HURGEL LEROY SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction is remanded for a hearing to determine whether he was sentenced without counsel, as the record is silent on this issue and such a deprivation requires vacation of the sentence.
When a defendant is sentenced without counsel present, the sentence must be set aside and the defendant is entitled to a hearing to determine whether counsel was present at sentencing.
[1] A defendant sentenced without counsel present is entitled to a hearing to determine whether counsel was present at sentencing when the trial court record is silent on the…
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Join FLexlaw to unlock all legal intelligence“Where one is sentenced without counsel, the sentence must be set aside.”
Establishing the governing legal rule from Mempa v. Rhay and related cases.
Appellant pled guilty with counsel present but asserts he was unaccompanied by counsel at sentencing, and the court records do not reflect whether cou…
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PER CURIAM.
Appellant appeals the denial without hearing of his motion for post conviction relief. Admitting that counsel was with him when he pled guilty, appellant asserts that he was unaccompanied by counsel at the time of his sentencing. Unfortunately, the court records do not reflect whether or not counsel was present at sentencing.
Where one is sentenced without counsel, the sentence must be set aside. Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; accord, Evans v. State, Fla.App.2d, 1964, 163 So. 2d 520; Perkins v. State, Fla.App.2d, 1964, 165 So. 2d 248. The rule of Mempa is retroactive. McConnell v. Rhay, 1968, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2. Since appellant alleges that counsel was not with him when he was sentenced and since the record is silent on the subject, he is entitled to a hearing to determine this issue. State v. Weeks, Fla.1964, 166 So. 2d 892. If the court determines that counsel was not present, appellant should be provided with counsel who can represent him at the re-sentencing. We do not reach the other points raised in appellant’s motion since these are matters which can be pursued at the trial court level if it be determined that appellant is entitled to resentencing.
The case is remanded for further proceedings consistent herewith.
MANN, C. J., and McNULTY and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hicks v. State, 452 So. 2d 606 (Fla. 4th DCA 1984)…ourts have uniformly held that one is entitled to counsel at a sentencing hearing for violation of probation. E.g., Thompson v. State, 413 So. 2d 1301, 1302 (Fla. 4th DCA 1982); Woodard v. State, 351 So. 2d 1096 (Fla. 3d DCA 1977); Simmons v. State, 298 So. 2d 206 (Fla. 2d DCA 1974). Some years ago this court held in Gargan v. State, 217 So. 2d 578 (Fla. 4th DCA 1969), that a probationer was also entitled to counsel at a hearing held to determine whether his probation should be revoked. Later, Gagnon v. Scarp…
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Woodard v. State, 351 So. 2d 1096 (Fla. 3d DCA 1977)…tence. The decision in Mempa mandates the presence of counsel at sentencing, whether or not this occurs at the same time as revocation of probation. Thus the sentencing procedure was constitutionally defective and must be reversed. Simmons v. State, 298 So. 2d 206 (Fla.2d DCA 1974); Van Cleaf v. State, supra. Appellant asserts additional error in the sentencing procedure, but because our decision as stated affords him the opportunity for relief on this aspect of the case, we need not reach these arguments.…
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Thompson v. State, 413 So. 2d 1301 (Fla. 4th DCA 1982)…. The Mempa opinion continues to mandate an absolute right to be represented by counsel at sentencing and this is true even where sentencing is accomplished during or at the termination of a probation revocation hearing. See, e.g., Simmons v. State, 298 So. 2d 206 (Fla.2d DCA 1974). Appellant, Thompson, had not been convicted of the crime for which revocation of his probation was sought nor did he admit guilt. Accordingly, he was entitled to be represented by counsel at the hearing and sentencing. Proceedin…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mempa v. Rhay, 389 U.S. 128 (U.S. 1967)
- McCONNELL v. Rhay, 393 U.S. 2 (U.S. 1968)
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- Evans v. State, 163 So. 2d 520 (Fla. 2d DCA 1964)
- Perkins v. State, 165 So. 2d 248 (Fla. 2d DCA 1964)