ALAN DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alan Davis appealed the trial court's denial of his 3.850 postconviction motion claiming ineffective assistance of counsel. The court affirmed denial of two claims but reversed and remanded the claim that trial counsel failed to challenge whether Davis's prior uncounseled DUI conviction could legally be used to enhance his current DUI charge from misdemeanor to felony.
The court held that defense counsel has an obligation to ask a client charged with felony DUI whether prior qualifying DUI convictions were counseled, and if the client claims they were uncounseled, counsel must determine whether they can properly enhance the current charge under the Beach test. The trial court erred in summarily denying Davis's ineffectiveness claim without proper record support or an evidentiary hearing.
[1] A prior uncounseled misdemeanor DUI conviction may not be used to enhance a present DUI offense to a felony if the defendant had a right to counsel in the prior proceedin…
[2] A defendant seeking to challenge the use of a prior uncounseled conviction for enhancement must assert under oath that the prior offense was punishable by more than six m…
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Join FLexlaw to unlock all legal intelligence“A prior uncounseled misdemeanor DUI conviction may not be used to enhance a present DUI offense to a felony where the defendant had a right to counsel in the prior proceeding.”
Establishes the core legal rule that an uncounseled prior DUI cannot be used as an enhancement basis.
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Join FLexlaw to unlock all legal intelligenceDavis was charged with felony DUI, with the felony classification based on a prior DUI conviction. Davis claimed in his sworn 3.850 motion that his th…
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PER CURIAM.
Appellant, Alan Davis, challenges the trial court’s order denying his motion for postcon- viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without discussion, the trial court’s denial of two of appellant’s claims. We reverse and remand for further proceedings on Davis’s allegation that trial counsel was ineffective for failing to challenge the State’s use of a prior uncounseled DUI conviction to enhance his present DUI conviction from a misdemeanor to a felony.
A prior uncounseled misdemeanor DUI conviction may not be used to enhance a present DUI offense to a felony where the defendant had a right to counsel in the prior proceeding. See State v. Beach, 592 So. 2d 237 (Fla.1992); Hlad v. State, 585 So. 2d 928 (Fla.1991). The defendant must first assert under oath that the prior offense was punishable by more than six months’ imprisonment or that imprisonment was actually imposed; that he was indigent at the time of the prior offense and, therefore, entitled to court-appointed counsel; and that counsel was not appointed nor was the right to counsel waived. Once the defendant so asserts, the burden shifts to the State to show that counsel was provided or the right to counsel was validly waived. See Beach, 592 So. 2d at 239.
Appellant claims, in his sworn motion, that his third DUI conviction was un-eounseled and also correctly asserts that it was punishable by up to a year in jail. See § 316.193(2)(a)2e, Fla. Stat. (1993).
The attachments to appellant’s motion show that he received a suspended sentence of 364 days in jail. Appellant also asserts that he was indigent, entitled to court-appointed counsel, and that he did not waive his right to court-appointed counsel. Appellant alleges that, had trial counsel properly investigated the circumstance surrounding his third DUI conviction, he would 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 has a duty to determine whether they can be properly used to enhance the client’s present DUI charge under the test outlined in Beach.
The trial court denied appellant’s claim of ineffectiveness, finding that appellant failed to establish that, but for counsel’s inaction, he would not have pleaded.
The trial court erred in summarily denying appellant’s claim on this basis. On remand, if the trial court again summarily denies the claim, it must attach those portions of the record which conclusively refute it. See Register, 619 So. 2d at 499, 500. Otherwise an evidentiary hearing will be necessary. See Register, 619 So. 2d at 500. Appellant’s motion seeks to have his judgment and sentence vacated. Should the trial court eventually grant appellant’s motion, it may retain jurisdiction over any resulting misdemeanor DUI conviction. See Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989); Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985).
Affirmed in part, reversed, and remanded.
FRANK, A.C.J., and ALTENBERND and BLUE, JJ., concur.
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Patterson v. State, 938 So. 2d 625 (Fla. 2d DCA 2006)…equential crime may challenge the use of prior convictions 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.…1 / 2
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Riggins v. State, 789 So. 2d 509 (Fla. 1st DCA 2001)…ent for his first DUI, that he was indigent at the time of the first conviction, and that he did not receive counsel or waive his right to counsel. The appellant’s motion tracks the supreme court’s holding in Beach and the holding in Davis v. State, 710 So. 2d 116 (Fla. 2d DCA [*511] 1998). In the instant case, as in Davis, the appellant alleges that if trial counsel had properly investigated the prior DUI conviction, counsel would have discovered that it was invalid for enhancement purposes. The appellant al…1 / 2
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Riggins v. State, 831 So. 2d 720 (Fla. 1st DCA 2002)…pellant would not have pled guilty. The trial court summarily denied the appellant’s claim. On appeal this Court determined that the appellant’s claim was facially sufficient pursuant to State v. Beach, 592 So. 2d 237 (Fla.1992), and Davis v. State, 710 So. 2d 116 (Fla. 2d DCA 1998), and remanded the case for attachment of those portions of the record that conclusively refuted the appellant’s claim, or for an evidentiary hearing. Riggins, 789 So. 2d at 510-11. On remand, the trial court summarily denied the…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Beach, 592 So. 2d 237 (Fla. 1992)
- Allen v. State, 463 So. 2d 351 (Fla. 1st DCA 1985)
- Hlad v. State, 585 So. 2d 928 (Fla. 1991)
- Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993)
- Madison v. State, 540 So. 2d 189 (Fla. 1st DCA 1989)