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498 So. 2d 1009

498 So.2d 1009

11 Fla.L.Weekly 2634

Docket No. 86-401.

Smith v. State

Beverly SMITH, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided December 10, 1986.

District Court of Appeal of Florida · decided 1986-12-10

Cited by 11 later decisions — most recently January 1992

11 state decisions

Key passage — most relied on by later courts

“An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985).”

quoted by 3 later decisions, including 516 So. 2d 114 - Lowe v. State, 546 So. 2d 109 - State v. Troehler

Relies on Burgett v. Texas · 469 So. 2d 169 - Harrell v. State · 477 So. 2d 1088 - Pilla v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1986-12-10

View the full empirical analysis of this case →

¶1James Marion Moorman, Public Defender and D.P. Chanco, Asst. Public Defender, Bartow, for appellant.

¶2*1010 Jim Smith, Atty. Gen., Tallahassee and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.

¶3RYDER, Acting Chief Judge.

¶4Beverly Smith appeals the sentences she received for two convictions of grand theft. We affirm the convictions but reverse the sentences and remand for resentencing.

¶5Appellant was charged by information with two counts of grand theft arising from different incidents. § 812.014, Fla. Stat. (1985). She pleaded guilty to one and nolo contendere to the other. At the sentencing hearing, appellant's counsel requested that the trial court delete points included in the guidelines scoresheet for a prior uncounseled plea and conviction. The trial court refused to delete the points and sentenced appellant to five years in prison for each offense with the terms to run concurrently.

¶6An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). Where a defendant raises the issue of an uncounseled conviction, the state must show by a preponderance of the evidence that the defendant was represented by counsel or that counsel was available but was validly waived. Harrell v. State, 469 So.2d 169, 171 (Fla. 1st DCA 1985). Presuming waiver of counsel from a silent record is impermissible. Burgett v. State, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

¶7Although we affirm the convictions herein, we must reverse the sentences and remand the case for resentencing. At the resentencing hearing, the state must demonstrate by a preponderance of the evidence either that the convictions were counseled or that the appellant waived counsel. If the state does so, the trial court may reinstate the sentences. If the state fails to do so, the trial court may not use the uncounseled convictions in computing points on the guidelines scoresheet.

¶8Affirmed in part; reversed in part and remanded for proceedings consistent with this opinion.

¶9CAMPBELL and SANDERLIN, JJ., concur.

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