DOYLE L. SAMMONS v. STATE OF FLORIDA

265 So. 3d 720

• Court: District Court of Appeal of Florida
• Decided: March 1, 2019
• Docket: 17-1953
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

DOYLE LYNN SAMMONS, ) ) Appellant, ) ) v. ) Case No. 2D17-1953 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed March 1, 2019.

Appeal from the Circuit Court for Glades County; Jack Lundy, Acting Circuit Judge.

Howard L. Dimmig, II, Public Defender, and Stephania A. Gournaris, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Senior Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Doyle Lynn Sammons appeals the judgment and sentences rendered after

a jury found him guilty on two counts of possession of a controlled substance, one count

of possession of paraphernalia, and one count of driving with a suspended license. Mr.

Sammons, who represented himself below, argues that the trial court erred in failing to

renew the offer of counsel prior to proceeding with the sentencing hearing. We agree and thus vacate the sentences and remand for resentencing. As to his double jeopardy

and jury instruction arguments, we find no reversible error and affirm without discussion.

Mr. Sammons waived his right to counsel and represented himself at trial.

The sentencing hearing commenced immediately following the trial. Though Mr.

Sammons continued to represent himself, the trial court did not renew the offer of

assistance of counsel before proceeding with sentencing. Mr. Sammons was

sentenced to forty-two months in prison on the drug possession charges, to run

concurrently, and to time served on the remaining counts.

If a defendant's waiver of counsel is accepted at any stage of the

proceedings, the trial court must renew the offer of assistance of counsel at each

subsequent critical stage of the proceedings. Ingraham v. State, 32 So. 3d 761, 768

(Fla. 2d DCA 2010); see also Fla. R. Crim. P. 3.111(d)(5) ("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."). Sentencing is a critical stage of the proceedings, and a trial court

must renew the offer of counsel at the sentencing stage even if the defendant has

previously waived counsel at other stages. Alexander v. State, 224 So. 3d 804, 806

(Fla. 2d DCA 2017); Beard v. State, 751 So. 2d 61, 62 (Fla. 2d DCA 1999); Travis v.

State, 969 So. 2d 532, 533 (Fla. 1st DCA 2007). Thus, the trial court's failure to renew

the offer of assistance of counsel prior to proceeding with sentencing in this case was

error.

The State argues, however, that the failure to renew the offer of counsel

should be considered harmless error in this case because sentencing immediately

-2- followed the trial and because standby counsel was appointed throughout the

proceedings. We cannot agree.

The renewal of the offer of counsel prior to sentencing is required even

when the end of the guilt phase and the commencement of the penalty phase are not

separated by a temporal break. See Travis, 969 So. 2d at 533 (concluding reversible

error occurred where the trial court failed to renew the offer of counsel prior to

sentencing even though sentencing proceeded immediately after the dismissal of the

jury). This is because "sentencing is a separate critical stage, which has a separate

function and consequence from the jury trial itself." Id. Accordingly, the absence of a

temporal break between the trial and sentencing does not render the error harmless.

Nor is the error rendered harmless by the mere presence of standby

counsel. Though standby counsel was appointed and present throughout the

proceedings in this case, there is no indication that Mr. Sammons consulted with or

relied upon standby counsel in any significant way during the trial or at sentencing. Cf.

Mincey v. State, 684 So. 2d 236, 238 (Fla. 1st DCA 1996) (finding failure to renew right

to counsel harmless where appellant requested and "relied on standby counsel

extensively, before, during and after the trial"). And standby counsel was silent

throughout sentencing, other than requesting the public defender's fee and costs. Cf.

Harrell v. State, 486 So. 2d 7, 7 (Fla. 3d DCA 1986) (finding no reversible error where

"Harrell did confer frequently with standby counsel, and standby counsel participated in

the defense at trial"). If anything, Mr. Sammons resisted the appointment of standby

counsel. The trial court noted this reluctance when it awarded only a portion of the fee

requested by the public defender, stating: "As to the defense fee, I kind of feel like we

-3- kind of pushed standby counsel on Mr. Sammons . . . ." For these reasons, we cannot

say that standby counsel's presence in this case mitigated the failure to renew the offer

of counsel prior to sentencing.

In sum, the trial court erred in failing to renew the offer of counsel prior to

the sentencing hearing, and the error was not harmless. We therefore affirm the

judgment but vacate the sentences and remand for resentencing.

Judgment affirmed; sentences vacated; case remanded.

BADALAMENTI and ROTHSTEIN-YOUAKIM, JJ., Concur.

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