DELORES OLDACRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sentences are reversed and remanded because the trial court improperly calculated the guidelines sentence without proving prior convictions were counseled or waived.
Appellant pled guilty to grand theft and food stamp fraud, and violated probation. She challenged the scoresheet calculation, arguing prior conviction…
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SMITH, Chief Judge.
Appellant appeals her sentences for grand theft and food stamp fraud. She pled guilty to four counts of grand theft and admitted violating her probation. The trial court adjudicated her guilty as pled, revoked her probation, and sentenced her within the guidelines.
The guidelines scoresheet indicated a total score of 154 points, 130 points of which were due to prior convictions. Appellant, albeit inartfully, requested the trial court to delete 97 points from her scoresheet total for allegedly uncounseled convictions. At the hearing, there was no record response to appellant’s written and verbal objection. Appellant also filed a motion to correct sentence on this same issue which the trial court denied.
Allegedly uncounseled convictions may not be used to calculate a defendant’s presumptive guidelines sentence absent proof by a preponderance of evidence that the convictions were counseled or that counsel was validly waived. Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986); Fretwell v. State, 503 So. 2d 1000 (Fla. 4th DCA 1987).
We therefore reverse the sentences and remand the case for resentencing. At the resentencing hearing, the state shall be given the opportunity to prove that the prior convictions were counseled or that counsel was knowingly waived.
REVERSED.
ERVIN and BOOTH, JJ., concur.
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Rock v. State, 584 So. 2d 1110 (Fla. 1st DCA 1991)…ho failed 4o produce evidence showing that he was unrepresented or that he had not waived the right to counsel, while the later involved a defendant who did produce such evidence. For continuing application of the Harrell rule, see Oldacre v. State, 509 So. 2d 1343 (Fla. 1st DCA 1987). . On remand, if the state intends to rely on those three convictions, it must produce evidence that appellant was represented or that he validly waived counsel. Harrell, 469 So. 2d at 171. The state may, however, prove the viol…
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Abrams v. State, 971 So. 2d 1033 (Fla. 4th DCA 2008)…S.Ct. 1068, 25 L.Ed.2d 368 (1970), no heightened standard of proof has been set for sentencing determinations. Considerations of the validity of prior convictions are generally determined by a preponderance of evidence. See, e.g., Oldacre v. State, 509 So. 2d 1343, 1344 (Fla. 1st DCA 1987) (“Allegedly uncounseled convictions may not be used to calculate a defendant’s presumptive guidelines sentence absent proof by a preponderance of evidence that the convictions were counseled or that counsel was validly waiv…
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Beach v. State, 564 So. 2d 614 (Fla. 1st DCA 1990)…mith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986). Accordingly, we remand for resen-tencing with leave to give the state an opportunity to prove that the prior convictions were either counseled or that counsel was knowingly waived. Oldacre v. State, 509 So. 2d 1343 (Fla. 1st DCA 1987). We certify the following question to be of great public importance for purposes of review by the supreme court: IS THE DEFENDANT’S STATEMENT UNDER OATH THAT HE WAS NOT PROVIDED NOR OFFERED COUNSEL AT THE PROCEEDINGS RESULTING…
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
- Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986)
- Fretwell v. State, 503 So. 2d 1000 (Fla. 4th DCA 1987)
- Koltun v. State, 503 So. 2d 1000 (Fla. 4th DCA 1987)