Florida Criminal Law Opinions

D.P., a Child, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 5D09-839. District Court of Appeal of Florida, Fifth District. Opinion filed April 24, 2009.Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction. Anthony H. Johnson, Judge.

Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Petitioner.

No Appearance for Respondent.

PER CURIAM

We granted by unpublished order the petition for writ of habeas corpus filed by D.P., a juvenile, challenging his continued secure detention, based upon an allegedly improperly scored Risk Assessment Instrument (RAI). We now write to explain the order.

D.P. is sixteen years of age and was charged with the offense of carrying a concealed firearm. Under section 3 of the RAI, he was given ten points for a third-degree felony involving the use and possession of a firearm. He was also scored an additional three points under that same section for the aggravating circumstance of illegal possession of a firearm. This resulted in a score exceeding the twelve points necessary for secure detention. Because the firearm possession was already factored into the initial scoring of ten points, it could not be used again without impermissibly double scoring the same conduct already accounted for in the RAI. P.A.J. v. Gnat, 684 So. 2d 310 (Fla. 1st DCA 1996); D.G. v. Miles, 872 So. 2d 343 (Fla. 2d DCA 2004). Consequently, D.P. was ineligible for secure detention because he scored less than twelve points.

PETITION FOR HABEAS CORPUS GRANTED.

MONACO, EVANDER and COHEN, JJ., concur.

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JOHN RICHARD MASON, Petitioner,
v.
STATE OF FLORIDA, Respondent. Case No. 1D08-6123. District Court of Appeal of Florida, First District. Opinion filed April 24, 2009.Petition for Belated Appeal — Original Jurisdiction.

Bernard F. Daley, Jr. of Bernard F. Daley, Jr., P.A., Tallahassee, for Petitioner.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

John Richard Mason timely seeks a belated appeal of his judgment and sentence entered on May 22, 2007. In response to an order to show cause, the state indicates that it does not oppose the granting of relief. A timely appeal of the judgment and sentence was taken in case number 1D07-3451. Through no fault directly attributable to petitioner, that appeal was dismissed for failure to respond to the court’s orders requiring payment of the filing fee and requiring petitioner to show cause concerning the timeliness of the notice of appeal. Therefore, the proper remedy is reinstatement of the appeal in case number 1D07-3451 rather than granting a belated appeal.

Accordingly, the appeal in Mason v. State, case number 1D07-3451, is hereby reinstated.

KAHN, DAVIS, and CLARK, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

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KIRKLAND WASHINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 1D08-3246. District Court of Appeal of Florida, First District. Opinion filed April 24, 2009.An appeal from the Circuit Court for Leon County, Kathleen F. Dekker, Judge.

Kirkland Washington, pro se, Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Kirkland Washington, Appellant, appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. He raises several grounds for relief, only one of which merits discussion. Appellant argues the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to advise him of the victim’s unavailability to testify at trial. We agree. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Appellant entered his guilty plea on the date that trial was set to begin. Jury selection had already taken place, but the State extended Appellant a last-minute plea offer. Appellant was informed that if he did not accept the plea offer, trial would begin immediately. Appellant accepted the offer and entered a plea accordingly. After Appellant’s judgment and sentence were affirmed, he filed the instant motion for postconviction relief, alleging, among other things, that trial counsel was ineffective for failing to inform him, prior to the entry of his plea, that the victim was not available to testify against him at trial. He claimed he would not have entered a guilty plea and would have insisted on going to trial if he had known the victim was unavailable that day. The trial court summarily denied Appellant relief on this ground because it was “completely speculative.”

A trial court may summarily deny a motion for postconviction relief only if the claims asserted are either legally insufficient or conclusively refuted by the record. Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000). If a defendant’s postconviction claims are legally sufficient, the trial court must attach portions of the record that conclusively refute the claims. Ortiz v. State, 968 So. 2d 681, 684 (Fla. 1st DCA 2007). If the court cannot do so, summary denial is improper, and an evidentiary hearing is required. See id. The allegations in a Rule 3.850 motion must be accepted as true to the extent they are not refuted by the record. Id.

