The Necessity of Counsel in a Prior Conviction When the Prior Conviction is to be Used for Enhancement of Punishment or as an Element of the Offense

On March 18, 1963, the United States Supreme Court decided Gideon v. Wainwright, which held that the right to counsel guaranteed by the sixth amendment was applicable to the states by virtue of the fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had counselor had validly waived one. Gideon has since been held to apply retrospectively. On November 13, 1967, the Supreme Court decided Burgett v. Texas, which extended Gideon by holding that a prior felony conviction in which it did not appear that counsel was present or had been waived could not be used in a common law recidivist procedure. This note will explore the outer limits of Burgett.