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Text of the opinion, including the dissent:

Supreme Court of Florida
____________

No. SC07-95
____________

STATE OF FLORIDA,
Petitioner,

vs.

GLENN KELLY,
Respondent.

[December 30, 3008]

LEWIS, J.
In this case, we review the decision of the Fourth District Court of Appeal in
State v. Kelly, 946 So. 2d 1152 (Fla. 4th DCA 2006), in which the Fourth District
certified the following question to be one of great public importance:
CAN AN UNCOUNSELED PRIOR MISDEMEANOR
CONVICTION, IN WHICH THE DEFENDANT COULD HAVE
BEEN INCARCERATED FOR MORE THAN SIX MONTHS, BUT
WAS NOT INCARCERATED FOR ANY PERIOD, BE USED TO
ENHANCE A CURRENT CHARGE FROM A MISDEMEANOR
TO A FELONY?

Id. at 1154. We have jurisdiction pursuant to article V, section 3(b)(4) of the
Florida Constitution, and for the reasons explained below, we rephrase the certified
question as follows:
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WHAT IS THE SCOPE OF A CRIMINAL DEFENDANT’S RIGHT 
TO COUNSEL UNDER ARTICLE I, SECTION 161 OF THE
FLORIDA CONSTITUTION CONCERNING THE STATE’S USE 
OF PRIOR UNCOUNSELED MISDEMEANOR CONVICTIONS
TO ENHANCE A LATER CHARGE FROM A MISDEMEANOR
TO A FELONY?

This case results from the State’s request that we recede from Hlad v. State,
585 So. 2d 928 (Fla. 1991), and State v. Beach, 592 So. 2d 237 (Fla. 1992). Hlad
held that the State may not use a criminal defendant’s prior uncounseled2
misdemeanor driving-under-the-influence (“DUI”) convictions to increase a 
subsequent DUI charge from a misdemeanor to a felony, where the prior
uncounseled misdemeanors led to actual imprisonment or were punishable by more
than six months’ imprisonment.  See 585 So. 2d at 928-30. Beach, in turn,
clarified the elements that a defendant must assert through an affidavit to preserve
an alleged instance of Hlad error. See 592 So. 2d at 239.
The State premises its request entirely upon Nichols v. United States, 511
U.S. 738 (1994), a United States Supreme Court decision holding that the
prosecution may use an uncounseled misdemeanor conviction––which is invalid

1. Based on article I, sections 2 and 16 of the Florida Constitution, this
Court has already held that indigent defendants possess an independent state-law
constitutional right to appointed counsel during criminal prosecutions. See Traylor
v. State, 596 So. 2d 957, 969-70 (Fla. 1992).
2.  When “uncounseled” is used in this context, the term “refers to an 
indigent defendant who was not provided a lawyer.”  Hlad, 585 So. 2d at 929 n.1.

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for purposes of imposing imprisonment in a direct proceeding––to impose
enhanced imprisonment in a collateral proceeding. See 511 U.S. at 749. The State
correctly notes that Nichols overruled some of the federal precedent upon which
this Court relied when deciding both Hlad and Beach. See Nichols, 511 U.S. at
748-49, overruling Baldasar v. Illinois, 446 U.S. 222 (1980). The instant case, as
with its predecessor Hlad, involves consideration of the State’s use of prior 
uncounseled misdemeanor DUI convictions to enhance a defendant’s subsequent 
DUI offense from a misdemeanor to a felony.
I. BACKGROUND
The events leading to Glenn E. Kelly’s felony DUI charge occurred on 
January 18, 2003, at approximately 10:45 p.m., when deputies with the Broward
County Sheriff’s Office arrested Mr. Kelly for his fourth DUI offense.  Kelly 
consented to a breathalyzer test, which produced results of .092% and .090%
breath-alcohol content; these results are consistent with legal intoxication in
Florida. See § 316.193(1)(c), Fla. Stat. (2003).  The Sheriff’s Office also 
conducted an inventory search of Kelly’s vehicle, during which deputies found an 
open bottle of whiskey in the vehicle’s center console.
The State filed an information based on these events in Broward County
Court on February 14, 2003, charging Mr. Kelly with misdemeanor DUI. The
State, however, was not prepared for trial and eventually nolle prosequied the
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charge. The State later refiled the case on April 26, 2004, in circuit court as a
felony DUI charge based on Kelly’s three prior misdemeanor DUI convictions.  
See § 316.193(2)(b)(3), Fla. Stat. (2003) (“Any person who is convicted of a fourth 
or subsequent violation of this section, regardless of when any prior conviction for
a violation of this section occurred, commits a felony of the third degree . . . .”).  
Two of Kelly’s prior misdemeanor DUI convictions––those from March 2, 1995,
and September 18, 1997, respectively––were each punishable by more than six
months’ imprisonment, and were the result of uncounseled no-contest pleas.3
However, Kelly did not file a motion to dismiss or a Beach affidavit until October
21, 2005, due to a substitution of counsel.
In the motion to dismiss, Kelly’s counsel explained that based on Hlad and
Beach, the circuit court lacked jurisdiction because there was no valid felony
charge to prosecute at the circuit level. Counsel also informed the circuit court that
Kelly’s attached affidavit satisfied each of the four Beach elements required to
preserve a Hlad objection to the State’s use of prior misdemeanors as enhancers 
(i.e., Mr. Kelly asserted under oath that: (1) the offenses involved were punishable
by more than six months’ imprisonment; (2) he was indigent and, thus, entitled to 

3.  Kelly’s October 27, 1987, misdemeanor DUI no-contest plea was also
uncounseled, but was not punishable by more than six months’ imprisonment.  
Kelly served probation, completed community service hours, and paid fines as a
result of this 1987 conviction.

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court-appointed counsel; (3) counsel was not appointed; and (4) he did not validly
waive his right to counsel). See Beach, 592 So. 2d at 239.
In response, the State contended that the United States Supreme Court––in a
decision focused on federal Sixth Amendment doctrine (i.e., Nichols)––overruled
this Court’s decisions in Hlad and Beach. The circuit court rejected this argument.
Additionally, the circuit court, apparently sub silentio,4 rejected the State’s 
argument that Mr. Kelly had validly waived his right to counsel when he pled no
contest to his 1995 and 1997 misdemeanor DUI charges. The evidentiary-hearing
transcript reveals the following relevant facts:  (1) Kelly’s counsel contended that 
the plea forms Kelly signed in 1995 and 1997 misrepresented a Florida criminal
defendant’s right to counsel (they stated that the defendant only had a right to
court-appointed counsel if (a) he could not afford counsel, and (b) the judge was

4.  The Fourth District analyzed the situation as follows:  “This issue was 
contested at the evidentiary hearing on the motion to dismiss, at which Kelly
testified, and the court, although not expressly saying so, obviously resolved the
waiver issue against the state.”  State v. Kelly, 946 So. 2d 1152, 1154 n.1 (Fla. 4th
DCA 2006) (emphasis supplied). The dissent overlooks both this explanation from
the Fourth District and the fact that the State presented a waiver argument in the
circuit court. As part of this process, the circuit court had the opportunity to
directly judge the credibility of Mr. Kelly. In response, the circuit court granted
Kelly’s motion to dismiss based upon Hlad and Beach. Both lower courts thus
heard and, without further exposition, rejected the State’s waiver argument.  Cf.
Black’s Law Dictionary 1469 (8th ed. 2004) (“sub silentio.  Under silence; without 
notice being taken; without being expressly mentioned.” (emphasis supplied)).

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currently considering5 jail time as a punishment); (2) the records that the State
produced regarding Kelly’s 1995 and 1997 misdemeanor DUI pleas failed to 
demonstrate that the judges engaged in proper colloquies with Kelly concerning his
right to counsel; (3) Kelly recalled advising the sentencing judges that he could not
afford an attorney, but did not recall whether the judges asked him if he wanted an
attorney appointed; (4) Kelly pled no contest because he “thought the [no contest] 
plea was the . . . . easiest financial situation for [him]”; and (5) when asked 
whether he understood he had a right to an attorney, Kelly responded that “[he] 
understood . . . [he] couldn’t afford an attorney.”6

5.  “Considering” is a present participle, which is generally defined as
“taking into account.”  Merriam Webster’s Collegiate Dictionary 246 (10th ed.
1996). As we further explain below, whether a trial judge is currently
“considering” jail time is not the legal standard in Florida with regard to
determining whether a criminal defendant charged with a misdemeanor is entitled
to the representation of appointed counsel. Rather, in such contexts, to obviate the
need for appointing counsel to represent an indigent defendant, trial judges have
the affirmative duty to provide the defendant a written, pretrial certification that the
defendant will not be imprisoned for the charged offense. See Fla. R. Crim. P.
3.111(b)(1); Case v. State, 865 So. 2d 557, 558 (Fla. 1st DCA 2003).
6.  The dissent contends that “[t]he record simply does not support [our] 
summary of the relevant facts.”  Dissenting op. at 55.  However, the extended 
evidentiary-hearing quotations presented by our colleague in dissent merely
reaffirm that, in response to the State’s leading questions, Mr. Kelly explained that 
he understood he could not afford to retain a private attorney to represent him, and
that he viewed appointed representation as a mere possibility, rather than an
affirmative constitutional right because, as he stated, he was “no attorney.”  
Further, the record reveals the telling absence of any documents demonstrating that
Kelly received proper plea colloquies. These are some of the very defects that the
presence of appointed counsel would have remedied. In this context, we are
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Following the evidentiary hearing, the circuit court entered an order
dismissing the State’s felony DUI information for lack of jurisdiction.  The State 
appealed to the Fourth District Court of Appeal. In the district court, the State
asserted that the circuit court had abused its discretion by following the decisions
of this Court in Hlad and Beach instead of the decision of the United States
Supreme Court in Nichols. In response, Mr. Kelly contended that Hlad and Beach
remain controlling authority in Florida’s criminal courts unless and until this Court 
decides to alter its precedent. The Fourth District affirmed the order of the circuit
court, but certified the above-stated question as one of great public importance due
to the confusion surrounding whether Hlad and Beach remain binding precedent
post-Nichols.
II. ANALYSIS
This case presents the following issues: (1) whether Mr. Kelly carried his
burden of production under Beach; and if so, (2) whether this Court will continue
to follow Hlad and Beach or will, alternatively, adopt the United States Supreme
Court’s Nichols decision as part of Florida’s right-to-counsel jurisprudence. In
deciding these issues, we must first address the effect of Mr. Kelly’s deficient plea 
forms. Next we need to clarify, under Beach, the significance of a record that is

