John F. Mosley v. State of Florida

Supreme Court of Florida
____________

No. SC20-195
____________

JOHN F. MOSLEY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

September 15, 2022

COURIEL, J.

This is the appeal of the circuit court’s final order resentencing

John F. Mosley to death for the murder of his ten-month-old son,

Jay-Quan Mosley. The circuit court entered the order after Mosley’s

second penalty phase trial; we vacated Mosley’s original sentence of

death pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016). Mosley

v. State, 209 So. 3d 1248, 1284 (Fla. 2016).

We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We find

that, because the trial court failed to address Mosley’s unequivocal
motion to represent himself at his Spencer1 hearing, he is entitled to

a new Spencer hearing and sentencing hearing. We do not,

however, find that he is entitled to a third penalty phase trial.

I

Twice before we have recounted the murders that bring Mosley

to this Court. Mosley v. State, 46 So. 3d 510, 514-15 (Fla. 2009);

Mosley, 209 So. 3d at 1254-55. A jury convicted him of two counts

of first-degree murder after he strangled his girlfriend, Lynda

Wilkes; asphyxiated their son, Jay-Quan, in a garbage bag; and

disposed of both their bodies, hers by immolation, his in a

dumpster. At the conclusion of his first trial, in 2005, the jury

unanimously recommended a life sentence for the murder of Wilkes

and, by a vote of eight to four, recommended a death sentence for

the murder of Jay-Quan. The trial court imposed the recommended

sentences.

This Court affirmed the convictions and sentence of death on

direct appeal. Mosley, 46 So. 3d at 529. Mosley moved for

postconviction relief under rule 3.851 of the Florida Rules of

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
-2-
Criminal Procedure. Mosley, 209 So. 3d at 1257-58. After an

evidentiary hearing, the postconviction court denied the motion. Id.

This Court affirmed that decision as to Mosley’s guilt phase claims

but decided that a new penalty phase 2 was required under Hurst v.

Florida, 577 U.S. 466 (2016).3 209 So. 3d at 1284.

2. “Upon conviction or adjudication of guilt of a defendant of a
capital felony, the court shall conduct a separate sentencing
proceeding to determine whether the defendant should be
sentenced to death or life imprisonment . . . . The proceeding shall
be conducted by the trial judge before the trial jury as soon as
practicable.” § 921.141(1), Fla. Stat. (2004); see also Engle v. State,
438 So. 2d 803, 813 (Fla. 1983) (identifying the “three phases of a
capital case in the trial court” as “1) The trial in which the guilt or
innocence of the defendant is determined; 2) the penalty phase
before the jury; and 3) the final sentencing process by the judge”).

3. “Any fact ‘[exposing] the defendant to a greater punishment
than that authorized by the jury’s guilty verdict’ . . . must be
submitted to a jury.” Hurst v. Florida, 577 U.S. 92, 97 (2016)
(quoting Apprendi v. New Jersey, 530 U.S. 466, 494 (2000)). We
initially interpreted Hurst v. Florida to mean that in order for a
court to impose a death sentence, the jury must unanimously find
“the existence of each aggravating factor,” “that the aggravating
factors are sufficient,” and “that the aggravating factors outweigh
the mitigating circumstances.” Hurst, 202 So. 3d at 44. Since the
trial judge imposed Mosley’s death sentence after “independently
weighing the aggravating factors and mitigating circumstances,” we
vacated Mosley’s initial death sentence and remanded for a new
penalty phase. Mosley, 209 So. 3d at 1284. But later, we receded
from our holding that entitled Mosley to a new penalty phase. State
v. Poole, 297 So. 3d 487, 503-04 (Fla. 2020) (holding that the
question whether aggravating factors outweigh the mitigating

-3-
Prior to his second penalty phase proceeding for Jay-Quan’s

murder, Mosley moved to represent himself in arguing a motion for

an evidentiary hearing based on newly discovered evidence. On

March 20, 2018, after a Faretta 4 inquiry, the trial court initially

circumstances “need not be submitted to a jury” because it is “not
an element”); see also Mosley, 209 So. 3d at 1285 (Canady, J.,
concurring in part and dissenting in part) (“Based on the jury’s
verdict establishing the existence of an aggravator, I would conclude
that there was no [Hurst] violation. . . . Hurst v. Florida . . . only
requires that the jury find the existence of an aggravator that
renders a defendant eligible to be considered for death.”).

