Appeal from Russell Circuit Court. (CC-93-594, 93-595). Paul Miller, TRIAL JUDGE.
Released for Publication August 12, 1995.
Montiel, Judge. All the Judges concur except Taylor, J., who Dissents with opinion.
The opinion of the court was delivered by: Montiel
The appellant, Clemmon T. Williams, was found guilty in the municipal court of Phenix City of criminal trespass in the third degree, a violation of § 13A-7-4, Code of Alabama 1975, and of bail jumping in the second degree, a violation of § 13A-10-40, Code of Alabama. Both are misdemeanor convictions. He appealed to the Russell Circuit Court for a trial de novo. The appellant did not request counsel and proceeded pro se. He was found guilty in the circuit on both charges and his sentence was suspended and he was ordered to pay fines and court costs. The appellant argues that he was denied his constitutional right to the assistance of appointed counsel at his trial in circuit court and that the trial court erred in ordering the appellant to serve time in jail sufficient to offset serve his fines and court costs.
A defendant's right to counsel in a criminal prosecution is guaranteed by the Sixth and Fourteenth amendments to the United States Constitution. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
"'The constitutional right to counsel extends to misdemeanor cases involving the loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). However, the constitutional right to counsel does not extend to misdemeanor cases unless the defendant is actually sentenced to jail. Lake v. City of Birmingham, Ala. Cr. App., 390 So. 2d 36, 38 (1980), citing Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).'
" Word v. State, 424 So. 2d 1374, 1377 (Ala. Cr. App. 1982)."
Warren v. City of Enterprise, 641 So. 2d 1312, 1313 (Ala. Crim. App. 1994).
"'Conviction of an uncounseled criminal defendant is constitutionally permissible, so long as the defendant is not sentenced to a term of imprisonment. If an uncounseled defendant is sentenced to prison [or jail], the conviction itself is unconstitutional.' United States v. Eckford, 910 F. 2d 216, 218 (5th Cir. 1990)." Minnifield v. City of Alexander City, 616 So. 2d 403 (Ala. Crim. App. 1993).
The record shows that the appellant was indigent. The municipal court appointed counsel for him. The circuit Judge declared the appellant indigent 16 days after the appellant's trial in circuit court and appointed counsel to represent him on appeal. (C. 36.)
"Scott [v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L. Ed. 2d 383 (1979)] held that 'no indigent criminal defendant [can] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.' 440 U.S. at 374, 99 S. Ct. at 1162. In this formulation, the constitutional right to counsel limits not the trial itself, but rather the sentence that may be imposed. By denying the defendant counsel, the court effectively waives its right to sentence him to prison. See United States v. Foster, 904 F. 2d 20, 21-22 (9th Cir. 1990) ('If a court wishes to retain its powers to imprison a [defendant], it must simply afford [him] counsel....')."
United States v. Reilley, 948 F. 2d 648, 654 (10th Cir. 1991).
In this case, the trial court could try, convict, and fine the appellant. However, the trial court conditioned the appellant's release on the payment of fines and costs. The appellant's inability to pay these sums resulted in his being sentenced to jail "for a sufficient period of time to serve his fine and cost." (C. 11; 29.) This is in direct contravention to Rule 26.11(i)(2), Ala. R. Crim. P., which states, "In no ...