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State v. Ferguson3/24/2005
erguson's valid waiver of the right to counsel.
CONCLUSION
We agree with the trial court's conclusion that under Alabama v. Shelton, 535 U.S. 654 (2002), a defendant facing a misdemeanor charge is entitled to counsel when a term of incarceration is imposed, regardless of whether the term of incarceration is suspended or actually served. We also affirm the trial court's conclusion that under Shelton, Ferguson's prior uncounseled misdemeanor conviction, which resulted in a suspended one-year term of imprisonment, cannot be used to enhance his second violation of the protective order to a third degree felony unless Ferguson knowingly and voluntarily waived his right to counsel. Nevertheless, we reverse the trial court's decision with regard to which party bears the burden of proof on the question of whether Ferguson waived his right to counsel in the prior proceeding. We remand for further proceedings in accordance with this opinion so that it may be properly ascertained whether Ferguson validly waived his right to counsel.
Gregory K. Orme, Judge
WE CONCUR:
Pamela T. Greenwood, Judge
Norman H. Jackson, Judge
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