4. Faretta v. California, 422 U.S. 806, 835 (1975), established
that the Sixth Amendment to the U.S. Constitution guarantees a
defendant the right to conduct his own defense so long as he
knowingly and intelligently chooses to do so. Once an accused
makes an unequivocal demand to proceed pro se, the court must
conduct an inquiry to determine whether the accused is making a
competent and intelligent choice, with knowledge of the “dangers
and disadvantages of self-representation.” Id. As the Court said in
Faretta:

It is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance
than by their own unskilled efforts. But where the
defendant will not voluntarily accept representation by
counsel, the potential advantage of a lawyer’s training
and experience can be realized, if at all, only imperfectly.
To force a lawyer on a defendant can only lead him to
believe that the law contrives against him.

Id. at 834.

-4-
granted his motion, appointing standby counsel and a mitigation

specialist.5 But the trial court reversed itself when it found that

Mosley did not understand what giving up his right to counsel

entailed. At the end of the hearing, the trial court took Mosley’s

motion to proceed pro se under advisement.

With a new judge presiding,6 Mosley again moved to represent

himself pro se. At a hearing on the motion, however, Mosley stated

that he did not want to represent himself nor to be represented by

his attorney at the time. The trial court denied Mosley’s request for

another attorney, and Mosley withdrew his outstanding motion to

5. The American Bar Association (ABA) Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty
Cases explains the function of a mitigation specialist in its
commentary to Guideline 4.1: “A mitigation specialist is also an
indispensable member of the defense team throughout all capital
proceedings. Mitigation specialists possess clinical and
information-gathering skills and training that most lawyers simply
do not have. They have the time and the ability to elicit sensitive,
embarrassing and often humiliating evidence (e.g., family sexual
abuse) that the defendant may have never disclosed.” ABA
Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases (rev. ed. 2003) (footnote omitted).

6. While Mosley’s motion was pending, his counsel moved to
disqualify the judge, Judge McCallum, on the grounds that her
husband had worked on the case as an investigator. Judge
McCallum granted the motion, and Judge Weatherby took over the
case.

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represent himself.

On November 20, 2019, the trial court held its final conference

before the penalty phase. Mosley again moved to represent himself.

After another Faretta inquiry, the trial court granted Mosley’s

motion to proceed pro se and appointed standby counsel. Mosley

requested an eighteen-month continuance to prepare for trial,

which the trial court denied.

On December 2, 2019, the trial court proceeded with Mosley’s

penalty phase. The State called Bernard Griffin, a key cooperating

witness, who testified about the murders. On cross-examination,

Mosley noted that Griffin was “back on the stand for the state” and

asked him, “[A]fter this hearing is done you going to get to go free

again or they going to cut your time in half?” The trial court

interjected and instructed the jury that “Mr. Griffin is under a 20-

year sentence,” and “[t]here is no legal avenue for that sentence to

be changed at all except perhaps by his death in custody.” Mosley

protested the judge’s intervention. He insisted the “state can send

letter recommendations” to the court, “[a]sking to reduce [Griffin’s]

time.” After Mosley’s repeated attempts to “establish [Griffin’s]

motive,” the judge responded, “There is absolutely no evidence of
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that at all and the Court has no authority whatsoever to change a

sentence once the period of expiration has occurred, so I don’t care

who writes the letter. He ain’t going anywhere.” On redirect, the

prosecutor asked Griffin whether he’d been offered anything in

exchange for his testimony. Griffin responded, “No, not at all.”

Later in the penalty phase, Mosley called his mother to testify.

She testified that her son was a good son; that Mosley’s father was

physically abusive; that Mosley attended high school, college, and a

few police academies; that he had worked as an emergency

technician; and that he had served in the Navy. After her initial

testimony, she was excused, and several other witnesses testified.

