Birlkey v. State
220 So. 3d 431
| Fla. Dist. Ct. App. | 2017Background
- Appellant George Birlkey pleaded no contest to burglary and possession of burglary tools and was placed on probation.
- The State filed a violation-of-probation (VOP) affidavit alleging a new arrest for burglary and grand theft and untruthful responses to an officer.
- On November 6, 2014, after a Faretta colloquy, the trial court found Birlkey knowingly waived counsel and allowed self-representation; standby counsel was appointed with his consent.
- On November 18 the court heard motions (speedy trial, continuance of the VOP hearing, motion withdrawals); the court denied moving the VOP hearing and did not re-offer counsel at that time.
- On November 24, Birlkey again proceeded pro se with standby counsel present; the court conducted the VOP hearing, found a violation, and immediately proceeded to sentencing without renewing the offer of counsel.
- The court sentenced Birlkey to 18 months’ imprisonment for the VOP; Birlkey later confirmed he still wished to represent himself for the underlying jury trial. He appealed, arguing the court erred by failing to renew the offer of assistance of counsel prior to the VOP hearing and sentencing.
Issues
| Issue | Appellant's Argument | State's/Trial Court's Argument | Held |
|---|---|---|---|
| Whether an intervening November 18 hearing required renewal of the offer of counsel before the November 24 VOP hearing | The November 18 motions hearing was a critical stage, so the court had to renew the offer before the VOP hearing | The November 18 proceedings were not a critical stage and did not require a renewal; the prior Faretta waiver remained effective for the VOP hearing | Court held the November 18 hearing was not a critical stage; no renewal required before the VOP hearing |
| Whether the trial court had to renew the offer of counsel before sentencing (imposed immediately after the VOP finding) | Court should have renewed the offer of counsel at sentencing; absence of renewal is reversible error | The State argued error was harmless because appellant later affirmed desire to remain pro se for the underlying trial | Court held sentencing is a critical stage and the court erred by not renewing the offer; reversal and remand for resentencing required |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (1975) (recognizes right to self-representation after a knowing, voluntary, intelligent waiver)
- Traylor v. State, 596 So.2d 957 (Fla. 1992) (defendant entitled to decide at each crucial stage whether to have counsel; court must inform unrepresented defendants at commencement of each crucial stage)
- Montejo v. Louisiana, 556 U.S. 778 (2009) (examples of critical stages and treatment of post-indictment rights)
- Bell v. Cone, 535 U.S. 685 (2002) (critical stages are steps with significant consequences for the accused)
- Gardner v. Florida, 430 U.S. 349 (1977) (sentencing is a critical stage)
- Capitaine v. State, 58 So.3d 438 (Fla. 4th DCA 2011) (failure to renew offer of counsel before sentencing requires resentencing)
- Henretty v. State, 155 So.3d 1254 (Fla. 1st DCA 2015) (sentencing is a critical stage requiring renewal of offer of counsel)
- Hays v. State, 63 So.3d 887 (Fla. 5th DCA 2011) (appellate review standard and precedents finding abuse when offer of counsel not renewed at sentencing)