DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMIE PERRY VAN ZAGARELLA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3394
[March 15, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Lawrence Michael Mirman, Judge; L.T. Case No.
562020CF001407A.
Carey Haughwout, Public Defender, and Cynthia L. Anderson,
Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
KUNTZ, J.
The defendant appeals his conviction of two counts of battery on a law
enforcement officer. He raises four issues on appeal. We affirm three of
those issues and write to address the defendant’s argument that the trial
court erred when it did not allow the defendant to consult standby counsel.
We reverse on the fourth issue and agree with the defendant that the trial
court erred when it cited both simple battery and battery on a law
enforcement officer in the final judgment.
A. The Court Did Not Err When it Declined the
Defendant’s Repeated Requests to Consult with
Standby Counsel
After the state rested its case, the defendant asked to represent himself
for the rest of the trial. The court conducted a Faretta hearing 1 and
informed the defendant of the risks of self-representation and found he
1 Faretta v. California,
422 U.S. 806 (1975).
freely, knowingly, and voluntarily chose to represent himself despite these
risks. The court also asked the defendant’s counsel to remain in the
courtroom in case the defendant changed his mind.
The defendant called himself to testify and the court had to repeatedly
instruct him on admissible evidence and the differences between evidence
and arguing. He also repeatedly attempted to read from deposition
testimony, which the court refused to allow. The trial judge explained to
the defendant that he would not be permitted to read from the deposition
and asked him if he still wanted to represent himself. The defendant
responded that he did.
During the state’s cross-examination of the defendant, the judge again
offered to reappoint his attorneys. Again, the defendant declined. Later,
while attempting to question a witness, the defendant asked if he could
“call up just one of my lawyers to give me a little help on the side?” He
asked if he could have just one of the attorneys help him.
The judge responded that he either had an attorney or he did not. The
judge allowed the defendant to consult his former attorneys to determine
whether they should represent him. After that discussion, the defendant
chose to represent himself “of his own free will.” After the jury returned
its verdict, the defendant agreed to allow the public defender to represent
him.
The defendant argues the court erred by not acceding to his request to
“call up just one of my lawyers to give me a little help on the side?” We
disagree. In Faretta,
422 U.S. at 834, the Supreme Court held that a
criminal defendant has the right under the Sixth Amendment to reject
appointed counsel and represent himself. In such an instance, the court
may appoint “standby counsel” “to aid the accused if and when the
accused requests help, and to be available to represent the accused in the
event that termination of the defendant’s self-representation is necessary.”
Id. at 834 n.46.
While standby counsel is constitutionally permissible, it is not required.
Jones v. State,
449 So. 2d 253 (Fla. 1984). Nor does a defendant have a
Sixth Amendment right to “hybrid representation,” in which a defendant
represents himself, but has counsel prepare filed pleadings. Sheppard v.
State,
17 So. 3d 275, 279-80 (Fla. 2009). Finally, “a defendant who
represents himself has the entire responsibility for his own defense, even
if he has standby counsel.” Behr v. Bell,
665 So. 2d 1055, 1056–57 (Fla.
1996).
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In the end, “[a] defendant has no constitutional right to standby
counsel,” Paul v. State,
152 So. 3d 635, 641 (Fla. 4th DCA 2014) (citing
Jones,
449 So. 2d at 258), and “a defendant may not manipulate the
proceedings by willy-nilly leaping back and forth between the choices.”
Id.
(quoting Jones,
449 So. 2d at 259).
The defendant cannot prevail on his claim that the trial court erred
when it declined to allow him to access standby counsel it was not required
to give him.
B. The Final Judgment Improperly Cites Simple Battery
and Battery on a Law Enforcement Officer
The defendant also argues a “scrivener’s error” appears in his final
judgment. He argues the judgment impermissibly cites two crimes: simple
battery and battery on a law enforcement officer. He argues this violates
double jeopardy under section 775.04(b)(2), Florida Statutes (2021),
because it convicts him of two offenses that are “different degrees of the
same offense.” See Ramirez v. State,
113 So. 3d 105, 108 (Fla. 5th DCA
2013).
In Ramirez, the Fifth District concluded that based on the “same
elements” test found in Blockburger v. United States,
284 U.S. 299 (U.S.
1932), battery and felony battery based on one prior battery were different
degrees of the same offense and so were crimes arising from the same
criminal transaction.
113 So. 3d at 107-08. Therefore, a defendant could
not be convicted of both under Florida’s double jeopardy statute, section
775.021(4)(a).
Id. The Fifth District held the same was true of felony
battery with one prior and battery on a law enforcement officer because
they were both “aggravated forms of simple battery.”
Id. at 108-09. We
adopted Ramirez’s reasoning in Juliao v. State,
149 So. 3d 1151 (Fla. 4th
DCA 2014), when we held that felony battery and aggravated battery were
the same offense for double jeopardy purposes.
Based on these decisions, the defendant is correct that the trial court
improperly convicted him of both simple battery under section 784.03(1),
Florida Statutes (2021), and battery on a law enforcement office under
section 784.07(2)(b), Florida Statutes (2021). We reverse the defendant’s
conviction for simple battery (the lowest offense) and remand with
instructions to remove the final judgment’s reference to simple battery.
Affirmed in part, reversed in part, and remanded.
GROSS and DAMOORGIAN, JJ., concur.
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GROSS, J., concurring specially.
It is difficult enough for a trial court to navigate the legal requirements
imposed by Faretta v. California,
422 U.S. 806 (1975), without creating yet
another legal Charybdis by imposing similar requirements on the
participation of standby counsel, once appointed.
After reviewing the case law regarding standby counsel, I conclude that
appellate courts should recognize the “broad discretion” of trial courts “to
guide what, if any, assistance” standby counsel may provide and review
such decisions accordingly. United States v. Lawrence,
161 F.3d 250, 253
(4th Cir. 1998).
* * *
Not final until disposition of timely filed motion for rehearing.
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