### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

J anuar y Term 2014

JAMES RILEY
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 11

- 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 Atto rney General, West Palm Beach, for appellee.

C IKLIN
, J

.

T his is t he 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

u sed 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 bas ed 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 t he instant appeal flows from a resentencing order which effectively denied postconviction

relief.2 which the def

endant 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 provi ded 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 Ri ley 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 re sentence 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.

M AY and K LINGENSMITH , JJ., concur.

* * *

Not final until disposition of timely filed motion for reheari ng.

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. T he offense occurred in 1992. At that time, the offense was a misdemeanor. See § 316.1305, Fla. Stat. (1992).