dealing with often uneducated, indigent lay persons who frequently do not
understand if, or when, they are entitled to appointed representation. All told, the
dissent and the State offer the same faulty conclusions in this regard, which we
definitively reject in our analysis below.
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silent as to whether the defendant’s prior convictions were supported by proper 
plea colloquies. We also consider any differences or distinguishing factors
between Florida’s misdemeanor right-to-counsel standard and that presented as the
federal standard. Finally, we must analyze whether Nichols should be positioned
as persuasive precedent and as a guidepost when interpreting article I, section 16 of
the Florida Constitution. We conclude that we should reaffirm a modified version
of our Hlad/Beach framework, which is explicitly premised upon independent
state-law grounds.
A. The Effect of the Deficient Plea Forms
Mr. Kelly contends that his 1995 and 1997 plea forms did not accurately
reflect a criminal defendant’s right to counsel in Florida.  We agree with this 
assessment as applied to the facts of this case. The versions of Florida Rule of
Criminal Procedure 3.111(b)(1) that applied to each of Kelly’s no-contest pleas are
identical. In relevant part, these provisions indicate that Florida is a “prospective 
imprisonment” jurisdiction that provides indigent criminal defendants a right to 
counsel in all criminal prosecutions “punishable by imprisonment,” except in 
misdemeanor or ordinance-violation cases where the trial judge affirmatively
certifies in writing––before trial––that the defendant will not face a term of
imprisonment for the charged offense. See Fla. R. Crim. P. 3.111(b)(1) (1992). In
other words, in Florida, indigent defendants have a right to counsel in all criminal
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prosecutions punishable by imprisonment––even misdemeanor prosecutions––
unless the trial judge “opts out” by providing the defendant a written, pretrial 
certification that the defendant will not be imprisoned for the charged offense. See
id.; see also Fla. R. Crim. P. 3.160 (advising indigents of the right to appointed
counsel); § 27.51, Fla. Stat. (2003) (mandating that the public defender represent
indigents charged with violations of chapter 316, Florida Statutes; DUI is a chapter
316 offense punishable by imprisonment).
This is not the legal landscape Mr. Kelly’s State-prepared plea forms
described. Rather, they provided the misleading impression that an indigent
criminal defendant lacks a right to counsel so long as the trial judge is not currently
considering jail time as an appropriate sentence. This mischaracterization relieved
the trial judges of their duty to make the affirmative, written, pretrial certification
that the rule then required, and still requires today in a slightly modified form. See
Fla. R. Crim. P. 3.111(b)(1) (“In the discretion of the court, counsel does not have 
to be provided to an indigent person in a prosecution for a misdemeanor or
violation of a municipal ordinance if the judge, at least 15 days prior to trial, files
in the cause a written order of no incarceration certifying that the defendant will
not be incarcerated . . . .” (emphasis supplied) (the current version of this rule 
permits the defendant or defense counsel to waive the fifteen-day requirement)).
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Consequently, even if Mr. Kelly read and understood these plea forms, he would
not have been properly informed of his right to counsel.
Nevertheless, if the misdemeanor trial judges had properly executed on-the-
record plea colloquies, which indicated that Mr. Kelly had a right to counsel but
chose to waive that right, these hypothetical colloquies could have cured this error.
Cf., e.g., Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999) (“[A] state trial 
court’s proper colloquy can be said to have cured any misunderstanding [the
defendant] may have had about the consequences of his plea.”).  The record in this 
case, however, is silent as to whether there were proper colloquies with Mr. Kelly
before he pled no contest to his prior misdemeanor DUI charges.
B. The Significance of a Silent Record Under Beach
It is undisputed that:  (1) Mr. Kelly’s 1995 and 1997 misdemeanor DUI 
offenses were each punishable by more than six months’ imprisonment; (2) Kelly 
was indigent and, thus, entitled to court-appointed counsel; and (3) counsel was not
appointed to represent Kelly. However, the State and Kelly dispute the
significance of the absence of an on-the-record plea colloquy, which could have
confirmed Kelly’s alleged waiver of counsel.  Kelly relies upon Boykin v.
Alabama, 395 U.S. 238 (1969), for the proposition that courts may not presume a
waiver of constitutional rights from a silent record. It is well-established that the
State cannot do so in direct proceedings; however, the same cannot be said
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concerning collateral proceedings. Compare Boykin v. Alabama, 395 U.S. 238,
242 (1969) (“Presuming waiver from a silent record is impermissible. . . .  
Anything less is not waiver.” (citations and quotations omitted)), with Parke v.
Raley, 506 U.S. 20, 29 (1992) (“To import Boykin’s presumption of invalidity 
[regarding direct review of a conviction based upon an uninformed guilty plea]
into th[e] very different context [of collateral review of a prior conviction’s 
validity] would, in our view, improperly ignore another presumption deeply rooted
in our jurisprudence:  the ‘presumption of regularity’ that attaches to final 
judgments, even when the question is waiver of constitutional rights.”).  
The United States Supreme Court has thus modified Boykin’s broad rule that
a waiver of constitutional rights cannot be implied from a silent record by
restricting that rule to direct proceedings. The Court stated in Parke:
On collateral review, we think it defies logic to presume from the
mere unavailability of a transcript (assuming no allegation that the
unavailability is due to governmental misconduct) that the defendant
was not advised of his rights. In this situation, Boykin does not
prohibit a state court from presuming, at least initially, that a final
judgment of conviction offered for purposes of sentence enhancement
was validly obtained.
506 U.S. at 30 (emphasis supplied). As the Parke Court recognized, the states
remain free to adopt different approaches, which afford greater protection for
defendants’ constitutional rights. See Parke, 506 U.S. at 34 (“[W]e hold that the 
Due Process Clause permits a State to impose a burden of production on a
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recidivism defendant who challenges the validity of a prior conviction under
Boykin.” (emphasis supplied)).
This Court appears to have resolved this issue––at least as far as felony DUI
is concerned––in State v. Beach, 592 So. 2d 237 (Fla. 1992), which was decided
just over one month after the decision of the United States Supreme Court in Parke.
In Beach, we clarified the procedural framework required to assert an action based
on Hlad error (i.e., a claim that the State may not use prior uncounseled
misdemeanors to enhance a later offense from a misdemeanor to a felony). We
placed “the initial burden of showing entitlement to counsel” on the defendant 
because Hlad error does not exist if the defendant did not possess a right to counsel
in the prior proceedings. Beach, 592 So. 2d at 239. The initial burden, however,
appears minimalistic, and is––as explained below––properly viewed as a burden of
production. See Black’s Law Dictionary 209 (8th ed. 2004) (“[B]urden of 
production.  A party’s duty to introduce enough evidence on an issue to have the 
issue decided by the fact-finder, rather than decided against the party in a
peremptory ruling . . . .”).  
The defendant need only
assert under oath: (1) that the offense involved was punishable by
more than six months of imprisonment or that the defendant was
actually subjected to a term of imprisonment; (2) that the defendant
was indigent and, thus, entitled to court-appointed counsel; (3) [that]
counsel was not appointed; and (4) [that] the right to counsel was not
waived.
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Beach, 592 So. 2d at 239 (emphasis supplied).  “If the defendant sets forth these 
[minimal] facts under oath, then the burden shifts to the state to show [1] either
that counsel was provided or [2] that the right to counsel was validly waived.”  Id.
(emphasis supplied). Hence, if the defendant adequately presents each of the four
Beach elements––thereby saddling the State with a burden of persuasion––the
State cannot then point to a silent record to claim that a purely hypothetical plea
colloquy cured any error surrounding the waiver issue. See Black’s Law 
Dictionary 209 (8th ed. 2004) (“[B]urden of persuasion.  A party’s duty to
convince the fact-finder to view the facts in a way that favors that party.” 
(emphasis supplied)).
Several factors support our interpretation of the Beach framework as placing
a burden of production upon the defendant, which, if satisfied, shifts a burden of
persuasion to the State to prove either that the trial court appointed counsel or that
the defendant waived that right. First, this Court has held on several occasions that
when the State prosecutes a defendant for felony DUI, the State has the additional
burden of proving “the existence of three or more prior misdemeanor DUI 
convictions.”  State v. Harbaugh, 754 So. 2d 691, 694 (Fla. 2000).  Hence, “the 
requirement of three prior misdemeanor DUI[s] . . . is considered an element of
felony DUI.”  State v. Finelli, 780 So. 2d 31, 33 (Fla. 2001) (emphasis supplied);
see also State v. Woodruff, 676 So. 2d 975, 977 (Fla. 1996) (same). As a result,
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the State has the burden of proving three valid prior misdemeanor convictions
beyond a reasonable doubt, while the defendant shares no comparable burden. See
In re Winship, 397 U.S. 358, 361-65 (1970) (holding that it is the prosecution’s 
constitutional burden to prove each element of a criminal offense beyond a
reasonable doubt); Burgett v. Texas, 389 U.S. 109, 114-15 (1967) (holding that
convictions obtained in violation of a defendant’s right to counsel are void).7
Second, the United States Supreme Court has characterized the initial burden
placed upon a recidivist defendant challenging the validity of prior convictions as
“a burden of production.”  Parke, 506 U.S. at 34 (emphasis supplied). Third,
where the written plea agreement is deficient on its face––as it appears to be in this

7. In light of the dissent, it is important to thoroughly explain that a DUI
defendant’s prior misdemeanors are elements of the current, enhanced felony
offense, which the State must PROVE beyond a reasonable doubt. This
indisputable legal proposition supplies the rationale that explains and justifies why
instances of Hlad error are not addressed through postconviction motions and are,
instead, subject to our Beach framework. As in any criminal case, the defendant
possesses the right and ability to contest elements of the charged offense. Further,
uncounseled misdemeanors—for which no imprisonment is, or was, imposed—are
VALID convictions; however, they remain INVALID for purposes of depriving
the defendant of his or her liberty. Therefore, when the State files an information
charging felony DUI (which is inherently based on a defendant’s prior 
misdemeanor convictions), and the defendant knows that he or she did not validly
waive the right to counsel in those prior cases, the defendant may then directly
contest that element of the current felony offense in the instant felony prosecution.
By force of logic, we decline to adopt the perspective of the dissent, which
would ignore the basic fact that prior misdemeanor convictions constitute elements
of a later felony DUI offense. It is also important to highlight for our colleague
that Nichols did not involve or address this type of recidivism statute.

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case––the State should bear the risk of loss if it cannot produce a record of the plea
colloquy, as “[t]he language of [Florida Rule of Criminal Procedure] 3.172(c) is 
mandatory. The rule does not permit a written plea agreement to substitute for an
on-the-record plea colloquy,” and “the plea colloquy must reflect that the
defendant has personally been addressed pursuant to the requirements of Rule
3.172(c) and has expressed an understanding of the rights guaranteed therein.”  
Perry v. State, 900 So. 2d 755, 757 (Fla. 4th DCA 2005) (quoting Perriello v. State,
684 So. 2d 258, 260 (Fla. 4th DCA 1996)); see also Fla. R. Crim. P. 3.111(d)(2)
(1992) (“A defendant shall not be deemed to have waived the assistance of counsel 
until the entire process of offering counsel has been completed and a thorough
inquiry has been made into both the accused’s comprehension of that offer and the 
accused’s capacity to make an intelligent and understanding waiver.”).  Fourth and 
finally, this Court held in Beach––post-Parke––that “[a]bsent such evidence in the 
record of the trial court’s prior proceedings, waiver cannot be presumed.”  Beach,
592 So. 2d at 239 (addressing a collateral challenge to a prior DUI conviction)
(emphasis supplied).
Given the facts of this case, the State cannot, on one hand, fail to
acknowledge the inaccuracy inherent in its plea forms and then, on the other hand,
claim protection under a presumption of validity that normally attaches to final
judgments.  Mr. Kelly’s satisfactory Beach affidavit, his presentation of facially
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misleading plea forms, and his testimony at the evidentiary hearing satisfied the
Beach burden of production. This created prima facie evidence that Kelly did not
validly waive his right to counsel.
In response to that evidence, the State failed to satisfy its burden of proving
that Kelly was either provided counsel or validly waived that right. The State
conceded that Kelly did not receive counsel and then simply attempted to rely on
the same inaccurate plea forms as creating a knowing, intelligent, and voluntary
waiver of the right to counsel. Cf. Fla. R. Crim. P. 3.111(d)(1) (1992) (“The 
failure of a defendant to request appointment of counsel or the announced intention
of a defendant to plead guilty shall not, in itself, constitute a waiver of counsel at
any stage of the proceedings.” (emphasis supplied)).  The danger of misleading 
plea forms is self-evident; if an indigent defendant, like Mr. Kelly, cannot afford
an attorney and believes that he has no right to appointed counsel, he is more likely
to plead guilty or no contest even when he did not commit the underlying offense.
For these reasons, the State may not rely upon a misleading plea form—and a
record which is silent concerning whether the defendant received a constitutionally
sufficient plea colloquy—to contend that the defendant knowingly, intelligently,
and voluntarily waived his or her right to counsel. Cf., e.g., Durocher v.
Singletary, 623 So. 2d 482, 485 (Fla. 1993) (“[T]he [S]tate has an obligation to 
assure that the waiver of . . . counsel is knowing, intelligent, and voluntary.” 
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(emphasis supplied)). Voluntariness is a necessary—but not a sufficient—
condition to demonstrate an effective waiver; in addition, the State must also
establish a knowing and intelligent relinquishment or abandonment of a known
right or privilege. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938). If a
defendant does not intelligently understand when he or she is entitled to the
representation of appointed counsel, then a fortiori the defendant cannot effectively
waive that right. This is why we require accurate plea forms and accurate plea
colloquies. See Fla. R. Crim. P. 3.111(d)(2), 3.171, 3.172; see also Perry, 900 So.
2d at 757 (explaining that rule 3.172(c) and associated case law do not permit a
written plea agreement to serve as a substitute for a constitutionally sufficient plea
colloquy).
The State, therefore, did not carry its Beach burden of proving that Kelly
validly waived his right to counsel with regard to his 1995 and 1997 misdemeanor
DUI convictions (further, the State has not undertaken this responsibility with
regard to Kelly’s 1987 conviction).  With that question resolved, we now address 
the second issue presented in this case: whether this Court will continue to follow
Hlad and Beach or will, alternatively, incorporate Nichols as part of Florida’s 
right-to-counsel jurisprudence.
C.  Florida’s Misdemeanor Right-to-Counsel Standard
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The State contends that Florida’s misdemeanor right-to-counsel standard
should mirror the federal standard enunciated in Nichols. However, the Florida
standard already differs from its federal counterpart. Therefore, we decline to
follow a more limited federal standard that would afford Florida’s criminal 
defendants less constitutional protection, or fewer constitutional rights, than they
currently enjoy under the Florida Constitution and under Hlad and Beach.8
In contrast to search-and-seizure jurisprudence, the law of Florida may
afford greater right-to-counsel protections than those afforded by the Sixth
Amendment. Cf. art. I, § 12, Fla. Const. (mandating that United States Supreme
Court Fourth Amendment precedent control Florida search-and-seizure
jurisprudence). Under established Florida law, the right of indigents to appointed

