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casethe State should bear the risk of loss if it cannot produce a record of the plea colloquy, as [t]he language of [Florida Rule of Criminal Procedure] 3.172(c) is mandatory. The rule does not permit a written plea agreement to substitute for an on-the-record plea colloquy, and the plea colloquy must reflect that the defendant has personally been addressed pursuant to the requirements of Rule
3.172(c) and has expressed an understanding of the rights guaranteed therein.
Perry v. State, 900 So. 2d 755, 757 (Fla. 4th DCA 2005) (quoting Perriello v. State, 684 So. 2d 258, 260 (Fla. 4th DCA 1996)); see also Fla. R. Crim. P. 3.111(d)(2) (1992) (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.). Fourth and finally, this Court held in Beachpost-Parkethat [a]bsent such evidence in the record of the trial court`s prior proceedings, waiver cannot be presumed. Beach, 592 So. 2d at 239 (addressing a collateral challenge to a prior DUI conviction) (emphasis supplied).
Given the facts of this case, the State cannot, on one hand, fail to acknowledge the inaccuracy inherent in its plea forms and then, on the other hand, claim protection under a presumption of validity that normally attaches to final judgments. Mr. Kelly`s satisfactory Beach affidavit, his presentation of facially
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misleading plea forms, and his testimony at the evidentiary hearing satisfied the Beach burden of production. This created prima facie evidence that Kelly did not validly waive his right to counsel.
In response to that evidence, the State failed to satisfy its burden of proving that Kelly was either provided counsel or validly waived that right. The State conceded that Kelly did not receive counsel and then simply attempted to rely on the same inaccurate plea forms as creating a knowing, intelligent, and voluntary waiver of the right to counsel. Cf. Fla. R. Crim. P. 3.111(d)(1) (1992) (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. (emphasis supplied)). The danger of misleading plea forms is self-evident; if an indigent defendant, like Mr. Kelly, cannot afford an attorney and believes that he has no right to appointed counsel, he is more likely to plead guilty or no contest even when he did not commit the underlying offense.
For these reasons, the State may not rely upon a misleading plea form--and a record which is silent concerning whether the defendant received a constitutionally sufficient plea colloquy--to contend that the defendant knowingly, intelligently, and voluntarily waived his or her right to counsel. Cf., e.g., Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993) ([T]he [S]tate has an obligation to assure that the waiver of . . . counsel is knowing, intelligent, and voluntary.
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(emphasis supplied)). Voluntariness is a necessary--but not a sufficient-- condition to demonstrate an effective waiver; in addition, the State must also establish a knowing and intelligent relinquishment or abandonment of a known right or privilege. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938). If a defendant does not intelligently understand when he or she is entitled to the representation of appointed counsel, then a fortiori the defendant cannot effectively waive that right. This is why we require accurate plea forms and accurate plea colloquies. See Fla. R. Crim. P. 3.111(d)(2), 3.171, 3.172; see also Perry, 900 So. 2d at 757 (explaining that rule 3.172(c) and associated case law do not permit a written plea agreement to serve as a substitute for a constitutionally sufficient plea colloquy). The State, therefore, did not carry its Beach burden of proving that Kelly validly waived his right to counsel with regard to his 1995 and 1997 misdemeanor DUI convictions (further, the State has not undertaken this responsibility with regard to Kelly`s 1987 conviction). With that question resolved, we now address the second issue presented in this case: whether this Court will continue to follow Hlad and Beach or will, alternatively, incorporate Nichols as part of Florida`s right-to-counsel jurisprudence.