The next day, before the first witness was called, Mosley advised the

trial court that he wished to recall his mother for further

questioning. The State objected, arguing that any additional

testimony would be cumulative. Because the trial court had

allowed Mosley’s mother to attend the proceedings, including the

testimony of other witnesses after she testified, and because of the

risk of cumulative testimony, the trial court required Mosley first to

proffer her testimony outside the presence of the jury. During the

proffer, Mosley asked his mother whether his father had sexually
-7-
abused his sisters. Additionally, he asked whether his father had

physically abused him and whether he had in fact been raised by

his grandmother. The trial court allowed Mosley to elicit before the

jury his mother’s testimony regarding his physical abuse and being

raised by his grandmother. But, explaining that the credibility of

Mosley’s father was not at issue, the trial court did not permit

Mosley to ask questions about his father’s sexual abuse of Mosley’s

sisters.

At the conclusion of the penalty phase, the jury unanimously

found that the State had proven four aggravating factors: (1) the

murder was especially heinous, atrocious, or cruel; (2) the murder

was committed in a cold, calculated, and premeditated manner; (3)

the victim was less than twelve years of age; and (4) Mosley was

previously convicted of another capital felony—that is, Wilkes’s

murder. The jury unanimously found that the aggravating factors

were sufficient to impose the death penalty and found no mitigating

circumstances. And the jury unanimously found that the

aggravating factors outweighed the mitigating circumstances.

Once the trial judge dismissed the jury, he offered Mosley

counsel for his Spencer hearing. Mosley accepted, and the judge set
-8-
the hearing for January 30, 2020. But on January 23, 2020, seven

days before the Spencer hearing, Mosley filed a motion titled,

“Unequivocal Demand to Immediately Represent Myself Pro Se.”

When the Spencer hearing began, the prosecutor

acknowledged to the trial court that defense “counsel has provided

me a pleading that was filed on January 23rd, 2020 . . . and this

was a pro se pleading filed by Mr. Mosley, so I believe prior to

addressing the pleadings that have been filed by [defense counsel]

we need to address that request.” The trial court responded, “Sure.

That’s fine. And I intend to do so.” But then it directed its

questions toward the “written motion [for a new penalty phase trial]

alleging some 10 or 12 errors.” Mosley’s counsel asked for

clarification:

Counsel: “Your Honor, do you want me to go ahead with the
Motion For New Penalty Phase argument?
The Court: “Yes.”
Counsel: “Or do you want to address the pro se motion?”
The Court: “No, no, no.”

After hearing argument, the trial court denied the motion for a

new penalty phase, then asked the parties, “Any reason why

sentence should not now be imposed?” Mosley’s counsel answered

with argument in mitigation, noting testimony from Mosley’s mother
-9-
about the family’s history of abuse. Mosley’s counsel inquired

whether the court required written sentencing memoranda. The

court responded, “I think it was capably argued.” The court then

asked again, “So is there any reason the sentence should not now

be imposed?” Mosley’s counsel responded, “There is none, sir,

unless you require the sentencing memorandums.” The court again

declined the memoranda.

The trial court ruled, “Having gone through all of this, the

motion for new penalty phase hearing is denied. Mr. Mosley . . . I

hereby sentence you to death and remand you to the custody of the

Sheriff . . . . Mr. Mosley, now let me address with you a written --

written document which I received this morning called unequivocal

demand to immediately represent myself pro se. Do you intend to

represent yourself on appeal?” Mosley responded, “That was

supposed to be before this Spencer hearing.” The trial court

responded:

If you had intended it to be -- happen beforehand there’s
no provision for you representing yourself under the
present circumstances. I don’t think there would have
been any provision at this time anyway because we’ve
gone through everything, but given the fact that I gave
you the opportunity to represent yourself during the
course of the trial and then you asked me to reappoint
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your attorneys which I’ve done I am not now going to
reappoint you to handle the matter today.

The trial court again asked Mosley if he wanted to represent

himself, and Mosley again responded, “I respectfully say I wanted to

handle my Spencer hearing myself.” When Mosley continued

speaking, the court cut him off, saying, “No, no, no. We’re past

that, Mr. Mosley. Do you want me to appoint the Public Defender

in Tallahassee or whomever to handle your appeal on this

particular matter or do you want to handle your appeal yourself?”

