DONALD OTIS WILLIAMS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Donald Otis Williams petitioned for relief based on ineffective assistance of appellate counsel for failing to raise that the trial court did not renew the offer of counsel during his violation of probation sentencing hearing. The court granted the petition, finding that the trial court's failure to renew the offer of counsel at sentencing constituted fundamental error that appellate counsel should have raised, and remanded for a new sentencing hearing.
The court held that appellate counsel was ineffective because the trial court's failure to renew the offer of counsel at sentencing constituted fundamental error that should have been raised on appeal. The court granted the petition and remanded for a new sentencing hearing at which the trial court must offer to appoint Williams counsel.
[1] A trial court must renew the offer of assistance of counsel at each subsequent stage of criminal proceedings if a defendant waives the right to counsel at any prior stage…
[2] Sentencing is a critical stage in criminal proceedings, and a defendant's omission to request counsel at this stage does not constitute a knowing waiver of the right to c…
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“if a defendant waives the right to counsel at any stage of the criminal proceedings, the trial court must renew the offer of assistance of counsel at each subsequent stage of the proceedings. Sentencing is a critical stage in criminal proceedings; and, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.”
Establishes the fundamental rule that sentencing is a critical stage requiring renewal of the counsel offer regardless of the defendant's request
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Join FLexlaw to unlock all legal intelligenceWilliams was offered counsel at the outset of his violation of probation hearing but declined. After the trial court found that Williams violated his …
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Donald Otis Williams filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging that his appellate counsel provided ineffective assistance by not raising a claim that the trial court failed to offer counsel for the sentencing portion of his violation of probation hearing.1 We grant the petition and remand for *1249further proceedings consistent with this opinion.
When reviewing a petition alleging ineffective assistance of appellate counsel, “we must determine whether counsel’s performance was deficient and, if so, whether ‘the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.’ ” Pierce v. State, 121 So.3d 1091, 1093 (Fla. 5th DCA 2013) (quoting Lopez v. State, 68 So.3d 332, 333 (Fla. 5th DCA 2011)). Our court has held:
[I]f a defendant waives the right to counsel at any stage of the criminal proceedings, the trial court must renew the offer of assistance of counsel at each subsequent stage of the proceedings. Sentencing is a critical stage in criminal proceedings; and, even if a defendant does not request appointment of counsel, this omission is not considered a knowing waiver of the right to counsel.
Hays v. State, 63 So.3d 887, 888 (Fla. 5th DCA 2011) (alteration in original) (quoting Hardy v. State, 655 So.2d 1245, 1247-48 (Fla. 5th DCA 1995)); see also Fla. R. Crim. P. 3.111(d)(5) (“[I]f a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”). A trial court’s failure to offer counsel for sentencing ordinarily constitutes fundamental error. Jackson v. State, 983 So.2d 562, 575 (Fla. 2008). Thus, appellate counsel provides ineffective assistance by not raising the issue on appeal. Henretty v. State, 146 So.3d 55, 56 (Fla. 1st DCA 2014) (finding appellate counsel ineffective and ordering a new appeal); Blane v. State, 987 So.2d 241, 241 (Fla. 1st DCA 2008) (same).
The record reflects that the trial court offered to appoint Williams counsel at the outset of the violation of probation hearing, but Williams declined. However, after finding that Williams violated his probation, the trial court immediately proceeded to sentencing before renewing the offer for counsel. The trial court’s failure to renew the offer is fundamental error, which, if raised on appeal, would have resulted in a reversal and remand for a new sentencing hearing. See Henretty, 146 So.3d at 56. We note that, under these circumstances, appellate courts often grant the petitioner a new appeal. See id. Nonetheless, having already determined that the trial court erred by failing to renew the offer for counsel, we find that ordering a new appeal would result in unnecessary redundancy. See Johnson v. Wainwright, 498 So.2d 938, 939 (Fla. 1986) (“In this instance, however, a new appeal would be redundant because we acknowledge that reversible error occurred at trial.”); accord Hampton v. State, 178 So.3d 921, 922 (Fla. 5th DCA 2015); Pierce v. State, 121 So.3d 1091, 1094 (Fla. 5th DCA 2013); Disinger v. State, 574 So.2d 268, 269 (Fla. 5th DCA 1991). Therefore, we grant the petition and remand with instructions to vacate Williams’s sentence and to hold a new sentencing hearing at which the trial court must offer to appoint Williams counsel.
PETITION GRANTED; REMANDED with Instructions.
COHEN, C.J. and ORFINGER, J., concur.
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Citator
Cited By
-
Neely Petrie-Blanchard v. State (Fla. 5th DCA 2026)
Authorities Cited
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- Johnson v. Louie L. Wainwright, 498 So. 2d 938 (Fla. 1986)
- Hardy v. State, 655 So. 2d 1245 (Fla. 5th DCA 1995)
- Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)
- Hays v. State, 63 So. 3d 887 (Fla. 5th DCA 2011)
- Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013)
- Hampton v. State, 178 So. 3d 921 (Fla. 5th DCA 2015)
- Blane v. State, 987 So. 2d 241 (Fla. 1st DCA 2008)
- Henretty v. State, 146 So. 3d 55 (Fla. 1st DCA 2014)
- Disinger v. State, 574 So. 2d 268 (Fla. 5th DCA 1991)