GEORGE B. CHESTNUT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's waiver of counsel at resentencing is invalid if the trial court fails to ensure the waiver is knowing and intelligent, and fails to inform the defendant of the dangers of self-representation.
[1] Resentencing is a critical stage in criminal proceedings at which a defendant has the right to counsel.
[2] A defendant's waiver of the right to counsel must be knowing and intelligent, and the trial court must ensure the defendant is aware of the dangers and disadvantages of s…
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Join FLexlaw to unlock all legal intelligenceGeorge Chestnut appealed after his sentence was reduced following a post-conviction motion alleging scoresheet errors. At resentencing, Chestnut appea…
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SHARP, W., Judge.
George Chestnut appeals pro se from a final order rendered February 22, 1990, denying his motion to correct an illegal sentence. An examination of the record shows that the trial court actually granted Chestnut’s motion by scheduling a resentencing for February 22, 1990, and by reducing Chestnut’s sentence from twenty to seventeen years, to fit within the presumptive guidelines bracket. In this appeal, Chestnut argues the trial court erred by not appointing him counsel at the resentencing. We agree.
We choose to reach the merits of Chestnut’s appeal, although he improperly appealed from the denial of his motion to correct sentence (which was granted) be cause clearly he seeks review of the new sentence imposed. Additionally, the state has not demonstrated any prejudice due to Chestnut’s mischaracterization of the order being appealed. Cf. Jones v. State, 423 So. 2d 520 (Fla. 5th DCA 1982).
Initially, Chestnut received concurrent twenty year sentences for armed manslaughter and armed extortion convictions. On direct appeal, his extortion conviction was reversed. See Chestnut v. State, 516 So. 2d 1144 (Fla. 5th DCA 1987).
In Chestnut’s post-conviction motion, he alleged a de facto departure sentence resulting from scoresheet errors. The state filed a response to the post-conviction motion, agreeing that the original scoresheet was incorrect, and alleging that defendant’s proper guideline range was 12-17 years. The trial court granted that portion of defendant’s post-conviction motion and scheduled resentencing.
At the conclusion of the hearing, the court sentenced defendant to seventeen years incarceration for the manslaughter conviction. The result of that resentencing forms the basis for this appeal.
At resentencing, Chestnut appeared without counsel. He did not allege indigen-cy, request appointment of counsel, or move to represent himself. The following colloquy contained in the record is the only mention of Chestnut’s self-representation:
THE COURT: Before the court is George Benjamin Chestnut, Jr., representing himself; is that correct, Mr. Chestnut?
THE DEFENDANT: Yes, Sir. THE COURT: You don’t have a lawyer?
THE DEFENDANT: No. THE COURT: You don’t wish to have a lawyer?
THE DEFENDANT: No, Sir. Chestnut argues that the trial court erred by failing to consider appointment of counsel at resentencing. The state argues he waived any right to counsel by expressly saying he did not want to have one appointed. We think the issue here is whether the trial court took the proper steps to insure that Chestnut, in exercising his right of self-representation, knowingly and intelligently waived his right to counsel. Even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel. See Fla.R.Crim.P. 3.111(d)(1); Singleton v. State, 344 So. 2d 911 (Fla. 3d DCA), rev. denied, 354 So. 2d 986 (Fla.1977).
Sentencing is a critical stage in criminal proceedings. See Carter v. State, 408 So. 2d 766 (Fla. 5th DCA 1982). Likewise, resentencing is a critical stage in which a defendant has the right to be present and has the right to assistance of counsel. The resentencing in the instant case was not merely for the correction of a clerical error. The trial court conducted a full hearing to determine the appropriate sentence within the applicable guideline range.
Inherent in the Sixth Amendment right to counsel is the right of self-representation. However, since an accused who manages his own defense relinquishes many of the traditional benefits associated with the right to counsel, a defendant who wishes to represent himself must knowingly and intelligently forego those relinquished benefits. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Smith v. State, 407 So. 2d 894 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); Schafer v. State, 459 So. 2d 1138 (Fla. 5th DCA 1984). A defendant should be made aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made “with his eyes open.” Faretta, 95 S.Ct. at 2541.
