JOSE PEROZO v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSE PEROZO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D22-527

[February 22, 2023]

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

Beach County; Scott Suskauer, Judge; L.T. Case No. 50-2020-CF-006633-

AXXX-MB.

Carey Haughwout, Public Defender, and Robert Porter, Assistant Public

Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,

Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

Jose Perozo (“Defendant”) appeals his judgment and sentences after a

jury found him guilty of burglary of a dwelling, fleeing or attempting to

elude, and possession of cocaine. Defendant asserts four grounds for

reversal on appeal. We affirm without discussion as to three of the

grounds, but reverse and remand for a new trial because the trial court

erred in denying Defendant’s motion to continue trial to hire counsel

without making an adequate inquiry into the surrounding circumstances

and clear findings to show that Defendant’s constitutional right to counsel

of choice was not being arbitrarily denied.

Background

The State charged Defendant with burglary of a dwelling, fleeing or

attempting to elude an officer, and possession of cocaine. The public

defender was appointed to represent Defendant. The case proceeded to a

jury trial.

One week before trial was set to begin, Defendant filed a stipulation of

substitution of counsel, substituting his court-appointed assistant public

defender with private counsel. Two days later, private counsel filed a

notice of appearance. The next day, the trial court held a status check

requested by Defendant’s assistant public defender regarding a

determination of counsel. Defendant did not attend the status hearing.

At the status hearing, private counsel requested that the trial court allow

him to represent Defendant and indicated that he had a further request,

of which he had previously advised the State. Before private counsel could

make his further request, the trial court stated: “I’m not granting a

continuance. If you want to go on board to try the case next week[,] [i]t’s

up to you. I’m not going to have . . . defendant’s [sic] run the show around

here, picking new lawyers . . . and getting continuances.”

Later the same day the status hearing was held, private counsel filed a

motion to withdraw the stipulation for substitution of counsel. In the

withdrawal motion, private counsel stated that his agreement to represent

Defendant was dependent on the trial court granting a trial continuance,

and because the trial court denied a continuance, he immediately notified

Defendant that he would not be able to represent him and refunded the

retainer which Defendant paid. Shortly after private counsel filed the

motion, the trial court entered an order deeming the motion for

substitution of counsel and notice of appearance withdrawn.

A little over an hour after the trial court entered the order deeming the

motion to substitute counsel withdrawn, Defendant filed a motion for

thirty-day continuance to hire counsel of his choice and to depose

witnesses who had refused to honor subpoenas after being served. 1

Defendant cited case law supporting his right to counsel of his choosing

and holding that a trial court errs in denying a continuance without an

adequate inquiry into the surrounding circumstances and clear findings

to demonstrate that a defendant’s constitutional right to counsel of his or

her choice is not being arbitrarily denied.

On the morning of trial, the trial court first addressed Defendant’s

motion for continuance. The trial court stated that it had reviewed

Defendant’s motion and was denying a continuance.

Accordingly, trial proceeded with Defendant represented by the

assistant public defender who had been handling the case for some time.

1 Because the State witnesses did not honor deposition subpoenas prior to trial,

the State makes no argument on appeal that court-appointed counsel was

seeking a last-minute delay in the trial because the defense was not diligent.

2

The jury ultimately convicted Defendant as charged. After sentencing,

Defendant gave notice of appeal.

Appellate Analysis

“A denial of a motion for continuance to obtain new counsel is reviewed

for an abuse of discretion.” McKenzie v. State, 308 So. 3d 183, 187 (Fla.

4th DCA 2020). “A wrongful denial of the right to be represented by a

privately retained lawyer of defendant’s choice, however, is prejudicial per

se.” Jones v. State, 271 So. 3d 1042, 1044 (Fla. 4th DCA 2019).

“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); see also Art. I, § 16, Fla. Const. However, “the essential aim of the

Amendment is to guarantee an effective advocate for each criminal

defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.” Wheat v. United States, 486

U.S. 153, 159, 108 S.Ct. 1692, 100 L. Ed. 2d 140 (1988). Thus, we have

acknowledged that a defendant’s right to be represented by an attorney of

his or her choosing is neither unfettered nor absolute. See Jones, 271 So.

3d at 1044.

Consequently, “it is within a trial court’s discretion to deny a

defendant’s request for particular counsel when there is a ‘countervailing

public interest in the fair and orderly administration of justice.’” Foster v.

State, 704 So. 2d 169, 173 (Fla. 4th DCA 1997) (quoting Bundy v. State,

455 So. 2d 330, 347 (Fla. 1984), abrogated on other grounds by Fenelon

v. State, 594 So. 2d 292 (Fla. 1992)). “For example, a defendant’s

invocation of the right to choose his own attorney may not be made in bad

faith or ‘for the sake of arbitrary delay or to otherwise subvert judicial

proceedings.’” Id. (quoting Holley v. State, 484 So. 2d 634, 636 (Fla. 1st

DCA 1986)).

