In courtrooms throughout Florida people regularly enter pleas of guilty or no contest to the charge of Driving Under the Influence (DUI) without first talking to an attorney. What many people don't realize is that any person who is convicted of more then one DUI is subject to increased penalties. These penalties can include increased jail time, a longer probationary period, a higher fine, car impoundment and ignition locking devices. The penalties can increase dramatically depending on the number of prior DUI's and the age of those convictions. The fourth, and in some instances, the third DUI charge can become a felony, meaning that it is punishable by up to five years in prison and involves the forfeiture of certain civil rights. An attorney is important not just in fighting criminal charges, but also in guiding the defendant through the legal system and counseling those charged with DUI and the consequences of a conviction.
The Supreme Court of Florida in the case of State v. Kelly, 35 Fla. L. Weekly S15a, 2008 WL 5396701 (Fla. 2008) dealt with a defendant who had been convicted of a DUI in 1987, 1995 and in 1997. Mr. Kelly entered a no contest plea in each case and had not been represented by an attorney. Kelly was arrested for a fourth DUI in 2003, and the State Attorney's Office charged him with a felony because Florida law allows a fourth conviction for DUI to be enhanced from a misdemeanor to a felony. Kelly obtained an attorney on his fourth DUI and he filed a motion to dismiss the enhanced felony charge because he was indigent and was not appointed counsel in his three prior cases.
Under Florida law an indigent criminal defendant has a right to appointed counsel for offenses punishable by imprisonment. Kelly argued that the plea forms that he signed back in the 80s and 90s did not accurately reflect his right to counsel because it advised that a defendant lacks a right to counsel so long as the trial judge is not currently considering jail time as an appropriate sentence, as opposed to just the possibility of incarceration as provided under Florida law. Even if a person could afford an attorney, the form did not advise the defendant of his right to have an attorney.
The Supreme Court of Florida, in the Kelly case, held that the state cannot use misdemeanor convictions to increase or enhance a persons subsequent misdemeanor to a felony, unless that person validly waived his right to counsel in the prior cases. However, the state can still seek to increase the penalties and fines a person faces, except for the maximum amount of incarceration that a person can receive.
The right to an attorney is so important that a conviction doesn't count for enhancement purposes unless that right to an attorney was knowingly waived. Unlike in the 1980s and 1990s, most judges today instruct defendants on the record regarding their right to an attorney, so they can ensure that any waiver was freely, voluntarily and knowingly made. Many people charged with DUI today may have a prior DUI conviction which stems from a plea of guilty or no contest without the benefit of an attorney and without having been advised of the right to an attorney. It is important to retain an attorney to raise all defenses including the enhancement of DUI penalties in violation of the Supreme Court of Florida's decision in State v. Kelly.
Rob, Former Client
Ted, Former Client
Anonymous, Former Client
Roshelle P., Former Client
Randy P., Former Client