KEVIN V. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to counsel at sentencing, and the record did not refute the claim of absence of counsel or waiver.
Appellant appealed the summary denial of his postconviction relief motion. He claimed he was not represented by counsel at sentencing in one of his ca…
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PER CURIAM.
Kevin V. Brown timely appeals the summary denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
Although we find no merit in the appellant’s claims concerning his pleas in circuit court case numbers 88-16270 and 89-10316, or concerning the sentence in case number 88-16270, we do find merit in the appellant’s claim that he was not represented by counsel at the time of sentencing in case number 89-10316. Claims of this nature are cognizable in a motion for post-conviction relief. See Gurchick v. State, 439 So. 2d 1002 (Fla. 2d DCA 1983). A criminal defendant is entitled to counsel at each critical stage of the criminal proceeding, which includes sentencing. While the right to counsel may be waived, the trial court must ensure that the waiver is knowingly and voluntarily made. The portions of the file and record attached to the order summary denying the motion do not refute the allegation that the appellant was not represented at sentencing or show a waiver of counsel by the appellant.
Accordingly, we reverse the trial court’s denial of appellant’s motion as to the allegation regarding the absence of counsel at sentencing on case number 89-10316 and remand the case to the trial court. We affirm all other points raised by the appellant. On remand, unless the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall order the state attorney to file an answer within a time certain. After receipt of the answer, the court shall determine whether an evidentiary hearing is required and proceed in accordance with rule 3.850. Affirmed in part, reversed in part, and remanded for further proceedings.
SCHOONOVER, C.J., HALL and THREADGILL, JJ., concur.
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Bell v. State, 642 So. 2d 1113 (Fla. 1st DCA 1994)…tial rights might have been affected, even where trial court had no discretion over actual sentence imposed). Sentencing is another critical stage of the prosecution. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Brown v. State, 589 So. 2d 987 (Fla. 2d DCA 1991). This is not a case where a mandatory sentence flows ineluctably from a conviction not itself tainted by a deprivation of the right to counsel. See United States v. Carroll, 510 F. 2d 507, 511-12 (2d Cir.1975), cert. denied, 426 U…
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Adams v. State, 990 So. 2d 531 (Fla. 2d DCA 2008)…been barred from representing him by vir [*532] tue of their ethical conflicts, essentially left him unrepresented at a critical stage of the proceedings. “Claims of this nature are cognizable in a motion for postconviction relief.” Brown v. State, 589 So. 2d 987, 987 (Fla. 2d DCA 1991); see Austin v. State, 826 So. 2d 387, 339 (Fla. 2d DCA 2002) (addressing, as a matter of fundamental error, the claim that the trial court erroneously denied the defendant the assistance of counsel at his sentencing hearing b…
Authorities Cited
- Gurchick v. State, 439 So. 2d 1002 (Fla. 2d DCA 1983)