GOOD MORNING. MAY IT PLEASE THE COURT. SHERRY ROLLISON ON BEHALF OF THE STATE IN THE MATTER OF STATE VERSUS KIRBY. IN THE CASE, THE DEFENDANT HAS FOUR DUI CONVICTIONS, THE FIRST IN 1971, THE SECOND IN 1982, THE THIRD IN 1988, AND THIS CONVICTION IN 1997.

LET ME ASK YOU SOMETHING THAT I DIDN'T FIND A PART OF THIS RECORD BUT MAYBE YOU KNOW. THE THIRD CONVICTION.

YES.

WHAT WAS THE DISPOSITION AND WAS HE REPRESENTED BY COUNSEL?

YES. THE QUESTIONING, I BELIEVE, IS ON PAGE 183 AND 184 OF THE RECORD, SHOWS THAT, AND IT IS, ALSO, IN THE STATE'S BRIEF, THAT IN 1998, HE WAS REPRESENTED BY COUNSEL. AND HE DID RECEIVE JAIL.

AND GOT WHAT?

I AM NOT SURE. JAIL BUT I AM NOT SURE THE EXACT SENTENCE. ALL RIGHT. HE CHALLENGES THE USE OF THE SECOND 1982 CONVICTION --

I GUESS I WANTED TO, ALSO, ASK YOU IF THERE WAS ANY CHALLENGE MADE IN THE THIRD DUI CONCERNING THE SECOND ONE.

NO. THERE WAS NOT. HE IS CURRENTLY CHALLENGING THE USE OF THE UNCOUNSELED 1982 PRIOR CONVICTION TO BE USED AS A PROPER PREDICATE IN ENHANCING THIS FOURTH CONVICTION TO A FELONY. IN DOING SO, HE FILED AN AFFIDAVIT, LAYING OUT THE FOUR FACTORS OF BEECH. HE ADHERED TO THESE FACTORS. HOWEVER, THE STATE SHOWED, AND THE TRIAL COURT FOUND, AS A MATTER OF FACT, THAT HE HAD NOT SHOWN THE BASIC UNDERLYING PREMISE OF KNOWLEDGE, HAD NOT SHOWN THAT HE HAD KNOWLEDGE TO QUOTE THE TRIAL COURT, OF ANYTHING, UNQUOTE, AND THAT INCLUDES WHETHER OR NOT HE MADE A KNOWING AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL. SO NO REASONABLE TRIAL COURT JUDGE COULD HAVE FOUND OTHERWISE. THAT --

WHERE DOES THE BURDEN LIE, UNDER OUR CASE LAW?

UNDER BEECH, THE INITIAL BURDEN LIES ON THE DEFENDANT. AND BEECH LAID OUT FOUR FACTORS THAT COULD BE A VEERED TO, AND THEN ONCE THOSE FACTORS, YOU DO SO, THEN THE BURDEN SHIFTS TO THE STATE. HOWEVER, THE STATE CONTENTS -- CONTENDS THAT, IN THIS CASE, YOU CAN'T JUST -- THE UNDERLYING PREMISE IS THE FACT THAT YOU CAN'T JUST LIST FOUR FACTORS. THEY HAVE TO BE THE TRUTH, AND THE UNDERLYING PREMISE IS THAT IT IS BASED ON THE ELEMENT OF KNOWLEDGE.

BUT ONE OF THE FIRST FACTOR IS TAKEN CARE OF BY THE STATUTE. RIGHT?

CORRECT.

YOU GET MORE THAN SIX MONTHS, AND SO THAT IS TAKEN CARE OF.

CORRECT.

AND SO, THEN, THE OTHER ISSUES AND SO WE HAVE GOT THE SITUATION, HERE, WHERE THIS OCCURRED IN 1982, THE RECORDS ARE DESTROYED, AND THERE IS NO BASIS UPON WHICH TO DETERMINE WHETHER THE TRIAL -- WHETHER HE WAIVED COUNSEL OR DIDN'T. WE KNOW HE WAS ENTITLED TO COUNSEL. UNDER THE STATUTE. RIGHT?

HE IS ENTITLED TO COUNSEL, UNLESS, AND THIS IS WHERE NICHOLS COMES IN. THAT -- AND IT BRINGS US TO THE RELY INTIN -- THE RELIABILITY IN THIS CASE. BASED ON WHAT YOU SAY, THERE ARE NO RECORDS, AND THAT ONE OF THE PUBLIC POLICY REASONS, AND, ALSO, THE TRIAL COURTS HAVE, ALSO, FAVORED RELIABILITY IN THE LAW, UNIFORMITY, AND FINALITY, AND WHERE THE RELIABILITY COMES IN IN THAT, JUST AS IN THIS CASE, YOU MAY NOT HAVE TRIAL RECORDS IN EVERY CASE, AND THE DELVED DEFENDANT MAY NOT BE ABLE TO DO AN AFFIDAVIT, BECAUSE HE MAY NOT HONESTLY REMEMBER WHAT HAPPENED 15 YEARS AGO, 20 YEARS AGO, SO THE RELIABILITY IS THAT A DEFENDANT IS GOING TO KNOW, ONE WAY OR ANOTHER, WHETHER HE HAS BEEN TO JAIL OR NOT, AND SO HE IS GOING TO BE ABLE TO DISPROVE OR THE STATE IS GOING TO BE ABLE TO ALWAYS PROVE WHETHER OR NOT A DEFENDANT WENT TO JAIL.