Here, the trial court applied an improper standard. Appellant’s claim that he would not have entered a guilty plea and would have insisted on going to trial if counsel had informed him of the victim’s unavailability to testify at the trial that was scheduled to begin that morning was legally sufficient. Even if the assertion that the victim was not available to testify at the trial was speculative, as the trial court concluded, the court was required to accept it as true absent record evidence refuting the claim. Therefore, as to this issue only, we reverse and remand for either an evidentiary hearing or for record attachments conclusively refuting the allegation that counsel knew the victim was unavailable for the impending trial and neglected to tell Appellant. In all other respects, the trial court’s order is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

WEBSTER, BROWNING, and LEWIS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

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SANDRA LEE FINNEY, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-282. District Court of Appeal of Florida, Second District. Opinion filed April 24, 2009.Appeal from the Circuit Court for Pinellas County, Robert James Morris, Jr., Judge.

Peter A. Sartes of Law Offices of Tragos & Sartes, Clearwater, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

GALLEN, THOMAS M., Associate Senior Judge.

Sandra Lee Finney seeks review of the circuit court’s order denying her “Petition for Writ of Habeas Corpus and/or Motion to Vacate Sentence Pursuant to Rule 3.850.” In her petition, Finney argued that the county court violated her right to counsel by imposing a sentence of incarceration upon a finding that she violated her probation because the pleas that resulted in the probationary sentence were uncounseled. The circuit court denied relief based on its finding that Finney waived her right to counsel. We reverse.

In May 2007, Finney appeared at an arraignment in county court and entered no contest pleas in four cases to charges of issuing worthless checks. The court adjudicated Finney and sentenced her to twelve months of probation plus costs and restitution. The court included a provision that Finney would have ten months of the twelve-month probation period to pay the costs and restitution with early termination upon full payment.

At the onset of the arraignment, the court issued its standard mass advisory to the defendants in the audience. The court advised the audience that the purpose of the hearing was to inform them of the charges against them and their constitutional rights. The court also advised the audience of the differences between pleas of not guilty, no contest, and guilty and the possible dispositions for second-degree and first-degree misdemeanors. The court gave the following information regarding the right to counsel:

If you do enter a plea of not guilty, the Court will then assign you a pre-trial date and perhaps explore your ability to hire a lawyer and whether you intend to hire a lawyer or possibly the Court may appoint you a public defender to represent you.

. . . .

. . . You have the right to be represented by a lawyer and [sic] the charge against you. If you cannot afford to hire a lawyer then the Court can appoint a public defender to represent you. During Finney’s individual plea colloquy, the court asked whether she had read the plea form and whether she understood the rights she was waiving on that form. Finney replied in the affirmative to these questions. Finney’s plea form stated that she understood “[t]he right to an attorney, and the right to have an attorney appointed if [she could not] afford one if the Judge is considering a jail sentence on this charge.” Finney entered her pleas without the benefit of counsel.

On August 17, 2007, an affidavit of violation of probation was filed in county court. The affidavit asserted that Finney violated her probation by failing to pay probation supervision fees for May, June, and July of 2007. Finney entered an uncounseled admission to the violation of probation based upon her failure to pay the costs of supervision and was advised by the court to appear at a future date for sentencing. Finney failed to appear for her sentencing, and a capias was issued for her arrest. The public defender was appointed, and on October 24, 2007, the court sentenced Finney to 364 days in the Pinellas County Jail concurrent on all counts.

Finney then filed a “Petition for Writ of Habeas Corpus and/or Motion to Vacate Sentence Pursuant to Rule 3.850″ in circuit court. In this petition, Finney argued that the county court erred in imposing a sentence of incarceration upon a finding that she violated her probation because the pleas that resulted in the probationary sentence were uncounseled and she had not waived her right to counsel. Finney requested that the court order her immediate release from confinement and enter an order reversing the revocation of her probation on that basis.

The circuit court denied the petition based on its finding that Finney waived her right to counsel when she entered her pleas to the underlying charges in county court. On appeal of the denial of her petition, Finney argues for the first time that the county court erred in finding that the violation of probation was willful and substantial. Finney also argues that the circuit court erred in determining that a sentence of incarceration was proper because Finney waived her right to counsel.

Finney’s argument regarding the county court’s determination that the underlying violation of probation was willful and substantial is not properly before this court because this issue was not raised in Finney’s petition.¹ See Brooks v. State, 768 So. 2d 513, 514 (Fla. 2d DCA 2000) (holding that appellate court would not consider issues raised for the first time in the appeal of the denial of a postconviction motion).

