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prosecutions punishable by imprisonment­­even misdemeanor prosecutions­­ unless the trial judge opts out by providing the defendant a written, pretrial 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, 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)).








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Consequently, even if Mr. Kelly read and understood these plea forms, he would not have been properly informed of his right to counsel.


Nevertheless, if the misdemeanor trial judges had properly executed on-the- record plea colloquies, which indicated that Mr. Kelly had a right to counsel but chose to waive that right, these hypothetical colloquies could have cured this error.


Cf., e.g., Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999) ([A] state trial court`s proper colloquy can be said to have cured any misunderstanding [the defendant] may have had about the consequences of his plea.). The record in this case, however, is silent as to whether there were proper colloquies with Mr. Kelly before he pled no contest to his prior misdemeanor DUI charges.






B. The Significance of a Silent Record Under Beach


It is undisputed that: (1) Mr. Kelly`s 1995 and 1997 misdemeanor DUI offenses were each punishable by more than six months` imprisonment; (2) Kelly was indigent and, thus, entitled to court-appointed counsel; and (3) counsel was not appointed to represent Kelly. However, the State and Kelly dispute the significance of the absence of an on-the-record plea colloquy, which could have confirmed Kelly`s alleged waiver of counsel. Kelly relies upon Boykin v. Alabama, 395 U.S. 238 (1969), for the proposition that courts may not presume a waiver of constitutional rights from a silent record. It is well-established that the State cannot do so in direct proceedings; however, the same cannot be said







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concerning collateral proceedings. Compare Boykin v. Alabama, 395 U.S. 238, 242 (1969) (Presuming waiver from a silent record is impermissible. . . .


Anything less is not waiver. (citations and quotations omitted)), with Parke v. Raley, 506 U.S. 20, 29 (1992) (To import Boykin`s presumption of invalidity [regarding direct review of a conviction based upon an uninformed guilty plea] into th[e] very different context [of collateral review of a prior conviction`s validity] would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the presumption of regularity` that attaches to final judgments, even when the question is waiver of constitutional rights.).


The United States Supreme Court has thus modified Boykin`s broad rule that a waiver of constitutional rights cannot be implied from a silent record by restricting that rule to direct proceedings. The Court stated in Parke:


On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained. 506 U.S. at 30 (emphasis supplied). As the Parke Court recognized, the states remain free to adopt different approaches, which afford greater protection for defendants` constitutional rights. See Parke, 506 U.S. at 34 ([W]e hold that the Due Process Clause permits a State to impose a burden of production on a







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recidivism defendant who challenges the validity of a prior conviction under Boykin. (emphasis supplied)).


This Court appears to have resolved this issue­­at least as far as felony DUI is concerned­­in State v. Beach, 592 So. 2d 237 (Fla. 1992), which was decided just over one month after the decision of the United States Supreme Court in Parke.


In Beach, we clarified the procedural framework required to assert an action based on Hlad error (i.e., a claim that the State may not use prior uncounseled misdemeanors to enhance a later offense from a misdemeanor to a felony). We placed the initial burden of showing entitlement to counsel on the defendant because Hlad error does not exist if the defendant did not possess a right to counsel in the prior proceedings. Beach, 592 So. 2d at 239. The initial burden, however, appears minimalistic, and is­­as explained below­­properly viewed as a burden of production. See Black`s Law Dictionary 209 (8th ed. 2004) ([B]urden of production. A party`s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling . . . .).


The defendant need only


assert under oath: (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; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) [that] counsel was not appointed; and (4) [that] the right to counsel was not waived.







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Beach, 592 So. 2d at 239 (emphasis supplied). If the defendant sets forth these [minimal] facts under oath, then the burden shifts to the state to show [1] either that counsel was provided or [2] that the right to counsel was validly waived. Id. (emphasis supplied). Hence, if the defendant adequately presents each of the four Beach elements­­thereby saddling the State with a burden of persuasion­­the State cannot then point to a silent record to claim that a purely hypothetical plea colloquy cured any error surrounding the waiver issue. See Black`s Law Dictionary 209 (8th ed. 2004) ([B]urden of persuasion. A party`s duty to convince the fact-finder to view the facts in a way that favors that party. (emphasis supplied)).


Several factors support our interpretation of the Beach framework as placing a burden of production upon the defendant, which, if satisfied, shifts a burden of persuasion to the State to prove either that the trial court appointed counsel or that the defendant waived that right. First, this Court has held on several occasions that when the State prosecutes a defendant for felony DUI, the State has the additional burden of proving the existence of three or more prior misdemeanor DUI convictions. State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000). Hence, the requirement of three prior misdemeanor DUI[s] . . . is considered an element of felony DUI. State v. Finelli, 780 So. 2d 31, 33 (Fla. 2001) (emphasis supplied); see also State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996) (same). As a result,







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the State has the burden of proving three valid prior misdemeanor convictions beyond a reasonable doubt, while the defendant shares no comparable burden. See In re Winship, 397 U.S. 358, 361-65 (1970) (holding that it is the prosecution`s constitutional burden to prove each element of a criminal offense beyond a reasonable doubt); Burgett v. Texas, 389 U.S. 109, 114-15 (1967) (holding that convictions obtained in violation of a defendant`s right to counsel are void).7


Second, the United States Supreme Court has characterized the initial burden placed upon a recidivist defendant challenging the validity of prior convictions as a burden of production. Parke, 506 U.S. at 34 (emphasis supplied). Third, where the written plea agreement is deficient on its face­­as it appears to be in this












7. In light of the dissent, it is important to thoroughly explain that a DUI defendant`s prior misdemeanors are elements of the current, enhanced felony offense, which the State must PROVE beyond a reasonable doubt. This indisputable legal proposition supplies the rationale that explains and justifies why instances of Hlad error are not addressed through postconviction motions and are, instead, subject to our Beach framework. As in any criminal case, the defendant possesses the right and ability to contest elements of the charged offense. Further, uncounseled misdemeanors--for which no imprisonment is, or was, imposed--are VALID convictions; however, they remain INVALID for purposes of depriving the defendant of his or her liberty. Therefore, when the State files an information charging felony DUI (which is inherently based on a defendant`s prior misdemeanor convictions), and the defendant knows that he or she did not validly waive the right to counsel in those prior cases, the defendant may then directly contest that element of the current felony offense in the instant felony prosecution.

By force of logic, we decline to adopt the perspective of the dissent, which would ignore the basic fact that prior misdemeanor convictions constitute elements of a later felony DUI offense. It is also important to highlight for our colleague that Nichols did not involve or address this type of recidivism statute.
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