State of Florida, Petitioner, vs. Glenn Kelly,
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Supreme Court of Florida
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No. SC07-95
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STATE OF FLORIDA,
Petitioner,
vs.
GLENN KELLY,
Respondent.
[December 30, 3008]
LEWIS, J.
In this case, we review the decision of the Fourth District Court of Appeal in State v. Kelly, 946 So. 2d 1152 (Fla. 4th DCA 2006), in which the Fourth District certified the following question to be one of great public importance:
CAN AN UNCOUNSELED PRIOR MISDEMEANOR CONVICTION, IN WHICH THE DEFENDANT COULD HAVE BEEN INCARCERATED FOR MORE THAN SIX MONTHS, BUT WAS NOT INCARCERATED FOR ANY PERIOD, BE USED TO ENHANCE A CURRENT CHARGE FROM A MISDEMEANOR TO A FELONY?
Id. at 1154. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, and for the reasons explained below, we rephrase the certified question as follows:
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WHAT IS THE SCOPE OF A CRIMINAL DEFENDANT`S RIGHT TO COUNSEL UNDER ARTICLE I, SECTION 161 OF THE FLORIDA CONSTITUTION CONCERNING THE STATE`S USE OF PRIOR UNCOUNSELED MISDEMEANOR CONVICTIONS TO ENHANCE A LATER CHARGE FROM A MISDEMEANOR TO A FELONY?
This case results from the State`s request that we recede from Hlad v. State, 585 So. 2d 928 (Fla. 1991), and State v. Beach, 592 So. 2d 237 (Fla. 1992). Hlad held that the State may not use a criminal defendant`s prior uncounseled2 misdemeanor driving-under-the-influence (DUI) convictions to increase a subsequent DUI charge from a misdemeanor to a felony, where the prior uncounseled misdemeanors led to actual imprisonment or were punishable by more than six months` imprisonment. See 585 So. 2d at 928-30. Beach, in turn, clarified the elements that a defendant must assert through an affidavit to preserve an alleged instance of Hlad error. See 592 So. 2d at 239.
The State premises its request entirely upon Nichols v. United States, 511
U.S. 738 (1994), a United States Supreme Court decision holding that the prosecution may use an uncounseled misdemeanor convictionwhich is invalid
1. Based on article I, sections 2 and 16 of the Florida Constitution, this Court has already held that indigent defendants possess an independent state-law constitutional right to appointed counsel during criminal prosecutions. See Traylor
v. State, 596 So. 2d 957, 969-70 (Fla. 1992).
2. When uncounseled is used in this context, the term refers to an indigent defendant who was not provided a lawyer. Hlad, 585 So. 2d at 929 n.1.
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for purposes of imposing imprisonment in a direct proceedingto impose enhanced imprisonment in a collateral proceeding. See 511 U.S. at 749. The State correctly notes that Nichols overruled some of the federal precedent upon which this Court relied when deciding both Hlad and Beach. See Nichols, 511 U.S. at 748-49, overruling Baldasar v. Illinois, 446 U.S. 222 (1980). The instant case, as with its predecessor Hlad, involves consideration of the State`s use of prior uncounseled misdemeanor DUI convictions to enhance a defendant`s subsequent DUI offense from a misdemeanor to a felony.
I. BACKGROUND
The events leading to Glenn E. Kelly`s felony DUI charge occurred on January 18, 2003, at approximately 10:45 p.m., when deputies with the Broward County Sheriff`s Office arrested Mr. Kelly for his fourth DUI offense. Kelly consented to a breathalyzer test, which produced results of .092% and .090% breath-alcohol content; these results are consistent with legal intoxication in Florida. See § 316.193(1)(c), Fla. Stat. (2003). The Sheriff`s Office also conducted an inventory search of Kelly`s vehicle, during which deputies found an open bottle of whiskey in the vehicle`s center console.