8. As we explained in Traylor:
Special vigilance is required where the fundamental rights of
Florida citizens suspected of wrongdoing are concerned, for here
society has a strong natural inclination to relinquish incrementally the
hard-won and stoutly defended freedoms enumerated in our
Declaration [of Rights] in its effort to preserve public order. Each
law-abiding member of society is inclined to strike out at crime
reflexively by constricting the constitutional rights of all citizens in
order to limit those of the suspect—each is inclined to give up a
degree of his or her own protection from government intrusion in
order to permit greater intrusion into the life of the suspect. The
framers of our Constitution, however, deliberately rejected the short-
term solution in favor of a fairer, more structured system of criminal
justice . . . .
596 So. 2d at 963.
- 19 -
counsel in misdemeanor cases differs from its federal counterpart. In Argersinger
v. Hamlin, 407 U.S. 25, 35-40 (1972), the United States Supreme Court appeared
to hold that prospective imprisonment for a misdemeanor offense guarantees
indigents a right to appointed counsel, but the Court clarified in Scott v. Illinois,
440 U.S. 367, 373-74 (1979), that under the Sixth Amendment this right is limited
to cases in which the defendant is actually imprisoned for the charged offense.
Florida, however, has provided a different standard through its Constitution, Rules
of Criminal Procedure, and the Florida Statutes. See art. I, §§ 2, 16, Fla. Const.;
Fla. R. Crim. P. 3.111, 3.160; § 27.51, Fla. Stat. (2003). In Florida, indigent
criminal defendants have a right to appointed counsel “for offenses punishable by
imprisonment.”  Fla. R. Crim. P. 3.111(b)(1) (1992) (emphasis supplied).  
This standard provides a more broadly constructed right to counsel than the
federal actual-imprisonment standard, as it encompasses all cases in which
imprisonment is a prospective penalty. The trial judge only possesses restricted
discretion to limit this right by certifying, in writing, before trial that the defendant
will not be imprisoned. See Fla. R. Crim. P. 3.111(b)(1) (1992). Florida Rule of
Criminal Procedure 3.160 further supports this divergent standard by providing:
Prior to arraignment of any person charged with the commission of a
crime, if he or she is not represented by counsel, the court shall advise
the person of the right to counsel and, if he or she is financially unable
to obtain counsel, of the right to be assigned court-appointed counsel
to represent him or her at the arraignment and at all subsequent
proceedings.
- 20 -

Fla. R. Crim. P. 3.160(e) (emphasis supplied). Moreover, section 27.51(1)(b)(1)-
(2), Florida Statutes, provides:
The public defender shall represent, without additional compensation,
any person determined to be indigent . . . and . . . [u]nder arrest for, or
charged with . . . [1] [a] misdemeanor authorized for prosecution by
the state attorney[,] [or] [2] [a] violation of chapter 316 punishable by
imprisonment . . . .

(Emphasis supplied.) (DUI is a chapter 316 offense punishable by imprisonment.)
These rules and statutory sections unambiguously differentiate an indigent
criminal defendant’s right to counsel in a misdemeanor case under Florida law 
from that of a similarly situated defendant under federal law. The courts of this
state have also recognized this distinction. See, e.g., Case v. State, 865 So. 2d 557,
558 (Fla. 1st DCA 2003) (“A defendant who is charged with a misdemeanor 
punishable by possible imprisonment is entitled to counsel unless the judge timely
issues a written order guaranteeing that the defendant will never be incarcerated as
a result of the conviction.”  (emphasis supplied)).
Florida law draws the entitlement line at prospective punishment (i.e.,
offenses punishable by imprisonment), while federal law draws a less protective
entitlement line at actual imprisonment (i.e., there is no right to counsel unless the
defendant is actually incarcerated as a result of the offense). The committee
comments to Florida Rule of Criminal Procedure 3.111 further emphasize the
difference between the Florida and federal standards. Compare Fla. R. Crim. P.
- 21 -
3.111, committee note (1972) (“The committee determined that possible
deprivation of liberty for any period makes a case serious enough that the accused
should have the right to counsel.” (emphasis supplied)), with Scott, 440 U.S. at
373-74 (“[A]ctual imprisonment is a penalty different in kind from fines or the
mere threat of imprisonment—[that standard] is eminently sound and warrants
adoption of actual imprisonment as the line defining the constitutional right to
appointment of counsel.” (emphasis supplied)).
The instant case provides an excellent example of the practical differences
between the federal actual-imprisonment standard and the Florida prospective-
imprisonment standard. Here, an indigent criminal defendant pled no contest to
misdemeanor DUI charges without having been provided appointed counsel,
despite his “right to be assigned court-appointed counsel to represent him . . . at the
arraignment and at all subsequent proceedings.”  Fla. R. Crim. P. 3.160(e).  
Moreover, there is no indication in the record that either trial judge in Mr. Kelly’s 
cases certified, in writing, before trial that Kelly would not face imprisonment for
the charged offenses. Cf. Fla. R. Crim. P. 3.111(b)(1) (1992). Finally, the record
does not reflect that either of the trial judges engaged in a proper colloquy with
Kelly regarding his right to counsel. Cf. Fla. R. Crim. P. 3.111(d)(2) (1992).
Under Florida law, Mr. Kelly therefore maintained a right to counsel
pursuant to Rule of Criminal Procedure 3.111 because misdemeanor DUI is an
- 22 -
offense punishable by imprisonment. As a corollary, Kelly was entitled to
appointed representation from the Public Defender’s Office under section 27.51, 
Florida Statutes. In contrast, under federal law, Kelly would not have had a right
to counsel because he was not imprisoned as a result of either plea. See Scott, 440
U.S. at 373-74.
This Court clearly stated in Traylor v. State, 596 So. 2d 957, 962 (Fla.
1992):
[W]hen called upon to construe their bills of rights, state courts should
focus primarily on factors that inhere in their own unique state
experience, such as the express language of the constitutional
provision, its formative history, both preexisting and developing state
law, evolving customs, traditions and attitudes within the state, the
state’s own general history, and finally any external influences that
may have shaped state law.

Id. (emphasis supplied). Here, a consideration of these factors leads to the
conclusion that Florida provides a broader right to counsel under article I, section
16 of our state Constitution than that provided by the federal courts under the Sixth
Amendment. See, e.g., Fla. R. Crim. P. 3.111, 3.160; § 27.51, Fla. Stat. (2003)
(adopting a prospective-imprisonment scheme for determining whether defendants
have a right to counsel in misdemeanor cases).
Our interpretation of the right to counsel under article I, section 16 of the
Florida Constitution should, therefore, reflect Justice Brennan’s admonishment:
[T]he decisions of the [United States Supreme] Court are not, and
should not be, dispositive of questions regarding rights guaranteed by
- 23 -
counterpart provisions of state law. Accordingly, such decisions are
not mechanically applicable to state law issues, and state court judges
and the members of the bar seriously err if they so treat them. Rather,
state court judges, and also practitioners, do well to scrutinize
constitutional decisions by federal courts, for only if they are found to
be logically persuasive and well-reasoned, paying due regard to
precedent and the policies underlying specific constitutional
guarantees, may they properly claim persuasive weight as guideposts
when interpreting counterpart state guarantees.

William J. Brennan, Jr., State Constitutions and the Protection of Individual
Rights, 90 Harv. L. Rev. 489, 502 (1977) (emphasis supplied) (footnote omitted).
Thus, an independent analysis under the Florida Constitution is necessary to
remain faithful to our statement regarding Florida’s Declaration of Rights that 
“[n]o other broad formulation of legal principles, whether state or federal, provides
more protection from government overreaching or a richer environment for self-
reliance and individualism than does this ‘stalwart set of basic principles.’”  
Traylor, 596 So. 2d at 963 (quoting State ex rel. Davis v. City of Stuart, 120 So.
335, 347 (Fla. 1929)).
D. Nichols Is Not Controlling Under Article I, Section 16
It is true that in Hlad and Beach this Court relied in part upon Baldasar v.
Illinois, 446 U.S. 222 (1980), which the Supreme Court subsequently overruled in
Nichols v. United States, 511 U.S. 738 (1994). However, it is equally true that the
federal Constitution generally sets the floor, not the ceiling, with regard to the
extent of personal rights and freedoms afforded by the State of Florida. See, e.g.,
- 24 -
Traylor, 596 So. 2d at 962; In re T.W., 551 So. 2d 1186, 1191 (Fla. 1989) (“State 
constitutions, too, are a font of individual liberties, their protections often
extending beyond those required by the Supreme Court’s interpretation of federal
law. . . . [W]ithout [independent state law], the full realization of our liberties
cannot be guaranteed.” (quoting Brennan, 90 Harv. L. Rev. at 491) (emphasis 
supplied)); State v. Douse, 448 So. 2d 1184, 1185 (Fla. 4th DCA 1984) (holding
that the right to counsel attaches at an earlier point during the prosecutorial process
under Florida law than under federal law). Moreover, this Court is the ultimate
“arbiter[] of the meaning and extent of the safeguards provided under Florida’s 
Constitution.”  Busby v. State, 894 So. 2d 88, 102 (Fla. 2004). In fulfillment of
that constitutional role, we specifically held in Traylor, 596 So. 2d at 969-70, that
article I, section 16 of the Florida Constitution (right to counsel), read in light of
article I, section 2 of that same document (equal protection), mandates that
the right of indigent defendants to [the] assistance of court-appointed
counsel in criminal prosecutions is constitutionally required . . . . The
rule is grounded in Sections 2 and 16 of our state Constitution.

