ROBERT L. COOPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cooper challenged his sentencing guidelines calculation based on allegedly uncounseled prior misdemeanor convictions. The appellate court affirmed his conviction but reversed and remanded for resentencing, holding that the state failed to adequately prove that 14 prior convictions were counseled or that Cooper waived his right to counsel.
The conviction was affirmed, but the sentence was reversed. When a defendant challenges prior convictions as uncounseled, the state must prove the convictions were counseled or that the defendant waived counsel. The trial court must determine on remand whether Cooper had a right to counsel for the 14 disputed convictions and, if so, whether those convictions were actually counseled or the right was waived.
[1] A prior uncounseled conviction obtained when the defendant was indigent and unable to obtain counsel, and for which the right to counsel was not waived, cannot be used to…
[2] A defendant is entitled to an evidentiary hearing on a motion to vacate a sentence if the allegations, if true, would entitle the defendant to relief.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“When a defendant alleges that a prior conviction was uncounseled, the state must show that the defendant was represented by counsel or that defendant waived his right to counsel.”
Establishes the burden of proof on the state when challenging prior convictions as uncounseled
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCooper was convicted and sentenced using sentencing guidelines that included 17 points from prior misdemeanor convictions. Cooper challenged whether t…
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PER CURIAM.
We affirm the defendant’s conviction, but reverse the sentence and remand for resentencing consistent with this opinion.
The defendant argued that the trial court improperly calculated his total score on the sentencing guidelines scoresheet by including 17 points from previous misdemeanor convictions which were allegedly uncounseled. When a defendant alleges that a prior conviction was uncounseled, the state must show that the defendant was represented by counsel or that defendant waived his right to counsel. Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985).
In the instant case, the state offered certified copies of 3 of the defendant’s pri-or convictions to prove that they were counseled. With respect to the remaining 14 points, however, the state failed to satisfy its burden of showing that those convictions were counseled, or that the defendant had waived the right to counsel on those convictions. Nonetheless, the points from defendant’s previous convictions may be used to enhance the defendant’s sentence on this conviction if the defendant did not have a right to counsel in the prior proceedings. See, e.g., Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988); Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988). Therefore, in reversing this sentence, we remand with instructions to resentence the defendant after determining whether the defendant in fact had a right to counsel with respect to the 14 allegedly uncounseled convictions, and if so, whether those convictions were counseled or the right to counsel was waived.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
LETTS, DELL and GUNTHER, JJ., concur.
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Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990)…of Baldasar has been followed by the Second District in State v. Hanney, 15 F.L.W. 1149 (Fla. 2d DCA April 25, 1990) and Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988). The Fourth District also has adopted the same approach in Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989), expressly holding that the points from a defendant’s previous convictions may be used to enhance the defendant’s sentence on a subsequent conviction if the defendant did not have a right to counsel in the prior proceedings. See…
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Mills v. State, 690 So. 2d 735 (Fla. 4th DCA 1997)…nt. The document was not a certified copy, and when Appellant objected, the state could not demonstrate that the signature was Appellant’s. See § 39.061, Fla.Stat. (1995); Dickerson v. State, 586 So. 2d 477, 478 (Fla. 4th DCA 1991); Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989). GLICKSTEIN, STONE and STEVENSON, JJ., concur.…
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Whitfield v. State, 549 So. 2d 779 (Fla. 4th DCA 1989)…would substantially impeach the victim’s testimony. See Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984). Furthermore, appellant claims that uncounselled prior convictions were improperly used in the guidelines scoresheet. See Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989). If the sentence was enhanced for this reason, then appellant has stated a ground for relief from an illegal sentence. Since the record does not conclusively refute this allegation, summary denial of the motion was improper. Hyde…
Authorities Cited
- Harrell v. State, 469 So. 2d 169 (Fla. 1st DCA 1985)
- Jennings Harold Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988)
- Darrin Bartholemew Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988)