I THOUGHT THE ARGUMENT, HERE, WAS BECAUSE OF NICHOLS, THAT IT DOESN'T MATTER IF THE CONVICTIONS WERE UNCOUNSELED, THAT THOSE ARE PROPER PREDICATE FELONIES. A THEY ARE PROPER PREDICATE. WHAT WE ARE SAYING, THOUGH, IS THAT, OKAY, DO YOU HAVE THE FOUR FACTORS LAID OUT IN BEACH, BUT WHAT WE ARE, ALSO, SAYING IS THAT NICHOLS HAS COME ALONG TO SAY WHAT IS A VALID CONSTITUTIONAL CONVICTION? AND WE ARE SAYING, AS YOU -- THIS COURT SAID, IN LOTT, IN 1991, NINE YEARS AGO, THAT WHERE YOU HAVE A VALID CONSTITUTIONAL CONVICTION, THE STATE SHOULD BE ABLE TO USE THAT CONSTITUTIONAL AND VALID CONVICTION TO ENHANCE.

SO IF YOU LOOK, IF YOU HAD SAID THAT NICHOLS, IF WE WERE TO FOLLOW NICHOLS.

CORRECT.

THEN WHAT WOULD BE THE RULE THAT WOULD COME OUT OF THIS CASE? WE WOULD HAVE TO RECEDE FROM BEECH, AND WHAT WOULD BE THE RULE? WHAT WOULD BE THE BASIS FOR THE PREDICATE? WHAT COULD THE DEFENDANT DO OR NOT DO, TO NOT HAVE THE -- THAT OLD CONVICTION COUNT AS A PRIOR PREDICATE?

WELL, BASICALLY, IF THERE WAS JAIL TIME IMPOSED, FOR INSTANCE, EVEN IF YOU GET TWO DAYS' JAIL, AND HE DIDN'T HAVE COUNSEL, SO IT IS NOT JUST SIX MONTHS, BUT EVEN IF HE GOT TWO DAYS AND HE DIDN'T RECEIVE COUNSEL, THEN HE COULD CHALLENGE THAT, BUT WHAT WE ARE SEEING IS THAT, AND BASICALLY WHAT BEACH STANDS FOR IS WHO HAS THE BURDEN OF PROOF?

IS THAT WHAT NICHOLS STANDS FOR?

NO. NICHOLS STANDS FOR THAT, IF YOU HAVE A VALID CONSTITUTIONAL CONVICTION, THAT YOU SHOULD BE ABLE TO USE THAT VALID CONSTITUTIONAL CONVICTION FOR ENHANCEMENT PURPOSES.

MY READING OF THOSE CASES IS, AND CORRECT ME WHERE I AM WRONG, IS THAT NICHOLS STEPS BACK FROM BALDAZAR, IN THAT THE ONLY THING THAT NICHOLS SAYS THAT YOU CANNOT USE THE PRIOR MISDEMEANOR CONVICTION, IS IF THERE HAS BEEN ACTUAL JAIL TIME.

CORRECT.

AND BALD A CZAR HAD -- BALDAZAR HAD AT LEAST ONE OF THE PLURALITY OPINION, PART OF THE PLURALITY, SAID THAT IT COULD EITHER BE SIX MONTHS OR THE JAIL TIME. AND THEN THIS COURT, FOLLOWING BALDAZAR, CAME ALONG AND SAID THAT IT COULD EITHER -- THAT THE FIRST LEVEL OF CRITERIA WAS SIX MONTHS OR ACTUAL JAIL TIME.

CORRECT.

CORRECT, AND THEN BEECH, THAT WAS SAID IN HOLLOD, OR WHATEVER THE NAME OF THAT CASE IS.

YES. HOLLOD.

AND THEN AFTER THAT, THE COURT WAS CONCERNED WITH THE ESTABLISHMENT OF THE BURDEN, WHO WAS GOING TO HAVE TO PROVE THIS, AND CAME ALONG AND SET THAT OUT. IS THAT THE PROPER -- AM I CORRECT IN MY UNDERSTANDING OF THOSE?

YES, YOUR HONOR.

OKAY.

