning of trial and that witnesses would testify concerning the

suppression issues, all of which was directed to Jordan and not the

public defender, the court stated: "I still think that you ought to have

[the public defender] represent you so that she can help you in asking

any questions. Do you still want her to represent you, or do you want to

represent yourself?" Jordan replied: "Yes, I—I would like her help. I

mean, I never wanted her to not represent me. I just wanted her—" The

court stopped him and explained the process for adopting pro se motions

and advised Jordan that the court would hear his suppression argument

on the morning of trial.

Jordan's trial occurred as scheduled, with Jordan represented by

the public defender.

On appeal, Jordan argues that the trial court erred in both denying

a continuance in order for Jordan to have counsel of his choosing

4

represent him and in failing to conduct a Faretta hearing where Jordan

clearly stated he wanted to represent himself and had filed a previous

motion so stating.

The trial court's denial of a continuance based on Jordan's

retention of private counsel was an abuse of discretion. See Hill v. State,

157 So. 3d 481, 482 (Fla. 2d DCA 2015). "The Sixth Amendment of the

United States Constitution protects the right of a criminal defendant to

be represented by the attorney of his or her own choosing." Alvarez v.

State, 75 So. 3d 420, 422 (Fla. 4th DCA 2011); accord Brown v. State, 38

So. 3d 212, 214 (Fla. 2d DCA 2010). In considering a motion for

continuance to retain counsel of defendant's choosing, "the trial court

must conduct 'an adequate inquiry into the surrounding

circumstances.' " Valcarcel v. State, 201 So. 3d 795, 797-98 (Fla. 4th

DCA 2016) (quoting Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA

2014)). Where the motion for continuance involves recently retained

counsel, the trial court should consider:

[(1)] the time available for preparation, [(2)] the likelihood of

prejudice from the denial, [(3)] the defendant's role in

shortening preparation time, [(4)] the complexity of the case,

[(5)] the availability of discovery, [(6)] the adequacy of counsel

actually provided[,] and [(7)] the skill and experience of

chosen counsel and his pre-retention experience with either

the defendant or the alleged crime.

Santiago v. State, 395 So. 3d 667, 670 (Fla. 2d DCA 2024) (seventh

alteration in original) (quoting McKay v. State, 504 So. 2d 1280, 1282

(Fla. 1st DCA 1986)). Consideration of these factors allows the court to

balance a defendant's right to be represented by counsel of his choosing

with the "countervailing interests involving effective administration of the

courts." McKay, 504 So. 2d at 1282.

5

It is not apparent that the trial court considered any of the above

factors. After referencing an unexplained procedure, a continuance

following the retention of privately retained counsel was denied. The

court stated that it would not continue the trial because the felony case

was a year old and for reasons that are contradicted by facts in the

record (that is, that Jordan had waited eleven months to retain counsel

and that multiple continuances had been granted). The court erred in

denying Jordan's request for a continuance based on retention of counsel

of his choice in reliance on an incorrect procedural history, without

considering the surrounding circumstances and the relevant factors. See

Perozo v. State, 356 So. 3d 831, 835 (Fla. 4th DCA 2023) ("We agree with

Defendant's argument that this statement indicates that the trial court

denied Defendant's request for a continuance based on a general policy,

rather than on the circumstances of the case."); cf. Rasmussen v. State,

396 So. 3d 889, 890 (Fla. 1st DCA 2024) (affirming judgment and

sentence, concluding that trial court did not abuse its discretion in

denying motion to continue where "the parties covered and the court

considered the appropriate factors from McKay").

The court's failure to conduct a Faretta inquiry also requires

reversal. "[A] defendant need not articulate a reason to invoke his right

of self-representation." Eib v. State, 191 So. 3d 977, 979 (Fla. 2d DCA

2016) (alteration in original) (quoting Laramee v. State, 90 So. 3d 341,

345 (Fla. 5th DCA 2012)). And "[a] defendant who persists in discharging

competent counsel after being informed that he is not entitled to

substitute counsel is presumed to be unequivocally exercising his right of

self-representation." Weaver v. State, 894 So. 2d 178, 193 (Fla. 2004).

