J.O., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court committed fundamental error by failing to comply with Rule 8.165, Florida Rules of Juvenile Procedure, regarding the waiver of counsel.
J.O. pleaded guilty to possession of cannabis and violation of community control after signing a waiver of counsel. The arraignment record did not sho…
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ORFINGER, M., Senior Judge.
J.O. appeals from the order adjudicating him to be delinquent and committing him to the Department of Juvenile Justice, following a plea of guilty to possession of less than 20 gram of cannabis and acknowledging that the guilty plea would trigger a violation of an earlier order of community control.
Although appellant and his mother signed a waiver of counsel form prior to his arraignment, the record of the arraignment before us does not reflect any mention by the trial judge of appellant’s right to counsel or the right to appointment of counsel. Rule 8.165(b)(2), Florida Rules of Juvenile Procedure states that a child shall not be deemed to have waived assistance of counsel until the “... entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and capacity to make that choice intelligently and understandingly has been made.” See N.R.L. v. State, 684 So. 2d 299 (Fla. 5th DCA 1996) (defendant must be advised of his right to counsel, and if he chooses to waive counsel the court must query the defendant to determine if the waiver was freely and intelligently made). See also, R.V.P. v. State, 395 So. 2d 291 (Fla. 5th DCA 1981). Only after a “thorough inquiry” has been made as required by Rule 8.165 to determine whether the waiver was freely and intelligently made may J.O.’s plea be taken.
Although the issue was never presented to the trial court in a motion to withdraw the plea, thus not preserved for appeal, failure to comply with Rule 8.165 has been held to be fundamental error. See J.R.V. v. State, 715 So. 2d 1135 (Fla. 5th DCA 1998). See also, Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998).
REVERSED AND REMANDED.
DAUKSCH and PETERSON, JJ., concur.
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State v. T.G., 800 So. 2d 204 (Fla. 2001)…r. See, e.g., B.P. v. State, 759 So. 2d 741, 741 (Fla. 5th DCA 2000); J.A.S., 746 So. 2d at 1226; P.L.S., 745 So. 2d at 557; S.S., 744 So. 2d at 601; M.A.F., 742 So. 2d at 535; A.P. v. State, 740 So. 2d 1241, 1241 (Fla. 5th DCA 1999); J.O. v. State, 717 So. 2d 185, 186 (Fla. 5th DCA 1998).6 Because these courts find a failure to comply with rule 8.165 constitutes “fundamental” error, they would allow a juvenile to challenge the voluntariness of a plea without requiring that the juvenile first withdraw the ple…
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A.G. v. State, 737 So. 2d 1244 (Fla. 5th DCA 1999)…counsel at all critical stages of delinquency proceedings. Both the denial of that right and the failure to comply with Fla.R.Juv.P. 8.165 are fundamental error. A.D. v. State, 1999 WL 420288, — So. 2d - (Fla. 5th DCA June 25, 1999); J.O. v. State, 717 So. 2d 185 (Fla. 5th DCA 1998); J.R.V. v. State, 715 So. 2d 1185 (Fla. 5th DCA 1998). If a juvenile waives counsel, the court must inquire of him to determine if the waiver is freely and intelligently made. See, T.G. v. State, 24 Fla. L. Weekly D216, — So. 2d…
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P.L.S. v. State, 745 So. 2d 555 (Fla. 4th DCA 1999)…ppellant (1) had significant behavioral problems including “attention deficit hyperactivity disorder”; (2) was prescribed Depakote and Zoloft; and (3) had been hospitalized. Failure to comply with Rule 8.165 is fundamental error. See J.O. v. State, 717 So. 2d 185 (Fla. 5th DCA 1998). Appellant’s delinquency adjudication and commitment are reversed, and the case is remanded back to the trial court for an arraignment on all charges. STONE, J., and JULIAN, JOYCE A., Associate Judge, concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of R. v. P., 395 So. 2d 291 (Fla. 5th DCA 1981)
- J.R.V. v. State, 715 So. 2d 1135 (Fla. 5th DCA 1998)
- Tyler v. State, 710 So. 2d 645 (Fla. 4th DCA 1998)
- N.R.L. v. State, 684 So. 2d 299 (Fla. 5th DCA 1996)