ROBERT RONALD REGISTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Register appeals the summary denial of his motion for postconviction relief following his 1991 DUI sentencing enhancement conviction. The court affirms denial of most claims but reverses and remands regarding Register's assertion that prior uncounseled DUI convictions were unconstitutionally used to enhance his sentence to felony status.
The court held that prior uncounseled convictions may be constitutionally invalid for enhancement purposes and need not first be challenged in the forum where they were entered. Register presented a prima facie case sufficient to warrant further inquiry, and the issue of whether counsel's failure to address voidable prior convictions constituted ineffective assistance is cognizable in postconviction proceedings.
[1] Prior convictions that are constitutionally invalid due to denial of the right to counsel cannot be used for enhancement purposes.
[2] A defendant is not required to move to vacate uncounseled prior convictions in the original sentencing forum before challenging their use for enhancement.
Previewing 2 of 5 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“prior convictions which, because the defendant was denied the right to be represented by counsel, are "constitutionally invalid for enhancement purposes."”
Establishes the core holding that uncounseled convictions cannot be used for sentencing enhancement
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Join FLexlaw to unlock all legal intelligenceRegister was sentenced to state prison in 1991 for driving under the influence of alcohol. The enhanced felony charge was based on prior DUI convictio…
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PER CURIAM.
Robert Register appeals the summary denial of his motion for postconviction relief.1 We affirm in part and reverse in part.
In 1991 Register was sentenced to state prison for driving under the influence of alcohol. The only colorable claim among several raised in Register’s motion concerns the prior DUI convictions used to enhance the present offense to felony status. See § 316.193(2)(b), Fla.Stat. (1991). Register asserts that those convictions were uncounseled and therefore should not have been considered. The motion tracks the supreme court’s holdings in State v. Beach, 592 So. 2d 237 (Fla.1992), and Hlad v. State, 585 So. 2d 928 (Fla.1991), and presents a prima facie case under the standards set forth in those decisions.
Hlad speaks of prior convictions which, because the defendant was denied the right to be represented by counsel, are “constitutionally invalid for enhancement purposes.” 565 So. 2d 762, 764 (Fla. 5th DCA 1990). That is, the defendant is not first required to move to vacate those convictions in the forum in which they were entered, though they may be voidable for constitutional infirmities. Because the initial burden of proof rests with the defendant, it would appear that this is the sort of issue that cannot be raised for the first time on appeal or in a motion to correct sentence. Cf. Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987) (contemporaneous objection required to preserve incorrect scoring of “prior record” on guideline scoresheet). However, the failure to preserve known guideline scoresheet errors can constitute ineffective assistance of counsel. Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985). The same reasoning would apply to the Hlad issue if an attorney knew or should have known it affected a client. At one point in his motion Register does contend that his trial attorney was ineffective. Given the leniency we must show pro se litigants, we find the motion sufficient on its face to warrant further inquiry.
The various other issues raised by Register are without merit and the circuit court properly denied relief as to those additional grounds. See particularly Gayman v. State, 616 So. 2d 17 (Fla.1993).
After remand the circuit court should reexamine the files and records in this case to determine whether anything therein conclu sively refutes Register’s claim that counsel inexcusably ignored voidable prior DUI convictions. If so the court may again deny the motion, attaching to its order whatever documentation it has relied upon. Otherwise, an evidentiary hearing may be necessary. Any party aggrieved by the subsequent action of the circuit court must file a timely notice of appeal to obtain further appellate review.
Affirmed in part, reversed in part, and remanded with instructions.
SCHOONOVER, A.C.J., and THREADGILL and PATTERSON, JJ., concur. . Resolution of Register’s appeal has been delayed by procedural entanglements, most of which are attributable to Register's piecemeal filing of postjudgment motions. Having finally compiled all of Register's various pleadings, the circuit court entered a written order ruling on’ all issues except the one discussed herein. As to this issue, the order states that it "will be addressed in a subsequent order.” Having received no additional ruling, Register filed a pleading labelled "motion for ruling on defendant’s motion for postconviction relief.” The circuit court denied this motion by rubber-stamp order. We interpret this ruling as disposing of the one claim left unresolved by the previous order.
Cases With Similar Vibessemantic neighbors from the corpus
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Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993)…t to known guideline scoresheet errors could constitute ineffective assistance. In Pettway v. State, 502 So. 2d 1353 (Fla. 2d DCA 1987), we specifically dealt with an alleged failure to object to uncounseled prior convictions. Cf. Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993) (failure to object to uncounseled prior DUI convictions used to enhance present offense to felony status). Accordingly,' in the present case Manuel might be entitled to relief if: (1) counsel knew or should have known that prior j…
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Patterson v. State, 938 So. 2d 625 (Fla. 2d DCA 2006)…to reclassify the crime or increase the penalty when the prior convictions were obtained in violation of the defendant’s constitutional right to appointed counsel. See, e.g., Davis v. State, 710 So. 2d 116, 117 (Fla. 2d DCA 1998); Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993); Kirby v. State, 765 So. 2d 723 (Fla. 1st DCA 1999). The genesis of these cases can be traced to two Florida Supreme Court cases, Beach, 592 So. 2d 237, and Hlad, 585 So. 2d 928. In turn, Beach and Hlad were based upon United Stat…1 / 2
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Davis v. State, 710 So. 2d 116 (Fla. 2d DCA 1998)…uld have discovered that it was invalid for enhancement purposes. This claim of ineffectiveness of counsel is cognizable in a 3.850 motion where the attorney knew or should have known that the prior conviction was uncounseled. See Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993). We conclude that defense counsel has an obligation to at least ask a client charged with a felony DUI whether his prior qualifying DUI convictions were counseled. If the client claims that they were uncounseled, defense counsel h…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987)
- State v. Beach, 592 So. 2d 237 (Fla. 1992)
- Hlad v. State, 585 So. 2d 928 (Fla. 1991)
- Dorcy Gayman v. State, 616 So. 2d 17 (Fla. 1993)
- Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985)
- Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990)