1st DCA), review denied, 479 So.2d 118 (Fla. 1985), wherein the First District accepted the over-simplification of Baldasar that is urged by the appellant and the dissent herein: no prior uncounseled misdemeanor conviction may be used for subsequent enhancement under any circumstances. See also Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). While that was the minority view in Baldasar, it was not the view of Justices Blackmun, White, Rehnquist, Powell and Chief Justice Burger.
GRIMES, Justice. We review Hlad v. State, 565 So.2d 762 (Fla. 5th DCA 1990), because of its conflict with State v. Troehler, 546 So.2d 109 (Fla. 4th DCA 1989), and Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution.
The court cannot consider any conviction for which the defendant did not waive his right to counsel. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); Leffew v. State, 518 So.2d 1376 (Fla. 2d DCA 1988); Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). We do not read section 775.084 as defeating or even affecting this right.
We grant the petition and quash the order of the trial court with directions that petitioner's appeal in the circuit court be granted since the record does not support the determination by the county court and the circuit court that petitioner waived her right to counsel in an earlier criminal proceeding. See Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985), and Fla.R.Crim.P. 3.111(d). HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.
Defendant cites Smith v. State, 498 So.2d 1009, 1010 (Fla. 2d DCA 1986), in which this court stated, "An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985)." Pilla makes a similar statement in holding that uncounseled convictions could not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel.
An uncounseled conviction may not be used to enhance a sentence on a subsequent conviction unless the defendant waived his right to counsel. Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). Where a defendant raises the issue of an uncounseled conviction, the State must show by a preponderance of the evidence that the defendant was represented by counsel or that counsel was available but was validly waived. Harrell v. State, 469 So.2d 169, 171 (Fla. 1st DCA 1985). Presuming waiver of counsel from a silent record is impermissible. Burgett v. State, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
He claims that this was improper because the previous plea and conviction were obtained without an effective waiver of counsel. See Crigler v. State, 487 So.2d 420 (Fla. 2d DCA 1986); Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985); Hayes v. State, 468 So.2d 470 (Fla. 4th DCA 1985). We do not agree. While the colloquy which preceded the trespass plea might be deemed insufficiently detailed to pass muster on direct review, Kimble v. State, 429 So.2d 1369 (Fla. 3d DCA 1983), we find that, since the defendant was specifically offered and specifically declined representation by counsel without charge, see Mason v. State, 176 So.2d 76 (Fla. 1965), the subsequent judgment was not totally "void" or "invalid" so as to require denying it the purely collateral effect it was afforded below.
We believe the trial court erred in assessing points against appellant with reference to his prior failure to appear for a hearing in traffic court, and also for assessing points for previous uncounseled convictions without determining whether counsel had been properly waived in those cases. See Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). ANSTEAD, LETTS and GLICKSTEIN, JJ., concur.
Pettway is currently serving a nine-year prison sentence, apparently a guideline sentence. He claims that this sentence was artificially enhanced by the effect upon his scoresheet calculation of several uncounseled convictions, and that trial counsel knew of this inaccuracy but failed to object. If this allegation is true Pettway might be entitled to relief. Lanier v. State 478 So.2d 1184 (Fla. 2d DCA 1985); Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). The trial court's order states that the files and records in the case support denial of the motion, but the court did not attach copies of these records as is required by Florida Rule of Criminal Procedure 3.850.
Appellant's third point, that the trial court erred in calculating five uncounseled misdemeanor convictions into the sentencing guidelines scoresheet, is without merit as the record fails to indicate that appellant was either unrepresented by counsel or had not waived the right to counsel. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980); Pilla v. State, 477 So.2d 1088 (Fla. 4th DCA 1985). Accordingly, appellant's conviction is affirmed; however, the sentence is reversed and remanded for resentencing.