PATRICK ANNECHINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed Annechino's sentence because the trial court improperly scored a prior uncounseled 1983 DWI conviction on his sentencing guidelines scoresheet. Under Florida law, prior uncounseled convictions cannot be used in sentencing calculations unless the defendant knowingly and intelligently waived his right to counsel, which must be documented on the record.
A prior uncounseled conviction cannot be scored on a sentencing guidelines scoresheet unless the defendant knowingly and intelligently waived his right to counsel, and such waiver must be made of record and renewed at each stage of proceedings where the defendant appears without counsel.
[1] A prior uncounseled conviction cannot be scored on a sentencing guidelines scoresheet if the defendant did not waive the right to counsel.
[2] A waiver of counsel made in court must be of record.
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Join FLexlaw to unlock all legal intelligence“It is clear that prior un-counseled convictions cannot be used on a guidelines scoresheet if the defendant did not waive his right to counsel.”
Establishes the controlling legal principle that uncounseled convictions are barred from sentencing guidelines unless waived
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Join FLexlaw to unlock all legal intelligencePatrick Annechino entered a guilty plea in 1983 to DWI without an attorney present. Although Annechino had been advised of his right to counsel at an …
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PER CURIAM.
Based on the record, the trial court committed reversible error in sentencing the defendant/appellant, Patrick Annechino, by scoring a prior uncounseled 1983 DWI conviction on Annechino’s sentencing guidelines scoresheet. It is clear that prior un-counseled convictions cannot be used on a guidelines scoresheet if the defendant did not waive his right to counsel. Crigler v. State, 487 So. 2d 420 (Fla. 2d DCA 1986). At the time Annechino entered his guilty plea in 1983 he was not advised of his right to an attorney, he didn’t waive the right to an attorney, and he didn’t have an attorney. It is true (and perhaps this served to mislead the trial court) that Annechino was earlier advised at a probable cause hearing by another judge that he had a right to counsel and apparently a public defender was appointed to represent him. But at the time Annechino entered his plea there was no attorney present representing him.
There is nothing in the record to show that a colloquy took place on whether An-nechino was knowingly and intelligently waiving his right to counsel when he pled guilty. Rule 3.172, Florida Rules of Criminal Procedure, provides:
Before accepting a plea of guilty or nolo contendere the trial judge shall satisfy himself that the plea is voluntarily entered ... [T]he trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands ...
Additionally, Rule 3.111(d)(4) provides that “a waiver of counsel made in court shall be of record ...” And subsection 5 of that rule provides that:
[I]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.
Thus, even if the record indicates that Annechino previously had waived counsel in the earlier stages of the proceedings, there would still have to be a renewal of the offer of counsel at the hearing to accept his guilty plea and any waiver would have to be of record. Since there was nothing in the record to indicate that the defendant waived the right to counsel at the hearing to accept his guilty plea, we must reverse.
REVERSE sentence and REMAND for resentencing in accordance herewith.
LETTS, WALDEN and STONE, JJ„ concur.
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Beard v. State, 751 So. 2d 61 (Fla. 2d DCA 1999)…e Hardy v. State, 655 So. 2d 1245 (Fla. 5th DCA 1995); Smith v. State, 590 So. 2d 1078 (Fla. 2d DCA 1991). A plea hearing is also a critical stage of the criminal proceeding which requires the renewal of the offer of counsel. See Annechino v. State, 557 So. 2d 915 (Fla. 4th DCA 1990). Since there was a proper inquiry regarding Beard’s waiver of counsel for the trial on counts I and II, we affirm those convictions. We must, however, set aside the sentences for those convictions because the court did not renew…
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Murphy v. State, 578 So. 2d 410 (Fla. 4th DCA 1991)…irmed Murphy’s convictions for both DUI manslaughter and vehicular homicide, we must reverse the sentence which was imposed. Murphy argues that the inclusion of an uncounseled conviction in the scoresheet was error. We agree. See Annechino v. State, 557 So. 2d 915 (Fla. 4th DCA 1990.) The state asserts that the inclusion of the previous conviction would have been harmless error because the trial court would have sentenced Murphy in the same manner. However, our review of the transcript persuades us that it is…
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Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990)…46 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); State v. Conkling, 421 So. 2d 1108 (Fla. 5th DCA 1982); Ousley v. State, 560 So. 2d 422 (Fla. 4th DCA 1990); Annechino v. State, 557 So. 2d 915 (Fla. 4th DCA 1990); State v. Troehler, 546 So. 2d 109 (Fla. 4th DCA 1989); Smith v. State, 498 So. 2d 1009 (Fla. 2d DCA 1986); Crigler v. State, 487 So. 2d 420 (Fla. 2d DCA 1986); Pilla v. State, 477 So. 2d 1088 (Fla. 4th DCA 1985); Harrell v. Stat…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Crigler v. State, 487 So. 2d 420 (Fla. 2d DCA 1986)