ALSO, IN HOLLOD, IT SHOWED, AS WELL AS BEECH, BECAUSE THEY BOTH VERY BRIEFLY POINT TO THE EVOLUTION OF THE CASE LAW, FEDERAL CASE LAW, BY THE UNITED STATES SUPREME COURT, IN THIS NARROW CONTEXT, AND THIS COURT HAS FOLLOWED THE PREACCEPTS OF THE UNITED STATES COURT, IN THE PAST, TRADITIONALLY, TO GET TO THE QUESTION OF WHICH WAS DECIDED IN HOLLOD, WHAT IS A VALID PRIOR PREDICATE? NOW, I WOULD, ALSO, POINT OUT THAT HOLLOD VARIES FROM THE CERTIFIED QUESTION. HERE THE CERTIFIED QUESTION DOESN'T SAY SIX MONTHS. IT SAYS WHETHER OR NOT, IF IT IS UNCOUNSELED, IF IT IS AN UNCOUNSELED PRIOR, WHETHER OR NOT IT RESULTED IN JAIL TIME. THIS QUESTION HAS BEEN ANSWERED BY THIS COURT, GLENN, IN HOLL -- AGAIN, IN HOLLOD, BECAUSE IF YOU LOOK AT JUSTICE COGIN'S DISSENT, JUSTICE COGIN ADVOCATED HAVING A SPRA SEPARATE FLORIDA RIGHT -- A SEPARATE FLORIDA RIGHT TO COUNSEL, AND IT WAS REJECTED OR THIS COURT DECLINED TO ACCEPT JUSTICE COGIN'S POSITION IN THAT CASE, AND THIS COURT EVEN ANALYZED, UNDER A FLORIDA LAW REVIEW ARTICLE, WHAT JUSTICE PLAQUE MONDAY REALLY MEANT, SAYING -- JUSTICE BLACKMON REALLY MEANT, SAYING THAT JUSTICE BLACKMON DIDN'T REALLY DEAL WITH THE ISSUE BEFORE US TODAY AND IN THE HOLLOD CASE, BUT BASED ON THE REASONING AND THE REASONING THAT HE HAD THAT HIS REASONING WOULD IMPLY OR THAT THEY COULD IMPLY FROM HIS REASONING THAT, AGAIN, EVEN UNDER THE DISSENT OF BALDAZAR, THAT IF IT WAS A CONSTITUTIONALLY-VALID CONVICTION, THEN IT WOULD BE VALID TO USE THAT FOR ENHANCEMENT PURPOSES, AND THAT WAS THE BOTTOM LINE THAT, REALLY, THE SAME ISSUE BEFORE THE COURT TODAY, THE SAME ISSUE THAT WAS BEFORE THIS COURT IN HOLLOD.

LET ME MAKE SURE OF SOMETHING. ARE YOU ASKING US TO REMOVE THE, WHAT, UNDER THE FEDERAL CONSTITUTION, APPEARS TO BE AN ARTIFICIAL DISTINCTION ABOUT WHETHER THERE IS SIX MONTHS OR LESS THAN SIX MONTHS, AS LONG AS THERE IS NO ACTUAL JAIL TIME, THAT WE HAVE SET UP WITH HOLLOD AND BEECH, BECAUSE THE FEDERAL UNITED STATES SUPREME COURT DECISION NO LONGER MAKES THAT THE BASIS FOR WHETHER IT IS AN INVALID CONVICTION?

CORRECT.

SO YOU WOULD ASK US TO RECEDE -- YOU WOULD ACTUALLY ASK US TO RECEDE FROM BEECH?

I AM ACTUALLY JUST ASKING TO YOU MODIFY THAT FIRST ELEMENT.

BUT YOU WOULD AGREE, AND I GUESS THIS GOES BACK TO WHAT JUSTICE COGIN AND JUSTICE BARKETT SAID AT THE TIME, IS THAT UNDER FLORIDA LAW, YOU HAVE A RIGHT TO REPRESENTATION, IF YOU FACE JAIL TIME, WHETHER IT IS LESS THAN SIX MONTHS OR MORE THAN SIX MONTHS. CORRECT?

WELL, YOUR HONOR, NOT NECESSARILY. BECAUSE THERE IS A STATEMENT IN THE FLORIDA CONSTITUTION.

YOU HAVE GOT A STATUTORY RIGHT TO COUNSEL.

WELL, ACTUALLY THE STATUTES THAT WE POINTED OUT ARE 27 AND 3.311 IN THE RULES, 3.311 IN THE RULES, IS BASICALLY AN EMPOWERMENT OF THE PUBLIC DEFENDER'S OFFICE. IT IS AN EMPOWERMENT STATUTE, AND THE RULE BASICALLY SAYS WHEN THE PUBLIC DEFENDER'S OFFICE CAN BE AUTHORIZED TO REPRESENT SOMEONE, SO THAT IS NOT ACTUALLY THE RIGHT THAT ATTACHED TO ANY PARTICULAR DEFENDANT AT THE TIME, IF YOU READ THOSE STATUTES, BECAUSE THOSE WOULD CONFLICT, ALREADY, WITH HOLLOD, IF THAT WERE THE CASE. THEY COULDN'T HAVE SAID SIX MONTHS. IT WOULD HAVE CONFLICTED. THEY COULDN'T HAVE ACCEPTED THE CONCURING OPINION IN BALDAZAR, IF THAT WAS THE CASE, IS ON RIGHT NOW, WE KNOW THAT TRADITIONALLY THIS COURT HAS ALWAYS, IN THIS NARROW CONTEXT, ADHERED TO WHAT THE UNITED STATES SUPREME COURT HAS DEEMED IS A VALID CONSTITUTIONAL CONVICTION. I WOULD, ALSO, LIKE TO ADD --

THIS SECOND ONE IS A VALID CONSTITUTIONAL CONVICTION BECAUSE?