C. Florida's Misdemeanor Right-to-Counsel Standard
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The State contends that Florida`s misdemeanor right-to-counsel standard should mirror the federal standard enunciated in Nichols. However, the Florida standard already differs from its federal counterpart. Therefore, we decline to follow a more limited federal standard that would afford Florida`s criminal defendants less constitutional protection, or fewer constitutional rights, than they currently enjoy under the Florida Constitution and under Hlad and Beach.8
In contrast to search-and-seizure jurisprudence, the law of Florida may afford greater right-to-counsel protections than those afforded by the Sixth Amendment. Cf. art. I, § 12, Fla. Const. (mandating that United States Supreme Court Fourth Amendment precedent control Florida search-and-seizure jurisprudence). Under established Florida law, the right of indigents to appointed
8. As we explained in Traylor:
Special vigilance is required where the fundamental rights of Florida citizens suspected of wrongdoing are concerned, for here society has a strong natural inclination to relinquish incrementally the hard-won and stoutly defended freedoms enumerated in our Declaration [of Rights] in its effort to preserve public order. Each law-abiding member of society is inclined to strike out at crime reflexively by constricting the constitutional rights of all citizens in order to limit those of the suspect--each is inclined to give up a degree of his or her own protection from government intrusion in order to permit greater intrusion into the life of the suspect. The framers of our Constitution, however, deliberately rejected the short- term solution in favor of a fairer, more structured system of criminal justice . . . . 596 So. 2d at 963.
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counsel in misdemeanor cases differs from its federal counterpart. In Argersinger
v. Hamlin, 407 U.S. 25, 35-40 (1972), the United States Supreme Court appeared to hold that prospective imprisonment for a misdemeanor offense guarantees indigents a right to appointed counsel, but the Court clarified in Scott v. Illinois, 440 U.S. 367, 373-74 (1979), that under the Sixth Amendment this right is limited to cases in which the defendant is actually imprisoned for the charged offense.
Florida, however, has provided a different standard through its Constitution, Rules of Criminal Procedure , and the Florida Statutes. See art. I, §§ 2, 16, Fla. Const.; Fla. R. Crim. P. 3.111, 3.160; § 27.51, Fla. Stat. (2003). In Florida, indigent criminal defendants have a right to appointed counsel for offenses punishable by imprisonment. Fla. R. Crim. P. 3.111(b)(1) (1992) (emphasis supplied).
This standard provides a more broadly constructed right to counsel than the federal actual-imprisonment standard, as it encompasses all cases in which imprisonment is a prospective penalty. The trial judge only possesses restricted discretion to limit this right by certifying, in writing, before trial that the defendant will not be imprisoned. See Fla. R. Crim. P. 3.111(b)(1) (1992). Florida Rule of Criminal Procedure 3.160 further supports this divergent standard by providing:
Prior to arraignment of any person charged with the commission of a crime, if he or she is not represented by counsel, the court shall advise the person of the right to counsel and, if he or she is financially unable to obtain counsel, of the right to be assigned court-appointed counsel to represent him or her at the arraignment and at all subsequent proceedings.
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Fla. R. Crim. P. 3.160(e) (emphasis supplied). Moreover, section 27.51(1)(b)(1)-
(2), Florida Statutes, provides:
The public defender shall represent, without additional compensation, any person determined to be indigent . . . and . . . [u]nder arrest for, or charged with . . . [1] [a] misdemeanor authorized for prosecution by the state attorney[,] [or] [2] [a] violation of chapter 316 punishable by imprisonment . . . . (Emphasis supplied.) (DUI is a chapter 316 offense punishable by imprisonment.) These rules and statutory sections unambiguously differentiate an indigent criminal defendant`s right to counsel in a misdemeanor case under Florida law from that of a similarly situated defendant under federal law. The courts of this state have also recognized this distinction. See, e.g., Case v. State, 865 So. 2d 557, 558 (Fla. 1st DCA 2003) (A defendant who is charged with a misdemeanor punishable by possible imprisonment is entitled to counsel unless the judge timely issues a written order guaranteeing that the defendant will never be incarcerated as a result of the conviction. (emphasis supplied)).
Florida law draws the entitlement line at prospective punishment (i.e., offenses punishable by imprisonment), while federal law draws a less protective entitlement line at actual imprisonment (i.e., there is no right to counsel unless the defendant is actually incarcerated as a result of the offense). The committee comments to Florida Rule of Criminal Procedure 3.111 further emphasize the difference between the Florida and federal standards. Compare Fla. R. Crim. P.
