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State v. Tomlinson10/6/2005
detailing the new burden-shifting scheme between the State and the defendant.
In considering the merits of whether the State met its initial burden of proof regarding the Florida guilty plea, the record reflects that the State introduced a document captioned "ORDER WITHHOLDING ADJUDICATION OF GUILT AND PLACING DEFENDANT ON PROBATION" indicating that the Defendant, on September 12, 1990, pled guilty to uttering a forgery in violation of Florida Statute 831-02, a felony in the third degree. The exhibit further reflects that the court withheld the adjudication of guilt and imposition of sentence and placed the Defendant on supervised probation for thirty months. The exhibit includes the special conditions of probation, a bill of information for the charged offense, and certified copies of fingerprint cards.
Even if we were to assume that these documents established the existence of a guilty plea, which is not conclusive, the documents, as conceded by the State, do not show that the Defendant was represented by counsel at the time of the guilty plea. Therefore, we find that the State failed to meet its initial burden under Shelton regarding this guilty plea. Accordingly, we conclude that the finding of the Defendant to be a third felony offender is not supported by the record and the 25 year enhanced sentence, based on that finding, must be vacated.
ASSIGNMENT OF ERROR NUMBER TWO
By this assignment of error theDefendant argues, in the alternative, that his attorney was ineffective for failing to file a written challenge to the habitual offender bill of information. In view of our decision on the Defendant's first assignment of error, vacating the finding as a habitual offender and vacating his sentence, we find this argument moot.
ASSIGNMENT OF ERROR NUMBER THREE
By this assignment of error the Defendant argues that the 25 year enhanced sentence is excessive. Like the Defendant's previous assignment of error, we find this argument moot in light of our determination to vacate the finding as a habitual offender and sentence.
For the foregoing reasons, we vacate the Defendant's finding as a habitual offender and enhanced sentence of 25 years at hard labor.
FINDING AS HABITUAL OFFENDER AND ENHANCED SENTENCE VACATED
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