NAPOLEON HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Howard appealed the denial of post-conviction relief for his 1958 armed robbery conviction, arguing it was obtained without counsel in violation of the Sixth and Fourteenth Amendments. The court vacated the denial and remanded for an evidentiary hearing to determine whether Howard was denied counsel and whether that invalid conviction was used to enhance a later sentence.
Howard is entitled to an evidentiary hearing. At that hearing, Howard must prove by preponderance of the evidence that he was indigent and unable to employ counsel and that he did not knowingly waive his right to counsel. If the prior conviction is found invalid, the trial judge must consider the extent to which the subsequent sentence was based on that prior conviction.
[1] A defendant is entitled to an evidentiary hearing on a petition for post-conviction relief alleging a prior conviction was rendered without the assistance of counsel in v…
[2] To prevail on a claim of ineffective assistance of counsel regarding a prior conviction, a defendant must prove by a preponderance of the evidence that they were indigent…
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Join FLexlaw to unlock all legal intelligence“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”
Establishes the controlling legal standard that a defendant is entitled to a hearing to challenge a conviction alleged to have been obtained without counsel
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Join FLexlaw to unlock all legal intelligenceHoward was convicted of armed robbery in 1958 and sentenced to ten years imprisonment. He later received a twelve-year sentence for a subsequent robbe…
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Howard appeals the denial of his petition for post-conviction relief. In his petition Howard alleged that his 1958 conviction and ten-year sentence for armed robbery was invalid by reason of having been rendered without the assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and, furthermore, that such prior alleged invalid conviction was used to enhance a later sentence of twelve years imposed upon appellant for a subsequent conviction of another crime of robbery. We are of the opinion 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 was indigent and unable to employ an attorney and (2) he did not knowingly waive his right to counsel. Based upon the aforementioned decisions, and in particular United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, the trial judge should consider the extent to which the imposition of the subsequent sentence was based upon the prior conviction if it is determined that the prior conviction was invalid. See Lenwood v. State, supra. The order appealed from is vacated and the cause is remanded with instructions that defendant be granted an evidentiary hearing consistent herewith,
CROSS, OWEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)…licable to Florida.2 Appellant’s motion should be treated as an application for a writ of coram nobis. The issues raised by the motion shall include those presented by a Gideon motion under Rule 3.850, RCrP. See Howard v. State, Fla.App. 4th, 1973, 280 So. 2d 705. The state’s .argument of laches may also be considered by the court below. However, the mere passage of time, standing by itself, would not constitute the prejudice necessary to support a finding of laches. See 62 A.L.R.2d 432. Should the judgment…
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Wolfe v. State, 323 So. 2d 680 (Fla. 2d DCA 1975)…he convictions had already been judicially set aside, whereas appellant has only made allegations which, if proven to be true, would result in his prior conviction being vacated. This case is similar in posture to Howard v. State, Fla.App.4th, 1973, 280 So. 2d 705. There, the court was faced with a post-conviction motion stating that a conviction which was allegedly invalid because of having been rendered without the assistance of counsel was used to enhance a later sentence imposed for a subsequent convictio…
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Hicks v. State, 336 So. 2d 1244 (Fla. 4th DCA 1976)…find applicable in the instant case, is a re-evaluation of the defendant’s sentence by the sentencing judge, without consideration of any prior convictions which are invalid under the Gideon case. This same procedure was followed in Howard v. State, 280 So. 2d 705 (4DCA Fla. 1973) and Wolfe v. State, 323 So. 2d 680 (2DCA Fla.1975). The order appealed from recites that the sentences imposed were “within the limits set by statute,” that the court has “reviewed the file in this case,” and that “an evidentiary h…
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
- United States v. Tucker, 404 U.S. 443 (U.S. 1972)
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Reuel Lawson v. State, 231 So. 2d 205 (Fla. 1970)
- Wilcox v. State, 267 So. 2d 15 (Fla. 1st DCA 1972)
- Wilcox v. State, 269 So. 2d 420 (Fla. 2d DCA 1972)
- Lenwood v. State, 278 So. 2d 323 (Fla. 2d DCA 1973)