Mosley responded, “I have no control over it. [You’ve] already

denied me the right to a Faretta so I have no comment on that

because I wasn’t allowed to represent myself and I wanted to and it

was extremely important for me to represent myself to give the

arguments that I wanted to give.” The court moved on and

appointed a public defender as Mosley’s appellate counsel. Mosley’s

counsel then filed this appeal.

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II

Of the issues Mosley raises on appeal, we find that one

constitutes reversible error: the trial court’s failure to address

Mosley’s motion to represent himself at his Spencer hearing. We

take up that issue first, then explain why the other issues raised on

appeal do not entitle Mosley to a new penalty phase.

A

Under the Sixth Amendment to the U.S. Constitution, an

accused has the “constitutional right to conduct his own defense.”

Faretta, 422 U.S. at 836. We have said that a defendant’s choice to

invoke this right “must be honored out of ‘that respect for the

individual which is the lifeblood of the law.’ ” Tennis v. State, 997

So. 2d 375, 377-78 (Fla. 2008) (quoting Faretta, 422 U.S. at 834).

Just as a defendant may waive the right to counsel, he or she

may waive the right to go it alone. In both Faretta and Tennis, the

defendant invoked his right to conduct his own defense well in

advance of trial. Faretta, 422 U.S. at 807; Tennis, 997 So. 2d at

377. Relying on those precedents, the federal courts, this Court,

and several Florida District Courts of Appeal have found that a

request to represent oneself at trial can, in the trial court’s exercise
- 12 -
of sound discretion, be denied when it is untimely. See United

States v. Dunlap, 577 F.2d 867, 869 (4th Cir. 1978) (“[O]nce trial

has begun, it is within the trial court’s discretion whether to allow

the defendant to dismiss counsel and proceed pro se.”); McCray v.

State, 71 So. 3d 848, 870 (Fla. 2011) (“As other courts have

recognized, a trial court’s decisions on a defendant’s belated request

for self-representation after the trial begins is reviewed for an abuse

of discretion.”); Davis v. State, 162 So. 3d 326, 327 (Fla. 3d DCA

2015); Thomas v. State, 958 So. 2d 995, 996 (Fla. 5th DCA 2007).

What counts as “untimely” is less settled. Certainly a motion made

well in advance of trial is timely. One made on its eve, or certainly

after trial has begun, makes it difficult for a trial court, without

granting a continuance, to explain to the defendant the significant

responsibilities that attend self-representation, and to provide the

defendant adequate time to shoulder those responsibilities. A

motion for self-representation that comes late is, in that sense,

disruptive of orderly proceedings and may result in delay that is

unfair to the State, victims, witnesses, and other parties having

business before the court. A court may, in its discretion, give

weight to those considerations in denying as untimely a motion for
- 13 -
self-representation.

Subject to these considerations, and except in limited

circumstances to which we will come shortly, once a defendant

makes an unequivocal demand to represent himself, the trial court

must conduct a Faretta inquiry to determine whether the defendant

is knowingly and intelligently waiving his right to counsel. We have

said that a trial court’s failure to do so is per se reversible error.

McCray, 71 So. 3d at 864; Hardwick v. State, 521 So. 2d 1071,

1074 (Fla. 1988) (explaining that once a defendant exercises his

right to self-representation, it is “incumbent upon the court to

determine whether the accused is knowingly and intelligently

waiving his right to court-appointed counsel, and the court commits

reversible error if it fails to do so”), superseded on other grounds by

Hooks v. State, 286 So. 3d 163, 169 (Fla. 2019); Tennis, 997 So. 2d

at 379 (“Under our clear precedent, and that of the district courts of

appeal, the trial court’s failure to hold a Faretta hearing in this case

to determine whether Tennis could represent himself is per se

reversible error.”); see State v. Young, 626 So. 2d 655, 657 (Fla.

1993) (concluding that Faretta and Florida Rule of Criminal

- 14 -
Procedure 3.111(d) 7 require reversal if the lower court does not

conduct a proper Faretta inquiry); Jones v. State, 449 So. 2d 253,

258 (Fla. 1984) (instructing that “the trial court should forthwith

proceed to a Faretta inquiry” once a defendant exercises his right to

self-representation).

A court may deny a defendant’s demand for self-representation

without a Faretta inquiry if the demand is not made unequivocally.

