Oceanus McCall, the defendant below, appeals from his conviction and sentence for first degree attempted felony murder and armed robbery. We affirm in part and reverse in part.
On September 25, 1980 a man entered the City Liquors Store in Lake City and robbed the clerk at gun point. The owner arrived just as the robber was leaving and chased the robber who fled in his vehicle. During the chase the robber fired several shots at the owner and his vehicle. The chase ended when the robber’s car stalled and he fled into the woods. Three years later, the defendant Oceanus McCall was
The defendant showed up on the day of the trial without having retained private’ counsel. The judge inquired into his efforts at retaining private counsel and discovered that his only efforts had been to have his mother contact an attorney the previous afternoon. The judge held that these efforts were inadequate and construed the defendant’s refusal to cooperate with appointed counsel and failure to attempt to retain private counsel to be an election for self representation. The trial judge carefully went over trial procedure with the defendant in an effort to aid him in his own defense. A trial was held after which the jury returned a verdict of guilty of first degree attempted felony murder and armed robbery. At the sentencing hearing the defendant was given another chance to be represented by the public defender. He again refused. After a brief discussion between the prosecutor and the judge of the sentencing guidelines recommended range, and after a discussion of the habitual offender statute, the defendant was sentenced to two concurrent terms of life with a three year mandatory minimum. The defendant appeals his waiver of counsel and his sentencing under the sentencing guidelines. We affirm the conviction but reverse the sentence and remand for resentencing.
We affirm the defendant’s conviction and hold that he did knowingly and intelligently waive his right to counsel. A trial judge may not force a defendant to represent himself where the defendant does not knowingly and intelligently elect to do so. Keene v. State,
determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries such as the accused’s age, mental derangement, lack of knowledge, education or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel.
Keene v. State, supra at 910. The record in the instant case reflects that the trial court made a careful and thorough inquiry into such matters. We find that the defendant’s unreasonable refusal to accept state appointed counsel rises to the level of that in Jones v. State, supra., such that this refusal is the equivalent for a request for self representation. We also find from the record that the trial judge carefully followed the requirements laid out in Smith, supra., and adequately guaranteed the defendant’s right to counsel.
Next, the defendant appeals his sentence. He contends that the use of the sentencing guidelines was improper since the crime occurred before the effective date of the sentencing guidelines, and since the defendant made no affirmative election to be sentenced under the guidelines. Brooks v. State,
Affirmed as to conviction, reversed and remanded for resentencing.