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3.111, committee note (1972) (The committee determined that possible deprivation of liberty for any period makes a case serious enough that the accused should have the right to counsel. (emphasis supplied)), with Scott, 440 U.S. at 373-74 ([A]ctual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment--[that standard] is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. (emphasis supplied)).
The instant case provides an excellent example of the practical differences between the federal actual-imprisonment standard and the Florida prospective- imprisonment standard. Here, an indigent criminal defendant pled no contest to misdemeanor DUI charges without having been provided appointed counsel, despite his right to be assigned court-appointed counsel to represent him . . . at the arraignment and at all subsequent proceedings. Fla. R. Crim. P. 3.160(e).
Moreover, there is no indication in the record that either trial judge in Mr. Kelly`s cases certified, in writing, before trial that Kelly would not face imprisonment for the charged offenses. Cf. Fla. R. Crim. P. 3.111(b)(1) (1992). Finally, the record does not reflect that either of the trial judges engaged in a proper colloquy with Kelly regarding his right to counsel. Cf. Fla. R. Crim. P. 3.111(d)(2) (1992).
Under Florida law, Mr. Kelly therefore maintained a right to counsel pursuant to Rule of Criminal Procedure 3.111 because misdemeanor DUI is an
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offense punishable by imprisonment. As a corollary, Kelly was entitled to appointed representation from the Public Defender`s Office under section 27.51, Florida Statutes. In contrast, under federal law, Kelly would not have had a right to counsel because he was not imprisoned as a result of either plea. See Scott, 440
U.S. at 373-74.
This Court clearly stated in Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992):
[W]hen called upon to construe their bills of rights, state courts should focus primarily on factors that inhere in their own unique state experience, such as the express language of the constitutional provision, its formative history, both preexisting and developing state law, evolving customs, traditions and attitudes within the state, the state`s own general history, and finally any external influences that may have shaped state law.
Id. (emphasis supplied). Here, a consideration of these factors leads to the conclusion that Florida provides a broader right to counsel under article I, section 16 of our state Constitution than that provided by the federal courts under the Sixth Amendment. See, e.g., Fla. R. Crim. P. 3.111, 3.160; § 27.51, Fla. Stat. (2003) (adopting a prospective-imprisonment scheme for determining whether defendants have a right to counsel in misdemeanor cases).
Our interpretation of the right to counsel under article I, section 16 of the Florida Constitution should, therefore, reflect Justice Brennan`s admonishment:
[T]he decisions of the [United States Supreme] Court are not, and should not be, dispositive of questions regarding rights guaranteed by
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counterpart provisions of state law. Accordingly, such decisions are not mechanically applicable to state law issues, and state court judges and the members of the bar seriously err if they so treat them. Rather, state court judges, and also practitioners, do well to scrutinize constitutional decisions by federal courts, for only if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees, may they properly claim persuasive weight as guideposts when interpreting counterpart state guarantees.
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 502 (1977) (emphasis supplied) (footnote omitted).
Thus, an independent analysis under the Florida Constitution is necessary to remain faithful to our statement regarding Florida`s Declaration of Rights that
[n]o other broad formulation of legal principles, whether state or federal, provides more protection from government overreaching or a richer environment for self- reliance and individualism than does this stalwart set of basic principles.`
Traylor, 596 So. 2d at 963 (quoting State ex rel. Davis v. City of Stuart, 120 So. 335, 347 (Fla. 1929)).
D. Nichols Is Not Controlling Under Article I, Section 16
It is true that in Hlad and Beach this Court relied in part upon Baldasar v. Illinois, 446 U.S. 222 (1980), which the Supreme Court subsequently overruled in Nichols v. United States, 511 U.S. 738 (1994). However, it is equally true that the federal Constitution generally sets the floor, not the ceiling, with regard to the extent of personal rights and freedoms afforded by the State of Florida. See, e.g.,
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