See Hardwick, 521 So. 2d at 1074 (“We note that the courts have

long required that a request for self-representation be stated

unequivocally.”); Chapman v. United States, 553 F.2d 886, 892 (5th

Cir. 1977) (requiring an unequivocal demand “because a decision to

defend pro se may jeopardize a defendant’s chances of receiving an

effective defense, and because a pro se defendant cannot complain

on appeal that his own defense amounted to a denial of effective

assistance of counsel”). And a court may deny an unequivocal

7. Fla. R. Crim. P. 3.111(d)(2) (“A defendant shall not be
considered to have waived the assistance of counsel until the entire
process of offering counsel has been completed and a thorough
inquiry has been made into both the accused’s comprehension of
that offer and the accused’s capacity to make a knowing and
intelligent waiver.”).

- 15 -
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. See Young, 626 So. 2d at 657 (“[A] trial judge

is not compelled to allow a defendant to delay and continually

frustrate his trial.”); Jones, 449 So. 2d at 257 (“[N]either the

exercise of the right to self-representation nor to appointed counsel

may be used as a device to abuse the dignity of the court or to

frustrate orderly proceedings.”).

Here, the State is correct that Mosley’s “Unequivocal Demand

to Immediately Represent Myself Pro Se” was untimely, in that it

was filed not just after trial had begun, but after it had concluded.

It came a week before his Spencer hearing and sentencing. But

notwithstanding the tumult that had characterized his prior

relationship with his counsel and Mosley’s vacillation in wanting to

represent himself at other times during the proceedings, there was,

as to the Spencer hearing, no basis in the record to doubt that

Mosley wanted to represent himself. He never withdrew or

equivocated about his motion, which the trial court had ample time

to consider.

True, the determination we must make requires us to
- 16 -
“consider[] the entire scope of the defendant’s request, instead of

focusing on one isolated statement,” Mosley, 209 So. 3d at 1272,

but Mosley’s request about the Spencer hearing came at a time that

allowed ample consideration by the trial court. It can be sorted

from Mosley’s other halting assertions of a desire to represent

himself during the course of his case.

At the beginning of the Spencer hearing, Mosley’s counsel and

the State brought the motion to the trial court’s attention. Given

Mosley’s unequivocal written request filed a week before the

hearing, we look to the record for the trial court’s assessment of

whether the motion ought to be denied as untimely. But the trial

court made no such assessment. Nobody contends that

consideration of the motion at that time would have disrupted the

proceedings or required any delay in excess of the time it would

have taken to hear argument on the motion, or to simply have

explained that such argument was untimely. Giving no reason for

its decision to do so, the court deferred consideration of the motion

to a time when it would be moot. On those facts, we have no basis

upon which to assess the trial court’s exercise of discretion—to

which we of course accord substantial deference where, unlike here,
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the trial court’s reasoning is amenable to review. See Grindstaff v.

Coleman, 681 F.2d 740, 742 (11th Cir. 1982) (declining to review a

trial court’s decision for abuse of discretion because “[t]he trial

court in this case did not exercise discretion”).

As we said in Tennis:

We understand that in criminal cases, and
especially in a death penalty case where the stakes could
not be higher, judges may become frustrated over what
they perceive to be efforts on the part of a defendant to
frustrate or delay the proceedings. We also recognize
that presiding over death penalty cases is a difficult and
challenging responsibility for a trial judge. However, our
cases make clear that when there is an unequivocal
request for self-representation, a trial court is obligated
to hold a Faretta hearing to determine if the request for
self-representation is knowing and intelligent.

997 So. 2d at 380. That did not happen here. Under the

circumstances presented in this case, this is error requiring

reversal. Hardwick, 521 So. 2d at 1074; Tennis, 997 So. 2d at 379;

Young, 626 So. 2d at 657. 8

8. The dissent says that the trial court’s denial of Mosley’s
request “was eminently reasonable and far from an abuse of
discretion.” Opinion concurring in part and dissenting from the
judgment at 28. To be clear, our decision today does not mean that
a trial court could not have reasonably considered and denied
Mosley’s request, but rather, that the court in this case abused its
discretion when it declined to consider the request until after it had
become moot—and for no good, or even apparent, reason.
- 18 -
Mosley raises other issues with the way in which his Spencer

hearing was conducted. But we do not reach those, as we find it is

necessary to remand for a new hearing on this basis alone.

