Morgan v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
TRAVIS LEE MORGAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-2151
December 3, 2025
Appeal from the Circuit Court for Sarasota County; Lee Haworth, Senior
Judge.
Blair Allen, Public Defender, and Tim Bower Rodriguez, Special Assistant
Public Defender, Bartow, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Nicole Rochelle
Smith, Assistant Attorney General, Tampa, for Appellee.
SMITH, Judge.
Travis Lee Morgan appeals his judgment and sentences rendered
after a jury found him guilty of two counts of sale of a controlled
substance within 1,000 feet of a public park, a first-degree felony. He
was sentenced to two concurrent fourteen-year prison terms. On appeal
Mr. Morgan argues the trial court "per se reversibly erred" by failing to

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renew the offer of assistance of counsel prior to the charge conference,
which is a critical stage of the proceedings. However, because Mr.
Morgan invited the error here by knowingly and voluntarily choosing not
to attend and participate in his trial, we affirm his judgment and
sentences; we write to address the interplay between a defendant's
waiver of appearance and invited error in the context of a Faretta1
hearing.
On two separate instances, Mr. Morgan sold cocaine to a
confidential informant. The sales were captured on video. Mr. Morgan
was charged with two counts of sale of a controlled substance within
1,000 feet of a public park.
Prior to trial, Mr. Morgan expressed dissatisfaction with his
appointed public defender and moved to proceed pro se. At the hearing
held on Mr. Morgan's motion, Mr. Morgan indicated that he wanted to
represent himself so that he could control his case but also that he was
not happy with counsel's representation. Accordingly, the trial court
conducted both a Faretta hearing and a Nelson hearing, making the
required inquiries. See Faretta v. California, 422 U.S. 806, 834-35 (1975)
(acknowledging the right to self-representation and explaining that the
accused must knowingly and intelligently waive his right to court-
appointed counsel after being made aware of the dangers and
disadvantages of self-representation); Nelson v. State, 274 So. 2d 256,
258-59 (Fla. 4th DCA 1973) (establishing the procedure for discharging
appointed counsel for ineffectiveness and substituting new counsel).
After making the required inquiries, the trial court granted Mr.
Morgan's request to represent himself, finding that Mr. Morgan had
1 Faretta v. California, 422 U.S. 806, 834-35 (1975).

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freely, knowingly, and voluntarily waived his right to counsel. The trial
court also ordered standby counsel to be present.
On the first day of trial, after lunch but before the jury had been
brought back into the courtroom, the bailiff told the trial court that Mr.
Morgan was refusing to come back into the courtroom, saying he did not
want to proceed. After Mr. Morgan's presence in the courtroom was
secured, the trial court addressed Mr. Morgan, asking him if he had
changed his mind about how he wanted to proceed with the trial. Mr.
Morgan told the trial court that he would "rather not be here" and
requested that the trial court send him the verdict in the mail. The trial
court asked Mr. Morgan if he was thinking clearly, whether he was under
the influence of any drugs or stimulants, and whether anyone had
suggested this course of action or influenced him into making this
decision. Mr. Morgan stated that he was thinking clearly, that he was
not on drugs or stimulants, and that no one had suggested or influenced
him regarding his decision. He reiterated that he did not want to be
present. The trial court explained that Mr. Morgan was waiving his
appearance for the remainder of the trial, including the presentation of
evidence, closing arguments, and jury instructions; the trial court noted
that by not being present during trial, he was making any sort of appeal
very difficult. Mr. Morgan again confirmed that he did not wish to be
present. The trial court went as far as to ask if there "was anything [it
could] do to make [Mr. Morgan] agree to stay." Mr. Morgan told the court
he had made up his mind. The trial court ultimately acquiesced to Mr.
Morgan's request and allowed the bailiff to escort Mr. Morgan out of the
courtroom.

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After the jury returned, the trial court advised the jury of Mr.
Morgan's decision to waive his right to be present for the reminder of the
trial and instructed it as follows:
[T]he fact that he's not here shouldn't mean one thing one
way or the other, because he has a right not to testify
anyway, and you shouldn't hold against him the mere fact
that he's not here. So focus on the evidence and see if it
meets the legal standard when you reach your verdict.
The trial proceeded without Mr. Morgan. After the State rested, a
charge conference was held with standby counsel present.
The trial court ordered Mr. Morgan transported back to the
courthouse for the second day of the trial. Mr. Morgan was sworn in and
the trial court asked him if he wanted to remain in the courtroom for the
remainder of the trial. Mr. Morgan stated that he did not "wish to
proceed with this court procedure," that he had not changed his mind,
and that he did not "even want to discuss nothing about it." The trial
court asked Mr. Morgan if he wanted standby counsel to proceed in his
absence. Mr. Morgan responded: "I don't even wish to answer that
question. I just want to leave. I don't even really feel like—don't even
know why they brought me over." The trial court again inquired into
whether Mr. Morgan was thinking clearly and whether he had consumed
any stimulants or medications that might affect his thinking. Mr.
Morgan again responded in the negative. The trial court asked Mr.
Morgan if he was freely and voluntarily making the decision to remain
out of the courtroom and not have the services of standby counsel. Mr.
Morgan said he was. The trial court explained that it would instruct the
jury that it was not to hold Mr. Morgan's absence against him when it
considers the evidence but pointed out that there was some risk in his
decision to not be there. The trial court again noted that his absence
may make it difficult for him to appeal any incorrect rulings the court