YES. BECAUSE HE DID NOT GO TO JAIL. HE HAS -- THAT IS THE ACTUAL VALIDITY OF THIS CONVICTION HAS NEVER BEEN BEFORE THE COURT HERE. IT IS THEIR ONLY -- THEY ARE ONLY CONTESTING ITS USE AS A PRIOR PREDICATE, FOR ENHANCEMENT PURPOSES. NOW, THAT IS WHERE FINALITY COMES IN, AND IT IS A VERY IMPORTANT PUBLIC POLICY, AND IT IS SOMETHING THAT THE COURTS OF FLORIDA HAS ALWAYS FOLLOWED, BECAUSE YOU HAVE TIME LIMITS. EVEN THE HABEAS RULES HAVE BEEN AMENDED, BECAUSE THERE HAS TO BE A CUTOFF PERIOD. YOU HAVE 30 DAYS IN WHICH TO FILE AN APPEAL, BUT IF YOU DO NOT BELIEVE THAT YOUR PLEA WAS VOLUNTARY OR KNOWING, THEN YOU HAVE TWO YEARS TO FILE A 3.850 MOTION IN THE STATE, AND AT SOME POINT YOU CAN'T JUST APPEAL INTO PERPETUITY. THERE HAS TO BE FINALITY.

SO IS THERE ANY ARGUMENT, HERE, THAT, BECAUSE THERE WAS NO CHALLENGE TO THIS CONVICTION, AT THE THIRD CONVICTION, THAT SOMEHOW WE DON'T GET TO IT HERE?

WELL, I DON'T THINK IT WOULD EVEN MATTER AT THE THIRD CONVICTION, BECAUSE THAT WAS 1988, AND IT WAS STILL PAST THE TIME LIMITS OF THE HE HAD TWO YEARS. -- THE TIME LIMITS. HE HAD TWO YEARS IN WHICH TO APPEAL THAT CONVICTION OR TO FILE A 3.850 MOTION, AND, AGAIN, IT CAN'T COME 15 YEARS LATER. YOU CAN'T SAY, WELL, IT IS A VALID CONVICTION, BUT IT IS NOT. IT EITHER IS OR IT ISN'T.

YOU MEAN YOU ARE SAYING THAT, BECAUSE I THOUGHT WE HAVE ALREADY HELD THAT, OR IT HAS BEEN HELD. I DON'T KNOW IF THIS COURT HAS HELD, THAT THE FACT THAT SUBSEQUENTLY THIS HARSHER PENALTY HAS COME INTO EFFECT, RECOGNIZING PREDICATE FELONIES THAT EXISTING -- PREDICATE CRIMES THAT WILL ENHANCE IS NOT A BASIS FOR SETTING ASIDE AN EARLIER CONVICTION. AREN'T THERE CASES SAYING THAT THAT CAN'T BE DONE?

YES. AND ALSO --

NOW WE ARE REALLY LOOKING AT WHAT IS THE POLICY REASONS FOR EITHER HAVE A PRIOR CONVICTION COUNT AS AN ENHANCEMENT OR NOT, AND I THOUGHT, I GUESS, THE LINE THAT WE DREW IN BEECH WAS THAT, IF THEY WERE GOING TO BE FACING MORE THAN SIX MONTHS IN JAIL, IF IT WASN'T COUNSELED, IT WOULD NOT COUNT AS A PREDICATE FELONY, UNLESS THE STATE COULD PROVE IT SHIFTED THE BURDEN.

BUT IF YOU LOOK AT BEECH AND HOLLOD, BASICALLY YOU ARE SAYING THIS COURT FOLLOWS FEDERAL LAW IN THAT REGARD. BALDAZAR HAPPENED TO BE THE FEDERAL LAW, AND THEY JUST STATED THE STATUS OF THE CURRENT FEDERAL LAW AND WHAT IS CONSTITUTIONAL, AND THEN THEY GOT TO THE OTHER BUSINESS, AND THAT IS EXACTLY WHAT WE ARE ASKING YOU TODAY, IS THAT NICHOLS STATES THE CURRENT FEDERAL LAW AS TO WHAT IS A CONSTITUTIONAL CONVICTION, AND WE ARE JUST ASKING YOU TO SAY YES. IF IT IS AN I DON'T KNOW INSTITUTIONALLY -- IF IT IS A CONSTITUTIONALLY VALID CONVICTION, IF THERE IS NOTHING WRONG WITH THAT CONVICTION, AND AS NICHOLS STATED, THIS IS NOT PUNISHMENT FOR THE 1982 COBB VEHICLES. THAT PUN -- CONVICTION. THAT PUNISHMENT HAS ALREADY BEEN HAD. THIS IS PUNISHMENT FOR THE FOURTH DUI CONVICTION, FOR THIS 1997 CONVICTION, AND GERNKS, IN TERMS OF PUBLIC -- AND, AGAIN, IN TERMS OF PUBLIC POLICY THAT, WE DO HAVE REPEAT OFFENDER SANCTIONS, AND IT IS NOT A PUNISHMENT FOR THAT ORIGINAL CONVICTION, AND THEREFORE THAT ORIGINAL CONVICTION SHOULD NOT BE ALLOWED TO BAR PUNISHMENT FOR THE FOURTH DUI. OTHERWISE YOU HAVE TO GET UP TO THE FIFTH AND SIXTH AND, MAYBE, SEVENTH REAL DUI, BEFORE YOU CAN EVER HAVE IT MADE INTO A FELONY.

YOU ARE IN YOUR REBUTTAL. IF YOU WISH TO CONTINUE, YOU MAY, OR IF YOU WISH TO SAVE SOME TIME --

I WOULD LIKE TO SAVE SOME TIME FOR REBUTTAL.

