Allen v. State
| Decision Date | 15 January 1985 |
| Docket Number | AS-246,AT-311 and AS-383,AT-299,Nos. AR-461,s. AR-461 |
| Citation | 463 So.2d 351,10 Fla. L. Weekly 177 |
| Parties | 10 Fla. L. Weekly 177 Peggy Marie ALLEN, also known as Cynthia Marie Allen, Appellant, v. STATE of Florida, Appellee. Charles BOGGS, also known as Larry Watson, Appellant, v. STATE of Florida, Appellee. STATE of Florida, Appellant, v. Gerald D. SHEFFIELD, Appellee. STATE of Florida, Appellant, v. Devonia Antonia BROOKINS, Appellee. Robert Tibbetts SQUIRES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for each appellant in Nos. AR-461, AS-246 and AS-383 and for each appellee in Nos. AT-299 and AT-311.
Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for each appellee in Nos. AR-461, AS-246 and AS-383, and for each appellant in Nos. AT-299 and AT-311.
These consolidated appeals raise common questions of law and procedure concerning prosecutions for felony petit theft under section 812.014(2)(c), Florida Statutes (1981). 1 That statute provides for the reclassification of a misdemeanor petit theft to a felony petit theft upon the state's allegation and proof that the accused has been convicted of petit theft on two or more prior occasions. In each of the cases before us, the defendant was charged with felony petit theft and, pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure, filed a motion to dismiss the felony charge on the ground that the prior convictions relied on by the state were invalid and unreliable because they were based on guilty or nolo contendere pleas obtained in violation of the defendant's constitutional rights. Each defendant alleged that when the prior plea of guilty or nolo contendere was accepted, the trial court failed to accomplish one or more of the following requirements, in violation of the defendant's constitutional rights:
1. Determine that the defendant voluntarily and knowingly waived the right to counsel when entering the plea of guilty or nolo contendere;
2. Determine that the plea was voluntarily and knowingly made by the defendant;
3. Advise the defendant that by pleading guilty the defendant was waiving the right to trial by jury, the right to compel the attendance of witnesses, the right to confront and examine witnesses against him or her, and the right to remain silent;
4. Advise the defendant of the maximum penalty provided by law for the offense charged;
5. Determine that there was a factual basis for the plea;
6. Determine that the defendant acknowledged guilt and that the plea was in the defendant's best interest.
Each motion was sworn to by the defendant and supported by attached documents and transcripts showing what occurred in the prior proceedings. None of the motions contained allegations of specific facts showing in what respects the defendant did not understand his constitutional rights or that the defendant was not voluntarily waiving such rights. Although each defendant argued that dismissal of the felony charge should deprive the circuit court of jurisdiction to try the surviving petit theft charge, none of the motions specifically allege any objection to circuit court jurisdiction.
The state's traverse and demurrer to each of the motions did not dispute the facts alleged but asserted that a (c)(4) motion was not proper for challenging these prior convictions and that the validity of the prior convictions should be determined by the court after a jury trial of the pending petit theft charge, citing State v. Harris, 356 So.2d 315 (Fla.1978). In three of the cases, the defendant's motion to dismiss was denied. In the remaining two cases, the motion was granted.
The following questions, common to all five cases, are presented on appeal:
1. Whether a defendant being prosecuted for felony petit theft under section 812.014(2)(c) may collaterally attack in that proceeding the validity and reliability of alleged prior petit theft convictions on the ground that such convictions were obtained in violation of the defendant's constitutional rights.
2. Whether a motion to dismiss the felony charge pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure, is a proper means to challenge the validity and reliability of the alleged prior convictions.
3. Whether the defendant, when collaterally attacking such prior convictions, has the burden of showing more than the trial court's failure to advise the defendant of his constitutional rights or failure to determine that defendant voluntarily and knowingly waived such rights.
In State v. Harris, supra, the Supreme Court held that section 812.021(3), Florida Statutes (1977), the predecessor to section 812.014(2)(c), 2 creates the substantive offense of felony petit theft, and that proof of the existence of two prior petit theft convictions is an essential element of the offense. As a logical extension of Harris, this court held that in order to properly charge the substantive offense of felony petit theft the state must specifically allege, in the charging portion of the information, the two prior petit theft convictions upon which it relies. 3 Once the state has alleged the prior convictions, the question becomes whether a defendant may collaterally attack the underlying validity and reliability of those prior convictions to support a reclassification of petit theft to felony petit theft or whether the mere fact of their existence and presumptive validity is sufficient to support the felony petit theft charge under section 812.014(2)(c).
It is, of course, well established that a duly entered judgment of conviction and sentence is presumed valid. Paul v. State, 177 So.2d 537 (Fla. 3d DCA 1965). The United States Supreme Court has held, however, that a conviction obtained in violation of the defendant's constitutional right to counsel is void and cannot be used by the state in a subsequent criminal proceeding to support conviction under an enhancement or reclassification statute designed to increase the otherwise allowable period of imprisonment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
In Burgett, supra, the defendant was charged with a felony and, pursuant to a recidivist statute, the state also alleged that the defendant had been convicted of four prior felonies. The recidivist statute provided that any person convicted of a third felony shall be subject to a substantially greater sentence, i.e., life imprisonment. Defendant challenged the admissibility of several of the prior convictions because the court records showed they were obtained when defendant was without counsel and had not waived counsel, in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The court held that the prior felony convictions were indeed void under Gideon and, therefore, could not be used in a subsequent criminal proceeding to increase the sentence of imprisonment because such use would mean that defendant's right to counsel was "being denied anew." 389 U.S. at 116, 88 S.Ct. at 262.
In Baldasar, supra, the defendant was charged with petit theft and the state introduced evidence of a prior petit theft conviction to reclassify the misdemeanor charge to a felony. The defendant objected to admission of the prior conviction, arguing that he had not been represented by counsel and, as a result, his conviction was too unreliable to support enhancement. This argument was made even though the defendant, under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), was not entitled to court-appointed counsel in the prior petit theft proceeding because he was not actually sentenced to jail. The Court split 4-1-4 on the issue of using the prior uncounseled conviction for reclassification purposes. The four-member plurality held that the uncounseled conviction could not be used to support the jail sentence for the subsequent felony petit theft because that would result in the defendant being deprived of his liberty as a direct consequence of his uncounseled misdemeanor conviction, in violation of the rule in Scott v. Illinois. The four dissenting justices held the view that because the misdemeanor conviction was constitutionally valid under Scott v. Illinois, it could properly be used to support the subsequent felony charge and enhanced penalty. In a concurring opinion, Justice Blackmun followed the "bright line" approach enunciated in his dissenting opinion in Scott and concluded that, since Baldasar, under the "bright line" scheme, had a right to counsel in the prior misdemeanor action because he was prosecuted for an offense punishable by more than six months' imprisonment, his prior misdemeanor conviction was invalid and could not be used to support the felony petit theft charge.
Because Justice Blackman's concurring opinion limits the impact of Baldasar, the most that can be derived from that decision is the rather unremarkable holding that a misdemeanor conviction, void because obtained in violation of a defendant's right to counsel, cannot be subsequently used to support conviction for an offense requiring imprisonment under a reclassification or recidivist statute. This holding is a logical extension of Burgett v. Texas to misdemeanor actions. 4
As we read Burgett and Baldasar, even though a defendant may not have appealed prior petit theft convictions, use of those convictions to support a reclassified charge of felony petit theft may be attacked upon proof that the defendant was entitled to counsel in the petit theft proceedings, was convicted without counsel, and did not make a voluntary and knowing waiver of counsel.
The next question is whether the Baldasar rationale...
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