"Under Faretta and our precedent, once an unequivocal request for self-

representation is made, the trial court is obligated to hold a hearing, to

6

determine whether the defendant is knowingly and intelligently waiving

his right to court-appointed counsel." Tennis v. State, 997 So. 2d 375,

378 (Fla. 2008). "Faretta and our rules of criminal procedure place the

duty of inquiry upon the trial court," and "[t]he failure of a trial court to

make a proper Faretta inquiry requires reversal." Hutchens v. State, 730

So. 2d 825, 826 (Fla. 2d DCA 1999).

In this case, Jordan made an unequivocal statement that he

wanted to represent himself rather than to proceed with the public

defender as counsel. That Jordan provided his rationale for exercising

his right to proceed pro se does not make his request equivocal. In

Pasha v. State, 39 So. 3d 1259 (Fla. 2010), the defendant made the

following statements to the court pursuant to his request to proceed pro

se: "I don't think [appointed counsel] put forth the effort in my situation

. . . . But I don't have the choice to pick who I want so it means

obvious[ly] the only other alternative is to be pro se." Id. at 1260. In

holding that the defendant's request to proceed pro se was unequivocal,

the supreme court explained that "[t]he fact that Pasha stated to the trial

court that he preferred representation by a different attorney is of no

consequence. . . . Pasha clearly expressed a desire to proceed pro se in

order to avoid proceeding with counsel he found to be unacceptable." Id.

at 1262. Moreover, in this case the trial court understood Jordan's

request to be unequivocal, stating that a Faretta inquiry would be held;

however, that did not occur. And while "a court may deny an

unequivocal demand without a Faretta inquiry if, but only if, it finds

(with or without regard to timeliness) the demand is designed to delay or

disrupt proceedings," Mosley v. State, 349 So. 3d 861, 868 (Fla. 2022),

no such finding was made nor would that finding have been supported in

this case.

7

We note that at the second hearing, after the court made significant

inquiry of Jordan regarding his motion to suppress and the facts and law

supporting it, Jordan relented and indicated that he would have the

public defender represent him. However, Jordan has the "constitutional

right of self-representation," and the rules of criminal procedure

require[] the trial court to apprise the accused of the dangers

and disadvantages of self-representation and to make a

thorough inquiry into the accused's mental capacity to

knowingly and intelligently waive counsel. Here, no such

inquiry transpired when [Jordan] invoked this constitutional

right. . . . Absent the requisite inquiry, we cannot presume

that the waiver of th[e] right [to self-representation] was

knowingly and intelligently made.

See Hutchens, 730 So. 2d at 826; cf. Ash v. State, 422 So. 3d 181, 193

(Fla. 1st DCA 2025) (Winokur, J., dissenting) ("[I]f a defendant

unequivocally invokes his right to self-representation and later succumbs

to the trial court's interference with that right by withdrawing that

invocation, then the withdrawal might constitute a constitutional

violation."). A Faretta inquiry was required after Jordan unequivocally

stated that he would represent himself. See Tennis, 997 So. 2d at 380.

Reversed and remanded.

KELLY, J., Concurs.

ATKINSON, J., Concurs in result in part and dissents in part.

ATKINSON, Concurring in result in part and dissenting in part.

I concur in the result reached by the majority that Jordan's motion

to continue was erroneously denied. However, I respectfully dissent from

8

the majority's conclusion that Jordan's Sixth Amendment rights were

violated for failure to conduct a Faretta inquiry.

The majority relies on a categorical requirement that a trial court

make findings when denying a defendant's request for continuance to

retain counsel but cites no binding authority in support of such a per se

rule. The majority cites the Fourth District's Valcarcel decision for the

proposition that "[w]hen a trial court considers a defendant's request for

continuance to retain counsel of choice, the trial court must conduct 'an

adequate inquiry into the surrounding circumstances' and make 'proper

findings to show that the defendant's constitutional right is not being

arbitrarily denied.' " See Valcarcel v. State, 201 So. 3d 795, 797–98 (Fla.