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may make. Mr. Morgan indicated that he understood the risks and still
did not want to be present. Mr. Morgan was taken back out of the
courtroom for the remainder of the trial.
The jury found Mr. Morgan guilty as charged, and he was
sentenced to fourteen years' prison on both counts, to run concurrently.
On appeal Mr. Morgan argues the trial court erred when it failed to
renew the offer of assistance of counsel prior to the charge conference,
which is a critical stage of the proceedings. He wants a new trial.
"Defendants in a criminal trial have a constitutional right of self-
representation, and thus once a defendant makes an unequivocal
request for self-representation, the trial court must 'hold a hearing[] to
determine whether the defendant is knowingly and intelligently waiving
his right to court-appointed counsel.' " Eib v. State, 191 So. 3d 977, 979
(Fla. 2d DCA 2016) (alteration in original) (quoting Tennis v. State, 997
So. 2d 375, 378 (Fla. 2008)). "While a full Faretta inquiry need not be
conducted at every stage of criminal proceedings, once counsel has been
waived under Faretta, the offer of assistance of counsel must be renewed
by the court at each critical stage of the proceedings." Cuyler v. State,
131 So. 3d 827, 828 (Fla. 1st DCA 2014) (citing Traylor v. State, 596 So.
2d 957, 968 (Fla. 1992)). "A charge conference is a critical stage of the
proceedings to which the right to counsel attaches." Fonseca v. State,
956 So. 2d 1259, 1260 (Fla. 4th DCA 2007).
A defendant also has the right to waive his or her appearance at
critical stages of criminal proceedings. Cf. Santeufemio v. State, 745 So.
2d 1002, 1004 (Fla. 2d DCA 1999) ("Where a defendant absents himself
or herself by fleeing the court's jurisdiction, . . . securing an express
waiver is impossible and the defendant's actions constitute a valid
waiver." (quoting Capuzzo v. State, 596 So. 2d 438, 440 (Fla. 1992))).

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Further, Florida courts have "long held that '[a] party may not
invite error and then be heard to complain of that error on appeal.' "
Doty v. State, 170 So. 3d 731, 741-42 (Fla. 2015) (alteration in original)
(quoting Cox v. State, 819 So. 2d 705, 715 (Fla. 2002)).
Here, Mr. Morgan expressly stated, repeatedly, that he did not wish
to be present at trial and expressly acknowledged that he was waiving his
right to present evidence, to give a closing argument, and to offer input
on the jury instructions. The trial court cautioned Mr. Morgan that by
not being present at trial, he was "making any sort of appeal . . . very
difficult." Mr. Morgan still insisted that he did not want to be present at
trial. Cf. Windh v. State, 113 So. 3d 150, 151 (Fla. 2d DCA 2013)
(holding that the defendant did not waive his right to be present at
critical restitution hearing where he was detained by the prison officials
and where the trial court did not inquire into the reasons for the
defendant's absence from the proceedings).
In this instance, there would be no point in conducting a Faretta
inquiry at the charge conference because Mr. Morgan was not there to
answer any of the questions. The trial court repeatedly asked him if he
wanted standby counsel, and Mr. Morgan repeatedly refused the help
while also insisting that he did not wish to be present. By refusing to be
present at trial, Mr. Morgan waived his appearance and created the
situation giving rise to the inability of the trial court to renew the offer of
assistance of counsel—thus inviting the very error of which he now
complains. Because Mr. Morgan invited the error, he cannot now argue
on appeal about the trial court's failure to conduct a subsequent Faretta
hearing prior to a charge conference that he refused to appear at or
participate in. See Woodbury v. State, 320 So. 3d 631, 653 n.10 (Fla.
2021) ("Woodbury himself expressly objected to the court delaying the

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pronouncement of sentence and told the court to proceed directly to
sentencing. Thus, the asserted error was invited, and Woodbury may not
be heard to complain of it on appeal.").
Affirmed.
LaROSE and BLACK, JJ., Concur.
Opinion subject to revision prior to official publication.