Goins v. State

District Court of Appeal of Florida

Goins v. State

152 So. 3d 864, 2014 Fla. App. LEXIS 20583, 2014 WL 7191024

CourtDistrict Court of Appeal of Florida

DecidedDecember 19, 2014

DocketNo. 5D14-1518

StatusPublished

This text of 152 So. 3d 864 (Goins v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Goins v. State, 152 So. 3d 864, 2014 Fla. App. LEXIS 20583, 2014 WL 7191024 (Fla. Ct. App. 2014).

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Opinion

WALLIS, J.

Appellant appeals the summary denial of his amended motion for postconviction relief after he pleaded guilty to the felony of driving under the influence, fourth or subsequent offense. Appellant argued that his plea agreement for his fourth DUI and resulting sentence of five years’ incarceration should be set aside because his trial counsel failed to investigate and determine [865]*865that Appellant was not offered counsel for his 1985 DUI conviction. Appellant contends that his 1985 DUI could not be used as a predicate to enhance the charge for his fourth DUI in this case to a felony because the 1985 DUI was uncounseled. The State correctly concedes that under Kelly v. State, 999 So.2d 1029, 1053 n. 20 (Fla.2008), a prior misdemeanor conviction in which a defendant is unrepresented due to a denial of counsel cannot be used as a later statutory enhancer. The State correctly concedes that the order denying the postconviction motion should be reversed and the case remanded for the lower court to (1) attach documents showing Appellant waived a right to counsel in the 1985 DUI conviction, (2) attach documents refuting Appellant’s claim that he did not have counsel, or (3) hold an evidentiary hearing. We therefore reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED with DIRECTIONS.

EVANDER and BERGER, JJ., concur.

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WALLIS, J.

Appellant appeals the summary denial of his amended motion for postconviction relief after he pleaded guilty to the felony of driving under the influence, fourth or subsequent offense. Appellant argued that his plea agreement for his fourth DUI and resulting sentence of five years’ incarceration should be set aside because his trial counsel failed to investigate and determine [865]*865that Appellant was not offered counsel for his 1985 DUI conviction. Appellant contends that his 1985 DUI could not be used as a predicate to enhance the charge for his fourth DUI in this case to a felony because the 1985 DUI was uncounseled. The State correctly concedes that under Kelly v. State, 999 So.2d 1029, 1053 n. 20 (Fla.2008), a prior misdemeanor conviction in which a defendant is unrepresented due to a denial of counsel cannot be used as a later statutory enhancer. The State correctly concedes that the order denying the postconviction motion should be reversed and the case remanded for the lower court to (1) attach documents showing Appellant waived a right to counsel in the 1985 DUI conviction, (2) attach documents refuting Appellant’s claim that he did not have counsel, or (3) hold an evidentiary hearing. We therefore reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED with DIRECTIONS.

EVANDER and BERGER, JJ., concur.

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Bluebook (online)

152 So. 3d 864, 2014 Fla. App. LEXIS 20583, 2014 WL 7191024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goins-v-state-fladistctapp-2014.

Opinion

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