The State filed an information based on these events in Broward County Court on February 14, 2003, charging Mr. Kelly with misdemeanor DUI. The State, however, was not prepared for trial and eventually nolle prosequied the
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charge. The State later refiled the case on April 26, 2004, in circuit court as a felony DUI charge based on Kelly`s three prior misdemeanor DUI convictions.
See § 316.193(2)(b)(3), Fla. Stat. (2003) (Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree . . . .).
Two of Kelly`s prior misdemeanor DUI convictionsthose from March 2, 1995, and September 18, 1997, respectivelywere each punishable by more than six months` imprisonment, and were the result of uncounseled no-contest pleas.3
However, Kelly did not file a motion to dismiss or a Beach affidavit until October 21, 2005, due to a substitution of counsel.
In the motion to dismiss, Kelly`s counsel explained that based on Hlad and Beach, the circuit court lacked jurisdiction because there was no valid felony charge to prosecute at the circuit level. Counsel also informed the circuit court that Kelly`s attached affidavit satisfied each of the four Beach elements required to preserve a Hlad objection to the State`s use of prior misdemeanors as enhancers (i.e., Mr. Kelly asserted under oath that: (1) the offenses involved were punishable by more than six months` imprisonment; (2) he was indigent and, thus, entitled to
3. Kelly`s October 27, 1987, misdemeanor DUI no-contest plea was also uncounseled, but was not punishable by more than six months` imprisonment. Kelly served probation, completed community service hours, and paid fines as a result of this 1987 conviction.
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court-appointed counsel; (3) counsel was not appointed; and (4) he did not validly waive his right to counsel). See Beach, 592 So. 2d at 239.
In response, the State contended that the United States Supreme Courtin a decision focused on federal Sixth Amendment doctrine (i.e., Nichols)overruled this Court`s decisions in Hlad and Beach. The circuit court rejected this argument.
Additionally, the circuit court, apparently sub silentio,4 rejected the State`s argument that Mr. Kelly had validly waived his right to counsel when he pled no contest to his 1995 and 1997 misdemeanor DUI charges. The evidentiary-hearing transcript reveals the following relevant facts: (1) Kelly`s counsel contended that the plea forms Kelly signed in 1995 and 1997 misrepresented a Florida criminal defendant`s right to counsel (they stated that the defendant only had a right to court-appointed counsel if (a) he could not afford counsel, and (b) the judge was
4. The Fourth District analyzed the situation as follows: This issue was contested at the evidentiary hearing on the motion to dismiss, at which Kelly testified, and the court, although not expressly saying so, obviously resolved the waiver issue against the state. State v. Kelly, 946 So. 2d 1152, 1154 n.1 (Fla. 4th DCA 2006) (emphasis supplied). The dissent overlooks both this explanation from the Fourth District and the fact that the State presented a waiver argument in the circuit court. As part of this process, the circuit court had the opportunity to directly judge the credibility of Mr. Kelly. In response, the circuit court granted Kelly`s motion to dismiss based upon Hlad and Beach. Both lower courts thus heard and, without further exposition, rejected the State`s waiver argument. Cf.
Black`s Law Dictionary 1469 (8th ed. 2004) (sub silentio. Under silence; without notice being taken; without being expressly mentioned. (emphasis supplied)).
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currently considering5 jail time as a punishment); (2) the records that the State produced regarding Kelly`s 1995 and 1997 misdemeanor DUI pleas failed to demonstrate that the judges engaged in proper colloquies with Kelly concerning his right to counsel; (3) Kelly recalled advising the sentencing judges that he could not afford an attorney, but did not recall whether the judges asked him if he wanted an attorney appointed; (4) Kelly pled no contest because he thought the [no contest] plea was the . . . . easiest financial situation for [him]; and (5) when asked whether he understood he had a right to an attorney, Kelly responded that [he] understood . . . [he] couldn`t afford an attorney.6
5. Considering is a present participle, which is generally defined as taking into account. Merriam Webster`s Collegiate Dictionary 246 (10th ed. 1996). As we further explain below, whether a trial judge is currently considering jail time is not the legal standard in Florida with regard to determining whether a criminal defendant charged with a misdemeanor is entitled to the representation of appointed counsel. Rather, in such contexts, to obviate the need for appointing counsel to represent an indigent defendant, trial judges have the affirmative duty to provide the defendant a written, pretrial certification that the defendant will not be imprisoned for the charged offense. See Fla. R. Crim. P.
