Tyler v. State, 97-1898

Decision Date15 April 1998
Docket NumberNo. 97-1898,97-1898
Parties23 Fla. L. Weekly D971 Timothy TYLER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

STONE, Chief Judge.

We reverse an order revoking community control. It was fundamental error to require Appellant to admit or deny the pending charges without first appointing counsel or securing an informed waiver of his right to counsel.

After his arrest, Appellant appeared before the court with other alleged probation violators. The court advised the group of their right to admit or deny the allegations against them and stated that if a defendant admitted the charges, the court would proceed to sentencing. The court also advised them that they had the right to counsel. The record reflects that the hearing proceeded as follows:

COURT: [To the group] You have the right to be represented by counsel. If you can't afford counsel or you don't have private counsel, the court is going to appoint the Public Defender's Office, that's Ms. Strickland and Mr. Cotrone, both of whom are here and available to speak with you.

Additionally, I want you to be aware that you have the right to appeal any sentence and judgment of this Court within 30 days of today's date. You have the right to be represented by counsel with regard to that. If you can't afford counsel, you're entitled to the appointment of counsel.

Timothy Tyler.

DEFENDANT: Yes, sir, Your Honor.

COURT: Do you wish to admit or deny the allegations?

DEFENDANT: I have to admit that I wasn't present at the time that my officer came by, but, Your Honor, at the time that I got violated, I was unemployed at the time. And the reason why I wasn't there when my officer came by the house is because my girlfriend brought my daughter by at the time and she needed medication.

Defendant went on to explain that he went to his mother's house to borrow money for his daughter's medication. Ms. Strickland of the public defender's office spoke up incident to the court's consideration of sentence and suggested that the court should give Defendant a second chance. However, there is nothing in the record indicating that Ms. Strickland was appointed to represent Defendant.

Defendants have a right to counsel at a violation of probation hearing. Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984), approved, 478 So.2d 22 (Fla.1985). In Hicks, this court addressed the issue of whether a trial court should require a probationer to admit or deny a charge of probation violation at an initial appearance hearing without first advising him of his right to be represented by counsel. This court acknowledged that probation violators do not necessarily have a constitutional right to counsel at every stage of a violation of probation hearing, as some aspects of these hearings are less formal, and require less constitutional protections than other criminal proceedings. However, we decided that, "as a policy matter an entitlement to counsel is essential to ensure reasonable fairness in revocation proceedings." Id. at 608. This court, therefore, held that before a trial court can take a plea from a probationer in a proceeding involving a probation violation, the probationer must be advised of his right to counsel.

The supreme court later adopted the opinion of this court as its own, and added that "Unless there has been an informed waiver thereof such a person is entitled to counsel, and it must be afforded him before he is required to respond in any manner to the revocation charges." Hicks, 478 So.2d at 23 (Fla.1985) (emphasis added). See also Torres v. State, 517 So.2d 796 (Fla. 4th DCA 1988) (applying Hicks to revocation of community control hearing); White v. State, 606 So.2d 1265, 1267 (Fla. 1st DCA 1992) (revocation of probation reversed where "the record does not show that [defendant], who appeared without counsel, made an informed waiver of her right to counsel before being required to respond to the charge of violating probation.").

In the instant case, the court advised the group as a whole of their right to counsel, and the availability of the two public defenders. However, the court then called Defendant and asked him whether he had committed the violation. The record does not reflect that the court asked Defendant if he desired counsel or made an inquiry to establish an informed waiver. Florida Rule of Criminal Procedure 3.111(d) sets forth the requirements for finding an effective waiver of counsel:

(d) Waiver of Counsel.

(1) The failure of a defendant to request appointment of counsel or the announced intention of a defendant to plead guilty shall not, in itself, constitute a waiver of counsel at any stage of the proceedings.

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make an intelligent and understanding waiver.

(3) No waiver shall be accepted if it appears that the defendant is unable to make an intelligent and understanding choice because of a mental condition, age, education,...

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10 cases
  • Morris v. Buss
    • United States
    • U.S. District Court — Northern District of Florida
    • March 7, 2011
    ...hearing was not properly preserved for appeal, the denial of the right to counsel is fundamental error. See Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998) (holding that the denial of the right to counsel is fundamental error); see also May v. State, 623 So.2d 601, 603 (Fla. 2d DCA 1993) ......
  • Jackson v. State
    • United States
    • Florida Supreme Court
    • May 29, 2008
    ...715 So.2d 1135, 1139 (Fla. 5th DCA 1998) ("Denial of the right to assistance of counsel is fundamental error."); Tyler v. State, 710 So.2d 645, 648 (Fla. 4th DCA 1998) ("A denial of a right to counsel is fundamental error."). These cases generally involve deprivation of counsel during an en......
  • Chakra 5, Inc. v. City of Miami Beach
    • United States
    • Florida District Court of Appeals
    • August 22, 2018
    ... ... to Chakra 5 and 1501 because of their administrative dissolution by the Florida Secretary of State. For the reasons set forth below, we deny the City's motion to dismiss the appeal. In addition, we ... ...
  • Figueroa-Sanabria v. State
    • United States
    • Florida Supreme Court
    • June 29, 2023
    ...of probation hearing, Brady v. State,910 So.2d 388 (Fla. 2d DCA 2005), and a violation of community control hearing, Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998). In certain cases involving only a partial deprivation of a defendant's right to the assistance of counsel, Florida courts h......
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