ANDRE MORGAN AND ANTHONY MORGAN, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Andre and Anthony Morgan appealed their drug trafficking and weapons convictions. The court affirmed their convictions but reversed Andre Morgan's sentence due to the state's failure to produce corroborating evidence for disputed juvenile adjudications used in sentencing, while affirming Anthony Morgan's sentence.
The court held that joint representation without an objection in trial court and without a showing of actual conflict of interest does not violate due process rights, particularly when counsel is privately retained. The court also held that when a defendant disputes the accuracy of prior convictions offered by the state at sentencing, the state must produce corroborating evidence, and absent such evidence, those convictions cannot support sentencing departure.
[1] A defendant waives the right to contest the state's failure to produce corroborating evidence of prior convictions when the defendant does not dispute the accuracy of tho…
[2] An extensive record of juvenile adjudications may provide sufficient reason for departure from sentencing guidelines.
Previewing 2 of 6 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“The Morgans did not object in the trial court to joint representation. They have also failed to point out specific instances in which an actual conflict of interest affected their attorney's representation.”
Establishes that without trial objection and without showing actual conflict, joint representation claims fail.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAndre and Anthony Morgan were convicted of trafficking in cocaine, possession of cocaine, and related offenses. Andre Morgan was sentenced based in pa…
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BASKIN, Judge.
Andre Morgan and Anthony Glenn Morgan appeal their convictions and sentences for trafficking in cocaine, possession of cocaine, unlawful possession of a firearm while engaged in a criminal offense, and for carrying a concealed weapon.1 We affirm the convictions and reverse the sentences.
The Morgans allege they were denied due process of law and deprived of their right to effective assistance of counsel by their joint representation by one attorney. Their argument is without merit. The Morgans did not object in the trial court to joint representation. They have also failed to point out specific instances in which an actual conflict of interest affected their attorney’s representation. Foster v. State, 387 So. 2d 344 (Fla.1980); Boutwell v. State, 530 So. 2d 1092 (Fla. 1st DCA), review denied, 538 So. 2d 1255 (Fla.1988); Davis v. State, 461 So. 2d 291 (Fla. 1st DCA 1985); Baker v. State, 217 So. 2d 880 (Fla. 1st DCA 1969); Rogers v. State, 212 So. 2d 367 (Fla. 1st DCA 1968), cert. discharged, 219 So. 2d 685 (Fla.1969); see also Bellows v. State, 508 So. 2d 1330 (Fla. 2d DCA 1987).
Furthermore, counsel was not court appointed, but was privately retained. Because they chose dual representation, appellants may not now complain. Davis v. State, 209 So. 2d 701 (Fla. 3d DCA 1968).
Challenging their sentences, the Morgans allege that the trial court erred in utilizing juvenile adjudications to depart from the sentencing guidelines. An extensive record of juvenile adjudications may provide sufficient reason for departure from the guidelines, Williams v. State, 504 So. 2d 392 (Fla.1987); Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988), but three prior juvenile convictions are insufficient to support departure. Blue v. State, 541 So. 2d 736 (Fla. 1st DCA 1989); Musgrove v. State, 524 So. 2d 715 (Fla. 1st DCA 1988); Jones v. State, 501 So. 2d 665 (Fla. 1st DCA 1987), decision approved, 530 So. 2d 53 (Fla.1988).
Additionally, when the state offers prior convictions of disputed accuracy, the state must produce corroborating evidence. Ostrowski v. State, 509 So. 2d 1246 (Fla. 2d DCA 1987); Smelley v. State, 500 So. 2d 318 (Fla. 1st DCA 1986); Delaine v. State, 486 So. 2d 39 (Fla. 2d DCA 1986).
The trial court may not rely on mere hearsay to substantiate their validity. Ostrowski; Smelley; Delaine. Andre Morgan disputed the accuracy of the juvenile adjudications announced by the state; accordingly, the state was required to produce corroborating evidence.2 Its failure to do so renders invalid both that reason for departure as well as the escalating pattern of criminal behavior also premised on the unsubstantiated juvenile convictions. Finding no adequate basis for departure, we reverse Andre Morgan’s sentence.
We find no merit in Anthony Morgan’s appeal of his sentence, however; both his extensive juvenile record and his escalating pattern of criminal activity are valid reasons for departure. Williams; Keys v. State, 500 So. 2d 134 (Fla.1986); McGriff v. State, 528 So. 2d 396 (Fla. 3d DCA 1988); Musgrove; Brier v. State, 504 So. 2d 809 (Fla. 2d DCA 1987).
The Morgans’ remaining points lack merit. See Felton v. State, 523 So. 2d 775 (Fla. 3d DCA 1988).
Convictions affirmed; Andre Morgan’s sentence reversed; Anthony Morgan’s sentence affirmed; remanded for resentencing.
. Although both Andre and Anthony were convicted of the other drug-related offenses, they were sentenced only for the trafficking offense. Only Anthony was convicted of the weapons offenses.
. Anthony Morgan did not dispute the accuracy of his juvenile adjudications; consequently, he waived his right to contest the state’s failure to produce corroborating evidence.
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Larzelere v. State, 676 So. 2d 394 (Fla. 1996)…2d 964 (Fla. 2d DCA 1991) (once defendant voluntarily chooses to proceed with dual representation, defendant must show prejudice in the form of actual conflict to succeed in a subsequent claim for ineffective assistance of counsel); Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989). Second, appellant had no right to have different counsel appointed after the trial judge found no existing conflict of interest. Hardwick v. State, 521 So. 2d 1071 (Fla.) (no constitutional right exists to obtain different court…
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Velez v. State, 596 So. 2d 1197 (Fla. 3d DCA 1992)…ons v. State, 570 So. 2d 1383 (Fla. 5th DCA 1990) (prior record, consisting solely of juvenile offenses, sufficient to justify departure sentence.where offenses showed persistent, escalating pattern of criminal conduct or behavior); Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989) (juvenile offenses formed basis for finding of escalating pattern of criminal conduct)3. Accordingly, we affirm both the judgments of conviction and the sentences. Affirmed.4 . The Supreme Court of Maine recently affirmed a con…
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Febles v. State, 654 So. 2d 615 (Fla. 3d DCA 1995)…the federal conviction and its conversion into an equivalent Florida score, necessary for a proper determination of the appellant’s sentence. See Brantley v. State, 570 So. 2d 364 (Fla. 3d DCA), dismissed, 576 So. 2d 285 (Fla.1990); Morgan v. State, 550 So. 2d 151 (Fla. 3d DCA 1989). We affirm the appellant’s remaining convictions. Accordingly, we affirm in part, reverse in part and remand.…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- State v. Cledius Orlando Jones, 530 So. 2d 53 (Fla. 1988)
- Foster v. State, 387 So. 2d 344 (Fla. 1980)
- Rogers v. State, 219 So. 2d 685 (Fla. 1969)
- Delaine v. State, 486 So. 2d 39 (Fla. 2d DCA 1986)
- Smelley v. State, 500 So. 2d 318 (Fla. 1st DCA 1986)
- Davis v. State, 209 So. 2d 701 (Fla. 3d DCA 1968)
- Baker v. State, 217 So. 2d 880 (Fla. 1st DCA 1969)
- McGRIFF v. State, 528 So. 2d 396 (Fla. 3d DCA 1988)