B

We do, however, address Mosley’s allegations of error at his

penalty phase and find that none requires reversal.

Mosley first argues the trial court abused its discretion by

preventing cross-examination of Griffin about his motivations to

testify at the penalty phase trial, 9 and by telling the jury there was

no possible way Griffin could have his sentence reduced for

testifying against Mosley. Mosley argues that the trial court’s

decision curtailed his Sixth Amendment right to confront the

witnesses against him. See Rodriguez v. State, 753 So. 2d 29, 43

(Fla. 2000) (explaining that it is an “uncontroverted proposition that

the Sixth Amendment right of confrontation applies to all three

phases of the capital trial”).

We find that the trial court permissibly exercised its discretion

9. For purposes of this appeal, we consider Griffin’s testimony
only at the penalty phase.

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in determining the scope of Griffin’s cross-examination. See Patrick

v. State, 104 So. 3d 1046, 1057 (Fla. 2012) (reviewing a trial court’s

decision to limit cross-examination for abuse of discretion). While

“[b]ias on the part of a prosecution witness is a valid point of

inquiry in cross-examination . . . the prospect of bias does not open

the door to every question that might possibly develop the subject.”

Breedlove v. State, 580 So. 2d 605, 609 (Fla. 1991) (quoting

Hernandez v. State, 360 So. 2d 39, 41 (Fla. 3d DCA 1978)); see also

Patrick, 104 So. 3d at 1058 (concluding that the trial court’s choice

to limit questioning on an informant’s motivations for testifying was

not an abuse of discretion, even though the trial court knew the

informant would potentially benefit from testifying). It is settled

that “trial judges retain wide latitude . . . to impose reasonable

limits on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Moore v. State, 701 So. 2d 545, 549 (Fla. 1997) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

Here, the trial court permissibly limited the scope of cross-

examination on the basis of its determination that Griffin would not
- 20 -
qualify for a reduction or suspension of his sentence on account of

his penalty phase testimony, as such reduction or suspension

requires substantial assistance in the “identification, arrest, or

conviction” of an accomplice—none of which would be a result of

his penalty phase testimony. § 921.186, Fla. Stat. (2019).

Second, we reject Mosley’s argument that the trial court

improperly excluded his mother’s proffered testimony that his

father had sexually abused two of his sisters. We review that

decision for abuse of discretion. Glover v. State, 226 So. 3d 795,

806 (Fla. 2017); Frances v. State, 970 So. 2d 806, 813 (Fla. 2007).

We find no such abuse, because the trial court reasonably

concluded that Mosley’s mother’s proffered testimony did not

establish that she had personal knowledge of the sexual abuse or

how it affected Mosley.

Third, Mosley claims the trial court committed fundamental

error by failing to instruct the jury that it must find beyond a

reasonable doubt that the aggravating factors were sufficient to

justify death and that the aggravating factors outweighed the

mitigating factors. But that is not the law. The sufficiency and

weight of aggravating factors in a capital case are not elements that
- 21 -
must be determined by the jury beyond a reasonable doubt. Rogers

v. State, 285 So. 3d 872, 885-86 (Fla. 2019).

Finally, Mosley contends that the trial court erred in refusing

to consider his motion for an evidentiary hearing based on newly

discovered evidence. But the trial court correctly denied the motion

because Mosley was not authorized to file it himself while

represented by counsel. See Puglisi v. State, 112 So. 3d 1196, 1206

n.14 (Fla. 2013) (“We have previously said that ‘[t]here is no

constitutional right for hybrid representation at trial.’ ” (quoting

Mora v. State, 814 So. 2d 322, 328 (Fla. 2002))); Sheppard v. State,

17 So. 3d 275, 279 (Fla. 2009) (“[A] defendant has no Sixth

Amendment right to simultaneously proceed pro se and with legal

representation.”); see also Fla. R. Crim. P. 3.851(b)(6) (“A defendant

who has been sentenced to death may not represent himself or

herself in a capital postconviction proceeding in state court.”).