THANK YOU. MS. STOVER.

MAY IT PLEASE THE COURT. I AM KATHLEEN STOVER, AND I AM REPRESENTING THE RESPONDENT PAUL KIRBY. I APOLOGIZE FOR BEING A LITTLE BIT HOARSE. I WANTED TO ADDRESS JUSTICE QUINCE'S CONCERN ABOUT THE FACT THAT MR. KIRBY DID NOT MAKE ANY COMPLAINT ABOUT HIS 1982 CONVICTION, WHEN HE IS CONVICTED IN 1988. AT THAT TIME, DUI'S WERE STILL MISDEMEANORS. I DON'T THINK THERE WAS ANY ENHANCEMENT THAT WOULD HAVE APPLIED TO HIM AT THAT TIME, SO THAT HE WOULDN'T HAVE ANY MOTIVE TO COMPLAIN ABOUT IT AT THAT TIME. FELONY DUI HAS ONLY EXISTED -- I AM SORRY I DIDN'T LOOK IT UP, BUT IT IS OF RECENT VINTAGE, MAYBE THE LAST FIVE YEARS, AND ALL OF HIS PRIORS PREDATE, ARE EARLIER THAN THE LAST FIVE YEARS. SO --

CAN I ASK IS THERE A PROCEDURE, ONCE THAT FELONY DUI LAW WENT INTO EFFECT? WAS THERE ANY CASE LAW THAT SAID THAT A PRIOR CONVICTION COULD BE CHALLENGED, COULD BE, A PLEA AND A PRIOR CONVICTION COULD BE SET ASIDE? I THOUGHT THERE WERE SOME CASES THAT WENT THE OPPOSITE WAY, BUT DO YOU KNOW, ONE WAY OR ANOTHER?

AS TO THE ENHANCEMENT OF A MISDEMEANOR TO A FELONY, NO, I AM NOT FAMILIAR WITH ANY CASES LIKE THAT, AND IN FACT AS THE JUSTICES POINTED OUT, THE COURTS HELD, MANY TIMES, THAT YOU CAN'T REALLY ATTACK A PRIOR FELONY CONVICTION ON THE GROUND THAT, WHEN YOU ENTERED YOUR PLEA, YOU DIDN'T REALIZE IT COULD BE USED TO CREATE A HABITUAL OFFENDER SENTENCE LATER ON.

I AM PUZZLED BY THAT, BECAUSE HOLLOD IS A 1991 DECISION, AND IT IS QUOTING THE 1987 STATUTE.

FOR FELONY DUI? THEN MAYBE I AM MISTAKEN ABOUT THE TIME LIMIT ON THAT.

I CERTAINLY DON'T -- HAVEN'T LOOKED AT THAT.

IT MAY BE THAT I AM THINKING THAT FELONY DRIVING WITH A SUSPENDED LIES SENSE A FAR MORE RECENT CRIME. FELONY DUI MAY HAVE EXISTED.

WHATEVER IT IS, IT IS.

RIGHT. AND IN ANY EVENT, MR. KIRBY WAS NOT CHARGED WITH FELONY DUI IN 1988, SO WHAT WOULD BE HIS MOTIVE IN COMPLAINING ABOUT HIS LAST PRIOR THAT WASN'T COUNSELED.

BUT THE STATUTE, THOUGH, HE MAYBE SHOULD HAVE BEEN CONCERNED ABOUT IT, SINCE THE 1987 STATUTE WOULD HAVE MADE IT A FELONY.

WELL, YOU KNOW, MAYBE THIS IS AS GOOD A TIME AS ANY TO ADDRESS THE FACT THAT PART OF THE -- ONE OF THE ISSUES THAT THE COURT HAS TO ADDRESS IS WHAT IS THE POINT OF THE RIGHT TO COUNSEL? I WOULD SAY THAT THE POINT OF THE RIGHT TO COUNSEL, AND WHEN IT GOES INTO EFFECT, AND BY THE WAY, NICHOLS EXPLICITLY RECOGNIZES THAT STATES CAN CREATE A DIFFERENT POINT AT WHICH THEY WILL DETERMINE THE RIGHT TO COUNSEL, AND NICHOLS, THEY DREW THE LINE, BUT THEY DREW THE LINE AFTER SENTENCE WAS IMPOSED, WHICH WAS A PRETTY BIZARRE PLACE TO DRAW THE LINE IN DETERMINING RIGHT TO COUNSEL. RIGHT FOR COUNSEL MAKES THE MOST SENSE, WHEN YOU ARE LOOKING AT BEING CHARGED BEFORE YOU PLEA, BEFORE YOU GO TO TRIAL, BUT IN FLORIDA, AS YOU CAN SEE FROM MR. KIRBY'S 1988 DUI CONVICTION, THAT THESE WERE MISDEMEANORS. THE SENTENCES WERE OFTEN NOT PARTICULARLY LAMPB -- HARSH, AND WHEN YOU ARE LOOKING AT ONLY PAYING A FINE, WHICH IS WHAT KIRBY WAS -- I MEAN, I DON'T KNOW. THERE IS NO RECORD THAT SAYS WHETHER THE JUDGE TOLD HIM AHEAD OF TIME THAT HE WOULD NOT DO ANY JAIL TIME. BUT KIRBY, I AM GUESSING HE WAS LULLED INTO THINKING THAT THE SENTENCE WOULD NOT BE VERY MUCH. EXCUSE ME. THE '88. RIGHT. SO --

HE HAD A LAWYER AT THAT POINT, SO IT DIDN'T MATTER.

