Waldron v. State, 87-443
| Decision Date | 22 July 1988 |
| Docket Number | No. 87-443,87-443 |
| Parties | 13 Fla. L. Weekly 1755 George S. WALDRON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John D. Hooker, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
EN BANC.
In 1985, appellant was convicted of petit theft. Because appellant had twice previously been convicted of petit theft in 1976, the trial court enhanced the degree of appellant's 1985 crime to a third degree felony, section 812.014(2)(c), Florida Statutes (1985), but placed appellant on five years' probation for the 1985 petit theft conviction.
In September 1986, appellant was arrested and charged with retail theft. Thereafter, appellant's probation officer filed a warrant and an affidavit alleging that appellant had violated his probation on the 1985 petit theft conviction.
Appellant filed a motion in November of 1986 alleging that the sentence to probation was illegal. Appellant asserted that the trial court improperly enhanced his sentence using convictions that were more than five years from the date of the present conviction and, further, that the earlier convictions were uncounseled. The trial court denied appellant's motion holding that appellant was sentenced under section 812.014. Therefore, the fact that the convictions were five years from the date of appellant's conviction was immaterial. The trial court also held that appellant failed to allege any fact to support his "naked conclusion that in County Court he waived constitutional rights without knowingly and intelligently doing so."
At his revocation of probation hearing, appellant again attempted to attack his prior convictions by arguing that they were uncounseled. The trial court held that appellant was attempting to collaterally attack the judgment and sentence putting him on probation. The trial court did not permit appellant to present evidence as to the allegedly uncounseled nature of his prior convictions.
The trial court revoked appellant's probation. Scoring for appellant's offense resulted in a recommendation within the "any nonstate prison sanction" range. The trial court, relying on Florida Rule of Criminal Procedure 3.701(d)(14) which permits a one cell increase for a probation violation, increased appellant's sentence to the next cell, "community control or twelve to thirty months' incarceration." The trial court sentenced appellant to thirty months' incarceration within the Department of Corrections followed by eighteen months' community control with credit being given to him for 96 days of time already served. Appellant raises three points on appeal. We find merit in two of them.
First, appellant contends that the trial court erred when it denied him an opportunity to show the allegedly uncounseled nature of his prior convictions. We agree. Prior uncounseled convictions may not be included on a guidelines scoresheet if the defendant had a right to counsel and did not waive his right to counsel. Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988), Croft v. State, 513 So.2d 759, 761 (Fla. 2d DCA 1987); Smith v. State, 498 So.2d 1009 (Fla. 2d DCA 1986); see also Price v. State, 519 So.2d 76 (Fla. 2d DCA 1988). The defendant has the burden of showing that the prior convictions were uncounseled. Croft at 761; Smith at 1010. In the instant case, the trial court committed reversible error when it failed to permit appellant the opportunity to introduce evidence of the allegedly uncounseled nature of his prior convictions.
Second, appellant contends that the trial court improperly departed from the sentencing guidelines recommended range when it sentenced appellant to a combination of imprisonment and community control without providing a written reason for departure. As support for this position, appellant argues that the Florida Supreme Court recently held that "when the presumptive guideline sentence directs community control or incarceration, the imposition of both represents a departure from the sentencing guidelines, requiring proper written reasons for the departure." State v. Van Kooten, 522 So.2d 830 (Fla.1988). We note the able trial judge below did not have the benefit of the foregoing decision at the time of sentencing.
Applying Van Kooten to the circumstances of this case, we issued an opinion affirming and reversing in part the action of the trial judge. That opinion is identified as Waldron v. State, No. 87-443 (Fla. 2d DCA May 6, 1988) [13 F.L.W. 1087]. However, on motion for rehearing, the state reminded us of our decision reached in Daughtry v....
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