Finney’s argument regarding the circuit court’s determination that incarceration was proper because Finney waived her right to counsel requires reversal. Because Finney was an indigent criminal defendant faced with imprisonment, she was entitled to counsel under article I, section 16 of the Florida Constitution, unless the court filed a written order of no incarceration. State v. Kelly, 999 So. 2d 1029, 1040 (Fla. 2008). Absent a valid waiver of this right, the county court was precluded from imposing a sentence of incarceration on the charges. See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), Harris v. State, 773 So. 2d 627, 629 (Fla. 4th DCA 2000).

Similarly, the county court was precluded from imposing incarceration upon Finney’s revocation of probation because it could not have imposed incarceration for the underlying conviction. See Tur v. State, 797 So. 2d 4, 6 (Fla. 3d DCA 2001), Harris, 773 So. 2d at 629. As the court acknowledged in Tur, section 948.06(1), Florida Statutes (1999), limits a court’s sentencing choices upon a revocation of probation to “`any sentence which it might have originally imposed before placing the probationer or offender on probation.’” Tur, 797 So. 2d at 6. If the court could not have imposed imprisonment because a defendant was not represented in the underlying misdemeanor proceedings, it cannot impose incarceration upon an ensuing revocation of probation. Harris, 773 So. 2d at 630.

In denying Finney’s petition, the circuit court acknowledged Finney’s right to counsel at the change of plea hearing but concluded that Finney waived this right

based on the totality of the record, which at each hearing includes the introductory mass rights advisement to all defendants present (including [Finney]), the plea colloquy conducted by the court and [Finney's] answers to the questions posed by the court, as well as the plea forms signed by [Finney] at both hearings and her acknowledgement that she read, understood[,] and knowingly waived her rights on the plea form when she signed it.

Finney’s plea form was deficient because it “provided the misleading impression that an indigent criminal defendant lacks a right to counsel so long as the trial judge is not currently considering jail time as an appropriate sentence.” Kelly, 999 So. 2d at 1036. Nothing in the mass plea colloquy or Finney’s individual plea colloquy cured this error. See id. (holding that a “properly executed on-the-record plea colloqu[y]” could cure this type of deficient plea form). In fact, the mass plea colloquy contained conflicting and confusing information that could have led Finney to believe she was only entitled to counsel if she entered a not guilty plea.

For these reasons, the circuit court erred in determining that incarceration was proper because Finney waived her right to counsel. Accordingly, we reverse and remand with directions for the circuit court to grant Finney’s petition.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Notes:

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DANNY L. JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1666. District Court of Appeal of Florida, Second District. Opinion filed April 24, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

Danny L. Johnson, pro se.

NORTHCUTT, Chief Judge.

Danny Johnson pleaded guilty to obtaining property with a worthless check and to grand theft, and he was sentenced for these crimes on August 4, 2005. At the sentencing hearing, the court stated that these two sentences were to run concurrently.

On October 19, 2006, Johnson filed a motion to correct his sentence. Fla. R. Crim. P. 3.800(a). He asserted that although the court had announced that his sentences were to run concurrently, the Department of Corrections was running them consecutively. In January 2007, the postconviction court summarily denied Johnson’s motion, but it did not address the issue of whether DOC was running the worthless check sentence consecutively to the grand theft conviction.

We reversed this summary denial and remanded to the postconviction court to review the record to determine whether a discrepancy existed between the sentencing court’s oral pronouncements and the written sentencing documents. Johnson v. State, 972 So. 2d 310, 311 (Fla. 2d DCA 2008).

On remand, the postconviction court again summarily denied Johnson’s motion and attached copies of the written sentencing documents. The written sentence for the worthless check conviction, case number CF04-006077, specifically states the sentence is to run concurrently with the sentence imposed in case number CF04-002026, the grand theft conviction. But the written sentence for the grand theft conviction does not contain the preprinted provision addressing whether the sentence is consecutive to or concurrent with any other sentences. The transcript of the sentencing hearing and the sentencing document for the worthless check conviction establish that the sentencing judge intended that the sentences for the two crimes would run concurrently. The sentencing document in the grand theft case, case number CF04-002026, appears to be missing a page, although the pages are consecutively numbered. This apparent scrivener’s error may be creating confusion at the DOC. Accordingly, we reverse the denial of Johnson’s motion and remand to the postconviction court with directions to correct the sentencing document in case number CF04-002026 to specifically reflect that the sentence is to run concurrently with the sentence imposed in case number CF04-006077.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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DANNY L. JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-1666. District Court of Appeal of Florida, Second District. Opinion filed April 24, 2009.Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

Danny L. Johnson, pro se.

