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Angel v. State10/18/2000
was actually imprisoned. However, this was his second conviction for DUI within a period of three years from the date of the first conviction. At the time, the applicable statute, section 316.028(2)(b), Florida Statutes (1973), provided for a punishment of not less than ten days nor more than six months incarceration and a fine of not more than $500. Because appellant was subject to a term of incarceration of not less than ten days for a second DUI conviction, he had the right to counsel as to that offense. See Beach, 592 So. 2d at 239.
Nonetheless, Angel's affidavit failed to meet the Beach pleading requirements for the 1975 conviction. The affidavit did not assert that appellant was indigent at the time of the 1975 conviction. The affidavit failed to state that the right to counsel was not waived; it only declared that appellant did "not recall . . . making any written or oral waiver" of a number of rights, including the right to an attorney.
On the remaining issues, we agree with the state that the imposition of the $1,000 fine was valid, even though the court did not orally impose the fine at the sentencing hearing. The fine is mandatory for a fourth or subsequent DUI conviction. See § 316.193(2)(b), Fla. Stat. (1999). As the state and appellant agree, the written order of probation should be corrected to reflect that appellant was convicted after a jury trial, not that appellant entered a guilty plea. See S. B. v. State, 764 So. 2d 620 (Fla. 4th DCA 2000).
Affirmed and remanded to the circuit court to correct the written order of probation.
GUNTHER and FARMER, JJ., concur.
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