(Emphasis supplied.) Further, we clarified that this rule is not subsumed by, or
derived from, the federal Sixth Amendment:
In light of the widely-recognized and oftentimes decisive role
the lawyer plays in the judicial process, we conclude that our state
Constitution requires that the Section 16 right to counsel be made
available to impoverished defendants. No Florida citizen can be
deprived of life or liberty in a criminal proceeding simply because he
or she is too poor to establish his or her innocence.
- 25 -

Traylor, 596 So. 2d at 969 (emphasis supplied). In opposition to this precedent,
the dissent proceeds under the incorrect assumption that there is no independent
right to the assistance of appointed counsel under the Florida Constitution and that,
consequently, this right is secured exclusively through the Sixth Amendment to the
United States Constitution. However, the dissent overlooks the true content of our
decision in Traylor, including its state-law posture.9 The reasoning of the dissent is

9. The dissent relies upon State v. Owen, 696 So. 2d 715 (Fla. 1997), for the
proposition that our conclusions in Traylor “were no different than those set forth 
in prior holdings of the United States Supreme Court.”  Dissent at 10 (quoting 
Owen, 696 So. 2d at 719). However, our colleague again overlooks a significant
point: Owen did not involve a right-to-counsel issue under either the federal Sixth
Amendment or article I, section 16 of the Florida Constitution (rights which apply
during criminal prosecutions); rather, Owen solely and exclusively addressed
Miranda-based rights derived from the federal Fifth Amendment and article I,
section 9 of the Florida Constitution that apply during custodial interrogation.
These are distinct rights governed by equally distinct doctrine, which the dissent
regrettably confuses and conflates. See, e.g., Rhode Island v. Innis, 446 U.S. 291,
300 n.4 (1980) (observing that “the policies underlying the two constitutional
protections are quite distinct” (emphasis supplied)); see also Davis v. United
States, 512 U.S. 452, 456-57 (1994) (highlighting differences between these
protections and explicitly clarifying that Davis involved the Miranda-based right to
counsel, not the constitutional right to counsel under the Sixth Amendment).
Moreover, in Owen, it is clear that we never purported to address any portion of
Traylor with regard to the right to counsel under article I, section 16 of the Florida
Constitution (Traylor offered separate analyses and holdings with regard to the
right against self-incrimination under article I, section 9 of the Florida Constitution
and the right to counsel under article I, section 16 of that same foundational
document). Compare Traylor, 596 So. 2d at 964-66 (addressing article I, section
9), with id. at 966-70 (addressing article I, sections 2 and 16). A simple textual
search of Owen demonstrates that we never addressed, let alone mentioned,
“article I, section 16” or the “Sixth Amendment.”  Rather, Owen dealt exclusively
with the issue of equivocal invocations of the right to cut off questioning during
- 26 -
thus unsound from its inception because it assumes that we lack the ability to
independently interpret the Florida Constitution. We establish no new precedent in
this regard as asserted by the dissent; we specifically held in Traylor—and reaffirm
today—that article I, sections 2 and 16 of our state Constitution afford indigent
criminal defendants a free-standing right to appointed counsel. See 596 So. 2d at
969-70. Owen did not even mention this aspect of the Traylor decision.
For reasons unexplained by our dissenting colleague, he would have us
unquestionably follow the decisions of the United States Supreme Court when we
are faced with questions of state law. In reply, we explain that we have the duty to
independently examine and determine questions of state law so long as we do not
run afoul of federal constitutional protections or the provisions of the Florida
Constitution that require us to apply federal law in state-law contexts. No such
considerations restrict our ability to definitively decide this case.
We live in a federalist republic, with multiple, independent levels of
government, rather than in a unitary state, which, in contrast, is controlled by a
centralized governing regime and court system. Far better writers than we have

custodial interrogation (i.e., an issue with regard to the right against self-
incrimination). Thus, in Owen, we addressed an issue involving article I, section 9
of the Florida Constitution (i.e., a Miranda issue), not article I, section 16.
Furthermore, we nevertheless clarified in Owen that Traylor “remind[s] us that we 
have the authority to [independently interpret the right against self-incrimination
under the Florida Constitution] regardless of federal law”; we simply chose not to 
do so in that decision. Owen, 696 So. 2d at 719 (emphasis supplied).
- 27 -
explained this dual system of republican government. For example, writing as
Publius, James Madison explained this foundational aspect of our nation, which
has subsequently been labeled “dual” or “cooperative federalism,”10 by stating:
In a single republic, all the power surrendered by the people, is
submitted to the administration of a single government; and the
usurpations are guarded against, by a division of the government into
distinct and separate departments. In the compound republic of
America, the power surrendered by the people, is first divided
between two distinct levels of government [referring to the national
and state governments], and then the portion allotted to each
subdivided among distinct and separate departments. Hence a double
security arises to the rights of the people. The different governments
will control each other; at the same time that each will be controlled
by itself.

The Federalist No. 51, at 292 (James Madison) (M’Carty & Davis, Philadelphia, 
PA, Glazier & Co., Hallowell, ME 1826). In keeping with this foundational
concept, our decision today reflects the differences that exist between Florida and
federal law and promotes a “double security” for the constitutional rights of 
Floridians.
Unsurprisingly, our acknowledged role as the definitive arbiter of the Florida
Constitution requires a unique standard of review in this case:

10. See, e.g., Dameron v. Brodhead, 345 U.S. 322, 326 (1953); see also
Black’s Law Dictionary 644 (8th ed. 2004) (“cooperative federalism.  Distribution 
of power between the federal government and the states in which each recognizes
the powers of the other while jointly engaging in certain governmental
functions.”).
- 28 -
When called upon to decide matters of fundamental rights,
Florida’s state courts are bound under federalist principles to give 
primacy to our state Constitution and to give independent legal import
to every phrase and clause contained therein. We are . . . [thus] bound
under our Declaration of Rights to construe each provision freely in
order to achieve the primary goal of individual freedom and
autonomy.

Traylor, 596 So. 2d at 962-63. Accordingly, we examine Nichols, and reexamine
our current Hlad/Beach framework, to determine if either comports with Florida’s 
prospective-imprisonment misdemeanor right-to-counsel standard.
To properly frame this inquiry, we must first explore the United States
Supreme Court precedent that preceded and eventually led to Nichols. Four major
Supreme Court decisions have directly shaped indigent defendants’ Sixth and 
Fourteenth Amendment right to appointed counsel in misdemeanor cases:
Argersinger v. Hamlin, 407 U.S. 25 (1972), Scott v. Illinois, 440 U.S. 367 (1979),
Baldasar v. Illinois, 446 U.S. 222 (1980), overruled by Nichols v. United States,
511 U.S. 738 (1994), and Nichols.
i. Argersinger and Scott
In Argersinger––a case that resulted from this Court’s holding in State ex
rel. Argersinger v. Hamlin, 236 So. 2d 442 (Fla. 1970)––the United States
Supreme Court explained that the expansive right-to-counsel language appearing in
- 29 -
Gideon v. Wainwright11 was not limited to felony cases. The High Court
explained:
[T]he problems associated with misdemeanor and petty offenses often
require the presence of counsel to insure the accused a fair trial. . . .
“[T]he prospect of imprisonment for however short a time will seldom
be viewed by the accused as a trivial or ‘petty’ matter and may well 
result in quite serious repercussions affecting his career and his
reputation.”
. . . [A]bsent a knowing and intelligent waiver, no person may
be imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at his
trial.

Argersinger, 407 U.S. at 36-37 (emphasis supplied) (footnotes omitted) (quoting
Baldwin v. New York, 399 U.S. 66, 73 (1970)). The Court also addressed the
importance of appointed counsel for defendants when entering pleas:
Beyond the problem of trials and appeals is that of the guilty
plea, a problem which looms large in misdemeanor as well as in
felony cases. Counsel is needed so that the accused may know
precisely what he is doing, so that he is fully aware of the prospect of
going to jail or prison, and so that he is treated fairly by the
prosecution.

Id. at 34 (emphasis supplied).

11.  “The right of one charged with crime to counsel may not be deemed 
fundamental and essential to fair trials in some countries, but it is in ours. From
the very beginning, our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair trials
before impartial tribunals in which every defendant stands equal before the law.
This noble ideal cannot be realized if the poor man charged with crime has to face
his accusers without a lawyer to assist him.”  Gideon v. Wainwright, 372 U.S. 335,
344 (1963) (emphasis supplied).
- 30 -
Some justices interpreted the “prospect of imprisonment” language
appearing in Argersinger as indicating that the right to counsel attached whenever
the charged offense was punishable by imprisonment. See, e.g., Scott v. Illinois,
440 U.S. 367, 382-89 (1979) (Brennan, J., dissenting) (advocating that the Court
adopt an “authorized imprisonment” standard similar to the one Florida employs 
today). In Scott, however, the High Court clarified that Argersinger limited
indigent defendants’ Sixth Amendment right to appointed counsel to cases in 
which the defendant is “actual[ly] imprison[ed].”  Scott, 440 U.S. at 373. But, in
clarifying Argersinger, Scott did not disturb the Argersinger Court’s rationale for 
ensuring that indigent defendants do not face jail time as the result of uncounseled
misdemeanors––uncounseled misdemeanors lack the requisite reliability to impose
imprisonment. See Argersinger, 407 U.S. at 35-36 (“‘The misdemeanor trial is 
characterized by insufficient and frequently irresponsible preparation on the part of
the defense, the prosecution, and the court.  Everything is rush, rush.’ . . .  There is 
evidence of the prejudice which results to misdemeanor defendants from this
‘assembly-line justice.’ ” (citation omitted)); see also Baldasar, 446 U.S. at 227
(Marshall, J., concurring) (“We should not lose sight of the underlying rationale of
Argersinger, that unless an accused has ‘the guiding hand of counsel at every step 
in the proceedings against him,’ . . . his conviction is not sufficiently reliable to
- 31 -
support the severe sanction of imprisonment.” (emphasis supplied) (quoting
Powell, 287 U.S. at 68-69)).
ii. Baldasar
Baldasar represented the United States Supreme Court’s attempt to apply 
Argersinger and Scott’s actual-imprisonment standard to an Illinois recidivism
statute. Petitioner Baldasar had previously been convicted of misdemeanor theft.
See Baldasar, 446 U.S. at 222-23. In the prior proceeding, he was unrepresented
and did not waive his right to counsel. See id. As punishment, he paid a fine of
$159 and received a one-year probation sentence. See id. Six months later, Illinois
charged him with stealing a $29 showerhead, which the State sought to prosecute
as a felony based on Baldasar’s prior uncounseled misdemeanor conviction.  See
id.
The Illinois courts permitted the prosecution to introduce evidence of the
prior uncounseled misdemeanor conviction to enhance Baldasar’s subsequent 
offense from a misdemeanor to a felony. See id. Baldasar objected, contending
that this enhancement violated the rule of Argersinger and Scott. In other words,
Illinois was increasing his punishment as a direct result of his prior uncounseled
misdemeanor conviction and that uncounseled misdemeanor conviction, which was
unreliable for the purpose of imposing imprisonment in the first instance, remained
- 32 -
unreliable for the purpose of enhancing his imprisonment in a collateral
proceeding. See id. at 223-24.
A four-justice plurality12 agreed with Baldasar, while a four-justice dissent
did not. See id. at 224 (Stewart, J., concurring, joined by Brennan and Stevens,
J.J.) (“[P]etitioner . . . was sentenced to an increased term of imprisonment only
because he had been convicted in a previous prosecution in which he had not had
the assistance of appointed counsel in his defense. It seems clear to me that this
prison sentence violated the constitutional rule of Scott.”); id. at 227 (Marshall, J.,
concurring, joined by Brennan and Stevens, J.J.) (“The sentence petitioner actually 
received would not have been authorized by statute but for the previous conviction.
It was imposed as a direct consequence of that uncounseled conviction and is
therefore forbidden under Scott and Argersinger.”); id. at 230-34 (Powell, J.,
dissenting, joined by Burger, C.J., White and Rehnquist, J.J.) (claiming that the

12. Justices Stewart and Marshall wrote separate concurrences in Baldasar
because Justice Stewart endorsed Scott’s actual-imprisonment standard, while
Justice Marshall continued to express disagreement with Scott, but accepted it as
valid for purposes of writing his Baldasar concurrence. Thus, Justices Stewart and
Marshall expressed very similar ideas, but Justice Marshall only accepted Scott’s 
validity for the sake of argument. Justices Brennan and Stevens joined both
Stewart and Marshall’s concurrences.  Consequently, a four-justice block existed,
which agreed with the central premise that a conviction that is invalid for purposes
of imposing imprisonment may not later be used collaterally to increase a
defendant’s term of imprisonment for a subsequent offense.  Compare Baldasar,
446 U.S. at 224 (Stewart, J., concurring, joined by Brennan and Stevens, J.J.), with
id. at 225-29 (Marshall, J., concurring, joined by Brennan and Stevens, J.J.).