NORTHCUTT, Chief Judge.

Danny Johnson pleaded guilty to obtaining property with a worthless check and to grand theft, and he was sentenced for these crimes on August 4, 2005. At the sentencing hearing, the court stated that these two sentences were to run concurrently.

On October 19, 2006, Johnson filed a motion to correct his sentence. Fla. R. Crim. P. 3.800(a). He asserted that although the court had announced that his sentences were to run concurrently, the Department of Corrections was running them consecutively. In January 2007, the postconviction court summarily denied Johnson’s motion, but it did not address the issue of whether DOC was running the worthless check sentence consecutively to the grand theft conviction.

We reversed this summary denial and remanded to the postconviction court to review the record to determine whether a discrepancy existed between the sentencing court’s oral pronouncements and the written sentencing documents. Johnson v. State, 972 So. 2d 310, 311 (Fla. 2d DCA 2008).

On remand, the postconviction court again summarily denied Johnson’s motion and attached copies of the written sentencing documents. The written sentence for the worthless check conviction, case number CF04-006077, specifically states the sentence is to run concurrently with the sentence imposed in case number CF04-002026, the grand theft conviction. But the written sentence for the grand theft conviction does not contain the preprinted provision addressing whether the sentence is consecutive to or concurrent with any other sentences. The transcript of the sentencing hearing and the sentencing document for the worthless check conviction establish that the sentencing judge intended that the sentences for the two crimes would run concurrently. The sentencing document in the grand theft case, case number CF04-002026, appears to be missing a page, although the pages are consecutively numbered. This apparent scrivener’s error may be creating confusion at the DOC. Accordingly, we reverse the denial of Johnson’s motion and remand to the postconviction court with directions to correct the sentencing document in case number CF04-002026 to specifically reflect that the sentence is to run concurrently with the sentence imposed in case number CF04-006077.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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DAVID RODRIGUEZ, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-4935. District Court of Appeal of Florida, Second District. Opinion filed April 24, 2009.Appeal from the Circuit Court for Hillsborough County, William Fuente, Judge.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

David Rodriguez appeals his conviction and sentence for aggravated battery with great bodily harm. He argues that the trial court erroneously allowed three hearsay statements into evidence. We affirm.

Mr. Rodriguez’s wife was at his apartment with their daughter. Someone knocked. When Mrs. Rodriguez opened the door, she was punched in the face. Mr. Perez, a neighbor, was standing in a nearby parking lot, when he saw a little girl run out of the apartment screaming, looking desperate and panicked. She was yelling that her father was killing her mother. Mrs. Rodriguez came stumbling out. Her eyes were swollen and her face was bleeding. She got into her car, locked the door, and began honking the horn.

Shortly thereafter, Mr. Perez saw Mr. Rodriguez come out of the apartment. Mr. Rodriguez began screaming and banging on the car window. Mrs. Rodriguez refused to open the car door. Mr. Rodriguez left the scene and Mr. Perez approached the car. Mrs. Rodriguez was afraid and was looking to see whether her attacker was still there. She opened the car door and told Mr. Perez that her husband attacked her.

Deputies arrived. Mrs. Rodriguez remained in the car, crying and hysterical. She was having difficulty talking and complained of pain. She told the deputies that Mr. Rodriguez hit her.

At trial, Mr. Perez and one of the deputies testified as to the statements made by Mrs. Rodriguez and her daughter. After the State rested, Mr. Rodriguez moved for a judgment of acquittal. But for the three hearsay statements, he contends that he was entitled to a judgment of acquittal because the circumstantial evidence is equally consistent with his reasonable hypothesis of innocence. See Beasley v. State, 774 So. 2d 649, 657 (Fla. 2000).

The trial court properly admitted the three statements as excited utterances. See § 90.803(2), Fla. Stat. (2006). A hearsay statement is an excited utterance when: (1) there is an event startling enough to cause nervous excitement, (2) the person made the statement before there was time for reflection, and (3) the person made the statement while under the stress of the excitement caused by the startling event. Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995) (citing State v. Jano, 524 So. 2d 660, 661 (Fla. 1988)).

