State v. Kelly, 946 So. 2d 1152 (Fla. 4th DCA 2006). · Go Syfert
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State v. Kelly, 946 So. 2d 1152 (Fla. 4th DCA 2006). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 2 distinct courts.
Strongest positive: Meader v. State (fladistctapp, 2011-04-27)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Meader v. State
Fla. Dist. Ct. App. · 2011 · confidence medium
We affirm the denial of the motion for transcripts. “‘Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a post-conviction motion or a petition for extraordinary relief.’” Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006) (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)).
discussed Cited as authority (rule) State v. Kelly
Fla. · 2008 · confidence medium
Though I conclude that there was a valid waiver and that should end consideration of the issues in this case, I recognize that the district court's certified question poses the question as to whether "an uncounseled prior misdemeanor conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, [can] be used to enhance a current charge from a misdemeanor to a felony?" State v. Kelly, 946 So.2d 1152, 1154 (Fla. 4th DCA 2006).
discussed Cited as authority (rule) Comeaux v. State
Fla. Dist. Ct. App. · 2008 · confidence medium
As explained in State v. Kelly, 946 So.2d 1152, 1153 (Fla. 4th DCA 2006), rev. granted, 949 So.2d 199 (Fla.2007), in reaching this result "the Hlad court relied primarily on Baldasar v. Illinois, 446 U.S. 222 , 100 S.Ct. 1585 , 64 L.Ed.2d 169 (1980), which was not entirely clear as to whether it is actual imprisonment, or the possibility of imprisonment for more than six months, which makes an uncounseled prior misdemeanor conviction unavailable for enhancement." However, "[a]fter the Florida Supreme Court decided Hlad , the United States Supreme Court overruled Baldasar and clarified that it …
discussed Cited "see" Pacheco v. State
Fla. Dist. Ct. App. · 2011 · signal: accord · confidence high
See Sanders v. State, 62 So.3d 1176, 1176 (Fla. 4th DCA 2011) (“Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a postconviction motion or a petition for extraordinary relief.”) (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)); accord Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006); Ridge v. Adams, 643 So.2d 116, 117 (Fla. 5th DCA 1994) (holding that although prisoners are entitled to free copies and services for plenary appeal, there is no provision in law to obtain them ther…
discussed Cited "see" Sanders v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006) (“ ‘Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a postconviction motion or a petition for extraordinary relief.’ ” (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)); accord Meader v. State, 59 So.3d 1202 (Fla. 4th DCA 2011).
cited Cited "see" Rafine v. State
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See State v. Kelly, 946 So.2d 1152 (Fla. 4th DCA), rev. granted, 949 So.2d 199 (Fla.2007).
Retrieving the full opinion text from the archive…
STATE of Florida, Appellant,
v.
Glenn KELLY, Appellee.
4D06-1039.
District Court of Appeal of Florida, Fourth District.
Dec 20, 2006.
946 So. 2d 1152
Klein.
Cited by 3 opinions  |  Published

[*1153] Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.

Frank A. Maister, Fort Lauderdale, for appellee.

KLEIN, J.

After Kelly was charged with felony DUI, he moved to dismiss the information on the ground that he was being charged with a felony based on two earlier DUIs and, because the earlier DUIs were uncounseled misdemeanors, they could not be used to enhance this DUI to a felony. The trial court granted the motion, and the state appeals. The ultimate answer to the question depends on whether the Florida Supreme Court adheres to Hlad v. State, 585 So.2d 928 (Fla.1991), or recedes from Hlad and follows Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Being bound by Hlad, we affirm and certify the issue as one of great public importance.

Kelly pled no contest to a DUI in 1995 and another DUI in 1997. He testified in this case that he was indigent, not represented by counsel in those cases, and not incarcerated in either case. The trial court ruled that, because Kelly could have been incarcerated in the prior cases for more than six months, the two prior uncounseled convictions cannot be used to enhance his current misdemeanor DUI to a felony DUI.

In Hlad the Florida Supreme Court held that an uncounseled earlier misdemeanor DUI conviction could be used to enhance a current DUI charge to a felony, because the defendant "did not receive imprisonment nor could he have been imprisoned for more than six months as a result of the uncounseled conviction." Hlad, 585 So.2d at 930. See also State v. Beach, 592 So.2d 237 (Fla.1992). In Hlad the Florida Supreme Court relied entirely on decisions of the United States Supreme Court such as Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (indigent defendant entitled to counsel where convicted of misdemeanor resulting in incarceration). Most significantly, the Hlad court relied primarily on Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), which was not entirely clear as to whether it is actual imprisonment, or the possibility of imprisonment for more than six months, which makes an uncounseled prior misdemeanor conviction unavailable for enhancement.

After the Florida Supreme Court decided Hlad, the United States Supreme Court overruled Baldasar and clarified that it was only actual imprisonment which would[*1154] preclude a prior uncounseled misdemeanor conviction from being used to enhance. Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). The Nichols Court, in footnote 12, left the states free to guarantee a right to counsel for indigent defendants charged with misdemeanors where there is no prison term imposed, if imprisonment is a possibility. The trial court in this case accordingly correctly followed Hlad.

We therefore affirm, but, because the Florida Supreme Court relied previously on Baldasar when it decided Hlad and Beach, and Baldasar has now been overruled, we certify the following question as one of great public importance.[1]

Can an uncounseled prior misdemeanor conviction, in which the defendant could have been incarcerated for more than six months, but was not incarcerated for any period, be used to enhance a current charge from a misdemeanor to a felony?

POLEN and MAY, JJ., concur.

1 The state has argued that Kelly is precluded from raising the issue of his uncounseled prior convictions because, in the plea agreements in those cases, he waived the right to counsel. This issue was contested at the evidentiary hearing on the motion to dismiss, at which Kelly testified, and the court, although not expressly saying so, obviously resolved the waiver issue against the state.