OKAY. I MEAN THE '82. RIGHT. YOU ARE RIGHT. HE HAD COUNSEL IN '88. HE DID NOT HAVE COUNSEL IN '82. IT IS THE '82 CONVICTION.

I THOUGHT THE RECORD DID SHOW THAT, IN '82, HE WAS TOLD THAT HE WOULD NOT FACE JAIL. AM I CORRECT?

NO. THE RECORD ABSOLUTELY DOES NOT SHOW THAT, AND IN FACT THE COURT RECORDS HAVE BEEN DESTROYED. NOBODY CAN PROVE WHAT, BY EXTRINH SICK EVIDENCE, NOBODY CAN PROVE WHAT WAS HE WAS ADVISED OR NOT. HE WAS NOT ADVISED AHEAD OF JAIL. HE WAS NOT ADVISED WHAT THE STATUTE REQUIRES. WHETHER THE JUDGE ENTERED AHEAD OF TIME, THERE IS NO RECORD. HE DOES NOT BEING OFFERED COUNSEL OR WAIVING COUNSEL.

BUT NICHOLS DID SAY, FROM A FEDERAL CONSTITUTIONAL BASIS, THAT UNLESS IS THERE ACTUAL JAIL TIME, THERE IS NO PRIOR UNCOUNSELED CONVICTION IS NOT GOING TO BE INVALID. CORRECT?

THAT'S CORRECT.

AND THEN IT RECOGNIZES THE STATES COULD DO SOMETHING DIFFERENT, BUT HOW DO YOU GET AROUND THE FACT THAT IN HOLLOD, AND, AGAIN, ALL YOU HAVE GOT TO DO IS LOOK AT JUSTICE COGIN AND JUSTICE BARKETT'S DISSENT TO SEE WHAT WAS DONE IN HOLLOD, WAS THAT WE WERE FOLLOWING THE FEDERAL GUIDELINE AND THE FEDERAL CONSTITUTION AND WHAT WE UNDERSTOOD THE FEDERAL CASE LAW TO BE. OTHERWISE WE WOULDN'T HAVE CREATED THE SIX-MONTH DISTINCTION, BECAUSE IN FLORIDA THE SAME STATUTE THAT YOU RAISE NOW HAS, ALWAYS, SAID THAT, IF SOMEONE FACES ACTUAL JAIL TIME, THAT THERE IS AT LEAST AT STATUTE, AT LEAST THE WAY I READ THAT STATUTE, THAT THEY CAN GET PUBLIC DEFENDER OR COUNSEL APPOINTED. SO DON'T WE HAVE TO -- UNLESS WE ARE GOING TO -- DON'T WE HAVE TO RECEIVE, FROM HOLLOD, TO -- TO RECEDE FROM HOLLOD, TO TAKE THE VIEW THAT NICHOLS SAYS, WHICH IS THAT STATES CAN DO SOMETHING DIFFERENT, BECAUSE HOW, OTHERWISE, DO YOU GET PAST THE FACT THAT WE HAVE A SIX-MONTH DISTINCTION THAT ISN'T SET FORTH IN FEDERAL CASE LAW?

THAT DOES COME FROM FEDERAL CASE LAW. AND NOT FROM STATE CASE LAW. I CONFESS THAT I HAVEN'T REREAD THE DISSENT IN HOLLOD RECENTLY, SO I AM THOUGHT SURE OF WHAT -- SO I AM NOT SURE OF WHAT THE DETAILS ARE, BUT I CAN TELL YOU THAT AT THE TIME THE COURT WAS SATISFIED. THERE WAS NO MUCH FLORIDA CASE LAW ON RIGHT TO COUNSEL AND WHAT IT WOULD MEAN IN THIS CONTEXT. THERE WAS FEDERAL CASE LAW, AND THE COURT WAS CONTENT TO GO WITH THE FEDERAL CASE LAW, BECAUSE THERE WAS NO DIVERGENCE, BUT ONCE -- BEECH RELYIES ON BALDAZA R&B ALDAZAR WAS OVERRIDDEN BY NICHOLS, AND ONCE YOU DETERMINE THAT THERE IS A FLORIDA CONSTITUTIONAL RIGHT TO COUNSEL --

BUT THE LAW, WE HAVE IGNORED THAT.

YOU DIDN'T HAVE TO REACH IT, IN HOLLOD.

WELL, DO WE HAVE TO REACH IT HERE?

YES, YOU WOULD HAVE TO REACH IT HERE.

WELL, BUT --

WELL --

IT SEEMS TO ME THAT --.

THERE ARE DIFFERENT ELEMENTS.

FROM YOUR STANDPOINT OR FROM YOUR CLIENT'S STANDPOINT, THAT IF WE FOLLOW BEECH AS TO THE BURDEN, THAT THERE IS, SINCE THERE IS NO RECORDS, THAT YOUR CLIENT WOULD BE SATISFIED TO FOLLOW BEECH.

