ROBERT HOWARD HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1985-05-08
No. 84-2017
LETTS and HERSEY, JJ., concur.
468 So. 2d 470 Florida District Court of Appeal, Fourth District (1985) Positive Treatment
Cited by 7 cases
Topics
Uncounseled Convictions United States V. Tucker Gideon V. Wainwright Sentencing Guidelines

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Opinion of the Court
BARKETT, Judge.

BARKETT, Judge.

We affirm appellant’s conviction but vacate the sentence imposed.

At sentencing, appellant elected to be sentenced outside the guidelines because the sentencing judge told him his prior uncounseled convictions would be scored as prior convictions in calculating his sentence under the guidelines. This was error. Convictions obtained without counsel when the defendant could not afford counsel and did not waive' his right to counsel are constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Such un-counseled convictions may not be used to determine a defendant’s sentence. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). See Glenn v. State, 338 So. 2d 263 (Fla. 2d DCA 1976); Hicks v. State, 336 So. 2d 1244 (Fla. 4th DCA 1976).

We remand for resentencing so that appellant may choose between a properly computed guidelines sentence and a pre-guidelines sentence determined without consideration of the prior uncounseled convictions.

LETTS and HERSEY, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985)
    …enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985); Hayes v. State, 468 So. 2d 470 (Fla. 4th DCA 1985). Accordingly, the sentence is reversed and the cause is remanded to the trial court to entertain further proof regarding the alleged prior convictions, and to sentence appellant in accordance with the foregoing authorities. R…
  • Crigler v. State, 487 So. 2d 420 (Fla. 2d DCA 1986)
    …cause the guidelines scoresheet erroneously scored six prior uncounseled misdemeanor convictions. This contention would be correct if those convictions were, in fact, uncounseled and defendant had not waived her right to counsel. See Hayes v. State, 468 So. 2d 470 (Fla. 4th DCA 1985). See also Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). We cannot ascertain from the record whether or not defendant waived her right to counsel in those prior cases. Therefore, we remand for a determ…
  • Evrard v. State, 502 So. 2d 3 (Fla. 4th DCA 1986)
    …nce. Generally, an uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel in the first proceeding. Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985); Hayes v. State, 468 So. 2d 470 (Fla. 4th DCA 1985). See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Permitting the use of an un-counseled conviction in a subsequent prosecution would cause the accused in effect to suffer anew from the deprivatio…

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