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waived that right, and pled to the DUI charges. First, it is necessary to understand just how technical and nonprejudicial the defect upon which the majority premises its decision is. The three plea forms executed by Kelly in pleading no contest to the DUI charges on October 27, 1987, on March 2, 1995, and on September 18, 1997, contained the same affirmative statement that Kelly understood that he had the right to an attorney and the right to have an attorney appointed if [he] cannot afford one and if the Judge is considering a jail sentence on this charge. The form contained an express acknowledgement by Kelly that he wished to waive that right.
Until this case, no case that I have found or that has been cited has held or even called into question whether this form was a valid waiver of counsel. We know that the form was used for at least ten years since Kelly executed the form three times in ten years.
The technical defect that the present majority finds in the form is that the form states if the judge is considering jail sentence on this charge. The majority holds as to the plea forms:
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 prosecutions punishable by imprisonmenteven misdemeanor prosecutionsunless the trial judge opts out by providing the defendant a written, pretrial
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certification that the defendant will not be imprisoned for the charged offense. See id.; see also Fla. R. Crim. P. 3.160 (advising indigents of the right to appointed counsel); § 27.51, Fla. Stat. (2003) (mandating that the public defender represent indigents charged with violations of Chapter 316 of the Florida Statutes; DUI is a Chapter 316 offense punishable by imprisonment).
This is not the legal landscape Mr. Kelly`s State-prepared plea forms described. Rather, they provided the misleading impression that an indigent criminal defendant lacks a right to counsel so long as the trial judge is not currently considering jail time as an appropriate sentence. This mischaracterization relieved the trial judges of their duty to make the affirmative, written, pretrial certification that the rule then required, and still requires today in a slightly modified form. See Fla. R. Crim. P. 3.111(b)(1) (In the discretion of the court, counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or violation of a municipal ordinance if the judge, at least 15 days prior to trial, files in the cause a written order of no incarceration certifying that the defendant will not be incarcerated . . . . (emphasis supplied) (the current version of this rule permits the defendant or defense counsel to waive the fifteen-day requirement)). Consequently, even if Mr. Kelly read and understood these plea forms, he would not have been properly informed of his right to counsel.
Majority op. at 8-10. To boil this down, the defect which results in the majority holding that the waivers of the right to counsel were invalid was that prior to the plea agreement being signed, the trial judge had not issued a written order stating that Kelly would not be sentenced to jail time. The majority finds this to be a defect sufficient to invalidate the waivers of counsel even though the waiver of counsel was included in a plea which was entered upon the agreement that Kelly would receive no jail time and that immediately upon the execution of the pleas, Kelly was sentenced to no jail time.
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I do not conclude that the majority`s technical holding is a fair construction of the plea form. The plea form advised Kelly that he had a right to counsel if the judge is considering jail time. Thus, a reasonable understanding of what occurred at the time of both the 1995 plea and the 1997 plea was that Kelly was advised that if the judge was considering jail time, he was entitled to counsel. Plainly, for the waiver of counsel to be effective, this meant that the trial judge would not and could not sentence Kelly to jail time. Here, it is undeniable that the trial judge was not considering jail time. The proof of this, of course, is in the pudding, as the saying goes, since Kelly was sentenced at the same time that he executed the pleas, and he was not sentenced to jail time.
From reading Kelly`s testimony at the evidentiary hearing in the present case, in which Kelly was represented by counsel, it is clear that Kelly knew he had a right to counsel at the time of both the 1995 and the 1997 pleas and that he knowingly waived counsel so that he could take advantage of the deals he had been offered in exchange for his no contest pleas. Specifically, the transcript indicates:23
Q. . . . But, you wanted to plea the case out on the date that was alleged, March 2nd, 1995?
23. The majority seems to imply that because the prosecutor was asking Kelly the questions, these clear answers should not be given their due weight. I assume that if the questions were objectionable, Kelly`s counsel would have objected. There is no indication that Kelly was uneducated and did not understand these questions or his right to counsel.
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A.
I thought it was the easiest way to resolve my problem, mainly easiest financial situation for me.
. . . .
Q.
Mr. Kelly, do you recognize the signature that`s on the plea form in this case?
A.
Yes, that`s my signature.
Q.
Okay. So did you review this plea form at the time you pled the case out that`s dated March 2nd, 1995?
A.
Yes, I did.
