Opinion
No. 66-70.
October 18, 1966. Rehearing Denied November 9, 1966.
Appeal from the Criminal Court of Record, Dade County, Jack M. Turner, J.
David Langlois, in pro. per.
Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.
Before HENDRY, C.J., and CARROLL and SWANN, JJ.
Petitioner, David Langlois, appeals from the trial court's denial of his petition under Criminal Procedure Rule Number One, F.S.A. ch. 924 Appendix in which he sought to set aside judgments and sentences, after "guilty" pleas, in five robbery cases.
The petitioner asserts several different grounds for relief. They have all been examined and appear to be without merit, and are conclusively refuted by the files and records, except his claim that he was "not represented by counsel at sentencing." The record is silent as to whether his court appointed counsel was present at the time his sentences were imposed, or whether the defendant waived this right.
The time of sentencing is a critical step in criminal procedure, during which a defendant is entitled to have his counsel present. Reader v. State, Fla.App. 1964, 168 So.2d 557; Williams v. State, Fla.App. 1964, 165 So.2d 197.
The judgments of conviction previously entered by the trial court are affirmed. Error was committed, however, in sentencing the defendant when his counsel was not present. The cause, therefore, is reversed and remanded for the sole purpose of entering proper sentences, at which time the defendant should be present with his private counsel, if he so chooses; or, in the event he is indigent, the public defender should be present.
It is so ordered.
ON REHEARING
The State, in its petition for rehearing contends that the effect of the previous opinion is to grant to the petitioner, David Langlois, the relief which he sought under Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, without the holding of an evidentiary hearing, in which he would have to "prove" his allegation that he was sentenced without counsel present. We agree. Evans v. State, Fla.App. 1964, 163 So.2d 520; King v. State, Fla. App. 1963, 157 So.2d 440.
The opinion, therefore, is revised only insofar as the last sentence is concerned. The last sentence is stricken and the following is substituted therefor:
The Rule 1 petition is hereby granted and this cause is reversed and remanded to the trial court for the sole purpose of conducting an evidentiary hearing in order that the petitioner shall be given an opportunity to prove his allegation that his counsel was not present at the time his sentence was imposed.
In the event that the allegation is proven to the satisfaction of the trial judge, then the sentences heretofore entered should be vacated and the defendant should be resentenced with either private or public counsel present.
It is so ordered.