- 33 -
enhanced punishment Baldasar received was not imposed as a result of his prior
misdemeanor, and thus did not violate Argersinger or Scott).
Justice Blackmun, meanwhile, developed his own approach without
addressing the issue framed by the Court.13 Instead, he adopted a hybrid construct,
which he lifted verbatim from his dissent in Scott. His approach combined
Argersinger and Scott’s actual-imprisonment standard with a right-to-jury standard
articulated by the Supreme Court in Duncan v. Louisiana, 391 U.S. 145 (1968).
Justice Blackmun, thus, offered the following rule in his concurrence:
[A]n indigent defendant in a state criminal case must be afforded
appointed counsel whenever the defendant is prosecuted for a
nonpetty criminal offense, that is, one punishable by more than six
months’ imprisonment, see Duncan v. Louisiana, 391 U.S. 145
(1968); Baldwin v. New York, 399 U.S. 66 (1970), or whenever the
defendant is convicted of an offense and is actually subjected to a
term of imprisonment, Argersinger v. Hamlin, 407 U.S. 25 (1972).

446 U.S. at 229 (Blackmun, J., concurring) (quoting Scott, 440 U.S. at 389-90
(Blackmun, J., dissenting)). This is the same rule that we adopted in Hlad v. State,
585 So. 2d 928, 929-30 (Fla. 1991).

13. The issue, as framed by the Court, presumed the validity of Scott’s 
actual-imprisonment standard. See Baldasar, 446 U.S. at 222 (“[W]hether [an 
uncounseled misdemeanor] conviction may be used under an enhanced penalty
statute to convert a subsequent misdemeanor into a felony with a prison term” 
without violating the rule in Scott.). Justice Blackmun, however, dissented in Scott
and expressed the same views in Baldasar. See id. at 229-30 (Blackmun, J.,
concurring); Scott, 440 U.S. at 389-90 (Blackmun, J., dissenting).
- 34 -
The most accurate description of Baldasar appears to be the one that Justice
Souter later offered in Nichols:  “[T]he Baldasar Court was in equipoise, leaving a
decision in the same posture as an affirmance by an equally divided Court, entitled
to no precedential value.”  Nichols, 511 U.S. at 750 (Souter, J., concurring in the
judgment). Cf. Marks v. United States, 430 U.S. 188, 193 (1977) (“[W]hen a 
fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the judgments on the narrowest
grounds.’ ” (as recognized by numerous courts, it is difficult to determine 
Baldasar’s narrowest grounds)).  But see Kirsten M. Nelson, Note, Nichols v.
United States and the Collateral Use of Uncounseled Misdemeanors in Sentence
Enhancement, 37 B.C. L. Rev. 557, 582 (1996) (“All three concurring opinions in 
Baldasar share one common and narrow reasoning: the deprivation of liberty
cannot occur without the right to counsel.” (footnote omitted)).
iii. Nichols’ Contrast With the Sixth Amendment Reliability Concern

In 1994, the United States Supreme Court overruled Baldasar in Nichols v.
United States. See Nichols, 511 U.S. at 748-49, overruling Baldasar, 446 U.S. at
222-23. In the process, the Court endorsed and adopted the Baldasar dissent as the
Nichols majority opinion:  “[A]n uncounseled conviction valid under Scott
[because no imprisonment was imposed] may be relied upon to enhance the
- 35 -
sentence for a subsequent offense, even though that sentence entails
imprisonment.”  Nichols, 511 U.S. at 746-47 (emphasis supplied). Nichols’ factual 
posture, however, differed from Baldasar in an important respect. While Baldasar
involved a recidivism statute and the use of an uncounseled misdemeanor to
enhance a subsequent offense from a misdemeanor to a felony, Nichols involved
the consideration of a defendant’s prior uncounseled misdemeanor under the 
federal Sentencing Guidelines. Justice Souter addressed the importance of this
factual distinction in his concurrence:
There is an obvious and serious argument that the line drawn in Scott
is crossed when, as Justice Stewart put it in Baldasar, a defendant is
“sentenced [under a recidivism statute] to an increased term of 
imprisonment only because he had been convicted in a previous
prosecution in which he had not had the assistance of appointed
counsel in his defense.”  
Fortunately, the difficult constitutional question that argument
raises need not be answered in deciding this case, for unlike the
sentence-enhancement scheme involved in Baldasar, the United States
Sentencing Commission’s Guidelines . . . do not provide for automatic
enhancement based on prior uncounseled convictions. . . .
Under the Guidelines . . . the role prior convictions play in
sentencing is presumptive, not conclusive, and a defendant has the
chance to convince the sentencing court of the unreliability of any
prior valid but uncounseled convictions . . . .

Nichols, 511 U.S. at 750-52 (Souter, J., concurring in the judgment) (citations
omitted) (some emphasis supplied).
- 36 -
Therefore, Justice Souter contrasted the use of uncounseled misdemeanors
under the federal Sentencing Guidelines with the use of such misdemeanors under
recidivism statutes similar to the one at issue in this case:
Because the Guidelines allow a defendant to rebut the negative
implication to which a prior uncounseled conviction gives rise, they
do not ignore the risk of unreliability associated with such a
conviction. . . . Where concern for reliability is accommodated, as it
is under the Guidelines, nothing in the Sixth Amendment or our cases
requires a sentencing court to ignore the fact of a valid uncounseled
conviction, even if that conviction is a less confident indicator of guilt
than a counseled one would be.

Id. at 752-53 (Souter, J., concurring in the judgment) (emphasis supplied). Hence,
Justice Souter would limit the use of prior uncounseled misdemeanors to situations
“where [Argersinger’s] concern for reliability is accommodated.”  Id. at 753
(Souter, J., concurring in the judgment).14
The Nichols majority, however, did not address the Sixth Amendment
reliability concern, which the Court has subsequently reaffirmed as “the key Sixth 
Amendment inquiry.”  Alabama v. Shelton, 535 U.S. 654, 667 (2002) (“[T]he key 
Sixth Amendment inquiry [is] whether the adjudication of guilt corresponding to

14. Such an approach would also be constitutionally required with regard to
Florida’s Criminal Punishment Code. Cf. Fla. R. Crim. P. 3.704(d)(27)
(authorizing the trial judge to depart downward for permissible reasons when
memorialized in a contemporaneous writing, and referring to a non-exhaustive
justification list appearing in section 921.0026(2), Florida Statutes). The inquiry
remains whether the adjudications of guilt corresponding to the prior uncounseled
convictions are sufficiently reliable to permit enhanced incarceration.
- 37 -
the prison sentence is sufficiently reliable to permit incarceration.” (emphasis 
supplied)). Furthermore, in adopting the Baldasar dissent as the Nichols majority
opinion, the High Court appears to have imported all of its attendant issues. For
example, the Baldasar dissent and the Nichols majority opinion do not seem to
logically follow from Argersinger and Scott. Argersinger and Scott held that the
Sixth Amendment right to counsel in misdemeanor cases is limited to cases where
the defendant is actually imprisoned, and they did so because of the lack of
reliability associated with uncounseled misdemeanors. See Argersinger, 407 U.S.
at 34-37 (outlining the reliability concerns associated with uncounseled
misdemeanors); Scott, 440 U.S. at 373-74 (reaffirming Argersinger in toto). Thus,
if an uncounseled misdemeanor is too unreliable to impose imprisonment in a
direct proceeding, it remains too unreliable to enhance imprisonment in a collateral
proceeding; the key issue remains its unreliability for purposes of imposing
imprisonment.
In contrast, the Baldasar dissent and the Nichols majority opinion endorsed a
somewhat incongruous rule that deems an uncounseled conviction invalid for
imposing a prison term directly, but valid for imposing a prison term collaterally,
which some justices have characterized as “an illogical and unworkable deviation 
from [the Supreme Court’s] previous cases,” and as not addressing the underlying
Sixth Amendment reliability concern. Baldasar, 446 U.S. at 228-29 (Marshall, J.,
- 38 -
concurring) (referencing the Baldasar dissent, which became the position of the
majority in Nichols).15
The justifications underpinning Nichols’ Sentencing Guidelines rationale are
unpersuasive when applied to a recidivism statute, under which the defendant’s 
prior misdemeanor convictions constitute an element of his or her later felony
offense. The Baldasar dissent and the Nichols majority included dicta from an
1895 double jeopardy case––which when used there made sense––and proceeded
to use it in a context for which it was perhaps ill-suited. See Baldasar, 446 U.S. at
232 (Powell, J., dissenting) (citing Moore v. Missouri, 159 U.S. 673, 677 (1895);
Oyler v. Boles, 368 U.S. 448, 451 (1962) (reaffirming Moore in the context of an
equal protection and due process challenge)); Nichols, 511 U.S. at 747 (exhibiting
the same reasoning as the Baldasar dissent). In particular, the observation that the
High Court has “consistently . . . sustained repeat-offender laws as penalizing only
the last offense committed by the defendant,”16 makes sense when one is

15. See also Ralph Ruebner et al., Shaking the Foundations of Gideon: A
Critique of Nichols in Overruling Baldasar v. Illinois, 25 Hofstra L. Rev. 507, 550-
51 (1996) (explaining how Nichols is inconsistent with prior United States
Supreme Court right-to-counsel precedent).

16. Baldasar, 446 U.S. at 232 (Powell, J., dissenting) (emphasis supplied)
(citing Moore v. Missouri, 159 U.S. 673, 677 (1895) (double jeopardy case—did
not involve the right to counsel); Oyler v. Boles, 368 U.S. 448, 451 (1962) (equal
protection and due process case—did not involve the right to counsel)); see also
Nichols, 511 U.S. at 747.

- 39 -
determining whether a criminal defendant is being tried and punished for the same
offense twice (i.e., a double-jeopardy violation), because at least one element of
the subsequent offense differs from that of the previous offense(s).17 But, that
reasoning does not seem to make sense in the context of a rule holding that, on the
one hand, uncounseled misdemeanor convictions are unreliable and invalid for
purposes of imposing imprisonment directly but, on the other, valid for imposing
imprisonment collaterally. See Nichols, 511 U.S. at 746. Neither Moore nor Oyler
addressed a violation of the right to counsel, and as noted by other courts
“[q]uotations from cases, shorn of their factual context, are not much help in 
making a decision.”  United States v. Galindo-Gallegos, 244 F.3d 728, 730 (9th
Cir. 2001).
Under a recidivism statute such as the one at issue in this case, the fact
remains that the enhanced portion of the term of imprisonment would not have
been imposed but for the previous conviction, and the uncounseled conviction
should remain invalid for purposes of imposing imprisonment. See Baldasar, 446
U.S. at 227 (Marshall, J., concurring). It has been recognized that courts
should not lose sight of the underlying rationale of Argersinger, that
unless an accused has “the guiding hand of counsel at every step in 
the proceedings against him,” his conviction is not sufficiently reliable

17. See, e.g., Blockburger v. United States, 284 U.S. 299, 304 (1932) (the
“Blockburger test” asks whether an offense contains an element not contained in 
the other relevant offense, to determine whether a double-jeopardy violation has
occurred).
- 40 -
to support the severe sanction of imprisonment. An uncounseled
conviction does not become more reliable merely because the accused
has been validly convicted of a subsequent offense.

