JERRY WILCOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed summary denial of coram nobis petition challenging use of prior uncounseled misdemeanor conviction to enhance federal sentence, holding the question is not moot and remanding for proper consideration under Argersinger v. Hamlin.
A trial court errs in summarily denying a coram nobis petition challenging an uncounseled misdemeanor conviction used to enhance a federal sentence solely on the ground that the petitioner's sentence has expired.
[1] An uncounseled misdemeanor conviction cannot be summarily dismissed as moot when used to enhance a federal sentence, and the trial court must consider whether Argersinger v. …
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Join FLexlaw to unlock all legal intelligence“prior invalid, convictions cannot be used for enhancement”
Court citing U.S. v. Tucker, 404 U.S. 443 (1972), regarding the use of invalid prior convictions in sentencing
Wilcox was convicted of a misdemeanor in 1961 without counsel representation. That conviction was subsequently used to enhance his federal sentence, w…
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Wilcox appeals the summary denial of his “Petition for a Writ of Error Coram Nobis or Appropriate Relief,” which the trial judge properly considered under CrPR 3.850, 33 F.S.A. The petition plainly states that his misdemeanor conviction in 1961, while unrepresented by counsel, was being used to enhance his federal sentence which he is now serving. He relies on U. S. v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, which holds that prior invalid, convictions cannot be used for enhancement. The trial judge in this case was in error in denying the petition solely on the ground that the petitioner’s sentence had expired. See Wilcox v. State, Fla.App. 1st 1972, 267 So.2d *421IS, and cases there cited. We adopt the reasoning, of Judge Rawls’ opinion in that case. In short, the question is not moot.
We would point out that the present case involves an allegedly invalid misdemeanor conviction, and involves necessarily the scope of retroactive effect to be given Argersinger v. Hamlin, 1972, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 530. Tucker involved prior felonies. The trial court is the appropriate place for consideration of the substantial question raised by this petition, and Wilcox should be afforded counsel for its proper presentation. The question is important. Undoubtedly it has been the subject of other cases by now reported, and we do not prejudge it.
The order appealed from is vacated and the cause is remanded for consideration in the light of cases cited in this opinion.
LILES, Acting C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Napoleon Howard v. State, 280 So. 2d 705 (Fla. 4th DCA 1973)…pinion that Howard is entitled to an evidentiary hearing based upon the rationale of State v. Reynolds, Fla.1970, 238 So. 2d 598; Lawson v. State, Fla.1970, 231 So. 2d 205; Wilcox v. State, Fla.App.1972, 267 So. 2d 15; Wilcox v. State, Fla.App.1972, 269 So. 2d 420; and Lenwood v. State, Fla.App.1973, Second District Court of Appeal, 278 So. 2d 323. At such evidentiary hearing it would be incumbent upon Howard to prove by the preponderance of the evidence that (1) at the time of his 1958 robbery conviction he…
Authorities Cited
- United States v. Tucker, 404 U.S. 443 (U.S. 1972)
- Argersinger v. Hamlin, 407 U.S. 25 (U.S. 1972)