Q.
And that plea form also informed you at paragraph number 4 of a right to an attorney?
. . . .
[Prosecutor read from the plea form.] Judge, I will have a right to an attorney and right to have an attorney appointed if I cannot afford one and if the Judge is considering a sentence of considering a jail sentence on this charge. And it says, previous to that I have sworn under oath to the Judge, I have sworn under oath before the judge that I understand the following and includes the paragraph 4.
Q.
So Mr. Kelly, before you signed this document you read this plea form?
A.
Yes I did.
Q.
And you understood all those rights?
A.
To the best that I understand, yes I--I`m no attorney.
Q.
Okay. But again, you were pleaing the case out on that date, you knew you had a right to an attorney and in exchange you preferred to waive the right to an attorney in order to go forward with the plea on the day of arraignment?
A.
Yeah.
Thereafter, Kelly was asked the following in regard to his 1997 plea:
Q.
Now, with regard to the 1997, 21062 NM10A case, do you recall pleaing out the DUI case in September of 1997?
A.
Yes.
Q.
And do you have an independent recollection of that plea?
A.
I don`t know. Independent, meaning very vivid memory of it?
Q.
Yeah.
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A.
I know that I, that I followed suit with the way that I did prior, that I didn`t try to obtain an attorney or try to get the Court to appoint one for me.
Q.
Well, let me ask you this--
A.
I know that I read the rights form and signed it and took the plea offer.
. . . .
Q.
Now, Mr. Kelly, when you pled the case out you had the understanding that you had the right to an attorney at the time of the plea?
A.
I understood that I knew that I couldn`t afford an attorney.
Q.
Okay.
A.
I understood that the Court`s [sic] could possibly try to help me with a Public Defender.
Q.
Okay. But rather than obtaining the services of [the] Public Defender you felt that the plea was in your best interest[24] and you went forward without an attorney?
A.
Yes.
The record simply does not support the majority opinion`s summary of relevant facts. See Majority op. at 5. Also, after reading the transcript, I do not find support for the following statement in the majority`s opinion:
[T]he circuit court, apparently sub silento, 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.
Majority op. at 5 (footnote omitted). The trial court did not deal at all with this issue in its order. All the trial court`s order said was: ORDERED AND
24. Kelly obviously had a reasonable basis to conclude that the pleas with no jail time were in his best interest since, in the 1995 arrest, his blood alcohol level was 0.152 on the first test and 0.161 on the second test, and in the 1997 arrest, his blood-alcohol level was 0.179 on the first test and 0.182 on the second test. Section 316.193, Florida Statutes, sets the maximum limit at 0.08, so both times Kelly was over twice the legal limit.
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ADJUDGED that the Defendant`s Motion to Dismiss is Granted. During the oral hearing, the trial court made no statement as to how or why he was going to rule.
Therefore, there is no way to know on what basis the trial judge would have found the waiver not to be valid. Moreover, the record evidence which I have set out above does not support such a determination.
Next, it is my view that the majority misapplies State v. Beach, 592 So. 2d 237 (Fla. 1992). From the record, I note that the trial judge did not deal with Beach at all. But, on the essential Beach issue of whether Kelly waived his right to counsel in exchange for the pleas, the trial record is uncontroverted that Kelly did so. I again refer to the transcript testimony that I set out above. Therefore, under Beach, the prior convictions could be used.
Though I conclude that there was a valid waiver and that should end consideration of the issues in this case, I recognize that the district court`s certified question poses the question as to whether 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, [can] be used to enhance a current charge from a misdemeanor to a felony? State v. Kelly, 946 So. 2d 1152, 1154 (Fla. 4th DCA 2006). This question raises the issue as to whether we will continue to apply our decision in Hlad v. State, 585 So. 2d 928 (Fla. 1991), in view of the fact that the underpinnings of Hlad, namely the United States Supreme Court`s
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decision in Baldasar v. Illinois, 446 U.S. 222 (1980), has been taken away by the United States Supreme Court`s later decision in Nichols v. United States, 511 U.S. 738 (1994).
The majority rephrases the question and then adopts the dissent in Hlad and finds a constitutional violation on the basis of state law that is contrary to this Court`s majority holding in Hlad as well as being contrary to the United States Supreme Court`s decision in Nichols. In rejecting Hlad in favor of the Hlad dissent`s view, the majority casts aside this Court`s often and recently stated commitment to stare decisis. See Strand v. Escambia County, 992 So. 2d 150 (Fla. 2008); N. Fla. Women`s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 637 (Fla. 2003).
