B.P., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed a juvenile detention order because the trial court failed to comply with Florida Rule of Juvenile Procedure 8.165 by not offering counsel or obtaining a waiver, which constitutes fundamental error requiring reversal even without a motion to withdraw plea.
Failure to advise a juvenile of the right to counsel in accordance with Florida Rule of Juvenile Procedure 8.165 constitutes fundamental error requiring reversal, even absent a motion to withdraw plea.
[1] Failure to advise a juvenile of the right to counsel in accordance with Florida Rule of Juvenile Procedure 8.165 constitutes fundamental error reviewable on appeal withou…
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Join FLexlaw to unlock all legal intelligenceB.P. was charged with grand theft of a motor vehicle and resisting arrest without violence and appealed a detention order.…
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GRIFFIN, J.
B.P. appeals a detention order based on charges of grand theft of a motor vehicle and resisting arrest without violence.
On appeal, B.P. contends that the trial court committed reversible error when it failed to offer him the assistance of counsel at either his plea and disposition hearing or obtain a waiver as required by Florida Rule of Juvenile Procedure 8.165. The State concedes that the trial court failed to follow the dictates of Rule 8.165 and that this court has held that the failure to strictly comply with the rule constitutes fundamental error requiring reversal. E.C.H. v. State, 751 So. 2d 776 (Fla. 5th DCA 2000); T.G. v. State, 741 So. 2d 517, 518 (Fla. 5th DCA 1999), review granted, 751 So. 2d 1254 (Fla.2000); J.O. v. State, 717 So. 2d 185, 186 (Fla. 5th DCA 1998); J.R.V. v. State, 715 So. 2d 1135, 1139 (Fla. 5th DCA 1998); L.D.H. v. State, 711 So. 2d 1319, 1320 (Fla. 5th DCA 1998). The State, however, argues that B.P. was required to file a motion to withdraw his plea in order to preserve the issue, relying on the second district’s recent holding in J.M.B. v. State, 750 So. 2d 654 (Fla. 2d DCA 1999). This court has held, however, that even absent a motion to withdraw plea, failure to advise a juvenile of his right to counsel in accordance with the rule is reviewable and correctable on appeal. See T.G., 741 So. 2d at 518-19. Our opinion in T.G. is controlling.
REVERSED and REMANDED.
ANTOON, C.J., and THOMPSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. T.G., 800 So. 2d 204 (Fla. 2001)…n contrast, appellate courts have concluded that the trial court’s failure to comply ■with rule 8.165, which contemplates a thorough inquiry into a juvenile’s waiver of the right to counsel, constitutes “fundamental” error. 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 B…
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D.C.W. v. State, 775 So. 2d 363 (Fla. 2d DCA 2000)…g fashion. This issue may be reviewed for the first time on appeal because the failure to adequately advise a juvenile of his right to counsel constitutes fundamental error.1 See S.S. v. State, 744 So. 2d 600, 601 (Fla. 2d DCA 1999); B.P. v. State, 759 So. 2d 741 (Fla. 5th DCA 2000); T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), review granted, 751 So. 2d 1254 (Fla.2000). Accordingly, we reverse and remand this matter to the trial court with directions [*365] that D.C.W. be allowed to withdraw his plea.…
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State v. B.P., 810 So. 2d 918 (Fla. 2002)…QUINCE, J. We have for review B.P. v. State, 759 So. 2d 741 (Fla. 5th DCA 2000), which cited to the decision in T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), a case that was accepted for review by this Court. See State v. T.G., 751 So. 2d 1254 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla…
Authorities Cited
- J.R.V. v. State, 715 So. 2d 1135 (Fla. 5th DCA 1998)
- J.O. v. State, 717 So. 2d 185 (Fla. 5th DCA 1998)
- J.M.B. v. State, 750 So. 2d 654 (Fla. 2d DCA 1999)
- T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999)
- E.C.H. v. State, 751 So. 2d 776 (Fla. 5th DCA 2000)
- Noelvil Soirelus v. State, 751 So. 2d 776 (Fla. 5th DCA 2000)
- L.D.H. v. State, 711 So. 2d 1319 (Fla. 5th DCA 1998)