Id. at 228-29 (Marshall, J., concurring) (citations omitted) (emphasis
supplied) (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932))).
There are no principled means of separating the enhanced term of
imprisonment from the uncounseled misdemeanor convictions when addressing a
recidivism statute of the type at issue in this case; the defendant’s prior 
misdemeanor convictions are an element of the later felony offense, thus any
enhanced imprisonment directly flows from the defendant’s prior convictions.  
See, e.g., Finelli, 780 So. 2d at 33 (holding that a defendant’s prior misdemeanor 
DUI convictions are an element of his or her subsequent felony DUI offense).
Therefore, “the adjudication of guilt corresponding to the [enhanced] prison 
sentence is [not] sufficiently reliable to permit incarceration.”  See Shelton, 535
U.S. at 667 (emphasis supplied) (holding that uncounseled suspended sentences
violate Argersinger and Scott). When faced with this reality, we cannot apply dicta
from federal cases to artificially separate the uncounseled misdemeanor from the
defendant’s potentially much longer prison term because under a recidivism 
statute, the defendant is only serving the enhanced portion of his or her sentence
because of an uncounseled “conviction [that] is not sufficiently reliable to support
the severe sanction of imprisonment.”  Baldasar, 446 U.S. at 227 (Marshall, J.,
- 41 -
concurring) (emphasis supplied). Therefore, we find Nichols unpersuasive in this
context. We cannot agree with the rationale of the United States Supreme Court,
which intimates that a repeat DUI offender is not receiving punishment for his or
her prior uncounseled convictions. We come to this conclusion because proving
those convictions––beyond a reasonable doubt––is part of the State’s burden in 
seeking to convict the defendant for his or her later felony offense. See, e.g.,
Finelli, 780 So. 2d at 33.
In sum, these prior uncounseled convictions are part of the defendant’s later 
felony offense because they are elements of that offense. Therefore, in a situation
such as this, we decline to endorse any holding which would conclude that the
recidivist defendant is not receiving punishment for his or her prior uncounseled
convictions. Consequently, we hold that Nichols is not persuasive precedent for
purposes of interpreting article I, section 16 of the Florida Constitution. In
addition, under article I, sections 2 and 16 of the Florida Constitution, the Florida
Rules of Criminal Procedure, and the Florida Statutes, we reaffirm that this state is
a prospective-imprisonment jurisdiction and that indigent defendants possess an
independent state-law constitutional right to appointed counsel during criminal
prosecutions.
- 42 -
iv. Our Revised Hlad/Beach Framework
In the preceding section, we recognized that uncounseled misdemeanor
convictions are unreliable for purposes of imposing imprisonment and that such
uncounseled convictions lead directly to increased terms of imprisonment when
they constitute elements of a later felony offense. Therefore, we must next
address whether our current Hlad/Beach framework reflects these tenets. We
previously based our holdings in Hlad and Beach, in part, upon Justice Blackmun’s 
Baldasar concurrence. Compare, Hlad, 585 So. 2d at 930, with Baldasar, 446 U.S.
at 229 (Blackmun, J., concurring); see also Beach, 592 So. 2d at 239-40. However,
there are two problems associated with the current articulation of our Hlad/Beach
framework.
First, the current framework injects a right-to-jury standard into right-to-
counsel cases. Specifically, the framework requires that when the defendant was
not imprisoned for a prior misdemeanor conviction in a direct proceeding, he or
she may only mount a Hlad/Beach challenge to the later use of the misdemeanor as
an enhancer if the misdemeanor was prospectively punishable by more than six
months’ imprisonment.  This rule is derived from the United States Supreme 
Court’s time-based right-to-jury standard. See Duncan v. Louisiana, 391 U.S. 145,
159 (1968) (“Crimes carrying possible penalties up to six months do not require a
jury trial if they otherwise qualify as petty offenses[.]” (emphasis supplied))  The 
- 43 -
Supreme Court, however, has explicitly held that this time-based right-to-jury
standard has no place in right-to-counsel cases. See Argersinger, 407 U.S. at 30-31
(“We reject . . . the premise that since prosecutions for crimes punishable by 
imprisonment for less than six months may be tried without a jury, they may also
be tried without a lawyer.”).  
We agree with this position. The right to counsel is distinct from the right to
a jury trial because each right emerged from a different common-law genealogy.
See Argersinger, 407 U.S. at 29. The English common law historically limited
“the ‘deep commitment’ to trial by jury to ‘serious criminal cases,’ ” i.e., those
cases punishable by more than six months’ imprisonment.  Id. at 30.
Contrastingly, the common law recognized a right to counsel in “petty criminal 
cases,” i.e., those cases where there is no possibility of imprisonment in excess of 
six months. Id. The Sixth Amendment later expanded the right to counsel to
felony cases. See id. at 30-31. Therefore, Duncan’s right-to-jury standard should
no longer play a role in our Hlad/Beach framework.
The second problem with our existing framework is that, in some
circumstances, it permits the imposition of increased terms of imprisonment as a
direct result of prior uncounseled misdemeanor convictions. This is currently
permitted if those convictions did not originally lead to incarceration and were not
prospectively punishable by more than six months’ imprisonment.  See Hlad, 585
- 44 -
So. 2d at 929-30; Beach, 592 So. 2d at 239-40. However, the unreliability of an
uncounseled misdemeanor conviction does not turn on the length of the
prospective term of imprisonment. Rather, it turns on the fact that even an
uncounseled innocent gains little by contesting a “petty” misdemeanor where the 
prosecuting attorney is offering a low fine and community service in exchange for
a guilty or no-contest plea. Cf. Nichols, 511 U.S. at 752 (Souter, J., concurring in
the judgment) (noting that the federal Sentencing Guidelines––unlike many
recidivism statutes––allow the defendant to “show . . . that his prior conviction 
resulted from . . . a frugal preference for a low fine with no counsel fee, or from a
desire to put the matter behind him instead of investing the time to fight the
charges”). 
If one cannot afford an attorney, and the prosecutor is offering no jail time,
what real incentive is there to reject the plea bargain? That is the crux of the
problem, and that is why the State may not, consistent with our state Constitution,
impose deprivation of liberty as a penalty upon a defendant based on prior
misdemeanor convictions, unless the defendant was either provided with counsel
or validly waived that right. If the State would like to use prior misdemeanor
convictions as enhancers, it should ensure that these misdemeanors are reliable
enough to impose imprisonment by recommending that the trial court either
- 45 -
appoint counsel or assist a willing indigent defendant in knowingly, intelligently,
and voluntarily waiving the right to counsel.
We thus agree with courts from other jurisdictions which have held that the
State may not use an uncounseled conviction to increase a defendant’s loss of
liberty in the absence of a valid waiver of counsel.18 However, the loss of liberty is
a penalty different in kind and severity from other penalties. We therefore hold
that when the State prosecutes a repeat DUI offender, it may constitutionally seek
applicable enhanced penalties and fines short of incarceration based upon prior
uncounseled misdemeanor DUI offenses. Cf. Hrycak, 877 A.2d at 1261 (coming
to a substantially similar conclusion). For example, on remand, if the State
continues to prosecute this case, it may not use any of Mr. Kelly’s prior 
misdemeanor DUI offenses to enhance his current offense unless it proves that
Kelly was either represented by counsel or validly waived that right during those
prior proceedings. In other words, any enhanced loss of liberty may only be based

18. See, e.g., State v. Hrycak, 877 A.2d 1209, 1216 (N.J. 2005) (“We are 
convinced that a prior uncounseled DWI conviction of an indigent is not
sufficiently reliable to permit increased jail sanctions under the enhancement
statute.” (emphasis supplied)); State v. Sinagoga, 918 P.2d 228, 241, 252 (Haw. Ct.
App. 1996) (“[T]he rationale for not allowing the consideration of an uncounseled
criminal conviction as a basis for the imposition or enhancement of a prison
sentence is its lack of reliability.” (emphasis supplied)), overruled on other
grounds, State v. Veikoso, 74 P.3d 575, 583 n.8 (Haw. 2003); State v. DeVille, 879
So. 2d 689, 690-91 (La. 2004); State v. Anderson, 916 P.2d 1170, 1171-72 (Ariz.
Ct. App. 1996).

- 46 -
on the counseled offense(s) and the offense(s) for which Kelly validly waived his
right to counsel. However, during any resulting DUI prosecution, the State may
use each of Kelly’s prior uncounseled misdemeanor DUI offenses to seek the
enhanced penalties and fines short of incarceration that apply to a fourth DUI
offense.19 Here, these penalties and fines could include, inter alia, a fine between

19.  The dissent’s statement that “[t]he result of the majority’s complex 
analysis is that the State cannot prosecute this defendant for his fourth DUI
[offense] . . . [, and] [t]his result is not in accord with the legislative scheme for
removing repeat DUI offenders from Florida roads,” is doubly mistaken.  
Dissenting op. at 50. First, as stated above, the State is free to prosecute Kelly, and
similarly situated repeat DUI offenders, for their subsequent DUI offenses; it
simply cannot use prior uncounseled misdemeanor convictions to increase the
current offense’s length of incarceration.  Second, there is nothing preventing the
State from permanently removing Kelly, and similarly situated repeat DUI
offenders, from Florida’s roads by permanently revoking their driver’s licenses.  In 
relevant part, section 322.28(2)(e), Florida Statutes (2003), provides:

The court shall permanently revoke the driver’s license or driving 
privilege of a person who has been convicted four times for violation
of s. 316.193 or former s. 316.1931 or a combination of such sections.
The court shall permanently revoke the driver’s license or driving
privilege of any person who has been convicted of DUI manslaughter
in violation of s. 316.193. If the court has not permanently revoked
such driver’s license or driving privilege within 30 days after
imposing sentence, the department shall permanently revoke the
driver’s license or driving privilege pursuant to this paragraph.  No
driver’s license or driving privilege may be issued or granted to any 
such person.

(Emphasis supplied.); see also State v. Walters, 567 So. 2d 49, 50 (Fla. 2d DCA
1990) (“[R]evocation is an administrative remedy for the purpose of protecting the
public and . . . the judge has no judicial discretion. Therefore, the uncounseled
nature of the prior conviction can have no bearing on the court’s duty to 
- 47 -
$1,000 and $5,000; probation, including the completion of a substance-abuse
course and a psychosocial evaluation; the impoundment and immobilization of all
vehicles that Mr. Kelly owns for 90 days; and the permanent revocation of Kelly’s 
driver’s license or driving privilege.  See §§ 316.193(2)(b)(3), 775.083(1)(c),
316.193(5), 316.193(6)(c), 322.28(2)(e), Fla. Stat. (2003).
III. CONCLUSION

Consistent with the views we have expressed in this opinion, we answer the
rephrased certified question as follows: Article I, section 16 of the Florida
Constitution, as influenced by Florida’s prospective-imprisonment standard,
prevents the State from using uncounseled misdemeanor convictions to increase or
enhance a defendant’s later misdemeanor to a felony, unless the defendant validly 
waived his or her right to counsel with regard to those prior convictions. However,
the State may constitutionally seek the increased penalties and fines short of
incarceration associated with the defendant’s relevant number of DUI offenses.  In 
accordance with this holding, we adapt our Hlad/Beach framework along the
following lines. To meet the initial burden of production, the defendant must
assert under oath, through a properly executed affidavit that:

permanently revoke [the repeat DUI offender’s] driving privileges.” (citation 
omitted)).
- 48 -
(1) the offense involved was punishable by imprisonment;20
(2) the defendant was indigent and, thus, entitled to court-appointed counsel;
(3) counsel was not appointed; and
(4) the right to counsel was not waived.
If the defendant sets forth these facts under oath, then a burden of persuasion
shifts to the State to show either that counsel was provided or that the right to
counsel was validly waived. Cf. Beach, 592 So. 2d at 239.21
For these reasons, we approve the decision of the Fourth District Court of
Appeal, but disapprove any of its reasoning that is inconsistent with our modified

20. If during the underlying misdemeanor proceedings, the trial judge(s)
avoided the need for appointing counsel by certifying pursuant to Florida Rule of
Criminal Procedure 3.111(b)(1) that the defendant would not be imprisoned as a
result of the misdemeanor conviction(s), this certification would necessarily extend
to the State’s later attempt to use these misdemeanors as statutory enhancers.  Cf.
Case, 865 So. 2d at 558 (“A defendant who is charged with a misdemeanor
punishable by possible imprisonment is entitled to counsel unless the judge timely
issues a written order guaranteeing that the defendant will never be incarcerated as
a result of the conviction.”  (emphasis supplied)).

