DOYLE L. SAMMONS v. STATE OF FLORIDA

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
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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
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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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