Hlad v. State

• Decision Date: 19 July 1990
• Docket Number: No. 88-2389,88-2389
• Citation: 565 So.2d 762
• Parties: 15 Fla. L. Weekly D1868 Albert HLAD, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 762

565 So.2d 762

15 Fla. L. Weekly D1868

Albert HLAD, Jr., Appellant, v. STATE of Florida, Appellee.

No. 88-2389.

District Court of Appeal of Florida Fifth District.

July 19, 1990.

Rehearing Denied Aug. 13, 1990.

James B. Gibson, Public Defender, and Barbara C. Davis, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dee R. Ball, Asst. Atty. Gen., Daytona Beach, for appellee.

EN BANC

COBB, Judge.

The defendant below, Albert Hlad, Jr., pled guilty to, and was convicted and sentenced for, a fourth DUI offense. On appeal he urges that the trial court erred in disallowing withdrawal of his plea and not striking a prior 1978 DUI conviction. He argues, inter alia, that his earlier DUI conviction was uncounseled (i.e., he was not afforded court appointed counsel and did not waive counsel) and therefore it may not be used to enhance the severity, hence punishment, of a subsequent offense. In other words, he claims that the present DUI conviction should be his third, not his fourth.

Hlad's brief argues that the case of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980) precludes the use of the uncounseled 1978 conviction to enhance the present offense from a misdemeanor to a felony pursuant to section 316.193(2)(b), Florida Statutes (1987). He contends that such enhanced punishment is violative of his sixth amendment right to counsel, and that the burden was on the state at trial to show that his 1978 conviction was counseled or that counsel was waived. In the instant case, Hlad argues, the state could not produce the files pertaining to the 1978 conviction, and therefore failed to meet its burden. Hlad concedes that he was not incarcerated for the 1978 conviction and that the maximum incarceration period possible for that conviction was six months.

It is well established that a conviction obtained in violation of a 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). However, the sixth amendment right to counsel in misdemeanor cases established by Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) applies only where a defendant is actually imprisoned for the misdemeanor conviction, not where there is merely a possibility of such imprisonment. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).

Hlad's reliance on Baldasar is misplaced and his argument must fail for the simple reason that the crime to which he pled guilty in 1978 was not one which was punishable by more than six months imprisonment, and he was not actually subjected to a term of imprisonment. The result is that the 1978 conviction was not "constitutionally invalid for enhancement purposes." The limited applicability of Baldasar has been ably analyzed by Judge Zehmer in Allen v. State, 463 So.2d 351 (Fla. 1st DCA 1985):

In Baldasar, supra, the defendant was charged with petit theft and the state introduced evidence of a prior 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 Blackmun'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.

Even Justice Blackmun's opinion in Baldasar would not preclude the use of Hlad's 1978 conviction for enhancement purposes in the instant case. In Baldasar, Justice Blackmun held the decisive vote and expressly adopted the view he had previously enunciated in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979):

In Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), I stated in dissent:

"Accordingly, I would hold that an indigent defendant in a state criminal case must be afforded appointed counsel whenever the defendant is prosecuted for a nonpetty criminal offense, that is, one punishable by more than six months' imprisonment, see Duncan v. Louisiana, 391 U.S. 145, [88 S.Ct. 1444, 20 L.Ed.2d 491] (1968); Baldwin v. New York, 399 U.S. 66, [90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); or whenever the defendant is convicted of an offense and is actually subjected to a term of imprisonment, Argersinger v. Hamlin, 407 U.S. 25, [92 S.Ct. 2006, 32 L.Ed.2d 530] (1972).

"This resolution, I feel, would provide the 'bright line' that defendants, prosecutors, and trial and appellate courts all deserve and, at the same time, would reconcile on a principled basis the important considerations that led to the decisions in Duncan, Baldwin, and Argersinger." Id. at 389-390, 99 S.Ct., at 1170.

I still am of the view that this "bright line" approach would best preserve constitutional values and do so with a measure of clarity for all concerned. Had the Court in Scott v. Illinois adopted that approach, the present litigation, in all probability, would not have reached us. Petitioner Baldasar was prosecuted for an offense punishable by more than six months' imprisonment, and, under my test, was entitled to counsel at the prior misdemeanor proceeding. Since he was not represented by an attorney, that conviction, in my view, is invalid and may not be used to support enhancement.

Judge Zehmer's analysis of Baldasar has been followed by the Second District in State v. Hanney, 15 F.L.W. 1149 (Fla. 2d DCA April 25, 1990) and Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988). The Fourth District also has adopted the same approach in Cooper v. State, 538 So.2d 105 (Fla. 4th DCA 1989), expressly holding that the points from a defendant's previous convictions may be used to enhance the defendant's sentence on a subsequent conviction if the defendant did not have a right to counsel in the prior proceedings. See also Hamm v. State, 521 So.2d 354 (Fla. 2d DCA 1988). Of the other appellate courts in Florida, only the Third District has not addressed the issue now before us.

The problem with which we deal here has been thoroughly and perceptively discussed by Professor David S. Rudstein in his article entitled "The Collateral Use of Uncounseled Misdemeanor Convictions After Scott and Baldasar" appearing in Volume XXXIV, University of Florida Law Review at page 517. Therein, Professor Rudstein observed:

Baldasar should not be read, however, to preclude the subsequent use of a prior uncounseled misdemeanor conviction under an enhanced penalty provision when the previous offense was punishable by imprisonment for six months or less and the conviction did not actually result in the defendant's imprisonment. The opinions of Justices Marshall and Stewart would clearly preclude the subsequent enhancement use of any prior uncounseled misdemeanor conviction. These opinions focused only on the increased imprisonment for the subsequent offense without any mention of the authorized punishment for the prior offense. It is equally clear the four dissenters would allow such a conviction to be used for enhancement purposes if, as in Baldasar, the prior conviction was constitutional under Argersinger and Scott.

The deciding opinion, therefore, would be that of Justice Blackmun. Although he did not expressly deal with this situation in Baldasar, it is fair to infer from Justice Blackmun's emphasis on the invalidity of Baldasar's previous conviction under his bright-line test that he would allow a prior uncounseled misdemeanor conviction that was constitutionally valid to be subsequently used under an enhanced penalty provision. Additionally in Justice Blackmun's view, a misdemeanor conviction for an offense punishable by not more than six months imprisonment that does not actually result in the defendant's imprisonment is constitutionally valid, even though uncounseled. It therefore follows he would join with the four Baldasar dissenters and allow its subsequent use for sentence enhancement purposes. [Footnotes omitted].

Ibid at 534-535.

Professor Rudstein also observes in...