Croft v. State, 86-1124
| Decision Date | 07 October 1987 |
| Docket Number | No. 86-1124,86-1124 |
| Citation | 12 Fla. L. Weekly 2405,513 So.2d 759 |
| Parties | 12 Fla. L. Weekly 2405 Jackson CROFT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Asst. Public Defender, Clearwater, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Lauren Hafner Sewell, Asst. Atty. Gen., Tampa, for appellee.
The appellant, Jackson Croft, appeals the judgment and sentence imposed after he pled guilty to a charge of lewd assault on a child. We affirm.
The appellant was charged by information with three counts of lewd assault on a child. He entered a best interest plea of guilty as to count I, and the state nolle prossed counts II and III.
At sentencing, defense counsel challenged the validity of the convictions scored under the prior record portion of the guidelines scoresheet on the basis that he believed that all of those convictions were uncounseled. Although the appellant apparently had an extensive record dating back into the 1940's, the state agreed to limit its consideration of the appellant's prior record to those convictions obtained after 1963, when a defendant's constitutional right to counsel was recognized. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). As a result of this limitation, the state intended to score eleven misdemeanor convictions reflected on the appellant's PSI as having been obtained after 1963.
The record reveals that the sentencing hearing was continued three times in the court's attempt to assure that only valid convictions were scored under the prior record portion of the guidelines scoresheet. Much of the controversy revolved around the issue of who had the burden of proof regarding the validity of the appellant's prior convictions for purposes of including the prior convictions on the scoresheet.
At one of the hearings, the appellant testified under oath "to the best of his recollection" that in all his previous court appearances which resulted in convictions he had never been able to afford an attorney, he had never been appointed an attorney, and he had never waived his right to counsel. On cross-examination, the state questioned the appellant regarding some specific convictions. The appellant's responses on cross-examination and on redirect indicate that he had difficulty recalling the details surrounding his convictions. The court concluded that the appellant's testimony regarding his prior convictions was too indefinite to establish by a preponderance of evidence that the convictions were in fact uncounseled or to shift the burden of proving that the convictions were valid to the state.
The court again continued the hearing to provide defense counsel an opportunity to obtain and present additional evidence that one or more of the appellant's convictions were uncounseled. The records which defense counsel ultimately located for the period under consideration were silent as to whether the appellant was represented by counsel or whether he had waived his right to counsel.
The court found that the evidence submitted by the appellant was insufficient to support his allegation that all eleven misdemeanor convictions were obtained without benefit of counsel and that, therefore, none of the eleven convictions should be excluded from the scoresheet. With these convictions included...
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