4th DCA 2016) (emphasis added) (quoting Deal v. State, 145 So. 3d 212,

214 (Fla 4th DCA 2014)). If indeed the opinion in Valcarcel can be read

to infer a per se finding requirement, such a requirement is not justified

by the case on which it relies. In the Valcarcel opinion, the Fourth

District relied on a previous opinion of that district, Alvarez v. State, 75

So. 3d 420 (Fla. 4th DCA 2011), but by omitting material portions of the

quoted text of the latter opinion, it arguably obscured the meaning of the

latter's rationale. Quoting Alvarez, the Valcarcel opinion includes the

following: "[N]ot every request to substitute counsel on the eve of trial

may . . . be denied without inquiry and without the court making proper

findings to show that the defendant's constitutional right is not being

arbitrarily denied." Id. at 798 (alterations in original) (quoting Alvarez,

75 So. 3d at 423). While the incomplete quotation from Alvarez can be

read to imply that some requests for substitution of counsel on the eve of

trial may be denied without inquiry and proper findings, the Valcarcel

opinion leaves open to doubt the question of whether it recognizes a per

se rule that findings be made when a trial court denies a request for

9

continuance made for the purpose of procuring counsel of choice.

However, in the complete portion of the quoted passage of the Alvarez

opinion—including that which was omitted in the Valcarcel opinion—the

court in Alvarez was careful to avoid establishing a per se rule that

findings are required every time a trial judge denies a defendant's motion

for continuance to retain counsel:

While the constitutional right to have counsel of one's own

choosing represent a defendant at trial may yield to

considerations of the administration of justice, not every

request to substitute counsel on the eve of trial may

sufficiently impact those considerations such that a request

may be denied without inquiry and without the court making

proper findings to show that the defendant's constitutional

right is not being arbitrarily denied.

Alvarez, 75 So. 3d at 423 (emphasis added). In Deal v. State, 145 So. 3d

212, 214 (Fla 4th DCA 2014), a similar omission is made of salient

portions of quoted material from the Alvarez opinion in support of an

apparently categorical rule that "any denial of an accused's request for a

continuance to retain counsel of choice must be based on an adequate

inquiry into the surrounding circumstances and 'proper findings to show

that the defendant's constitutional right is not being arbitrarily denied.' "

See Deal, 145 So. 3d at 214 (emphasis added) (quoting Alvarez, 75 So. 3d

at 423). However, when read in full, it is clear that in Alvarez, the court

was making the point that a defendant's Sixth Amendment right to

counsel of choice must be balanced with a court's duty to manage its

dockets, and that in some cases, the unique circumstances will justify a

trial court's denial of a request for continuance without inquiry and

without making findings. Cf. Madison v. State, 132 So. 3d 237, 241 (Fla.

1st DCA 2013) ("[T]he trial court's discretion to manage its caseload

creates tension with the Sixth Amendment right to counsel, which 'is not

absolute but at some point must bend before countervailing interests

10

involving the effective administration of the courts.' " (quoting McKay v.

State, 504 So. 2d 1280, 1282 (Fla. 1st DCA 1986))).

To the extent that opinions relied upon by the majority do seem to

indicate a per se rule that findings be made, see, e.g., Perozo v. State,

356 So. 3d 831, 834 (Fla. 4th DCA 2023) ("[A]ny denial of an accused's

request for a continuance to retain counsel of choice must be based on . .

. 'proper findings to show that the defendant's constitutional right is not

being arbitrarily denied.' " (quoting Deal, 145 So. 3d at 214)), that

decisional authority is not binding on this court. Such a categorical rule

is unsupported by statute or any actual rule of criminal procedure. And

such a rule would be inadvisable in an area in which trial courts, entitled

as always to the presumption of correctness on appeal, are afforded

considerable discretion to balance the efficient management of dockets

against a criminal defendant's right to his choice of counsel. See

Madison, 132 So. 3d at 247–48 (Wetherell, J. dissenting) ("The argument

on the motion addressed the McKay factors . . . and . . . it is reasonable

and appropriate for us to assume that the court considered these factors

in ruling on the motion . . . . The presumption of correctness that the

trial court's ruling is supposed to be afforded on appeal requires us to

infer that the court properly considered all of the circumstances

presented at the hearing on Appellant's motion for a continuance in

ruling on the motion."); cf. McKay, 504 So. 2d at 1282 ("Thus, when a

defendant asks for a continuance on the eve of trial in order to allow time

for recently retained counsel to prepare, the court must balance that

request against many other factors, such as those outlined in U.S. v.

