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iv. Our Revised Hlad/Beach Framework
In the preceding section, we recognized that uncounseled misdemeanor convictions are unreliable for purposes of imposing imprisonment and that such uncounseled convictions lead directly to increased terms of imprisonment when they constitute elements of a later felony offense. Therefore, we must next address whether our current Hlad/Beach framework reflects these tenets. We previously based our holdings in Hlad and Beach, in part, upon Justice Blackmun`s Baldasar concurrence. Compare, Hlad, 585 So. 2d at 930, with Baldasar, 446 U.S. at 229 (Blackmun, J., concurring); see also Beach, 592 So. 2d at 239-40. However, there are two problems associated with the current articulation of our Hlad/Beach framework.
First, the current framework injects a right-to-jury standard into right-to- counsel cases. Specifically, the framework requires that when the defendant was not imprisoned for a prior misdemeanor conviction in a direct proceeding, he or she may only mount a Hlad/Beach challenge to the later use of the misdemeanor as an enhancer if the misdemeanor was prospectively punishable by more than six months` imprisonment. This rule is derived from the United States Supreme Court`s time-based right-to-jury standard. See Duncan v. Louisiana, 391 U.S. 145, 159 (1968) (Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses[.] (emphasis supplied)) The
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Supreme Court, however, has explicitly held that this time-based right-to-jury standard has no place in right-to-counsel cases. See Argersinger, 407 U.S. at 30-31 (We reject . . . the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer.).
We agree with this position. The right to counsel is distinct from the right to a jury trial because each right emerged from a different common-law genealogy.
See Argersinger, 407 U.S. at 29. The English common law historically limited the deep commitment` to trial by jury to serious criminal cases,` i.e., those cases punishable by more than six months` imprisonment. Id. at 30.
Contrastingly, the common law recognized a right to counsel in petty criminal cases, i.e., those cases where there is no possibility of imprisonment in excess of six months. Id. The Sixth Amendment later expanded the right to counsel to felony cases. See id. at 30-31. Therefore, Duncan`s right-to-jury standard should no longer play a role in our Hlad/Beach framework.
The second problem with our existing framework is that, in some circumstances, it permits the imposition of increased terms of imprisonment as a direct result of prior uncounseled misdemeanor convictions. This is currently permitted if those convictions did not originally lead to incarceration and were not prospectively punishable by more than six months` imprisonment. See Hlad, 585
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So. 2d at 929-30; Beach, 592 So. 2d at 239-40. However, the unreliability of an uncounseled misdemeanor conviction does not turn on the length of the prospective term of imprisonment. Rather, it turns on the fact that even an uncounseled innocent gains little by contesting a petty misdemeanor where the prosecuting attorney is offering a low fine and community service in exchange for a guilty or no-contest plea. Cf. Nichols, 511 U.S. at 752 (Souter, J., concurring in the judgment) (noting that the federal Sentencing Guidelinesunlike many recidivism statutesallow the defendant to show . . . that his prior conviction resulted from . . . a frugal preference for a low fine with no counsel fee, or from a desire to put the matter behind him instead of investing the time to fight the charges).
If one cannot afford an attorney, and the prosecutor is offering no jail time, what real incentive is there to reject the plea bargain? That is the crux of the problem, and that is why the State may not, consistent with our state Constitution, impose deprivation of liberty as a penalty upon a defendant based on prior misdemeanor convictions, unless the defendant was either provided with counsel or validly waived that right. If the State would like to use prior misdemeanor convictions as enhancers, it should ensure that these misdemeanors are reliable enough to impose imprisonment by recommending that the trial court either
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appoint counsel or assist a willing indigent defendant in knowingly, intelligently ,
and voluntarily waiving the right to counsel.