III

We vacate Mosley’s sentence of death and remand solely for a

new hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla.

1993), and a new sentencing hearing.

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It is so ordered.

CANADY, POLSTON, LABARGA, and GROSSHANS, JJ., concur.
MUÑIZ, C.J., concurs in part and dissents from the judgment with
an opinion.
FRANCIS, J., did not participate.

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

MUÑIZ, C.J., concurring in part and dissenting from the judgment.

I agree with the majority that Mr. Mosley is not entitled to a

new penalty phase trial. But I respectfully disagree with the

majority’s decision to vacate Mosley’s death sentence and to remand

for a new sentencing hearing. As the State argues, and as the

majority itself acknowledges, Mosley’s mid-stream request for self-

representation at his Spencer hearing was untimely. Neither first

principles nor our case law supports the conclusion that the trial

court abused its discretion by denying that request. 10

10. Mosley also raises an unpreserved claim challenging the
trial court’s failure to recess the Spencer hearing before orally
imposing sentence. Mosley does not allege that the trial court’s
procedure violated any constitutional or statutory requirement, nor
does he argue that the trial court committed fundamental error.
This claim is therefore also without merit.

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To begin, the majority and I proceed from a shared

understanding that “the right to self-representation is not absolute.”

Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000). Relevant

here, “a defendant may forfeit his self-representation right if he does

not assert it ‘in a timely manner.’ ” Hill v. Curtin, 792 F.3d 670, 677

(6th Cir. 2015) (quoting Martinez, 528 U.S. at 162). It follows that,

when a trial court denies a self-representation request as untimely,

there is no need for a Faretta hearing. After all, the purpose of such

a hearing is to explain the pitfalls of proceeding without counsel

and to ensure that the defendant’s decision is voluntary and

informed. That “concern is obviated if self-representation is denied

for some other reason, such as untimeliness.” Hill, 792 F.3d at

677.

The majority and I also agree that Mosley’s request to

represent himself at his Spencer hearing was untimely. While there

are debates on the margins about how far in advance of trial a

defendant must invoke self-representation, a request made after the

commencement of meaningful trial proceedings is undisputedly

untimely. See Wayne R. LaFave et al., Criminal Procedure § 11.5(d)

(5th ed. 2009); Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.
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2007) (pro se motion made after jury’s guilty verdict but before

sentencing was untimely). Here, Mosley’s penalty phase do-over

was well underway—indeed, almost complete—when he made the

self-representation request at issue. A Spencer hearing is a distinct

aspect of the penalty phase, but it is not an independent proceeding

for purposes of determining whether a self-representation request is

timely. The majority acknowledges this.

My common ground with the majority continues even to the

next step in the analysis—we agree that the abuse of discretion

standard applies to our review of a trial court’s denial of an

untimely request for self-representation. See Horton v. Dugger, 895

F.2d 714, 717 (11th Cir. 1990) (“Appellate courts routinely uphold

the discretion of trial courts to deny as untimely requests made

after ‘meaningful trial proceedings’ have begun.” (quoting United

States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986))); United States v.

Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979) (“[I]t is reasonable,

and entirely compatible with the defendant’s constitutional rights,

to require that the right to self-representation be asserted at some

time ‘before meaningful trial proceedings have commenced,’ and

that thereafter its exercise rests within the sound discretion of the
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trial court.” (quoting Chapman v. United States, 553 F.2d 886, 895

(5th Cir. 1977))); accord United States v. Betancourt-Arretuche, 933

F.2d 89, 96 (1st Cir. 1991) (same); United States v. Oakey, 853 F.2d

551, 553 (7th Cir. 1988) (same); United States v. Cunningham, 564

F. App’x 190, 194 (6th Cir. 2014) (same); United States v. Estrada,

25 F. App’x 814, 819-21 (10th Cir. 2002) (reviewing the district

court’s decision concerning an untimely request for self-

representation for an abuse of discretion). Cf. United States v.

Bankoff, 613 F.3d 358, 373 (3d Cir. 2010) (“[D]istrict courts have

discretion to deny an untimely request to proceed pro se after

weighing the ‘prejudice to the legitimate interests of the defendant

against the potential disruption of proceedings already in

progress.’ ” (quoting Buhl v. Cooksey, 233 F. 3d 783, 797 n.16 (3d

Cir. 2000))); United States v. Stevens, 83 F.3d 60, 66-67 (2d Cir.

