BEVERLY SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that an uncounseled conviction cannot be used to enhance a sentence unless the defendant waived counsel.
Appellant was convicted of grand theft and challenged the use of a prior uncounseled conviction to enhance her sentence. The trial court refused to re…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Uncounseled Convictions cases and more on FLexlaw
RYDER, Acting Chief Judge.
Beverly Smith appeals the sentences she received for two convictions of grand theft. We affirm the convictions but reverse the sentences and remand for resentencing.
Appellant was charged by information with two counts of grand theft arising from different incidents. § 812.014, Fla. Stat. (1985). She pleaded guilty to one and nolo contendere to the other. At the sentencing hearing, appellant’s counsel requested that the trial court delete points included in the guidelines scoresheet for a prior uncounseled plea and conviction. The trial court refused to delete the points and sentenced appellant to five years in prison for each offense with the terms to run concurrently.
An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985). Where a defendant raises the issue of an uncounseled conviction, the. state must show by a preponderance of the evidence that the defendant was represented by counsel or that counsel was available but was validly waived. Harrell v. State, 469 So. 2d 169, 171 (Fla. 1st DCA 1985). Presuming waiver of counsel from a silent record is impermissible. Burgett v. State, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
Although we affirm the convictions herein, we must reverse the sentences and remand the case for resentencing. At the resentencing hearing, the state must demonstrate by a preponderance of the evidence either that the convictions were counseled or that the appellant waived counsel. If the state does so, the trial court may reinstate the sentences. If the state fails to do so, the trial court may not use the uncounseled convictions in computing points on the guidelines scoresheet.
Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.
CAMPBELL and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
State v. Beach, 592 So. 2d 237 (Fla. 1992)…probation. On appeal, the First District Court reversed Beach’s sentence because the sentencing guidelines scoresheet included un-counseled convictions. Citing as authority State v. Troehler, 546 So. 2d 109 (Fla. 4th DCA 1989), and Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986), the district court held that Beach’s affidavit was sufficient to shift the burden to the State. The district court also certified the issue as a question of great public importance for purposes of review by this Court. The State…
-
Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)…y not be included on a guidelines scoresheet if the defendant had a right to counsel and did not waive his right to counsel. Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988), Croft v. State, 513 So. 2d 759, 761 (Fla. 2d DCA 1987); Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986); see also Price v. State, 519 So. 2d 76 (Fla. 2d DCA 1988). The defendant has the burden of showing that the prior convictions were uncounseled. Croft at 761; Smith at 1010. In the instant case, the trial court committed reversibl…
-
Jennings Harold Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988)…convictions plus three prior traffic offenses were being so considered. On appeal defendant first contends that the trial court erred in scoring the nine prior convictions which were alleged to have been uncounseled. Defendant cites Smith v. State, 498 So. 2d 1009, 1010 (Fla. 2d DCA 1986), in which this court stated, “An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985).”…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burgett v. Texas, 389 U.S. 109 (U.S. 1967)
- Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985)
- Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985)