Opinion
No. 91-2091.
December 23, 1992. Rehearing Denied February 17, 1993.
Appeal from the Circuit Court, St. Lucie County, Marc A. Cianca, J.
Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, at trial, was represented by court-appointed counsel. Another attorney appeared for appellant at sentencing. Appellant argues on appeal that this substitution of counsel rendered the sentencing hearing fundamentally unfair and constitutionally deficient. We decline to adopt a rule that such substitution constitutes reversible error per se. Each case must proceed on its own facts, and the burden is on appellant to demonstrate that his rights were prejudiced by the substitution. Eutzy v. State, 536 So.2d 1014, 1015 (Fla. 1988) (to support a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced him). We find no such prejudice on this record.
However, the written sentencing orders (entered after jury verdict of guilty) pertaining to Counts I through IX and XIV of an amended information imposing a twenty-five year mandatory minimum term of imprisonment, we find to be in error. At the sentencing hearing the trial court correctly imposed the three year mandatory minimum term of imprisonment. Remand is therefore necessary only to correct the errors in the sentencing forms. Tetro v. State, 581 So.2d 1009 (Fla. 4th DCA 1991).
In all other respects we affirm.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY and POLEN, JJ., concur.
STONE, J., dissents with opinion.
I would reverse. In my judgment, a defendant is effectively denied counsel where a lawyer, possibly unprepared, appears without explanation at a critical stage in a criminal case on behalf of a defendant in custody, solely at the request of another court appointed counsel. The attorney was neither selected with the defendant's consent nor formally approved to represent the defendant. He was not even a member of defense counsel's law firm.
I say "possibly," as the facts concerning the selection and preparation of substitute counsel are largely speculative and would, of course, need to be proven in any subsequent rule 3.850 proceeding.
Under such circumstances, and in the absence of a record with respect to how this appearance came about, I would hold that the only effective way to assure Sixth Amendment protection is to remand for a new sentencing hearing. Cf. Tucker v. Day, 969 F.2d 155 (5th Cir. 1992); Holley v. State, 484 So.2d 634 (Fla. 1st DCA), rev. denied, 492 So.2d 1335 (Fla. 1986).