Watson v. State, 96-03386

• Decision Date: 28 August 1998
• Docket Number: No. 96-03386,96-03386
• Citation: 718 So.2d 253
• Parties: 23 Fla. L. Weekly D2001 Ronald WATSON, a/k/a Ronald Washington, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 253

718 So.2d 253

23 Fla. L. Weekly D2001

Ronald WATSON, a/k/a Ronald Washington, Appellant, v. STATE of Florida, Appellee.

No. 96-03386.

District Court of Appeal of Florida Second District.

Aug. 28, 1998.

Rehearing Denied Sept. 28, 1998.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Appellee.

PARKER, Chief Judge.

Ronald Watson appeals the judgments and sentences entered by the trial court for three new felony convictions, and the sentence that the trial court imposed upon revocation of Watson's community control. Although we find no merit in Watson's attacks on his convictions, we do agree that the trial court erred by failing to renew the offer of assistance of counsel at the sentencing hearing. Therefore, we affirm the judgments, but reverse the sentences and remand for a new sentencing hearing.

After the withdrawal of six different court-appointed attorneys, the trial court determined that Watson had forfeited his right to counsel and then proceeded to trial with Watson representing himself. Following the jury's verdict, the trial court immediately sentenced Watson. We conclude that the trial court did not err by determining that Watson had forfeited his right to counsel. See Waterhouse v. State, 596 So.2d 1008 (Fla.1992). However, it does not necessarily follow that he forfeited his right to have counsel for the sentencing phase, which is a critical stage. See United States v. McLeod, 53 F.3d 322, 324 (acknowledging that "appointment of counsel for indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected."). In McLeod, the court noted that McLeod only forfeited his right to counsel at the hearing on the motion for new trial, and that he was appointed counsel for appeal and sentencing. See id. at 325 n. 13. We conclude that, although Watson had waived his right to counsel for the jury trial, the trial court should have inquired of Watson whether he wanted an attorney to represent him at the sentencing hearing.

Because we are remanding this case for a new sentencing hearing, we note the following trial court errors which occurred at Watson's sentencing. First, this record does not contain an order of revocation of community control specifying which conditions of community control Watson violated. The sentencing transcript reflects that the trial court found that Watson violated his community control by committing a new crime, by admitting to the use of cocaine on two occasions, and by failing to remain confined on several occasions in violation of the conditions of community control. If there is no order of revocation, upon remand the trial court shall enter an order specifying the conditions of community control that Watson violated. See Remich v. State, 696 So.2d 1270, 1271 (Fla. 2d DCA 1997).

Second, we note that the trial court erred by including the violation of community control as an additional offense in calculating the sentence on the new habitual offender sentence. Assuming that the trial court revoked Watson's community control based on this new offense, then the trial court was required to use a separate scoresheet because it imposed a habitual offender sentence on the new offense. See Simmons v. State, 661 So.2d 343, 344 (Fla. 2d DCA 1995). In Simmons, this court recognized that "where a defendant is sentenced at the same sentencing hearing for a new felony and a violation of probation grounded upon the new felony, the trial court should use a single scoresheet and may impose the most severe sentencing scheme permissible" based upon the supreme court's holding in State v. Lamar, 659 So.2d 262 (Fla.1995). However, this court determined that Lamar did not apply to cases involving habitual offender convictions. See Simmons, 661 So.2d at 344. Instead, when a defendant is being sentenced on the new offense as a habitual offender and on a violation of probation or community...