STEPHEN FRANCIS GURCHICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant's sentence must be vacated if the trial court fails to advise them of their right to counsel at a critical stage and fails to ascertain if the waiver was knowing and intelligent.
Appellant Gurchick appealed the trial court's denial of his motion for postconviction relief, alleging he was sentenced without legal counsel present …
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[*1003] OTT, Chief Judge.
Stephen Francis Gurchick appeals the trial court’s summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.1
In point one of the motion, appellant alleged that he was sentenced without legal counsel present and without an effective waiver of his right to counsel.
A review of the sentencing transcript reveals the following conversation between the court and appellant:
THE COURT: You are here for sentencing today, Mr. Gurchick. Your attorney is not here. Do you want him here?
THE DEFENDANT: I don’t believe it would affect it, Your Honor. Appellant’s sentence must be vacated, because the trial court failed to advise appellant of his right to counsel at this critical stage of the criminal proceeding and failed to ascertain whether the implicit waiver of counsel was knowing and intelligent. See Williams v. State, 427 So. 2d 768 (Fla. 2d DCA 1988); James v. State, 428 So. 2d 706 (Fla. 2d DCA 1983); Mullins v. State, 438 So. 2d 908 (Fla. 2d DCA 1983); Morgano v. State, 439 So. 2d 924 (Fla. 2d DCA 1983).
The record discloses that the two' remaining allegations of error in appellant’s motion are without merit. Accordingly, we VACATE appellant’s sentence and REMAND for resentencing. Therefore, appellant is entitled to be represented by legal counsel unless he affirmatively, voluntarily, and intelligently waives the right.
RYDER and LEHAN, JJ., concur. . In Gurchick v. State, 428 So. 2d 738 (Fla. 2d DCA 1983), this court reversed the trial court’s summary denial of appellant’s motion, based on the trial court’s failure to conduct an evidentiary hearing or attach relevant portions of the record which refuted the allegations contained in the motion. On remand, the trial court summarily denied appellant’s motion for postcon-viction relief and attached relevant portions of the record to the order.
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Hayes v. State, 566 So. 2d 340 (Fla. 2d DCA 1990)…tion, that the trial court erred by permitting appellant to proceed pro se because he was mentally incompetent. Finally, appellant contends and the state concedes that it was error not to renew the offer of counsel at sentencing. Gurchick v. State, 439 So. 2d 1002 (Fla. 2d DCA 1983); Fla.R.Crim.P. 3.111(d)(5). In light of our decision that a new trial is called for, it is not necessary to remand for resentencing. We hold that since there was an inadequate inquiry as to appellant’s knowing and intelligent wai…
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Kevin v. Brown, 589 So. 2d 987 (Fla. 2d DCA 1991)…number 88-16270, we do find merit in the appellant’s claim that he was not represented by counsel at the time of sentencing in case number 89-10316. Claims of this nature are cognizable in a motion for post-conviction relief. See Gurchick v. State, 439 So. 2d 1002 (Fla. 2d DCA 1983). A criminal defendant is entitled to counsel at each critical stage of the criminal proceeding, which includes sentencing. While the right to counsel may be waived, the trial court must ensure that the waiver is knowingly and volu…
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Lockwood v. State, 608 So. 2d 133 (Fla. 4th DCA 1992)…to a proper resolution of his motion to discharge counsel, especially here, where his counsel joined in the motion. See Hardwick v. State, 521 So. 2d 1071 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988); Gurchick v. State, 439 So. 2d 1002 (Fla. 2d DCA1983); Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA1973). Our remand is without prejudice to appellant’s right to seek a new trial on any grounds, that issue necessarily dependent to some extent on the outcome of appellant’s effort to…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 427 So. 2d 768 (Fla. 2d DCA 1983)
- State v. Mullett, 439 So. 2d 924 (Fla. 2d DCA 1983)
- Reifsnyder v. State, 428 So. 2d 738 (Fla. 2d DCA 1983)
- Mullins v. State, 438 So. 2d 908 (Fla. 2d DCA 1983)
- James v. State, 428 So. 2d 706 (Fla. 2d DCA 1983)