Rivera v. State, 718 So. 2d 856 (Fla. 4th DCA 1998), is instructive. There, the Fourth District held that statements that a battery victim made to a police officer fifteen minutes after the officer saw the victim screaming and waving her hands while crying qualified as excited utterances. Id. at 858. Accordingly, we conclude that the trial court committed no error in admitting the excited utterances of Mrs. Rodriguez and her daughter.

Affirmed.

WALLACE and KHOUZAM, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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DAVID RODRIGUEZ, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D07-4935. District Court of Appeal of Florida, Second District. Opinion filed April 24, 2009.Appeal from the Circuit Court for Hillsborough County, William Fuente, Judge.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

David Rodriguez appeals his conviction and sentence for aggravated battery with great bodily harm. He argues that the trial court erroneously allowed three hearsay statements into evidence. We affirm.

Mr. Rodriguez’s wife was at his apartment with their daughter. Someone knocked. When Mrs. Rodriguez opened the door, she was punched in the face. Mr. Perez, a neighbor, was standing in a nearby parking lot, when he saw a little girl run out of the apartment screaming, looking desperate and panicked. She was yelling that her father was killing her mother. Mrs. Rodriguez came stumbling out. Her eyes were swollen and her face was bleeding. She got into her car, locked the door, and began honking the horn.

Shortly thereafter, Mr. Perez saw Mr. Rodriguez come out of the apartment. Mr. Rodriguez began screaming and banging on the car window. Mrs. Rodriguez refused to open the car door. Mr. Rodriguez left the scene and Mr. Perez approached the car. Mrs. Rodriguez was afraid and was looking to see whether her attacker was still there. She opened the car door and told Mr. Perez that her husband attacked her.

Deputies arrived. Mrs. Rodriguez remained in the car, crying and hysterical. She was having difficulty talking and complained of pain. She told the deputies that Mr. Rodriguez hit her.

At trial, Mr. Perez and one of the deputies testified as to the statements made by Mrs. Rodriguez and her daughter. After the State rested, Mr. Rodriguez moved for a judgment of acquittal. But for the three hearsay statements, he contends that he was entitled to a judgment of acquittal because the circumstantial evidence is equally consistent with his reasonable hypothesis of innocence. See Beasley v. State, 774 So. 2d 649, 657 (Fla. 2000).

The trial court properly admitted the three statements as excited utterances. See § 90.803(2), Fla. Stat. (2006). A hearsay statement is an excited utterance when: (1) there is an event startling enough to cause nervous excitement, (2) the person made the statement before there was time for reflection, and (3) the person made the statement while under the stress of the excitement caused by the startling event. Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995) (citing State v. Jano, 524 So. 2d 660, 661 (Fla. 1988)).

Rivera v. State, 718 So. 2d 856 (Fla. 4th DCA 1998), is instructive. There, the Fourth District held that statements that a battery victim made to a police officer fifteen minutes after the officer saw the victim screaming and waving her hands while crying qualified as excited utterances. Id. at 858. Accordingly, we conclude that the trial court committed no error in admitting the excited utterances of Mrs. Rodriguez and her daughter.

Affirmed.

WALLACE and KHOUZAM, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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JOE CARRINGTON, Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D09-410 District Court of Appeal of Florida, Fourth District. April 22, 2009Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Pedro E. Dijols, Judge, L.T. Case No. 05-12504 CF10A.

Joe Carrington, Sunrise, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the trial court’s summary denial of appellant’s motion for postconviction relief. Appellant entered a negotiated plea to three thirddegree felony counts and was placed on probation. His motion generally alleged that counsel performed deficiently and provided misadvice.¹ Our review of the record reveals that counsel negotiated a very favorable plea bargain for appellant and that the factual basis was sufficient.

The motion fails to specifically identify how counsel’s performance fell below that of reasonably competent counsel and fails to demonstrate that but for counsel’s deficient performance appellant would not have entered the plea and would have insisted on going to trial. Grosvenor v. State, 874 So.2d 1176, 1179 (Fla. 2004). Appellant should be afforded at least one opportunity to amend the facially insufficient motion if he can do so in good faith. Spera v. State, 971 So.2d 754, 762 (Fla. 2007).