In the case sub judice, the trial court failed to inquire as to Chestnut’s mental condition, age, education, and experience to insure that he was making an intelligent and knowledgeable choice to represent himself and waive his right to counsel. See Fla.R.Crim.P. 3.111(d)(3); Johnston v. State, 497 So. 2d 863 (Fla.1986). Nor was Chestnut made aware of the dangers and disadvantages of self-representation. See Fla.R.Crim.P. 3.111(d)(2); Brevard County Board of County Commis sioners v. State, 516 So. 2d 968 (Fla. 5th DCA 1987), rev. denied, 528 So. 2d 1183 (Fla.1988).
Accordingly, we vacate the sentence for manslaughter and remand for resentencing. On remand, the trial court should fully explain to Chestnut his right to counsel and the ability of the court to provide counsel if he is indigent. If Chestnut continues to insist on self-representation, the trial court should make the proper Faretta considerations.
We also note that the trial court, in imposing the seventeen year sentence for manslaughter, reimposed a concurrent seventeen year sentence for extortion. However, the extortion conviction was reversed on direct appeal to this court. The sentence for extortion is spurious, and we therefore strike it.
Sentence for extortion is STRICKEN; sentence for manslaughter VACATED; cause REMANDED for resentencing.
DAUKSCH and COBB, JJ„ concur.
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Blalock v. Rice, 707 So. 2d 738 (Fla. 2d DCA 1997)…aiver. See Fla. R.Crim. P. 3.111(d)(2) and (3). The trial court must also advise the defendant of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Chestnut v. State, 578 So. 2d 27, 28 (Fla. 5th DCA 1991). Once again, because there is no record, we are unable to conclude that the trial court complied with any of these requirements. III.The Plea of Guilty Florida Rule of Criminal Procedure 3.172 sets forth the requirements a…
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Hardy v. State, 655 So. 2d 1245 (Fla. 5th DCA 1995)…edings. Fla.R.Crim.P. 3.111(d)(5). Sentencing is a critical stage in criminal proceedings; and, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel. Chestnut v. State, 578 So. 2d 27, 28 (Fla. 5th DCA 1991). Accordingly, we vacate Hardy’s sentences and remand this cause for resentencing. Bowman v. State, 550 So. 2d 544 (Fla. 4th DCA 1989); Parker v. State, 539 So. 2d 1168, 1169 (Fla. 1st DCA), review denied, 547 So. 2d 1210 (Fla…
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Harrison Wayne Stermer v. State, 609 So. 2d 80 (Fla. 5th DCA 1992)…e charges, or his mental condition. Cooper v. State, 576 So. 2d 1379, 1380 (Fla. 2d DCA 1991); Miller, 485 So. 2d at 1347. The trial court did not apprise the appellant as to the “dangers and disadvantages of self-representation.” Chestnut v. State, 578 So. 2d 27, 28 (Fla. 5th DCA 1991); Cooper, 576 So. 2d at 1380. The trial court here apparently concluded that because appellant was solvent, there was no need for any further inquiry into appellant’s waiver of his right to counsel. However, in Miller, this c…
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 (11 total)
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Johnston v. State, 497 So. 2d 863 (Fla. 1986)
- Federated Publ'ns, Inc. v. Swedberg, 456 U.S. 984 (U.S. 1982)
- Jacks v. Duckworth, 456 U.S. 984 (U.S. 1982)
- Smith v. State, 407 So. 2d 894 (Fla. 1981)
- Jones v. State, 423 So. 2d 520 (Fla. 5th DCA 1982)
- Singleton v. State, 344 So. 2d 911 (Fla. 3d DCA 1977)
- Brevard Cnty. Bd. OF Cnty. Comm'rs v. State, 516 So. 2d 968 (Fla. 5th DCA 1987)
- Carter v. State, 408 So. 2d 766 (Fla. 5th DCA 1982)
- Schafer v. State, 459 So. 2d 1138 (Fla. 5th DCA 1984)