Judge Paul Hawkes Wrote on the Right to Counsel – Part 2

Judge Paul Hawkes, while he was Chief Judge of the First DCA, wrote the opinion reversing the sentencing in two cases involving Anthony Payne. In the case, Payne v State, Judge Paul Hawkes explained that the failure to provide counsel was fundamental. Fundamental error means the courts have found the class or error, or type of error, so severe, or significant, that it does not have to be preserved or does the ‘harmless error doctrine apply. Because the error was fundamental, Judge Paul Hawkes and the court had no option but to vacate the sentencing and remand for yet another resentencing.

 

In the last sentence Judge Paul Hawkes wrote, “On remand, the trial court has the authority in both cases to impose any sentence permitted by law, including the term originally imposed during the challenged resentencing.” This sentence shows that Judge Paul Hawkes and the panel recognized that the error in sentencing that caused the previous reversal might have been only a technical error. The defendant may have the exact same sentence imposed even though it had now been twice reversed – in this case where Judge Paul Hawkes wrote the opinion, and in the previous appeal.