SC00-1258 State of Florida v. B.P., a Child

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State: Florida

Court: Supreme Court

Docket No: sc00-1258

Case Date: 02/14/2002

Plaintiff: SC00-1258 State of Florida

Defendant: B.P., a Child

Preview:Supreme Court of Florida
No. SC00-1258
STATE OF FLORIDA,
Petitioner,
vs.
B.P., a child,
Respondent.
[February 14, 2002]
QUINCE, J.
We have for review B.P. v. State, 759 So. 2d 741 (Fla. 5th DCA 2000),
which cited to the decision in T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), a
case that was accepted for review by this Court.   See State v. T.G., 751 So. 2d
1254 (Fla. 2000).   We have jurisdiction.   See art. V, § 3(b)(3), Fla. Const.   For the
reasons expressed below, we approve the decision of the Fifth District Court of
Appeal and remand this case to the trial court for further proceedings consistent
with this opinion.

B.P., a juvenile, pled guilty to one count of grand theft and one count of
resisting an officer without violence.   Thereafter, the trial court entered an
adjudication of delinquency and committed B.P. to a Level 8 program.   At the plea
hearing, B.P. appeared with his probation officer and was shown a video that
explained his right to counsel.   Although a public defender was consulted during
the course of the hearing, nothing in the record indicates that the public defender
was appointed to represent B.P.   B.P. was also without representation at the
disposition hearing.
B.P. appealed to the Fifth District, claiming that the trial court committed
reversible error when it failed to offer him counsel at the time of either his plea or
disposition hearing and failed to obtain a waiver of counsel as required by Florida
Rule of Juvenile Procedure 8.165.   The State argued that B.P. was required to file a
motion to withdraw his plea in order to preserve the issue.   The Fifth District,
relying on its decision in T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), held
that even absent a motion to withdraw a plea, failure to advise a juvenile of his right
to counsel in accordance with the rule is reviewable and correctable on appeal.           741
So. 2d at 518-19.
For the reasons expressed in our recent decision in State v. T.G., 800 So. 2d
204 (Fla. 2001),   we approve the decision in this case because the denial of counsel
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constituted fundamental error.   Thus, we remand this case to the trial court so that
it can properly advise B.P. of his right to assistance of counsel, ensure by a
thorough inquiry that any waiver is free and intelligent, and allow B.P. to enter a
new plea if appropriate.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, and LEWIS,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal -
Direct Conflict
Fifth District - Case No. 5D99-2802
(Orange County)
Robert A. Butterworth, Attorney General, and David H. Foxman and Kellie A. Nielan,
Assistant Attorneys General, Daytona Beach, Florida,
for Petitioner
James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,
for Respondent
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