Accordingly, affirmance is without prejudice for appellant to file a facially sufficient motion within thirty (30) days of the date of this court’s mandate if he can do so in good faith. Appellant is advised that, if successful in collaterally attacking his plea, he will again be facing five years in prison on each count including the one-year mandatory minimum terms of incarceration he was facing on two of the counts.²

Polen, Stevenson and Taylor, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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DEWEY M. COUNCIL, Appellant,
v.
STATE OF FLORIDA, Appellee. Case No. 2D08-614. District Court of Appeal of Florida, Second District. Opinion filed April 22, 2009.Appeal from the Circuit Court for Pinellas County, Philip J. Federico, Judge.

James Marion Moorman, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Dewey M. Council appeals his convictions and sentences imposed after the trial court denied his motion to withdraw plea. Mr. Council previously pleaded no contest to obstruction of justice, disorderly conduct, and failure to report and reregister as a sex offender. The trial court should have appointed conflict-free counsel for Mr. Council before summarily denying the motion. The State concedes error. We reverse.

Mr. Council was arrested in early 2007. Later in the year, obviously dissatisfied with his court-appointed lawyer, he wrote to the trial judge asking to be released on bond and assigned “a street lawyer that will fight for me . . . .” Our record reflects that Mr. Council’s lawyer told him that there was no defense to the sex offender charges. Because he was visiting from out-of-state at the time of his arrest, Mr. Council claims that he was unaware of his reporting and registration obligations in Florida.

In early 2008, the trial court conducted a Nelson¹ hearing and, consistent with the advice Mr. Council received from his lawyer, stated that failure to register was a strict liability crime. The trial court refused to appoint new counsel. Faced with trial, Mr. Council accepted the State’s plea offer. The trial court sentenced him to over thirty months in prison. Within a few days, Mr. Council’s lawyer moved to withdraw the plea. Allegedly, the lawyer coerced Mr. Council to plead.

At the hearing on the motion, Mr. Council’s lawyer moved to withdraw and asked for the appointment of conflict-free counsel. Instead, the trial court ruled that the motion was facially insufficient because the allowable grounds for plea withdrawal did not include coercion. See Fla. R. Crim. P. 3.170(/) (allowing motion to withdraw plea after sentencing only upon grounds specified in Fla. R. App. P. 9.140(b)(2)(A)(ii)(a)-(e)). But, “[c]oercion by counsel may render a plea involuntary.” Simmons v. State, 485 So. 2d 475, 476 (Fla. 2d DCA 1986). An involuntary plea is a ground for withdrawal under rule 9.140(b)(2)(A)(ii)(c).

“`Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.’” Brown v. State, 835 So. 2d 402, 403 (Fla. 2d DCA 2003) (quoting Lingenfelser v. State, 734 So. 2d 472, 472-73 (Fla. 4th DCA 1999)); see also Gunn v. State, 841 So. 2d 629, 631 (Fla. 2d DCA 2003). Accordingly, the trial court should have appointed conflict-free counsel to represent Mr. Council and to adopt or revise the motion, which was drafted by a lawyer with whom Mr. Council had a conflict. See Tuhey v. State, 972 So. 2d 1029, 1030 (Fla. 4th DCA 2008) (holding defendant entitled to appointment of conflict-free counsel to assist with preparation of facially sufficient motion to withdraw plea).

The trial court also observed that the plea form and the plea colloquy refuted Mr. Council’s claim that his plea was coerced by his lawyer’s misadvice about the sex offender charge. However, neither conclusively refutes a claim that the lawyer coerced a plea by affirmatively misadvising Mr. Council about the law. See Smith v. State, 826 So. 2d 322, 323 (Fla. 2d DCA 2002). Both his lawyer and the trial court appear to have misadvised Mr. Council. “[A]t a minimum[,] `actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under [the sexual offender registration statutes] can stand.’” State v. Giorgetti, 868 So. 2d 512, 520 (Fla. 2004) (quoting Lambert v. Cal., 355 U.S. 225, 229 (1957)). Therefore, we reverse and remand for appointment of conflict-free counsel and for the trial court to reconsider the merits of Mr. Council’s motion to withdraw plea.

Reversed and remanded.

SILBERMAN and KELLY, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Courtesy of David Edelstein

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