21. The first prong of the Hlad/Beach framework formerly read:  “(1) that 
the offense involved was punishable by more than six months of imprisonment or
that the defendant was actually subjected to a term of imprisonment[.]”  Id. This
prior version is incompatible with (i) Florida’s prospective-imprisonment scheme,
and (ii) our recognition that any felony-DUI imprisonment imposed upon the
defendant––using uncounseled misdemeanor DUIs––results directly from those
uncounseled convictions. This is the case because those prior uncounseled
convictions constitute an element of the defendant’s subsequent felony DUI.  See,
e.g., Finelli, 780 So. 2d at 33 (defendant’s prior misdemeanor DUI convictions are 
an element of felony DUI); § 316.193, Fla. Stat. (2003).
- 49 -
framework. Accordingly, we remand to the Fourth District for further proceedings
consistent with this opinion.
It is so ordered.
QUINCE, C.J., and ANSTEAD and PARIENTE, JJ., concur.
WELLS, J., dissents.
CANADY and POLSTON, JJ., did not participate.



NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.



WELLS, J., dissenting.
Recently, in my dissent in State v. Powell, 33 Fla. L. Weekly S778 (Fla.
Sept. 29, 2008), I noted the following in respect to the majority suppressing a
confession based upon the majority’s construction of a Miranda22 form widely used
by law enforcement:
Additionally, it will result in reversing the convictions of individuals
who have confessed to crimes based upon a holding that is at most an
extreme technical adherence to language and that has no connection
with whether the person who confessed understood his or her rights.
Again in this case, the majority begins with a very technical constitutional
construction of language in a plea form containing an express waiver of the right to
counsel that was used in Broward County for at least ten years without being held

22. Miranda v. Arizona, 384 U.S. 436 (1966).
- 50 -
to be constitutionally infirm. The majority then does not accept the uncontroverted
record that a knowing waiver of counsel was executed in both of the questioned
prior driving under the influence (DUI) pleas. Recognizing that the United States
Supreme Court’s latest decision on point was directly contrary to its decision in 
this case, the majority discards this Court’s long adherence to United States 
Supreme Court decisions as to the constitutional rights involved and reaches its
conclusion by a new reliance on the Florida Constitution. The result of the
majority’s complex analysis is that the State cannot prosecute this defendant for his 
fourth DUI, despite the fact that in each of the prior three cases, the defendant pled
to DUI, testified that he knew he had a right to counsel, and knowingly waived that
right while pleading to the three prior DUI charges. This result is not in accord
with the legislative scheme for removing repeat DUI offenders from Florida roads.
Predictably, and in my view unfortunately, since the majority does not determine
whether its decision is to be applied retroactively, many other final convictions of
repeat DUI offenders will be subject to further postconviction litigation to
determine whether those DUI convictions must be reversed because of the
majority’s new construction of the Florida Constitution.
My analysis in this case starts with the fundamental fact that Kelly was not
prejudiced by what was at most a questionable, technical defect in the long-used
plea forms in which he acknowledged that he knew he had the right to counsel,
- 51 -
waived that right, and pled to the DUI charges. First, it is necessary to understand
just how technical and nonprejudicial the defect upon which the majority premises
its decision is. The three plea forms executed by Kelly in pleading no contest to
the DUI charges on October 27, 1987, on March 2, 1995, and on September 18,
1997, contained the same affirmative statement that Kelly understood that he had
“the right to an attorney and the right to have an attorney appointed if [he] cannot 
afford one and if the Judge is considering a jail sentence on this charge.”  The form 
contained an express acknowledgement by Kelly that he wished to waive that right.
Until this case, no case that I have found or that has been cited has held or even
called into question whether this form was a valid waiver of counsel. We know
that the form was used for at least ten years since Kelly executed the form three
times in ten years.
The technical defect that the present majority finds in the form is that the
form states “if the judge is considering jail sentence on this charge.”  The majority 
holds as to the plea forms:
Florida is a “prospective-imprisonment” jurisdiction that provides 
indigent criminal defendants a right to counsel in all criminal
prosecutions “punishable by imprisonment,” except in misdemeanor 
or ordinance-violation cases where the trial judge affirmatively
certifies in writing––before trial––that the defendant will not face a
term of imprisonment for the charged offense. See Fla. R. Crim. P.
3.111(b)(1) (1992). In other words, in Florida, indigent defendants
have a right to counsel in all criminal prosecutions punishable by
imprisonment––even misdemeanor prosecutions––unless the trial
judge “opts out” by providing the defendant a written, pretrial 
- 52 -
certification that the defendant will not be imprisoned for the charged
offense. See id.; see also Fla. R. Crim. P. 3.160 (advising indigents of
the right to appointed counsel); § 27.51, Fla. Stat. (2003) (mandating
that the public defender represent indigents charged with violations of
Chapter 316 of the Florida Statutes; DUI is a Chapter 316 offense
punishable by imprisonment).
This is not the legal landscape Mr. Kelly’s State-prepared plea
forms described. Rather, they provided the misleading impression
that an indigent criminal defendant lacks a right to counsel so long as
the trial judge is not currently considering jail time as an appropriate
sentence. This mischaracterization relieved the trial judges of their
duty to make the affirmative, written, pretrial certification that the rule
then required, and still requires today in a slightly modified form. See
Fla. R. Crim. P. 3.111(b)(1) (“In the discretion of the court, counsel 
does not have to be provided to an indigent person in a prosecution for
a misdemeanor or violation of a municipal ordinance if the judge, at
least 15 days prior to trial, files in the cause a written order of no
incarceration certifying that the defendant will not be incarcerated . . .
.” (emphasis supplied) (the current version of this rule permits the 
defendant or defense counsel to waive the fifteen-day requirement)).
Consequently, even if Mr. Kelly read and understood these plea
forms, he would not have been properly informed of his right to
counsel.
Majority op. at 8-10. To boil this down, the defect which results in the majority
holding that the waivers of the right to counsel were invalid was that prior to the
plea agreement being signed, the trial judge had not issued a written order stating
that Kelly would not be sentenced to jail time. The majority finds this to be a
defect sufficient to invalidate the waivers of counsel even though the waiver of
counsel was included in a plea which was entered upon the agreement that Kelly
would receive no jail time and that immediately upon the execution of the pleas,
Kelly was sentenced to no jail time.
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I do not conclude that the majority’s technical holding is a fair construction 
of the plea form.  The plea form advised Kelly that he had a right to counsel “if the 
judge is considering jail time.”  Thus, a reasonable understanding of what occurred 
at the time of both the 1995 plea and the 1997 plea was that Kelly was advised that
if the judge was considering jail time, he was entitled to counsel. Plainly, for the
waiver of counsel to be effective, this meant that the trial judge would not and
could not sentence Kelly to jail time. Here, it is undeniable that the trial judge was
not considering jail time. The proof of this, of course, is in the pudding, as the
saying goes, since Kelly was sentenced at the same time that he executed the pleas,
and he was not sentenced to jail time.
From reading Kelly’s testimony at the evidentiary hearing in the present 
case, in which Kelly was represented by counsel, it is clear that Kelly knew he had
a right to counsel at the time of both the 1995 and the 1997 pleas and that he
knowingly waived counsel so that he could take advantage of the deals he had been
offered in exchange for his no contest pleas. Specifically, the transcript indicates:23
Q. . . . But, you wanted to plea the case out on the date that
was alleged, March 2nd, 1995?

23. The majority seems to imply that because the prosecutor was asking
Kelly the questions, these clear answers should not be given their due weight. I
assume that if the questions were objectionable, Kelly’s counsel would have
objected.  There is no indication that Kelly was “uneducated” and did not 
understand these questions or his right to counsel.
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A. I thought it was the easiest way to resolve my problem,
mainly easiest financial situation for me.
. . . .
Q. Mr. Kelly, do you recognize the signature that’s on the 
plea form in this case?
A. Yes, that’s my signature.
Q. Okay. So did you review this plea form at the time you
pled the case out that’s dated March 2nd, 1995?
A. Yes, I did.
Q. And that plea form also informed you at paragraph
number 4 of a right to an attorney?
. . . .
[Prosecutor read from the plea form.] Judge, I will have a right
to an attorney and right to have an attorney appointed if I cannot
afford one and if the Judge is considering a sentence of considering a
jail sentence on this charge. And it says, previous to that I have sworn
under oath to the Judge, I have sworn under oath before the judge that
I understand the following and includes the paragraph 4.
Q. So Mr. Kelly, before you signed this document you read
this plea form?
A. Yes I did.
Q. And you understood all those rights?
A. To the best that I understand, yes I—I’m no attorney.
Q. Okay. But again, you were pleaing the case out on that
date, you knew you had a right to an attorney and in exchange you
preferred to waive the right to an attorney in order to go forward with
the plea on the day of arraignment?
A. Yeah.

Thereafter, Kelly was asked the following in regard to his 1997 plea:

Q. Now, with regard to the 1997, 21062 NM10A case, do
you recall pleaing out the DUI case in September of 1997?
A. Yes.
Q. And do you have an independent recollection of that
plea?
A. I don’t know.  Independent, meaning very vivid memory 
of it?
Q. Yeah.
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A. I know that I, that I followed suit with the way that I did
prior, that I didn’t try to obtain an attorney or try to get the Court to 
appoint one for me.
Q. Well, let me ask you this—
A. I know that I read the rights form and signed it and took
the plea offer.
. . . .
Q. Now, Mr. Kelly, when you pled the case out you had the
understanding that you had the right to an attorney at the time of the
plea?
A. I understood that I knew that I couldn’t afford an 
attorney.
Q. Okay.
A. I understood that the Court’s [sic] could possibly try to 
help me with a Public Defender.
Q. Okay. But rather than obtaining the services of [the]
Public Defender you felt that the plea was in your best interest[24] and
you went forward without an attorney?
A. Yes.