Until today, this Court had always followed the United States Supreme Court`s interpretation when addressing right to counsel issues. See, e.g., Cash v. Culver, 120 So. 2d 590, 594 (Fla. 1960) (following Powell v. Alabama, 287 U.S. 45 (1932)); Gideon v Wainwright, 153 So. 2d 299, 300 (Fla. 1963) (following
Gideon v. Wainwright, 372 U.S. 335 (1963), on remand); Rollins v. State, 299 So. 2d 586, 588 (Fla. 1974) (following Argersinger v. Hamlin, 407 U.S. 25 (1972)); Goode v. State, 365 So. 2d 381, 383 (Fla. 1978) (following Faretta v. California, 422 U.S. 806 (1975)); Hill v. State, 688 So. 2d 901, 904 (Fla. 1996) (same); Hlad, 585 So. 2d at 929-30 (following Baldasar, 446 U.S. 222); Beach, 592 So. 2d at 239
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(same); see also Patterson v. State, 938 So. 2d 625, 628-29 (Fla. 2d DCA 2006) (recognizing that in Beach and Hlad, this Court followed United States Supreme Court precedent).
The majority asserts that I have either not consulted Traylor [v. State, 596 So. 2d 957, 969-70 (Fla. 1992)] or . . . incorrectly overlooked its state-law posture. Majority op. at 25. Of course, I do recognize our Traylor opinion, but unlike the majority, I have not overlooked what we later clarified about the Traylor opinion in State v. Owen, 696 So. 2d 715, 719 (Fla. 1997):
Though our analysis in Traylor was grounded in the Florida Constitution, our conclusions were no different than those set forth in prior holdings of the United States Supreme Court.
This is precisely the point that I now make. It is perplexing how the majority can state that Owen did not involve a right-to-counsel claim when the very issue confronted by this Court was whether the principles concerning requests for counsel, as discussed in Davis and Traylor, applied in equal force to requests to terminate an interrogation--a question we answered in the affirmative.
Indeed, in Hlad, we adopted what we discerned to be the federal standard articulated in Baldasar. Baldasar held that a previous misdemeanor conviction could not be used to enhance a current charge to a felony if the defendant (1) was actually imprisoned or (2) could have been imprisoned for more than six months as a result of the uncounseled conviction. Hlad, 585 So. 2d at 930. Three years after
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we decided Hlad, Baldasar was no longer good law. Recognizing that its splintered decision in Baldasar had caused a high degree of confusion, the United States Supreme Court receded from Baldasar in Nichols and clarified that the Sixth Amendment only precludes enhancement if the defendant was actually imprisoned.
Nichols, 511 U.S. at 746-47.
Though the majority refers extensively to Justice Souter`s concurring opinion in Nichols, a concurring opinion no other justices joined, the present majority rejects the United State Supreme Court`s majority opinion in Nichols.
My view is that the Nichols majority stated important reasons for its decision.
Five Members of the Court in Baldasar--the four dissenters and Justice Stewart--expressed continued adherence to Scott v. Illinois, 440 U.S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id. at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id. at 372.
We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the
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Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar,
[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E.g., Moore v. Missouri, 159 U.S. 673, 677 (1895); Oyler v. Boles, 368
U.S. 448, 451 (1962). 446 U.S. at 232.
Nichols, 511 U.S. at 746-47.25 This Court should follow the United States Supreme Court as it has on this issue until today.
We should follow the law as determined in Nichols and find no constitutional prohibition against the State enhancing Kelly`s charge with his misdemeanor offense because no incarceration was imposed. As the Fourth District implicitly recognized in certifying the question, the rule of law dictates that we recede from Hlad and Beach, both of which relied on the now-discarded Supreme Court decision in Baldasar. Accordingly, we should answer the certified question in the affirmative and hold that 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 can be used to enhance a current charge from a misdemeanor to a felony.
The majority relies upon Florida Rule of Criminal Procedure 3.111(b) and section 27.51, Florida Statutes (2003). Ironically, these two sources were adopted in order to implement the Sixth Amendment as interpreted by the United States
25. I accept this analysis in answer to the majority`s footnote 7.
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Supreme Court prior to Nichols. Neither the rule nor the statute was adopted based on the Counsel Clause of article I, section 16.
