ROOSEVELT GLENN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roosevelt Glenn appealed an order denying his motion to vacate his sentence, arguing that the trial court improperly considered uncounseled pre-Gideon convictions in sentencing him. The court held that Glenn is entitled to an evidentiary hearing to prove the prior conviction was obtained without counsel and without a valid waiver of his right to counsel.
Glenn is entitled to an evidentiary hearing to prove that his 1962 pre-Gideon conviction was obtained while he was indigent and uncounseled without a valid waiver of his right to counsel. If the prior conviction is determined invalid, he must be resentenced without consideration of that conviction.
[1] A sentence may be vacated if the trial court improperly considered prior invalid convictions when imposing the sentence.
[2] A defendant is entitled to relief if prior convictions used in sentencing were uncounseled and the defendant was indigent and did not waive counsel.
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Join FLexlaw to unlock all legal intelligence“If all of these allegations are true, appellant would be entitled to relief.”
Establishes the legal standard that uncounseled pre-Gideon convictions cannot be used to enhance sentences when the defendant was indigent and did not waive counsel.
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Join FLexlaw to unlock all legal intelligenceGlenn was convicted of robbery and sentenced to twenty-five years in prison. At sentencing, the trial court explicitly referenced two prior felony con…
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PER CURIAM.
This case comes before the court to review an order denying a motion to vacate and set aside the judgment and sentence pursuant to Fla.R.Crim.P. 3.850.
Appellant alleges that other convictions, obtained of him prior to the right to counsel rule set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), were considered by the trial court in the case sub judice to enhance his sentence. Appellant further alleges that these prior convictions were uncounseled ones, that he was not financially able to obtain counsel, and that he did not waive his right to counsel. If all of these allegations are true, appellant would be entitled to relief. Wolfe v. State, 323 So. 2d 680 (Fla. 2d DCA 1975); Howard v. State, 280 So. 2d 705 (Fla. 4th DCA 1973).
The transcript of the sentencing hearing shows that the following statements were made:
THE COURT: Do you have his sheet here today, Mr. Bailiff? As I recall from the trial he does have two felony previous convictions, if I am not mistaken.
MR. BROWN: Yes sir, 1962 and 1968. THE COURT: One of them was a robbery reduced to grand larceny.
* * # * * * THE COURT: The Court will adjudge the defendant to be guilty as charged in the Information for the crime of robbery. Taking into consideration his previous felony convictions, including similar type offenses for the crime of robbery, it is the judgment, order and sentence of the Court that he be confined in the Florida State Prison for twenty-five years. Give him credit for his county jail time .
From the above portions of the record, it appears that the trial court did in fact consider at least one felony conviction obtained of appellant prior to Gideon, supra. Therefore, we are of the opinion that appellant is entitled to an evidentiary hearing in which appellant will be given an opportunity to present evidence that 1) at the time of his 1962 conviction he was indigent and unable to employ an attorney and, in fact, uncounseled, and 2) he did not knowingly waive his right to counsel. If the prior conviction is determined to be invalid, then appellant should be resen-tenced without any consideration of the pre-Gideon conviction.
This case is remanded for proceedings in accordance with this opinion.
McNULTY, C. J., and HOBSON and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lloyd v. State, 346 So. 2d 1075 (Fla. 2d DCA 1977)…he was not financially able to obtain counsel. He further contends that he did not waive his right to counsel. If these allegations are true, appellant would be entitled to relief. Wolfe v. State, 323 So. 2d 680 (Fla. DCA 2nd 1975); Glenn v. State, 338 So. 2d 263 (Fla. DCA 2nd 1976). We are therefore of the opinion that the appellant is entitled to a full evidentiary hearing in which he will be given an opportunity to present evidence that at the time of his prior felony convictions he was indigent and unab…
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Hayes v. State, 468 So. 2d 470 (Fla. 4th DCA 1985)…ideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Such un-counseled convictions may not be used to determine a defendant’s sentence. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). See Glenn v. State, 338 So. 2d 263 (Fla. 2d DCA 1976); Hicks v. State, 336 So. 2d 1244 (Fla. 4th DCA 1976). We remand for resentencing so that appellant may choose between a properly computed guidelines sentence and a pre-guidelines sentence determined without consideration of the…
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Garcia v. State, 358 So. 2d 561 (Fla. 2d DCA 1978)…L.Ed.2d 799 (1963), because appellant was denied counsel in that case. Appellant’s allegations are not refuted by the record, and if they are true, appellant is entitled to relief. Wolfe v. State, 323 So. 2d 680 (Fla. 2d DCA 1975); Glenn v. State, 338 So. 2d 263 (Fla. 2d DCA 1976); Lloyd v. State, 346 So. 2d 1075 (Fla. 2d DCA 1977). Unless the rap sheet upon which the trial judge relied conclusively demonstrates that the 1955 breaking and entering conviction mentioned by the trial court is not the same conv…
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
- Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963)
- Napoleon Howard v. State, 280 So. 2d 705 (Fla. 4th DCA 1973)
- Whittington v. State, 323 So. 2d 680 (Fla. 1st DCA 1975)
- Wolfe v. State, 323 So. 2d 680 (Fla. 2d DCA 1975)