Judge Paul Hawkes Wrote on the Right to Counsel – Part 1

Judge Paul Hawkes, while he was Chief Judge of the First DCA, wrote the opinion reversing the sentencing in two cases involving Anthony Payne. Judge Paul Hawkes wrote that the cases were consolidated for appeal, as the issue in both was the same. It is well established that a criminal defendant has a right to be represented by counsel. An issue has arisen on occasion as to when that right is applicable. Is it applicable when an officer instructs a defendant where to stand before entering court? When the court merely continues the case as a matter of administrative necessity? The courts have defined the times when counsel must be provided as ‘critical stages.’ Jury selection and during the actual trial when witnesses are testifying are obvious ‘critical stages’ when counsel must be provided.

 
The defendant in Payne v State had his cases previously reversed for ‘resentencing.’ The courts had included sentencing, when the judge states the guilty defendant’s punishment, as a critical stage – requiring counsel. Judge Paul Hawkes wrote, “In situations such as here, where a defendant is denied counsel during a resentencing hearing held to correct a judicial error, the trial court commits fundamental error.” Sentencing is very complex and has some technical aspects that may not have any substantive effect on the defendant’s immediate liberty interest. Because of this, says Judge Paul Hawkes, the complexity of criminal sentencing, cases are often reversed to correct ‘judicial error’ or what might be called a technical error. Judge Paul Hawkes’ opinion illustrates what happens if a trial court just corrects the technical error without making sure the defendant’s attorney is present – the sentencing is invalid.