In the instant case, Defendant made his request for a continuance on

the eve of trial. “Although requests for substitution of counsel on the eve

of trial are disfavored, we have held that this fact alone” is not

determinative. Jones, 271 So. 3d at 1044 (quoting Bentz v. State, 251 So.

3d 201, 205 (Fla. 4th DCA 2018)). Instead, “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.’” Deal v. State, 145 So. 3d 212, 214 (Fla. 4th DCA 2014) (quoting

Alvarez, 75 So. 3d at 423). “The ‘[f]actors to be considered by the trial

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court include whether the motion is being made in bad faith or as a delay

tactic; whether a continuance would prejudice the State; or whether the

court’s schedule would not permit a continuance.’” Jones, 271 So. 3d at

1044 (alteration in original) (quoting Valcarcel v. State, 201 So. 3d 795,

798 (Fla. 4th DCA 2016)).

The instant case’s facts are similar to Valcarcel’s facts. There, one week

before his scheduled sentencing hearing, the defendant’s family retained

a private attorney, who filed a motion to continue the sentencing hearing

to prepare. 201 So. 3d at 797. Two days before the sentencing hearing,

the defendant’s court-appointed counsel filed a motion to withdraw, citing

problematic statements in the private attorney’s motion to continue. Id.

At the hearing on the court-appointed attorney’s motion to withdraw,

private counsel told the trial court he could not take the case if the trial

court did not grant a continuance, so when the trial court denied the

continuance, it also denied the court-appointed attorney’s motion to

withdraw. Id. The defendant proceeded to sentencing while represented

by the court-appointed attorney. Id. On appeal, this Court determined

“that the trial court summarily denied the motion to continue, which

resulted in the summary denial of [the defendant’s] counsel of choice,” as

the trial court made neither an inquiry into the surrounding

circumstances nor clear findings that the defendant’s constitutional rights

were not being arbitrarily denied. Id. at 797-98.

Like in Valcarcel, the trial court here erred in denying Defendant’s

request for a continuance to retain counsel of his choice without

conducting any inquiry into the surrounding circumstances and making

any findings to show that Defendant’s right to counsel of his choice was

not being arbitrarily denied. See also Hillsman v. State, 159 So. 3d 415,

421 (Fla. 4th DCA 2015) (reversing where “no inquiry of any kind was

made” by the trial court). Further, not only did the trial court fail to

conduct any inquiry, but it cut private counsel off when he was attempting

to explain the motion. Moreover, not only did the trial court fail to make

clear findings demonstrating that Defendant’s constitutional right was not

being arbitrarily denied, its reasoning for denying Defendant’s motion

indicates that the trial court did arbitrarily deny Defendant his

constitutional right. In ruling, the trial court stated that it was not going

to allow “defendant[s to] run the show around here, picking new lawyers .

. . and getting continuances.” 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. Brown v. State, 942 So. 2d 12, 15 (Fla. 1st DCA 2006)

(finding that although “the trial court made reference to a policy to deny

motions for a continuance when they were made after a late substitution

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of counsel,” it properly exercised its discretion in hearing argument and

ruling on the motion).

Further, after the trial court denied Defendant’s request at the hearing,

Defendant filed a written motion, directing the trial court to case law and

arguing that it was error for the trial court to have denied Defendant’s

request for a continuance without an adequate inquiry and proper

findings. However, when the trial court addressed Defendant’s written

motion on the morning of trial, indicating that it had “reviewed”

Defendant’s motion, it still made no inquiry or findings. Thus, even

confronted with its error and the opportunity to correct it, the trial court

still failed in performing its duty.

Finally, the State argues that any error as to the trial court’s denial of

a continuance is harmless. However, the case on which the State relies to

argue harmless error, Barnhill v. State, 834 So. 2d 836 (Fla. 2002), did not

involve a request for a continuance for the defendant to retain counsel of

choice, but instead, a motion for continuance for a witness to personally

appear to testify. Id. at 847. To the contrary, as we have stated, “[a]

wrongful denial of the right to be represented by a privately retained lawyer

of defendant’s choice . . . is prejudicial per se.” Jones, 271 So. 3d at 1044.

Thus, we reject the State’s harmless error argument.

Accordingly, the trial court erred in failing to make any inquiry into the

circumstances surrounding Defendant’s request for a continuance to

retain private counsel of his choice. Additionally, the trial court failed to

make findings to demonstrate that Defendant’s constitutional right to

counsel of his choice was not arbitrarily denied. Therefore, we reverse

Defendant’s judgment and sentences and remand for a new trial.

Affirmed in part, reversed in part, remanded for new trial.

MAY and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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