Leffew v. State

• Decision Date: 22 January 1988
• Docket Number: No. 86-1690,86-1690
• Citation: 518 So.2d 1376,13 Fla. L. Weekly 255
• Parties: 13 Fla. L. Weekly 255 Jennings Harold LEFFEW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1376

518 So.2d 1376

13 Fla. L. Weekly 255

Jennings Harold LEFFEW, Appellant, v. STATE of Florida, Appellee.

No. 86-1690.

District Court of Appeal of Florida Second District.

Jan. 22, 1988.

James Marion Moorman, Public Defender, and Robert Mack, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

LEHAN, Judge.

Defendant appeals a sentence departing from the sentencing guidelines. We reverse and remand for resentencing.

Defendant pleaded guilty to two counts of manslaughter by intoxication. Prior to sentencing, defendant filed a motion to strike prior convictions, alleging that at the time he pleaded guilty to fourteen prior traffic offenses he was not represented by counsel nor had he waived his right to counsel. These allegations were supported by an affidavit of defendant and by defendant's testimony at the sentencing hearing.

The trial court included points on the guidelines scoresheet for nine of the fourteen prior convictions, finding that in those nine cases defendant had no right to counsel because he was not subject to imprisonment of more than six months nor did he actually spend any time in jail on those charges.

The trial court also included points on the scoresheet for legal constraint after finding that defendant was on probation at the time he committed the offenses for which he was being sentenced. The certified court records indicated that defendant had previously been given a term of probation which would have extended through the time of the current offenses. Defendant testified, however, that his probation had been terminated early. The trial court stated that defendant's testimony in this regard was "a bit confusing and not sufficient enough to allow me to conclude that he was off probation...."

The recommended sentence under the guidelines scoresheet was twelve to seventeen years imprisonment. The trial court departed from the scoresheet and imposed consecutive sentences of twelve and eight years for the two convictions. As the basis for the departure, the trial court stated, "The Defendant's lengthy record of convictions for traffic offenses demonstrates his inability to obey the law. His driving represents a serious danger to the safety of pedestrians and other motorists. This indicates a pattern of dangerous activity posing a threat to the safety of others." At the sentencing hearing the trial court stated that defendant's nine prior convictions already scored on the scoresheet were not being considered as reasons for departure, but that the five other prior convictions plus three prior traffic offenses were being so considered.

On appeal defendant first contends that the trial court erred in scoring the nine prior convictions which were alleged to have been uncounseled. Defendant cites Smith v. State, 498 So.2d 1009, 1010 (Fla. 2d DCA 1986), in which this court stated, "An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985)." Pilla makes a similar statement in holding that uncounseled convictions could not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla cited Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).

In Baldasar defendant was charged with petit theft. The state attempted to enhance that charge by producing evidence of a prior petit theft conviction. The defendant claimed that he had not been represented by counsel in the prior conviction. It must be noted that as to that prior conviction, the defendant was subject to a jail sentence although he was not actually sentenced to jail. The Supreme Court split 4-1-4 on the issue of using the prior uncounseled conviction for enhancement purposes. The four member plurality held that the uncounseled conviction could not be so used because to do so would violate the rule in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). The four dissenting judges held that the prior conviction was constitutional under Scott v. Illinois and could be used for enhancement. In a concurring opinion, Justice Blackmun followed the approach he had previously announced in his dissenting opinion in Scott and concluded that since Baldasar, under Justice Blackmun's approach, had a right to counsel as to the prior misdemeanor conviction because he was prosecuted for an offense punishable by more than six months imprisonment, his prior conviction could not be used for enhancement. See the discussion of Baldasar in Allen v. State, 463 So.2d 351, 357-59 (Fla. 1st DCA 1985).

The central fact which distinguishes Baldasar from the instant case is that as to the prior prosecution Baldasar was subject to a jail sentence of more than six months, although he did not actually receive a jail sentence. In contrast, in this case, for the nine prior convictions which the trial court scored on the guidelines scoresheet, de...