Rule 3.111(b) requires the appointment of counsel to indigent persons in all prosecutions for offenses punishable by incarceration. But, as this Court itself explained, rule 3.111(b) was adopted to comply with the Supreme Court`s decision in Argersinger:
On June 12, 1972, the Supreme Court of the United States extended the right to counsel requirement embodied in the Sixth Amendment to all cases which result in a loss of liberty. Argersinger
v. Hamlin. The Court extended the logic of Powell v. Alabama, and Gideon v. Wainwright, both involving felony convictions, saying: their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. A guilty plea resulting in a jail sentence is also invalid absent counsel. Any trial, whether on a felony or misdemeanor charge, requires counsel if it may end up in the actual deprivation of a person`s liberty.
We have provided a method of insuring that this requirement is satisfied in our new rules of criminal procedure, which became effective February 1, 1973, through Rule 3.111(b)(1) . . . .
Rollins, 299 So. 2d at 588 (some emphasis added) (footnotes omitted). Thus, the adoption of rule 3.111 was not based upon article 1, section 16.
Second, chapter 27, which created the Public Defender`s Office, was in response to the United States Supreme Court`s decisions interpreting the scope of the Sixth Amendment right to counsel, particularly Gideon. The purpose of chapter 27, part II, Florida Statutes (concerning public defenders), is to ensure that indigent defendants are afforded the opportunity for representation by counsel as
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commanded by Gideon v. Wainwright. Behr v. Gardner, 442 So. 2d 980, 981-82 (Fla. 1st DCA 1983) (on motion for rehearing); see also State ex rel. Smith v. Brummer, 443 So. 2d 957, 959 (Fla. 1984). More particularly, the provisions of section 27.51, requiring the public defender to represent defendants charged with misdemeanors, were enacted in response to Argersinger. Because the Supreme Court`s decision in Argersinger interpreting the Sixth Amendment precipitated the adoption of rule 3.111 and section 27.51, not article I, section 16, the majority`s reliance on these provisions as the basis to find a broader right to counsel in Florida`s Constitution is misplaced.
After Florida adopted rule 3.111 and section 27.51 to provide for counsel in cases of prospective imprisonment following Argersinger, the United States Supreme Court subsequently restricted the right to appointed counsel to cases where the defendant was actually imprisoned. Scott v. Illinois, 440 U.S. 367, 373- 74 (1979). However, because Florida never codified the Scott decision in its rules or statutes, the prospective imprisonment standard from Argersinger remains despite the delimitation of its source.
Finally, what should be corrected is the procedure that this Court created in Beach. In Beach, this Court allowed a collateral attack in the subsequent DUI case of the validity of the convictions in prior DUI cases. This is contrary to our procedures in other criminal cases in which we require the collateral attack on a
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conviction to be filed in the case in which the conviction was entered. The motion in other cases is required to be brought pursuant to Florida Rule of Criminal Procedure 3.850. If the defendant wishes to withdraw the plea, the motion must be in accord with Florida Rule of Criminal Procedure 3.170. This provides an orderly process and prevents what happened in the instant case, in which the defendant did not attack the prior convictions until many years after the convictions when there is no transcript of what occurred. The Beach decision is out of sync with this Court`s longstanding commitment to finality.
In conclusion, based upon the record in this case, it is clear that Kelly knew he had a right to counsel at the time of both his 1995 and 1997 pleas and that he knowingly waived counsel so that he could take advantage of the deals that he had been offered in exchange for his no contest pleas. Therefore, under Beach, the prior convictions could be used to enhance his subsequent DUI charge. In addition, continuing to follow United States Supreme Court precedent on this issue, my answer to the district court`s certified question would be that 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 can be used to enhance a current charge from a misdemeanor to a felony.
Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance
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Fourth District - Case No. 4D06-1039
(Broward County)
Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, Assistant Attorney General, Mitchell A. Egber, Assistant Attorney General, Daytona Beach, Florida,
for Petitioner
Frank A. Maister and Garrett Elsinger, Fort Lauderdale, Florida,
for Respondent
Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, and Michael Robert Ufferman, Tallahassee, Florida, on behalf of The Florida Association of Criminal Defense Lawyers,
as Amicus Curiae
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