CLARENCE MORGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1987-03-25
No. 4-86-1329
STONE, J., and LEONARD RIVKIND, Associate Judge, concur.
504 So. 2d 504 Florida District Court of Appeal, Fourth District (1987) Positive Treatment
Cited by 8 cases

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.

Synopsis

Clarence Morgan appeals revocation of his probation and resulting 30-month prison sentences. The Florida appellate court reversed and remanded because the trial court failed to comply with procedural requirements for accepting a waiver of counsel and imposed a sentence exceeding statutory limits.


Holding

The trial court's acceptance of the waiver of counsel was improper because it failed to conduct a thorough inquiry into Morgan's comprehension and capacity to make an intelligent choice, and failed to renew the offer of counsel at the final hearing stage. Additionally, the 30-month sentence was erroneous because the offense (resisting arrest without violence, a first-degree misdemeanor) is punishable by no more than one year of imprisonment.


Headnotes

[1] A defendant's waiver of counsel is invalid if the court fails to complete the entire process of offering counsel and conduct a thorough inquiry into the defendant's compr…

[2] A waiver of counsel is not valid if the defendant is unable to make an intelligent and understanding choice due to mental condition, age, education, experience, or the na…

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Key Quotes

“A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused's comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.”

Establishes the procedural requirement for valid waiver of counsel under Florida Rule of Criminal Procedure 3.111(d)

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Facts & Procedural History

Morgan was on probation under two separate orders and was charged with violating probation by failing to file monthly reports, failing to make monthly…

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Opinion of the Court
DOWNEY, Judge.

DOWNEY, Judge.

Appellant, Clarence Morgan, seeks reversal of two orders of revocation of probation and three subsequent concurrent sentences of thirty months in prison.

While on probation under two separate probation orders, Morgan was charged with violating his probation by failing to file monthly reports, failing to make monthly payments toward the cost of his supervision, and for changing his residence without his supervisor’s permission. The trial judge found Morgan guilty of all three violations and revoked his probation. We have fully considered the record and find adequate support for the findings as to the monthly reports and change of residence and, thus, we approve that aspect of the judgment appealed from.

On April 30, 1986, a preliminary probation revocation hearing was held in both cases. At the preliminary hearing, the trial court was informed that appellant was not represented by counsel and could not afford an attorney. Appellant indicated that he did not wish to be represented by a public defender. The trial court informed appellant that he could represent himself if he wished to do so. Appellant then indicated that he would represent himself.

The trial court then had appellant sign waiver of counsel forms for both cases. The trial court then advised appellant that he had the right to an attorney and also admonished appellant that people who represent themselves usually have a difficult time and that he would “have a fool for a client.” A final probation revocation hearing was scheduled for May 15, 1986, and appellant was then given a copy of the charges against him.

On May 15, 1986, a final revocation of probation hearing was held on both charges. The trial court was informed by his judicial assistant that appellant was representing himself. However, the court’s offer of assistance of counsel was not renewed prior to this stage of the proceeding.

Without belaboring the point, the record presented is woefully inadequate to meet the Faretta1 requirements codified in our rule of criminal procedure. Florida Rule of Criminal Procedure 3.111(d), provides:

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.

(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

See also Schafer v. State, 459 So. 2d 1138 (Fla. 5th DCA 1984). Furthermore, rule 3.111(d)(5) also requires that, if a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed at each subsequent stage of the proceedings where defendant appears without counsel. These two violations of the mentioned rule of criminal procedure require reversal for a new violation hearing.

Finally, the parties agree that the sentence is erroneous because appellant was sentenced to thirty months in prison for the offense of resisting arrest without violence, a first degree misdemeanor punishable by a term of imprisonment not exceeding one year. § 755.082(4)(a), Fla. Stat.(1985). Thus, that aspect of the sentence is incorrect.

• Accordingly, the cause is reversed and remanded for a new revocation hearing and appropriate sentencing.

STONE, J., and LEONARD RIVKIND, Associate Judge, concur. . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Monte v. State, 51 So. 3d 1196 (Fla. 4th DCA 2011)
    …s error requiring reversal and resentencing.”); Bowman v. State, 550 So. 2d 544, 544 (Fla. 4th DCA 1989) (“[W]e reverse appellant’s sentence since it was error not to renew the offer of assistance of counsel to him at sentencing.”); Morgan v. State, 504 So. 2d 504, 505 (Fla. 4th DCA 1987) (finding the trial court erred in failing to renew the offer of assistance of counsel prior to the defendant’s final probation revocation hearing). Not only was renewal of an offer of counsel necessary at this critical stag…
  • Segal v. State, 920 So. 2d 1279 (Fla. 4th DCA 2006)
    …s only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented.”). Needless to say, a VOP hearing is a crucial stage requiring the renewal of the offer of assistance of counsel. Morgan v. State, 504 So. 2d 504 (Fla. 4th DCA 1987). The state argues that the full Faretta inquiry conducted in the case involving the new charges was applicable to both proceedings. If the offer of counsel had been renewed at the beginning of the VOP hearing, we might well agre…
    1 / 2
  • Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998)
    …of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel. See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Morgan v. State, 504 So. 2d 504 (Fla. 4th DCA 1987) (applying the requirements of rule 3.111 to a revocation of probation hearing, and reversing where the trial court failed to make a thorough inquiry into the accused’s comprehension of the offer of the assistance of counsel and h…

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