3.111(b)(1); Case v. State, 865 So. 2d 557, 558 (Fla. 1st DCA 2003).
6. The dissent contends that [t]he record simply does not support [our] summary of the relevant facts. Dissenting op. at 55. However, the extended evidentiary-hearing quotations presented by our colleague in dissent merely reaffirm that, in response to the State`s leading questions, Mr. Kelly explained that he understood he could not afford to retain a private attorney to represent him, and that he viewed appointed representation as a mere possibility, rather than an affirmative constitutional right because, as he stated, he was no attorney. Further, the record reveals the telling absence of any documents demonstrating that Kelly received proper plea colloquies. These are some of the very defects that the presence of appointed counsel would have remedied. In this context, we are
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Following the evidentiary hearing, the circuit court entered an order dismissing the State`s felony DUI information for lack of jurisdiction. The State appealed to the Fourth District Court of Appeal. In the district court, the State asserted that the circuit court had abused its discretion by following the decisions of this Court in Hlad and Beach instead of the decision of the United States Supreme Court in Nichols. In response, Mr. Kelly contended that Hlad and Beach remain controlling authority in Florida`s criminal courts unless and until this Court decides to alter its precedent. The Fourth District affirmed the order of the circuit court, but certified the above-stated question as one of great public importance due to the confusion surrounding whether Hlad and Beach remain binding precedent post-Nichols.
II. ANALYSIS
This case presents the following issues: (1) whether Mr. Kelly carried his burden of production under Beach; and if so, (2) whether this Court will continue to follow Hlad and Beach or will, alternatively, adopt the United States Supreme Court`s Nichols decision as part of Florida`s right-to-counsel jurisprudence. In deciding these issues, we must first address the effect of Mr. Kelly`s deficient plea forms. Next we need to clarify, under Beach, the significance of a record that is
dealing with often uneducated, indigent lay persons who frequently do not understand if, or when, they are entitled to appointed representation. All told, the dissent and the State offer the same faulty conclusions in this regard, which we definitively reject in our analysis below.
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silent as to whether the defendant`s prior convictions were supported by proper plea colloquies. We also consider any differences or distinguishing factors between Florida`s misdemeanor right-to-counsel standard and that presented as the federal standard. Finally, we must analyze whether Nichols should be positioned as persuasive precedent and as a guidepost when interpreting article I, section 16 of the Florida Constitution. We conclude that we should reaffirm a modified version of our Hlad/Beach framework, which is explicitly premised upon independent state-law grounds.
A. The Effect of the Deficient Plea Forms
Mr. Kelly contends that his 1995 and 1997 plea forms did not accurately reflect a criminal defendant`s right to counsel in Florida. We agree with this assessment as applied to the facts of this case. The versions of Florida Rule of Criminal Procedure 3.111(b)(1) that applied to each of Kelly`s no-contest pleas are identical. In relevant part, these provisions indicate that Florida is a prospective imprisonment jurisdiction that provides indigent criminal defendants a right to counsel in all criminal prosecutions punishable by imprisonment, except in misdemeanor or ordinance-violation cases where the trial judge affirmatively certifies in writingbefore trialthat the defendant will not face a term of imprisonment for the charged offense. See Fla. R. Crim. P. 3.111(b)(1) (1992). In other words, in Florida, indigent defendants have a right to counsel in all criminal
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