YES.

AND NOT DISTURB THE LAW.

THE THING THAT IS SORT OF WEIRD ABOUT HOLLOD AND BEACH, PARTICULARLY IN -- AND BEECH, PARTICULARLY IN LIGHT OF NICHOLS, IS THAT THEY DO SET THE SIX-MONTH STANDARD, BUT UNDER FLORIDA LAW IT DOESN'T MATTER WHETHER ANY TERM OF IMPRISONMENT IS ACTUALLY IMPOSED, AND THAT IS THE DISTINCTION THAT NICHOLS MAKES, BUT IN FLORIDA YOU HAVE THE RIGHT TO COUNSEL, IF ANY IMPRISONMENT IS IMPOSED.

HOW DOES HOLLOD, I GUESS I AM GOING BACK AND LOOKING AT THE CERTIFIED QUESTION, WHICH, AGAIN, DOESN'T TALK ABOUT SIX MONTHS, AND WHETHER, IF IT IS UNCOUNSELED, WHETHER THAT CAN BE A PREDICATE FELONY, HOW DO WE CONTINUE, IN GOOD FAITH, IT TO MAKE A DISTINCTION OF SIX MONTHS THAT ISN'T ACKNOWLEDGED IN FEDERAL LAW, UNLESS WE CREATED OUT-OF-STATE LAW.

I THINK YOU HAVE TO CREATE IT OUT-OF-STATE LAW.

THEN YOU WOULD SAY THERE IS NO BASIS FOR THE SIX-MONTH CUTOFF.

THAT IS TRUE. THAT IS WHAT THE STATUTE SAYS.

THAT WOULD MEAN WE WOULD HAVE TO RECEDE FROM HOLLOD.

YOU DON'T HAVE TO RECEDE FROM HOLLOD SO MUCH AS TO -- I DON'T RECALL THAT HOLLOD SPECIFICALLY REJECTED A STATE CONSTITUTIONAL RIGHT TO COUNSEL. IT JUST DECIDED, BASED ON THE FEDERAL CONSTITUTIONAL RIGHT TO COUNSEL. AT THE TIME --

NO LONGER UNDER THE CIRCUMSTANCES OF HOLLOD.

BUT AT THE TIME THAT HOLLOD WAS DECIDED, THERE WAS NO NEED TO MAKE A DISTINCTION, BECAUSE THERE WASN'T ANY DIVERGENCE OF OPINION BETWEEN THE STATE RIGHT AND THE FEDERAL RIGHT, BUT NICHOLS DID CREATE A DYE VERGEENS BETWEEN THE STATE RIGHT AND THE FEDERAL RIGHT. NICHOLS EXPRESSLY ACKNOWLEDGES THAT STATES CAN DO SOMETHING DIFFERENT, AND IN FACT FLORIDA HAS, SINCE 1980, WHICH, AS I POINTED OUT IN MY BRIEF, WAS THE FIRST LEGISLATIVE SESSION AFTER SCOTT V ILLINOIS WAS DECIDED, AND WHILE THE STAFF ANALYSIS DOES NOT SPECIFICALLY SAY ANYTHING ABOUT SCOTT V ILLINOIS, I THINK IT IS A REASONABLE DEDUCTION THAT THE LEGISLATURE HAD THAT DECISION IN MIND, WHEN THEY BROADENED THE RIGHT OF INDIGENTS TO REPRESENTATION IN MISDEMEANOR CASES.

LET ME JUST GET BACK TO SOMETHING IN THIS CASE. WE ARE TALKING ABOUT PREDICATE MISDEMEANORS FOR DUI FELONY. DOES IT MATTER, FOR THE PURPOSE OF THE PREDICATE, WHETHER THE PRIOR CONVICTION WAS -- WHETHER THE PERSON FACED JAIL TIME OF MORE THAN SIX MONTHS OR LESS THAN SIX MONTHS?

NOT UNDER FLORIDA LAW.

FOR THE PREDICATE --

FOR THE PREDICATE.

SO THE PERSON THAT IS UNCOUNSELED IN 1982, WHETHER THEY WERE FACING MORE THAN SIX MONTHS OR LESS THAN SIX MONTHS, IS IN THE SAME BOAT.

THAT'S CORRECT.

SO IT REALLY IS AN ARTIFICIAL DISTINCTION FOR THE POLICIES THAT WE ARE TALKING ABOUT HERE.