We thus agree with courts from other jurisdictions which have held that the State may not use an uncounseled conviction to increase a defendant`s loss of liberty in the absence of a valid waiver of counsel.18 However, the loss of liberty is a penalty different in kind and severity from other penalties. We therefore hold that when the State prosecutes a repeat DUI offender, it may constitutionally seek applicable enhanced penalties and fines short of incarceration based upon prior uncounseled misdemeanor DUI offenses. Cf. Hrycak, 877 A.2d at 1261 (coming to a substantially similar conclusion). For example, on remand, if the State continues to prosecute this case, it may not use any of Mr. Kelly`s prior misdemeanor DUI offenses to enhance his current offense unless it proves that Kelly was either represented by counsel or validly waived that right during those prior proceedings. In other words, any enhanced loss of liberty may only be based
18. See, e.g., State v. Hrycak, 877 A.2d 1209, 1216 (N.J. 2005) (We are convinced that a prior uncounseled DWI conviction of an indigent is not sufficiently reliable to permit increased jail sanctions under the enhancement statute. (emphasis supplied)); State v. Sinagoga, 918 P.2d 228, 241, 252 (Haw. Ct.
App. 1996) ([T]he rationale for not allowing the consideration of an uncounseled criminal conviction as a basis for the imposition or enhancement of a prison sentence is its lack of reliability. (emphasis supplied)), overruled on other grounds, State v. Veikoso, 74 P.3d 575, 583 n.8 (Haw. 2003); State v. DeVille, 879 So. 2d 689, 690-91 (La. 2004); State v. Anderson, 916 P.2d 1170, 1171-72 (Ariz.
Ct. App. 1996).
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on the counseled offense(s) and the offense(s) for which Kelly validly waived his right to counsel. However, during any resulting DUI prosecution, the State may use each of Kelly`s prior uncounseled misdemeanor DUI offenses to seek the enhanced penalties and fines short of incarceration that apply to a fourth DUI offense.19 Here, these penalties and fines could include, inter alia, a fine between
19. The dissent`s statement that [t]he result of the majority`s complex analysis is that the State cannot prosecute this defendant for his fourth DUI [offense] . . . [, and] [t]his result is not in accord with the legislative scheme for removing repeat DUI offenders from Florida roads, is doubly mistaken. Dissenting op. at 50. First, as stated above, the State is free to prosecute Kelly, and similarly situated repeat DUI offenders, for their subsequent DUI offenses; it simply cannot use prior uncounseled misdemeanor convictions to increase the current offense`s length of incarceration. Second, there is nothing preventing the State from permanently removing Kelly, and similarly situated repeat DUI offenders, from Florida`s roads by permanently revoking their driver`s licenses. In relevant part, section 322.28(2)(e), Florida Statutes (2003), provides:
The court shall permanently revoke the driver`s license or driving privilege of a person who has been convicted four times for violation of s. 316.193 or former s. 316.1931 or a combination of such sections. The court shall permanently revoke the driver`s license or driving privilege of any person who has been convicted of DUI manslaughter in violation of s. 316.193. If the court has not permanently revoked such driver`s license or driving privilege within 30 days after imposing sentence, the department shall permanently revoke the driver`s license or driving privilege pursuant to this paragraph. No driver`s license or driving privilege may be issued or granted to any such person.
(Emphasis supplied.); see also State v. Walters, 567 So. 2d 49, 50 (Fla. 2d DCA 1990) ([R]evocation is an administrative remedy for the purpose of protecting the public and . . . the judge has no judicial discretion. Therefore, the uncounseled nature of the prior conviction can have no bearing on the court`s duty to
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$1,000 and $5,000; probation, including the completion of a substance-abuse course and a psychosocial evaluation; the impoundment and immobilization of all vehicles that Mr. Kelly owns for 90 days; and the permanent revocation of Kelly`s driver`s license or driving privilege. See §§ 316.193(2)(b)(3), 775.083(1)(c),
316.193(5), 316.193(6)(c), 322.28(2)(e), Fla. Stat. (2003).
