Opinion
No. 97-03134
Opinion filed October 23, 1998.
Appeal from the Circuit Court for Pinellas County; Raymond O. Gross, Judge.
James Marion Moorman, Public Defender, Bartow, and Megan Olson, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Tampa, for Appellee.
The defendant, John T. Hepburn, appeals the order of the trial court denying in part his pro se motion for correction of sentences. We reverse.
On November 13, 1984, Hepburn entered guilty pleas pursuant to an agreement in eight cases. The trial court sentenced Hepburn to ninety-nine years in prison for each of the eight cases and ordered the sentences to be served concurrently. On March 11, 1997, Hepburn filed a pro se motion to correct sentences. At the hearing on the motion, the trial court conducted a brief inquiry as to whether Hepburn desired to be represented by counsel at the hearing. Hepburn declined the offer of counsel. The trial court entered an order granting Hepburn relief on one of the eight sentences but denied relief in the remaining cases. Hepburn filed a timely notice of appeal.
We must reverse because, even though this was a postconvictioin proceeding, the trial court did not comply with the requirements of Farretta v. California, 422 U.S. 806 (1975). While it is true that in a postconviction proceeding there is no absolute right to counsel, due process concerns dictate that counsel should be provided if a postconviction motion raises a meritorious claim and the hearing on that motion is so potentially complex that counsel is necessary. See Russo v. Akers, 701 So.2d 366 (Fla. 5th DCA 1997). Our review of the record in this case indicates that Hepburn raised a meritorious claim in his motion and the hearing on the motion was so potentially complex that counsel was necessary.
It is true that Hepburn declined the trial court's offer of appointing counsel to represent him at the hearing. Hepburn's refusal of counsel, however, cannot be deemed to be a waiver of counsel because the trial court's inquiry of the refusal was insufficient. See Farretta v. California, 422 U.S. 806 (1975); Fla. R. Crim. P. 3.111(d).
We reverse the trial court's order and remand with directions to the trial court to conduct a complete inquiry regarding Hepburn's waiver of counsel.
Reversed and remanded.
THREADGILL, A.C.J., and ALTENBERND, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.