The record simply does not support the majority opinion’s summary of 
relevant facts. See Majority op. at 5. Also, after reading the transcript, I do not
find support for the following statement in the majority’s opinion:
[T]he circuit court, apparently sub silento, rejected the State’s 
argument that Mr. Kelly had validly waived his right to counsel when
he pled no contest to his 1995 and 1997 misdemeanor DUI charges.
Majority op. at 5 (footnote omitted). The trial court did not deal at all with this
issue in its order.  All the trial court’s order said was:  “ORDERED AND 

24. Kelly obviously had a reasonable basis to conclude that the pleas with
no jail time were in his best interest since, in the 1995 arrest, his blood alcohol
level was 0.152 on the first test and 0.161 on the second test, and in the 1997
arrest, his blood-alcohol level was 0.179 on the first test and 0.182 on the second
test. Section 316.193, Florida Statutes, sets the maximum limit at 0.08, so both
times Kelly was over twice the legal limit.
- 56 -
ADJUDGED that the Defendant’s Motion to Dismiss is Granted.”  During the oral 
hearing, the trial court made no statement as to how or why he was going to rule.
Therefore, there is no way to know on what basis the trial judge would have found
the waiver not to be valid. Moreover, the record evidence which I have set out
above does not support such a determination.
Next, it is my view that the majority misapplies State v. Beach, 592 So. 2d
237 (Fla. 1992). From the record, I note that the trial judge did not deal with
Beach at all. But, on the essential Beach issue of whether Kelly waived his right to
counsel in exchange for the pleas, the trial record is uncontroverted that Kelly did
so. I again refer to the transcript testimony that I set out above. Therefore, under
Beach, the prior convictions could be used.
Though I conclude that there was a valid waiver and that should end
consideration of the issues in this case, I recognize that the district court’s certified 
question poses the question as to whether “an uncounseled prior misdemeanor 
conviction, in which the defendant could have been incarcerated for more than six
months, but was not incarcerated for any period, [can] be used to enhance a current
charge from a misdemeanor to a felony?”  State v. Kelly, 946 So. 2d 1152, 1154
(Fla. 4th DCA 2006). This question raises the issue as to whether we will continue
to apply our decision in Hlad v. State, 585 So. 2d 928 (Fla. 1991), in view of the
fact that the underpinnings of Hlad, namely the United States Supreme Court’s 
- 57 -
decision in Baldasar v. Illinois, 446 U.S. 222 (1980), has been taken away by the
United States Supreme Court’s later decision in Nichols v. United States, 511 U.S.
738 (1994).
The majority rephrases the question and then adopts the dissent in Hlad and
finds a constitutional violation on the basis of state law that is contrary to this
Court’s majority holding in Hlad as well as being contrary to the United States
Supreme Court’s decision in Nichols. In rejecting Hlad in favor of the Hlad
dissent’s view, the majority casts aside this Court’s often and recently stated 
commitment to stare decisis. See Strand v. Escambia County, 992 So. 2d 150 (Fla.
2008); N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612,
637 (Fla. 2003).
Until today, this Court had always followed the United States Supreme
Court’s interpretation when addressing right to counsel issues. See, e.g., Cash v.
Culver, 120 So. 2d 590, 594 (Fla. 1960) (following Powell v. Alabama, 287 U.S.
45 (1932)); Gideon v Wainwright, 153 So. 2d 299, 300 (Fla. 1963) (following
Gideon v. Wainwright, 372 U.S. 335 (1963), on remand); Rollins v. State, 299 So.
2d 586, 588 (Fla. 1974) (following Argersinger v. Hamlin, 407 U.S. 25 (1972));
Goode v. State, 365 So. 2d 381, 383 (Fla. 1978) (following Faretta v. California,
422 U.S. 806 (1975)); Hill v. State, 688 So. 2d 901, 904 (Fla. 1996) (same); Hlad,
585 So. 2d at 929-30 (following Baldasar, 446 U.S. 222); Beach, 592 So. 2d at 239
- 58 -
(same); see also Patterson v. State, 938 So. 2d 625, 628-29 (Fla. 2d DCA 2006)
(recognizing that in Beach and Hlad, this Court followed United States Supreme
Court precedent).
The majority asserts that I have “either not consulted Traylor [v. State, 596
So. 2d 957, 969-70 (Fla. 1992)] or . . . incorrectly overlooked its state-law
posture.”  Majority op. at 25.  Of course, I do recognize our Traylor opinion, but
unlike the majority, I have not overlooked what we later clarified about the Traylor
opinion in State v. Owen, 696 So. 2d 715, 719 (Fla. 1997):
Though our analysis in Traylor was grounded in the Florida
Constitution, our conclusions were no different than those set forth in
prior holdings of the United States Supreme Court.
This is precisely the point that I now make. It is perplexing how the majority can
state that Owen did not involve a right-to-counsel claim when the very issue
confronted by this Court was whether the principles concerning requests for
counsel, as discussed in Davis and Traylor, applied in equal force to requests to
terminate an interrogation—a question we answered in the affirmative.
Indeed, in Hlad, we adopted what we discerned to be the federal standard
articulated in Baldasar. Baldasar held that a previous misdemeanor conviction
could not be used to enhance a current charge to a felony if the defendant (1) was
actually imprisoned or (2) could have been imprisoned for more than six months as
a result of the uncounseled conviction. Hlad, 585 So. 2d at 930. Three years after
- 59 -
we decided Hlad, Baldasar was no longer good law. Recognizing that its
splintered decision in Baldasar had caused a high degree of confusion, the United
States Supreme Court receded from Baldasar in Nichols and clarified that the Sixth
Amendment only precludes enhancement if the defendant was actually imprisoned.
Nichols, 511 U.S. at 746-47.
Though the majority refers extensively to Justice Souter’s concurring 
opinion in Nichols, a concurring opinion no other justices joined, the present
majority rejects the United State Supreme Court’s majority opinion in Nichols.
My view is that the Nichols majority stated important reasons for its decision.
Five Members of the Court in Baldasar—the four dissenters and
Justice Stewart—expressed continued adherence to Scott v. Illinois,
440 U.S. 367 (1979). There the defendant was convicted of
shoplifting under a criminal statute which provided that the penalty
for the offense should be a fine of not more than $500, a term of not
more than one year in jail, or both. The defendant was in fact fined
$50, but he contended that since imprisonment for the offense was
authorized by statute, the Sixth and Fourteenth Amendments to the
United States Constitution required Illinois to provide trial counsel.
We rejected that contention, holding that so long as no imprisonment
was actually imposed, the Sixth Amendment right to counsel did not
obtain. Id. at 373-374. We reasoned that the Court, in a number of
decisions, had already expanded the language of the Sixth
Amendment well beyond its obvious meaning, and that the line should
be drawn between criminal proceedings that resulted in imprisonment,
and those that did not. Id. at 372.
We adhere to that holding today, but agree with the dissent in
Baldasar that a logical consequence of the holding is that an
uncounseled conviction valid under Scott may be relied upon to
enhance the sentence for a subsequent offense, even though that
sentence entails imprisonment. Enhancement statutes, whether in the
nature of criminal history provisions such as those contained in the
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Sentencing Guidelines, or recidivist statutes that are commonplace in
state criminal laws, do not change the penalty imposed for the earlier
conviction. As pointed out in the dissenting opinion in Baldasar,
“[t]his Court consistently has sustained repeat-offender laws as
penalizing only the last offense committed by the defendant. E.g.,
Moore v. Missouri, 159 U.S. 673, 677 (1895); Oyler v. Boles, 368
U.S. 448, 451 (1962).”  446 U.S. at 232.
Nichols, 511 U.S. at 746-47.25 This Court should follow the United States
Supreme Court as it has on this issue until today.
We should follow the law as determined in Nichols and find no
constitutional prohibition against the State enhancing Kelly’s charge with his 
misdemeanor offense because no incarceration was imposed. As the Fourth
District implicitly recognized in certifying the question, the rule of law dictates that
we recede from Hlad and Beach, both of which relied on the now-discarded
Supreme Court decision in Baldasar. Accordingly, we should answer the certified
question in the affirmative and hold that an uncounseled prior misdemeanor
conviction in which the defendant could have been incarcerated for more than six
months but was not incarcerated for any period can be used to enhance a current
charge from a misdemeanor to a felony.
The majority relies upon Florida Rule of Criminal Procedure 3.111(b) and
section 27.51, Florida Statutes (2003). Ironically, these two sources were adopted
in order to implement the Sixth Amendment as interpreted by the United States

25.  I accept this analysis in answer to the majority’s footnote 7.
- 61 -
Supreme Court prior to Nichols. Neither the rule nor the statute was adopted based
on the Counsel Clause of article I, section 16.
Rule 3.111(b) requires the appointment of counsel to indigent persons in all
prosecutions for offenses punishable by incarceration. But, as this Court itself
explained, rule 3.111(b) was adopted to comply with the Supreme Court’s decision 
in Argersinger:
On June 12, 1972, the Supreme Court of the United States
extended the right to counsel requirement embodied in the Sixth
Amendment to all cases which result in a loss of liberty. Argersinger
v. Hamlin. The Court extended the logic of Powell v. Alabama, and
Gideon v. Wainwright, both involving felony convictions, saying:
“their rationale has relevance to any criminal trial, where an accused
is deprived of his liberty.”  A guilty plea resulting in a jail sentence is 
also invalid absent counsel. Any trial, whether on a felony or
misdemeanor charge, requires counsel if it may end up “in the actual 
deprivation of a person’s liberty.”
We have provided a method of insuring that this requirement is
satisfied in our new rules of criminal procedure, which became
effective February 1, 1973, through Rule 3.111(b)(1) . . . .

Rollins, 299 So. 2d at 588 (some emphasis added) (footnotes omitted). Thus, the
adoption of rule 3.111 was not based upon article 1, section 16.
Second, chapter 27, which created the Public Defender’s Office, was in 
response to the United States Supreme Court’s decisions interpreting the scope of 
the Sixth Amendment right to counsel, particularly Gideon.  “The purpose of 
chapter 27, part II, Florida Statutes (concerning public defenders), is to ensure that
indigent defendants are afforded the opportunity for representation by counsel as
- 62 -
commanded by Gideon v. Wainwright.”  Behr v. Gardner, 442 So. 2d 980, 981-82
(Fla. 1st DCA 1983) (on motion for rehearing); see also State ex rel. Smith v.
Brummer, 443 So. 2d 957, 959 (Fla. 1984). More particularly, the provisions of
section 27.51, requiring the public defender to represent defendants charged with
misdemeanors, were enacted in response to Argersinger. Because the Supreme
Court’s decision in Argersinger interpreting the Sixth Amendment precipitated the
adoption of rule 3.111 and section 27.51, not article I, section 16, the majority’s 
reliance on these provisions as the basis to find a broader right to counsel in
Florida’s Constitution is misplaced.
After Florida adopted rule 3.111 and section 27.51 to provide for counsel in
cases of prospective imprisonment following Argersinger, the United States
Supreme Court subsequently restricted the right to appointed counsel to cases
where the defendant was actually imprisoned. Scott v. Illinois, 440 U.S. 367, 373-
74 (1979). However, because Florida never codified the Scott decision in its rules
or statutes, the prospective imprisonment standard from Argersinger remains
despite the delimitation of its source.
Finally, what should be corrected is the procedure that this Court created in
Beach. In Beach, this Court allowed a collateral attack in the subsequent DUI case
of the validity of the convictions in prior DUI cases. This is contrary to our
procedures in other criminal cases in which we require the collateral attack on a
- 63 -
conviction to be filed in the case in which the conviction was entered. The motion
in other cases is required to be brought pursuant to Florida Rule of Criminal
Procedure 3.850. If the defendant wishes to withdraw the plea, the motion must be
in accord with Florida Rule of Criminal Procedure 3.170. This provides an orderly
process and prevents what happened in the instant case, in which the defendant did
not attack the prior convictions until many years after the convictions when there is
no transcript of what occurred. The Beach decision is out of sync with this Court’s 
longstanding commitment to finality.
In conclusion, based upon the record in this case, it is clear that Kelly knew
he had a right to counsel at the time of both his 1995 and 1997 pleas and that he
knowingly waived counsel so that he could take advantage of the deals that he had
been offered in exchange for his no contest pleas. Therefore, under Beach, the
prior convictions could be used to enhance his subsequent DUI charge. In
addition, continuing to follow United States Supreme Court precedent on this
issue, my answer to the district court’s certified question would be that an 
uncounseled prior misdemeanor conviction in which the defendant could have
been incarcerated for more than six months but was not incarcerated for any period
can be used to enhance a current charge from a misdemeanor to a felony.


Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
- 64 -

Fourth District - Case No. 4D06-1039

(Broward County)

Bill McCollum, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau
Chief, Assistant Attorney General, Mitchell A. Egber, Assistant Attorney General,
Daytona Beach, Florida,
for Petitioner

Frank A. Maister and Garrett Elsinger, Fort Lauderdale, Florida,

for Respondent

Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee,
Florida, and Michael Robert Ufferman, Tallahassee, Florida, on behalf of The
Florida Association of Criminal Defense Lawyers,

as Amicus Curiae