ONE WAY OF LOOKING AT THIS IS THAT POSSIBLY THAT BEACH DIDN'T GO FAR ENOUGH, BECAUSE THEY DID DRAW THE SIX-MONTH DISTINCTION, WHICH IS BASED ON FEDERAL LAW, WHILE FLORIDA LAW GIVES A RIGHT TO COUNSEL, WHEN ANY JAIL TIME IS RISKED, UNLESS THE JUDGE ENTERS AN ORDER OF NO IMPRISONMENT, AND, OF COURSE, THE WEIRD WAY THAT THIS WORKS THE ORDER OF NO IMPRISONMENT WOULD BE, LIKE, AN AFFIRMATIVE BURDEN ON THE STATE TO PRODUCE THAT, WHICH THEY CAN'T IN THIS CASE. BEFORE I RUN OUT OF TIME, I WANT TO MENTION A FEWOLY IS -- A FEW POLICY MATTERS. THERE IS NO PERIOD OF TIME WHEN YOU CAN HAVE A FELONY DUI, AND I WANT TO MENTION THAT KIRBY'S FELONY PRIORS ARE 1981, '87 AND '88. THAT MEANS PRIOR TO THIS WAS ABOUT NINE YEARS, BECAUSE I BELIEVE HE WAS ARRESTED IN 1987 ON ONE. THAT MEANS IT IS MORE ONEROUS THAN A HABITUAL PRISON RELEASEE OFFENDER, WHICH WOULD REQUIRE A PRIOR WITHIN FIVE YEARS OR THREE YEARS FOR THOSE CRIMES, AND THE OTHER THING IS I QUOTED, AS PART OF JUSTICE SUTER'S CONCURING OPINION, IN NICHOLS, I GUESS, WHERE HE MADE A DISTINCTION, BUT IT DOESN'T LOOK LIKE THIS WAS PERSUADED A MAJORITY OF THAT COURT, HE MADE A DISTINCTION BETWEEN SCORING SOMETHING ON A SCORE SHEET, WHICH IS WHAT THE ACTUAL ISSUE WAS THERE, AND ENHANCING, AS IN A MISDEMEANOR TO A FELONY. HE WAS VERY CONCERNED ABOUT THE FACT THAT MISDEMEANORS ARE TREATED SORT OF FRIVOLOUSLY, AND EVEN THE COURTS, WITHOUT MUCH CONCERN, AND CERTAINLY WITH NO WARNING TO THE DEFENDANT ABOUT WHAT MIGHT HAPPEN THE NEXT TIME THAT HE OR SHE IS IN COURT, AND THIS CHANGES THE CRIME FROM A MISDEMEANOR, WITH A MAXIMUM ONE-YEAR SENTENCE, TO A THIRD-DEGREE FELONY, IN WHICH THE STATUTORY MAXIMUM OF FIVE YEARS MAY NOT EVEN BE THE SENTENCE AS IMPOSED, BECAUSE UNDER THE CRIMINAL PUNISHMENT CODE, IF THE GUIDELINES ARE HIGHER THAN THE STATUTORY MAXIMUM, THEY COULD GET SENTENCED HIGHER THAN FIVE YEARS, SO I THINK THAT APPLYING THE FLORIDA RIGHT TO COUNSEL IS A WAY OF COUNTERING -- FIRST OF ALL, IT STANDS UP FOR THE RIGHT TO COUNSEL, AND THE OTHER THING IS NICHOLS IS PREMISED ON THE FACT THAT THAT PRIOR IS VALID, UNDER SCOTT. BUT I CONTEND TO YOU THAT HIS '822 PRIOR IS NOT VALID, UNDER -- HIS '82 PRIOR IS NOT VALID, UNDER FLORIDA LAW, UNLESS THE STATE CAN SHOW THAT HE WAIVED COUNSEL, AND NICHOLS SAYS IF IT IS VALID UNDER THIS PRIOR LAW, YOU CAN USE IT TO ENHANCE, BUT I AM TELLING YOU THAT HIS CONVICTION IS NOT VALID, UNDER FLORIDA LAW. THEREFORE IT SHOULD NOT BE USED TO ENHANCE. AND IN FACT, THE STATE SORT OF WANTS TO HAVE IT BOTH WAYS, ALTHOUGH THE STATE DOESN'T REALLY ACKNOWLEDGE HIS RIGHT TO COUNSEL, UNDER FLORIDA, BUT HE HAD A RIGHT TO COUNSEL ON THAT '82 CONVICTION.

BUT THAT -- THE SAME WAS TRUE IN HOLLOD, AT THE TIME HOLLOD WAS DECIDED. THE SAME WAS TRUE AT THE TIME BEECH WAS DECIDED. CORRECT?

AND YOU STILL DREW THE SIX-MONTH LINE.

CORRECT.

BECAUSE YOU WERE APPLYING FLORIDA LAW, FEDERAL LAW, WHEN THERE WAS REALLY NO DIVERGENCE. I CAN'T REALLY EXPLAIN IT.

BUT THE SAME ARGUMENT WOULD HAVE APPLIED THEN, WOULD IT NOT? YOU THINK JUST MISSED IT?

THERE IS NO INDICATION THAT ANYBODY MADE THESE ARGUMENTS, IN EITHER HOLLOD OR BEECH. I DON'T KNOW WHY NOT. IN FACT, JUST BEFORE THE ARGUMENT I WENT IN AND LOOKED AT THE LOWER COURT OPINION IN BEECH, AND IT DOESN'T SAY WHAT THE BASIS OF THE OPINION IS. IT ONLY CITES TROLER, WHICH MAY BE FEDERAL LAW. IT WAS THERE, AND I WOULDN'T SAY IT JUST EMPOWERS THE PUBLIC DEFENDER BUT IT, ACTUALLY, CODIFIES THE CONSTITUTIONAL RIGHT TO COUNSEL. THANK YOU.

THANK YOU. REBUTTAL?

I HAVE NOTHING TO ADD.

THANK YOU VERY MUCH. APPRECIATE YOUR ASSISTANCE. WE WILL BE IN RECESS. THE MARSHAL: PLEASE RISE.