In Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979), this Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. The following Term, however, in Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (per curiam ), this Court held that such a conviction may not be used under an enhanced penalty statute to convert a subsequent misdemeanor conviction into a felony with a prison term.

Here, petitioner was convicted and sentenced to a prison term under Ga.Code Ann. § 40-6-391(C) (Supp.1987) which imposes a mandatory minimum sentence on a person convicted of driving under the influence of alcohol, where such person has at least two prior convictions for the same offense. Petitioner argued that Baldasar prohibited her conviction under § 40-6-391(C), because this conviction relied upon her two prior, uncounseled convictions for driving under the influence. The Court of Appeals of Georgia rejected this contention, and determined that Baldasar was inapplicable here because § 40-6-391(C) merely imposes a minimum prison term based on petitioner's prior convictions, and does not "increas[e] the maximum confinement authorized [or] conver[t] a misdemeanor offense into a felony." 181 Ga.App. 548, 549, 352 S.E.2d 821, 822 (1987) (emphasis added).

Possibly because this Court was sharply divided in Baldasar, with no opinion for reversal gaining more than three votes, courts attempting to apply that decision have come to different conclusions concerning its meaning. See Schindler v. Clerk of Circuit Court, 715 F.2d 341, 344 (CA7 1983) ("In light of . . . the failure of the Baldasar majority to agree upon a rationale for its result, the scope of the decision remains unclear") cert. denied, 465 U.S. 1068, 104 S. Ct. 1419, 79 L. Ed. 2d 745 (1984). Some courts have applied Baldasar as the Georgia court did here, and have allowed the use of prior, uncounseled convictions in cases quite similar to this one. E.g., Commonwealth v. Thomas, 510 Pa. 106, 112-114, 507 A.2d 57, 60-61 (1986); State v. Orr, 375 N.W.2d 171, 175-176 (N.D.1985). Others, however, have read Baldasar more broadly, and have disallowed the use of prior, uncounseled convictions in prosecutions akin to petitioner's. E.g., State v. Oehm, 9 Kan. App. 2d 399, 401-403, 680 P.2d 309, 311-312 (1984); State v. Dowd, 478 A.2d 671, 677-678 (Me.1984).

Because the confusion over Baldasar's holding has led to uneven application of that case and conflicting decisions in the courts below, I would grant certiorari here to answer the outstanding questions concerning Baldasar's scope and proper application.