        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                             January Term 2014

                              JAMES RILEY,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D11-4581

                               [July 2, 2014]


   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. 93-5064 CF10A.

  Carey Haughwout, Public Defender, and Ellen Griffin, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   This is the third appeal by Riley of the denial of his motion for
postconviction relief.1 See Riley v. State, 8 So. 3d 1285 (Fla. 4th DCA
2009); Riley v. State, 975 So. 2d 507 (Fla. 4th DCA 2007). As one of his
central themes, Riley continues to assert that a sentencing scoresheet
used early on in the process was flawed. He argues that certain
misdemeanor convictions should not have been included in the
scoresheet calculation because they were based on uncounseled pleas.
In our most recent opinion we wrote:

      Notably, the Florida Supreme Court has modified its holding
      in State v. Beach, 592 So. 2d 237 (Fla. 1992), in a recent
      decision of State v. Kelly, 999 So. 2d 1029 (Fla. 2008), in

1 The first two appeals were taken from summary denials while the instant
appeal flows from a resentencing order which effectively denied postconviction
relief.
       which the defendant argued that the state erred in using
       prior uncounseled misdemeanor convictions to increase a
       subsequent DUI from a misdemeanor to a felony. The court
       held that a defendant must allege: (1) that the offense was
       punishable by imprisonment; (2) that the defendant was
       indigent and entitled to court-appointed counsel; (3) that
       counsel was not appointed; and (4) that the right to counsel
       was not waived. Riley satisfied this requirement. This shifts
       the burden to the state to show that counsel was provided or
       that counsel was waived.

Riley, 8 So. 3d at 1286 n.1.

   The record reflects that in his postconviction motion, Riley challenged
the assessment of points for four misdemeanor convictions. On remand
from the last appeal, the state established that Riley waived counsel as to
two of the four misdemeanors—carrying a concealed weapon and
disorderly conduct. However, the state has repeatedly failed to establish
that counsel was provided or waived as to two traffic crimes.2

   As the state has now had two opportunities to meet its burden and
has been unable to do so with respect to two of the misdemeanors, we
reverse and remand for the trial court to resentence Riley based on a
scoresheet that does not include the convictions for the two traffic
misdemeanors.

    The other issues raised on appeal are without merit or moot.

    Reversed and remanded with instructions.

MAY and KLINGENSMITH, JJ., concur.

                             *         *          *

    Not final until disposition of timely filed motion for rehearing.




2 On remand from the second appeal in this case, the state sought to add points
to Riley’s scoresheet for a prior conviction for fishing off a bridge. On appeal,
Riley argues this prior conviction should not have been scored when he violated
his probation as it was a noncriminal infraction. He is incorrect. The offense
occurred in 1992. At that time, the offense was a misdemeanor. See §
316.1305, Fla. Stat. (1992).

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