Uptain, 531 F.2d 1281 (5th Cir. 1976)." (citing Birt v. Montgomery, 725

F.2d 587, 593 (11th Cir. 1984), cert. den., 469 U.S. 874)).

11

Notwithstanding the foregoing, I agree with the majority's

conclusion that the trial court abused its discretion by denying the

continuance. As described in the majority opinion, the record indicates

that the trial court's decision to deny Jordan's request for a continuation

to provide newly retained counsel adequate time to prepare was based on

a misunderstanding of the case's procedural history. The denial is

subject to review for abuse of discretion, see, e.g., Hill v. State, 157 So.

3d 481, 482 (Fla. 2d DCA 2015) (citing Baron v. Baron, 941 So. 2d 1233,

1235 (Fla. 2d DCA 2006)), and reversal is warranted where the record

"clearly and affirmatively" shows a "palpable abuse of" the trial court's

discretion to reject a motion for continuance. See Magill v. State, 386 So.

2d 1188, 1189 (Fla. 1980) (citing Pittman v. State, 41 So. 385 (Fla.

1906)). It appears from the record that the trial court mistook the

procedural facts of the case, something that seems bound to happen

from time to time to hardworking but human judges faced with daunting

caseloads. However, it would be difficult to conclude that the mistake

does not constitute an abuse of discretion; an exercise of discretion

based on a misapprehension of the circumstances should not be upheld

when the record indicates, as the majority points out, that reasons cited

by the trial court are contradicted by the record, the record suggests

reliance on a general policy, and there was evidence to support a

conclusion that a continuance might have been necessary to safeguard

the defendant's right to counsel of his own choosing. Cf. Richardson v.

State, 246 So. 2d 771, 775 (Fla. 1971) ("[T]he court's discretion can be

properly exercised only after the court has made an adequate inquiry

into all of the surrounding circumstances.").

Regarding the court's failure to hold a Faretta hearing, the majority

accurately points out that "[u]nder Faretta and our precedent, once an

12

unequivocal request for self-representation is made, the trial court is

obligated to hold a hearing, to determine whether the defendant is

knowingly and intelligently waiving his right to court-appointed counsel."

Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008) (emphasis added). The

majority contends that Jordan did make an unequivocal statement that

he wanted to represent himself and suggests Jordan succumbed to the

trial court's interference with his Sixth Amendment right to self-

representation when he withdrew his request. Respectfully, I conclude

that the record does not support that contention.

On the contrary, Jordan was equivocal in expressing his desire to

discharge counsel and represent himself. While represented by a public

defender, Jordan filed his handwritten "Motion for Terminating Counsel

of Record," raising several grievances with his public defender—including

his lawyer's unwillingness to file a motion to suppress and motion to

dismiss—and stating, "I will consider the court appointing pro-bono

attorney to effectively represent the changes [sic] in accordance with law

or I will proceed pro-se." This written request did not manifest an

unequivocal desire for self-representation but a request in the

alternative—either self-representation or different court-appointed

counsel—to effectuate his ultimate objective of having his preferred

motions heard. The record does not indicate that a hearing was held on

that motion, and Jordan's request to represent himself or get a new

lawyer lay dormant for several months until a pretrial hearing was held

during which the parties discussed two motions Jordan had filed himself

but that his appointed counsel was unwilling to adopt. Jordan's

argument at the hearing confirmed that his ultimate request was not

necessarily to represent himself but to have his motions heard. In one

instance, Jordan stated, "I'm willing to go pro se in order to have this—

13

this motion heard, Your Honor"; in a second instance, he stated, "I'm

willing to go pro se in order to have this motion heard, and I just

honestly feel that I'm not ready to go to trial."