1996) (same); Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983)

(same) (quoting Fulford v. Maggio, 692 F.2d 354, 362 (5th Cir.

1982), rev’d on other grounds, 462 U.S. 111 (1983)); United States v.

Harlan, 960 F.3d 1089, 1093-94 (8th Cir. 2020) (same) (quoting

United States v. Wesley, 798 F.2d 1155, 1155-56 (8th Cir. 1986)).

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Where the majority and I part company is in our application of

the abuse of discretion standard in this case. The majority

suggests that the trial court reversibly erred by failing explicitly to

declare Mosley’s self-representation request untimely. Majority op.

at 17 (“Nobody contends that consideration of the motion at that

time would have disrupted the proceedings or required any delay in

excess of the time it would have taken to hear argument on the

motion, or to simply have explained that such argument was

untimely.”). In my view, this fails to consider the entire record and

misapplies the abuse of discretion standard.

It bears emphasis that “the U.S. Supreme Court has never

held that a court must inquire into the basis of a defendant’s

request before denying it as untimely.” Hill, 792 F.3d at 678. In

other words, a trial court can deny an untimely self-representation

request without first engaging in a colloquy comparable to a Faretta

hearing. The Fifth District Court of Appeal has even said, albeit in

dicta, that “a defendant’s request for self-representation may be

summarily denied if not timely asserted.” Laramee v. State, 90

So. 3d 341, 345 (Fla. 5th DCA 2012).

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Because the trial court here was not obligated to follow any set

process before ruling on Mosley’s untimely self-representation

request, we can find an abuse of discretion only “if no reasonable

person would arrive at the same conclusion as that of the trial

court.” Calloway v. State, 210 So. 3d 1160, 1178 (Fla. 2017). In

light of the entire record, I believe the trial court’s decision to deny

Mosley’s untimely request was eminently reasonable and far from

an abuse of discretion.

Before his penalty phase proceeding, during jury selection,

and again on the first day of the penalty phase trial, Mosley

vacillated between wanting appointed counsel and choosing to

represent himself. This required the trial court repeatedly to

appoint and unappoint counsel for Mosley. Undoubtedly, the

counsel appointed to represent Mosley at his Spencer hearing spent

time preparing for that hearing, only to have Mosley change his

mind yet again. It was in this context that the trial court explained

to Mosley: “[G]iven the fact that I gave you the opportunity to

represent yourself during the course of the trial and then you asked

me to reappoint your attorneys which I’ve done I am not now going

to reappoint you to handle the matter today.” I am unaware of any
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precedent that would have required the trial court here to ignore the

disorder inherent in Mosley’s untimely request and the

accompanying waste of public resources. While the majority faults

the trial court for waiting until the end of the Spencer hearing to

explain its decision to address Mosley’s self-representation request,

I fail to see how the timing of the trial court’s explanation matters.

Finally, I have been unable to locate any authority that

supports, much less dictates, the majority’s decision. The three

cases that the majority cites to bolster its conclusion are inapposite.

In State v. Young, 626 So. 2d 655 (Fla. 1993), our Court reversed a

conviction because the trial court did not conduct an adequate

Faretta hearing before requiring the defendant to represent himself.

In Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), we took up the

adequacy of a Faretta hearing in a case that included no mention of

timeliness or a trial court’s discretion over untimely self-

representation requests. Similarly, the issue of timeliness did not

come up in Tennis v. State, 997 So. 2d 375 (Fla. 2008).

The majority’s decision improves our Court’s case law to the

extent it clarifies that trial courts have the discretion to deny

untimely self-representation requests at the threshold, without first
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conducting a Faretta hearing. That said, I believe that the majority

undermines that progress by misapplying the abuse of discretion

standard here. I would affirm Mosley’s death sentence.

An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge
Case No. 162004CF006675AXXXMA

Jessica J. Yeary, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Second Judicial Circuit, Tallahassee,
Florida,

for Appellant

Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior
Assistant Attorney General, and William David Chappell, Assistant
Attorney General, Tallahassee, Florida,

for Appellee

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