DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2011
STATE OF FLORIDA,
[April 20, 2011]
Appellant challenges his sentence on the charge of grand theft auto,
arguing that the trial court failed to renew the offer of counsel prior to
sentencing. We agree and reverse and remand for resentencing.
Appellant proceeded to trial on three charges. A Faretta1 hearing was
held on January 20, 2010, immediately prior to the commencement of
trial. Appellant represented himself at trial and solely conducted his
defense. Most of the trial took place on January 20; however, the trial
ended five days later, on January 25, 2010. The jury convicted appellant
on count 3, grand theft auto. Immediately after polling the jury, the trial
court proceeded with sentencing. Prior to sentencing, the trial court did
not renew an offer of counsel. The trial court sentenced appellant to
three years in prison.
Appellant argues that the court erred in failing to renew the offer of
counsel prior to sentencing. The State acknowledges that the trial court
did not renew the offer of counsel at the beginning of the sentencing
portion of the proceeding, but argues that any error was harmless.
Rule 3.111(d)(5) provides that an offer of assistance of counsel shall
be renewed by the court at each subsequent stage of the proceeding at
which the defendant appears without counsel. “Sentencing is a critical
stage of a criminal proceeding, and a trial court must renew the offer of
counsel even if the defendant has previously waived counsel.” Monte v.
State, 51 So. 3d 1196, 1201 (Fla. 4th DCA 2011) (quoting Beard v. State,
Faretta v. California, 422 U.S. 806 (1975).
751 So. 2d 61, 62 (Fla. 2d DCA 1999)). “[E]ven if a defendant does not
request appointment of counsel, this omission is not considered a
knowing waiver of the right to counsel” before sentencing. Id. (quoting
Hardy v. State, 655 So. 2d 1245, 1248 (Fla. 5th DCA 1995)).
The trial court erred in failing to renew an offer of counsel before
appellant’s sentencing. See id.; see also 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.”).
Mincey v. State, 684 So. 2d 236 (Fla. 1st DCA 1996), cited by the
State in support of its harmless error argument, is distinguishable. In
Mincey, “appellant relied on standby counsel extensively, before, during
and after the trial,” and standby counsel handled the sentencing. Id. at
238. But see Harris v. State, 687 So. 2d 29, 30 (Fla. 5th DCA 1997)
(“While we agree that the court should have renewed the offer of
assistance of counsel prior to sentencing, we find such error to be
harmless in this case. Harris was sentenced within the guideline range
and, based on this record, we do not believe that he would have gotten a
lesser sentence had the court appointed ten lawyers to speak for him.”).
Accordingly, we reverse the sentence o n appeal, and remand for
resentencing after a proper renewal of the offer of counsel.
Reversed and Remanded.
GROSS, C.J., and DAMOORGIAN, JJ., concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 09-21907
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela J o Bondi, Attorney General, Tallahassee, a n d Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.