UREL A. BARRETT
v.
STATE OF FLORIDA
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A trial court must renew its offer of counsel at each subsequent stage of proceedings where the defendant appears without counsel, and failure to do so before sentencing in a probation violation case is reversible error.
[1] A trial court's failure to renew an offer of counsel at a sentencing hearing following a probation violation finding constitutes reversible error, as the error is not har…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.”
Florida Rule of Criminal Procedure 3.111(d)(5), cited to support the requirement to renew counsel offer at sentencing.
The defendant, who had previously waived counsel and elected to proceed pro se, appeared at probation violation proceedings and a sentencing hearing w…
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GERBER, J.
The defendant appeals from the circuit court’s final order finding the defendant violated probation and from the defendant’s resulting sentence. The defendant argues the circuit court erred in two respects, by: (1) not repeating a full Faretta1 inquiry about the risks of proceeding pro se at first appearance on the VOP allegations, the final hearing, and the immediately subsequent sentencing hearing; and (2) not offering counsel to the defendant at the sentencing hearing.
On the defendant’s first argument, we affirm. See Noetzel v. State, 328 So. 3d 933, 951 (Fla. 2021) (“[A]bsent a substantial change in circumstances that would cause the trial court to question its original ruling on the defendant’s request for self-representation, there is no concomitant requirement to revisit Faretta every time the offer of counsel is subsequently renewed and rejected.”).
Contrary to the state’s argument, the trial court’s error in failing to renew an offer of counsel before the sentencing hearing was not harmless. As we held in Birlkey:
The State suggests that any error in not renewing the offer of counsel to appellant was harmless because immediately after sentencing, appellant maintained his desire to proceed pro se at his trial on the underlying charges. This presumes that, after a proper colloquy by the trial court, appellant would likely have maintained his decision to proceed pro se for his sentencing as well, leading the court to impose the same sentence he received. “Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence.” Hurst v. State, 202 So. 3d 40, 68 (Fla. 2016).
….
Given the firmness of [the defendant’s] desire to represent himself as expressed after sentencing, the series of events that the State posits would have happened is indeed highly probable, but without engaging in speculation, it is not entirely certain. See, e.g., C.D.C. v. State, 211 So. 3d 357, 360 (Fla. 4th DCA 2017) (“[W]e cannot say no reasonable possibility exists that the error did not contribute to the sentence.”).
Thus, because the trial court erred in not renewing an offer of counsel to [the defendant] prior to sentencing, we reverse and remand for the trial court to conduct a new sentencing hearing that includes an offer of counsel at the outset.
Id. at 436.
Affirmed in part, reversed in part, and remanded for resentencing.
KLINGENSMITH, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Faretta v. California, 422 U.S. 806 (U.S. 1975)
- Hurst v. State, 202 So. 3d 40 (Fla. 2016)
- Charleston Kareem Larry v. State, 211 So. 3d 357 (Fla. 5th DCA 2017)