The next morning, another hearing was held regarding Jordan's

motions. During this hearing, the court asked Jordan about the basis

for his motions, to which Jordan asserted "the reason I want to go pro se

is because I clearly have—like they're not representing me." Here,

compared to the previous requests, Jordan made a less ambiguous

request to represent himself but still specified it was in the interest of

having his motions heard. Following Jordan's request, the court

discussed Jordan's motions with him, explained that appointed counsel

justifiably did not want to adopt those motions because it was her

position that they lacked merit, and that the court would allow Jordan to

present his arguments anyway. At the conclusion of the hearing wherein

Jordan made his request, the court asked him if he wanted his appointed

counsel to represent him. Jordan stated the following: "I would like her

help. I mean, I never wanted her to not represent me." The record

further reflects that the court did allow the parties to call witnesses,

present testimony, and argue those motions. The court asked Jordan if

he wanted his appointed counsel to cross-examine the State's witness;

Jordan stated that he did, and counsel did so, consulting with Jordan

during pauses in her questioning. The court specifically asked Jordan if

counsel asked all the questions he wanted her to ask. He indicated that

she did. The court also asked if Jordan was satisfied with the questions

asked; he indicated that he was, and that he did not have any additional

questions. Jordan was permitted to personally deliver his arguments to

the court, with appointed counsel assisting Jordan at times. Upon orally

ruling that Jordan's motions would be denied, the court asked if there

14

was anything else to address; Jordan did not express that he wanted to

represent himself or that he was unsatisfied with appointed counsel or

the proceedings that had just transpired.

"A trial court's decision on a request for self-representation is

reviewed for an abuse of discretion." Holmes v. State, 229 So. 3d 883,

885 (Fla. 1st DCA 2017) (citing McGirth v. State, 209 So. 3d 1146, 1157

(Fla. 2017)); see also Bova v. State, 311 So. 3d 1000, 1002 (Fla. 5th DCA

2021) (citing Slinger v. State, 219 So. 3d 163, 164 (Fla. 5th DCA 2017));

Armas v. State, 312 So. 3d 1062, 1065 (Fla. 1st DCA 2021) (citing Damas

v. State, 260 So. 3d 200, 212 (Fla. 2018)). A defendant can abandon his

request to represent himself. See Butler v. State, 374 So. 3d 914, 920

(Fla. 2d DCA 2023) (first citing Cheney v. State, 236 So. 3d 500, 502–03

(Fla. 1st DCA 2018); and then citing Brown v. State, 45 So. 3d 110, 117

(Fla. 1st DCA 2010)). Here, Jordan explicitly stated that he was

amenable to court-appointed counsel, so long as it would not preclude

his motions from being heard; he never made a request to represent

himself for any other purpose. Subsequently, he effectively rescinded his

qualified request to represent himself when he accepted court-appointed

counsel with the explanation that self-representation was never his

ultimate aim.

After the motions were argued, the trial court diligently checked

with Jordan to verify that he was satisfied with appointed counsel's work.

Jordan indicated that he was, and he never renewed his request to

represent himself. Under these circumstances, the trial court did not

abuse its discretion by failing to allow Jordan to represent himself. After

Jordan's concerns were addressed to his admitted satisfaction, Jordan

abandoned any assertion of his right to represent himself by clearly

indicating he wished for appointed counsel to continue representing him.

15

See Kearse v. State, 605 So. 2d 534, 537–38 (Fla. 1st DCA 1992) (first

citing Brown v. Wainwright, 665 F.2d 607, 610–11 (5th Cir. 1982); and

then citing Myles v. State, 582 So. 2d 71, 72 (Fla. 3d DCA 1991),

quashed on other grounds, 602 So. 2d 1278 (Fla. 1992)); see also

Deshazior v. State, 320 So. 3d 333, 335 (Fla. 3d DCA 2021) ("Even

though a defendant may unequivocally request to represent himself, the

right may be waived through the defendant's subsequent conduct

indicating he is vacillating on the issue or has abandoned his request

altogether." (citing Brown, 665 F.2d at 611)). The equivocal nature of

Jordan's request to represent himself and subsequent waiver of his right

to self-representation belies the majority's conclusion that reversal is

warranted for failure to hold a Faretta inquiry.

Opinion subject to revision prior to official publication.

16