III. CONCLUSION
Consistent with the views we have expressed in this opinion, we answer the rephrased certified question as follows: Article I, section 16 of the Florida Constitution, as influenced by Florida`s prospective-imprisonment standard, prevents the State from using uncounseled misdemeanor convictions to increase or enhance a defendant`s later misdemeanor to a felony, unless the defendant validly waived his or her right to counsel with regard to those prior convictions. However, the State may constitutionally seek the increased penalties and fines short of incarceration associated with the defendant`s relevant number of DUI offenses. In accordance with this holding, we adapt our Hlad/Beach framework along the following lines. To meet the initial burden of production, the defendant must assert under oath, through a properly executed affidavit that:
permanently revoke [the repeat DUI offender`s] driving privileges. (citation omitted)).
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(1) the offense involved was punishable by imprisonment;20
(2) the defendant was indigent and, thus, entitled to court-appointed counsel;
(3) counsel was not appointed; and
(4) the right to counsel was not waived.
If the defendant sets forth these facts under oath, then a burden of persuasion shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. Cf. Beach, 592 So. 2d at 239.21
For these reasons, we approve the decision of the Fourth District Court of Appeal, but disapprove any of its reasoning that is inconsistent with our modified
20. If during the underlying misdemeanor proceedings, the trial judge(s) avoided the need for appointing counsel by certifying pursuant to Florida Rule of Criminal Procedure 3.111(b)(1) that the defendant would not be imprisoned as a result of the misdemeanor conviction(s), this certification would necessarily extend to the State`s later attempt to use these misdemeanors as statutory enhancers. Cf.
Case, 865 So. 2d at 558 (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)).
21. The first prong of the Hlad/Beach framework formerly read: (1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment[.] Id. This prior version is incompatible with (i) Florida`s prospective-imprisonment scheme, and (ii) our recognition that any felony-DUI imprisonment imposed upon the defendantusing uncounseled misdemeanor DUIsresults directly from those uncounseled convictions. This is the case because those prior uncounseled convictions constitute an element of the defendant`s subsequent felony DUI. See,
e.g., Finelli, 780 So. 2d at 33 (defendant`s prior misdemeanor DUI convictions are an element of felony DUI); § 316.193, Fla. Stat. (2003).
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framework. Accordingly, we remand to the Fourth District for further proceedings consistent with this opinion.
It is so ordered.
QUINCE, C.J., and ANSTEAD and PARIENTE, JJ., concur.
WELLS, J., dissents.
CANADY and POLSTON, JJ., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
WELLS, J., dissenting.
Recently, in my dissent in State v. Powell, 33 Fla. L. Weekly S778 (Fla.
Sept. 29, 2008), I noted the following in respect to the majority suppressing a confession based upon the majority`s construction of a Miranda22 form widely used by law enforcement:
Additionally, it will result in reversing the convictions of individuals who have confessed to crimes based upon a holding that is at most an extreme technical adherence to language and that has no connection with whether the person who confessed understood his or her rights.
Again in this case, the majority begins with a very technical constitutional construction of language in a plea form containing an express waiver of the right to counsel that was used in Broward County for at least ten years without being held
22. Miranda v. Arizona, 384 U.S. 436 (1966).
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to be constitutionally infirm. The majority then does not accept the uncontroverted record that a knowing waiver of counsel was executed in both of the questioned prior driving under the influence (DUI) pleas. Recognizing that the United States Supreme Court`s latest decision on point was directly contrary to its decision in this case, the majority discards this Court`s long adherence to United States Supreme Court decisions as to the constitutional rights involved and reaches its conclusion by a new reliance on the Florida Constitution. The result of the majority`s complex analysis is that the State cannot prosecute this defendant for his fourth DUI, despite the fact that in each of the prior three cases, the defendant pled to DUI, testified that he knew he had a right to counsel, and knowingly waived that right while pleading to the three prior DUI charges. This result is not in accord with the legislative scheme for removing repeat DUI offenders from Florida roads.
Predictably, and in my view unfortunately, since the majority does not determine whether its decision is to be applied retroactively, many other final convictions of repeat DUI offenders will be subject to further postconviction litigation to determine whether those DUI convictions must be reversed because of the majority`s new construction of the Florida Constitution.
My analysis in this case starts with the fundamental fact that Kelly was not prejudiced by what was at most a questionable, technical defect in the long-used plea forms in which he acknowledged that he knew he had the right to counsel,
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