DAVID LANGLOIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that while convictions are affirmed, the cause must be remanded for resentencing because the defendant's counsel was not present at the original sentencing.
Petitioner sought to set aside judgments and sentences after guilty pleas in five robbery cases, claiming he was not represented by counsel at sentenc…
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Petitioner, David Langlois, appeals from the trial court’s denial of his petition under Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix in which he sought to set aside judgments and sentences, after “guilty” pleas, in five robbery cases.
The petitioner asserts several different grounds for relief. They have all been examined and appear to be without merit, and are conclusively refuted by the files *285and records, except Ms claim that he was “not represented by counsel at sentencing.” The record is silent as to whether his court appointed counsel was present at the time his sentences were imposed, or whether the defendant waived this right.
The time of sentencing is a critical step in criminal procedure, during which a defendant is entitled to have his counsel present. Reader v. State, Fla.App.1964, 168 So.2d 557; Williams v. State, Fla.App. 1964, 165 So.2d 197.
The judgments of conviction previously entered by the trial court are affirmed. Error was committed, however, in sentencing the defendant when his counsel was not present. The cause, therefore, is reversed and remanded for the sole purpose of entering proper sentences, at which time the defendant should he present with his private counsel, if he so chooses; or, in the event he is indigent, the public defender should be present.
It is so ordered.
ON REHEARING
The State, in its petition for rehearing contends that the effect of the previous opinion is to grant to the petitioner, David Langlois, the relief which he sought under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, without the holding of an evidentiary hearing, in which he would have to “prove” his allegation that he was sentenced without counsel present. We agree. Evans v. State, Fla.App. 1964, 163 So.2d 520; King v. State, Fla. App.1963, 157 So.2d 440.
The opinion, therefore, is revised only insofar as the last sentence is concerned. The last sentence is stricken and the following is substituted therefor:
The Rule 1 petition is hereby granted and this cause is reversed and remanded to the trial court for the sole purpose of conducting an evidentiary hearing in order that the petitioner shall be given an opportunity to prove his allegation that his counsel was not present at the time his sentence was imposed.
In the event that the allegation is proven to the satisfaction of the trial judge, then the sentences heretofore entered should be vacated and the defendant should be resen-tenced with either private or public counsel present.
It is so ordered.
The State, in its petition for rehearing contends that the effect of the previous opinion is to grant to the petitioner, David Langlois, the relief which he sought under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, without the holding of an evidentiary hearing, in which he would have to “prove” his allegation that he was sentenced without counsel present. We agree. Evans v. State, Fla.App. 1964, 163 So. 2d 520; King v. State, Fla. App.1963, 157 So. 2d 440.
The opinion, therefore, is revised only insofar as the last sentence is concerned. The last sentence is stricken and the following is substituted therefor:
The Rule 1 petition is hereby granted and this cause is reversed and remanded to the trial court for the sole purpose of conducting an evidentiary hearing in order that the petitioner shall be given an opportunity to prove his allegation that his counsel was not present at the time his sentence was imposed.
In the event that the allegation is proven to the satisfaction of the trial judge, then the sentences heretofore entered should be vacated and the defendant should be resen-tenced with either private or public counsel present.
It is so ordered.
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Carter v. State, 408 So. 2d 766 (Fla. 5th DCA 1982)…6, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Fla.R. Crim.P. 3.160(e). . Machwart v. State, 222 So. 2d 38 (Fla. 2d DCA 1969); Wingard v. State, 200 So. 2d 630 (Fla. 2d DCA 1967); Fulmore v. State, 198 So. 2d 101 (Fla. 2d DCA 1967); Langlois v. State, 191 So. 2d 284 (Fla. 3d DCA 1966); Reader v. State, 168 So. 2d 557 (Fla. 2d DCA 1964); Williams v. State, 165 So. 2d 197 (Fla. 2d DCA 1964); Evans v. State, 163 So. 2d 520 (Fla. 2d DCA 1964).…
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Bryant v. State, 194 So. 2d 21 (Fla. 3d DCA 1967)…erse the order denying relief and remand the cause for an evidentiary hearing upon the appellant’s allegation that he was not afforded the opportunity to be represented by counsel at the [*22] time of sentencing. See Langlois v. State, Fla.App.1966, 191 So. 2d 284. Appellant’s allegation that he was denied a constitutional right when he was not represented or afforded the opportunity of representation by counsel on the revocation of his probation is not a ground for relief. Thomas v. State, Fla.App.1964, 163…
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Grandin v. State, 421 So. 2d 803 (Fla. 3d DCA 1982)…647 (1950); Van Cleaf v. State, 328 So. 2d 568 (Fla. 2d DCA 1976); [*805] Simmons v. State, 298 So. 2d 206 (Fla. 2d DCA 1974); Wingard v. State, 200 So. 2d 630 (Fla. 2d DCA 1967); Bryant v. State, 194 So. 2d 21 (Fla. 3d DCA 1967); Langlois v. State, 191 So. 2d 284 (Fla. 3d DCA 1966); Perkins v. State, 165 So. 2d 248 (Fla. 2d DCA 1964); Evans v. State, 163 So. 2d 520 (Fla. 2d DCA 1964). The same defendant, however, does not have a right to appointed counsel at a probation revocation proceeding — unless special…
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
- King v. State, 157 So. 2d 440 (Fla. 2d DCA 1963)
- Evans v. State, 163 So. 2d 520 (Fla. 2d DCA 1964)
- Reader v. State, 168 So. 2d 557 (Fla. 2d DCA 1964)
- Williams v. State, 165 So. 2d 197 (Fla. 2d DCA 1964)
- Warren v. State, 165 So. 2d 197 (Fla. 1st DCA 1964)