KANDACE M. WILLIAMS v. STATE OF FLORIDA , 228 So. 3d 699 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KANDACE M. WILLIAMS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-2111
[October 18, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case No. 15003911 CF10A.
Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Kandace Williams (“appellant”) was charged with burglary of a
structure. He appeals the trial court’s order accepting his plea of no
contest and imposing a prison sentence. Prior to his plea, appellant was
given the right to proceed pro se with the appointment of standby counsel.
While the record reflects that appellant utilized the assistance of standby
counsel when entering his plea, the court should have renewed the offer
of counsel before sentencing. Therefore, we reverse.
During the plea colloquy, appellant stated that he was entering his plea
freely and voluntarily. Appellant confirmed that he had an opportunity to
discuss the plea with his standby counsel and submitted a plea form
signed by appellant, as a pro se defendant, and his standby counsel. After
the plea colloquy, the trial court asked appellant, “do you know of any legal
reason why I cannot pronounce sentence on you today?” Appellant and
State responded, “[n]o.” The trial court immediately moved into the
sentencing stage without renewing the offer of assistance of counsel.
“We review appellant’s claim that the trial court failed to renew the offer
of assistance of counsel for abuse of discretion.” Birlkey v. State, 220 So.
3d 431, 433 (Fla. 4th DCA 2017). “However, case law also suggests that a
violation of a defendant’s right to counsel at a critical stage of sentencing
is per se reversible error, not subject to a harmlessness analysis.” Id.
“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.”
Fla. R. Crim. P. 3.111(d)(5). Sentencing is a critical stage requiring the
renewal of the offer of counsel. Neal v. State, 142 So. 3d 883, 889 (Fla. 1st
DCA 2014). Prior to sentencing, “even if a defendant does not request
appointment of counsel, this omission is not considered a knowing waiver
of the right to counsel.” Hardy v. State, 655 So. 2d 1245, 1248 (Fla. 5th
DCA 1995); see also Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992) (“Any
waiver of this right must be knowing, intelligent, and voluntary, and courts
generally will indulge every reasonable presumption against waiver of this
fundamental right.”).
Here, the record does not reflect that appellant intended to rely on
standby counsel during his sentencing hearing. Therefore, the trial court
erred by failing to renew the offer of counsel. See Kepner v. State, 911 So.
2d 1256, 1258 (Fla. 4th DCA 2005) (“[T]he court’s failure to renew the offer
of counsel prior to sentencing was error requiring reversal and
resentencing.”); Bowman v. State, 550 So. 2d 544, 544 (Fla. 4th DCA 1989)
(“[W]e reverse appellant’s sentence since it was error not to renew the offer
of assistance of counsel to him at sentencing.”). As we said in Birlkey:
Sentencing is a critical and often complicated part of the
criminal process involving subtleties that may be beyond the
appreciation of the average layperson. A defendant who is
unfamiliar with the post-conviction process may inadvertently
waive a meritorious argument that he or she might otherwise
have raised on appeal. Given these intricacies, it is
particularly important that a sentencing court be certain that
a defendant understands the perilous path he or she traverses
by proceeding to sentencing without the benefit of counsel.
Birlkey, 220 So. 3d at 435-36.
We cannot presume that appellant would likely have maintained his
decision to proceed pro se for his sentencing after a proper colloquy by the
trial court. Given that he relied on standby counsel to assist him in
understanding and entering his plea, we cannot say there was no
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reasonable possibility appellant would have declined a renewed offer of
counsel for sentencing. 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.”).
Because the trial court failed to renew the offer of counsel to appellant
prior to sentencing, we reverse and remand for the trial court to conduct
a new sentencing hearing that includes the offer of counsel at the outset.
Reversed and remanded for resentencing.
CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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