JAMES RILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Riley appealed the denial of his motion for postconviction relief for the third time, challenging the use of uncounseled misdemeanor convictions in his sentencing scoresheet. The Fourth District reversed and remanded, finding the state failed twice to establish that counsel was provided or waived for two traffic misdemeanor convictions.
The court reversed and remanded for resentencing, holding that after two failed opportunities by the state to establish that counsel was provided or waived for the two traffic misdemeanor convictions, those convictions must be excluded from the sentencing scoresheet.
[1] A defendant challenging the use of prior uncounseled misdemeanor convictions to enhance a subsequent offense must allege that the offense was punishable by imprisonment,…
[2] Once a defendant establishes the elements required to challenge prior uncounseled misdemeanor convictions, the burden shifts to the state to demonstrate that counsel was…
Previewing 2 of 4 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“a defendant must allege: (1) that the offense was punishable by imprisonment; (2) that the defendant was indigent and entitled to court-appointed counsel; (3) that counsel was not appointed; and (4) that the right to counsel was not waived. Riley satisfied this requirement. This shifts the burden to the state to show that counsel was provided or that counsel was waived.”
Establishes the burden-shifting framework under State v. Kelly for challenging uncounseled misdemeanor convictions in sentencing.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRiley had challenged the assessment of points for four misdemeanor convictions on his sentencing scoresheet. On remand from a previous appeal, the sta…
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This is the third appeal by Riley of the denial of his motion for postconviction relief.1 See Riley v. State, 8 So.3d 1285 (Fla. 4th DCA 2009); Riley v. State, 975 So.2d 507 (Fla. 4th DCA 2007). As one of his central themes, Riley continues to assert that a sentencing scoresheet used early on in the process was flawed. He argues that certain misdemeanor convictions should not have been included in the scoresheet calculation because they were based on uncounseled pleas. In our most recent opinion we wrote:
Notably, the Florida Supreme Court has modified its holding in State v. Beach, 592 So.2d 237 (Fla.1992), in a recent decision of State v. Kelly, 999 So.2d 1029 (Fla.2008), in which the defendant argued that the state erred in using prior uncounseled misdemeanor convictions to increase a subsequent DUI from a misdemeanor to a felony. The court held that a defendant must allege: (1) that the offense was punishable by imprisonment; (2) that the defendant was indigent and entitled to court-appointed counsel; (3) that counsel was not appointed; and (4) that the right to counsel was not waived. Riley satisfied this requirement. This shifts the burden to the state to show that counsel was provided or that counsel was waived.
The record reflects that in his postcon-viction motion, Riley challenged the as*888sessment of points for four misdemeanor convictions. On remand from the last appeal, the state established that Riley waived counsel as to two of the four misdemeanors — carrying a concealed weapon and disorderly conduct. However, the state has repeatedly failed to establish that counsel was provided or waived as to two traffic crimes.2
As the state has now had two opportunities to meet its burden and has been unable to do so with respect to two of the misdemeanors, we reverse and remand for the trial court to resentence Riley based on a scoresheet that does not include the convictions for the two traffic misdemeanors.
The other issues raised on appeal are without merit or moot.
Reversed and remanded with instructions.
MAY and KLINGENSMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Beach, 592 So. 2d 237 (Fla. 1992)
- State v. Kelly, 999 So. 2d 1029 (Fla. 2008)
- Riley v. State, 975 So. 2d 507 (Fla. 4th DCA 2007)
- Freeman v. Velez, 8 So. 3d 1285 (Fla. 4th DCA 2009)
- Riley v. State, 8 So. 3d 1285 (Fla. 4th DCA 2009)