Donald O. Williams v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

DONALD OTIS WILLIAMS,

Petitioner,

v. Case No. 5D16-2358

STATE OF FLORIDA,

Respondent.

________________________________/

Opinion filed March 24, 2017

Petition Alleging Ineffectiveness
of Appellate Counsel,
A Case of Original Jurisdiction.

Donald Otis Williams, Raiford, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona
Beach, for Respondent.

WALLIS, J.

Donald Otis Williams filed a petition pursuant to Florida Rule of Appellate

Procedure 9.141(d), alleging that his appellate counsel provided ineffective assistance by

not raising a claim that the trial court failed to offer counsel for the sentencing portion of
his violation of probation hearing.1 We grant the petition and remand for further

proceedings consistent with this opinion.

When reviewing a petition alleging ineffective assistance of appellate counsel, "we

must determine whether counsel's performance was deficient and, if so, whether 'the

deficiency of that performance compromised the appellate process to such a degree as

to undermine confidence in the fairness and correctness of the appellate result.'" Pierce

v. State, 121 So. 3d 1091, 1093 (Fla. 5th DCA 2013) (quoting Lopez v. State, 68 So. 3d

332, 333 (Fla. 5th DCA 2011)). Our court has held:

[I]f a defendant waives the right to counsel at any stage of the
criminal proceedings, the trial court must renew the offer of
assistance of counsel at each subsequent stage of the
proceedings. Sentencing is a critical stage in criminal
proceedings; and, even if a defendant does not request
appointment of counsel, this omission is not considered a
knowing waiver of the right to counsel.

Hays v. State, 63 So. 3d 887, 888 (Fla. 5th DCA 2011) (alteration in original) (quoting

Hardy v. State, 655 So. 2d 1245, 1247–48 (Fla. 5th DCA 1995)); see also Fla. R. Crim.

P. 3.111(d)(5) ("[I]f a waiver is accepted at any stage of the proceedings, the offer of

assistance of counsel shall be renewed by the court at each subsequent stage of the

proceedings at which the defendant appears without counsel."). A trial court's failure to

offer counsel for sentencing ordinarily constitutes fundamental error. Jackson v. State,

983 So. 2d 562, 575 (Fla. 2008). Thus, appellate counsel provides ineffective assistance

by not raising the issue on appeal. Henretty v. State, 146 So. 3d 55, 56 (Fla. 1st DCA

1 Petitioner raises two additional claims of ineffective assistance of appellate
counsel that we deny without further discussion.

2
2014) (finding appellate counsel ineffective and ordering a new appeal); Blane v. State,

987 So. 2d 241, 241 (Fla. 1st DCA 2008) (same).

The record reflects that the trial court offered to appoint Williams counsel at the

outset of the violation of probation hearing, but Williams declined. However, after finding

that Williams violated his probation, the trial court immediately proceeded to sentencing

before renewing the offer for counsel. The trial court's failure to renew the offer is

fundamental error, which, if raised on appeal, would have resulted in a reversal and

remand for a new sentencing hearing. See Henretty, 146 So. 3d at 56. We note that,

under these circumstances, appellate courts often grant the petitioner a new appeal. See

id. Nonetheless, having already determined that the trial court erred by failing to renew

the offer for counsel, we find that ordering a new appeal would result in unnecessary

redundancy. See Johnson v. Wainwright, 498 So. 2d 938, 939 (Fla. 1986) ("In this

instance, however, a new appeal would be redundant because we acknowledge that

reversible error occurred at trial."); accord Hampton v. State, 178 So. 3d 921, 922 (Fla.

5th DCA 2015); Pierce v. State, 121 So. 3d 1091, 1094 (Fla. 5th DCA 2013); Disinger v.

State, 574 So. 2d 268, 269 (Fla. 5th DCA 1991). Therefore, we grant the petition and

remand with instructions to vacate Williams's sentence and to hold a new sentencing

hearing at which the trial court must offer to appoint Williams counsel.

PETITION GRANTED; REMANDED with Instructions.

COHEN, C.J. and ORFINGER, J., concur.