Florida Criminal Law Opinions

the prosecution had dropped certain charges; (6) IAC for failure to inform him of his right to withdraw his pleas; (7) illegal sentencing because the judgment of conviction o n one count h a d been vacated prior to sentencing; and (8) failure of the prosecution to disclose favorable evidence prior to trial. The circuit court summarily denied this motion, and Wimberly did not timely appeal. His petition seeking to belatedly appeal this order was denied in our case no. 4D05-1481.

Wimberly next filed his second rule 3.850 motion in 2005, alleging:

(1) IAC for failure to challenge counts two and three of the information which charged a co-defendant rather than him; (2) involuntary plea based on counsel’s misrepresentations on the offenses charged and the maximum available punishment for them; (3) involuntary plea based on the advice of counsel that if he did not enter a plea, the judge would be required to impose the maximum sentence on each conviction; (4) IAC for failure to advise that a jury instruction on lesser included offense of conspiracy could have been given in his prosecution if he had proceeded to trial; (5) IAC for failure to move to withdraw the plea to offenses charged against a co-defendant; and (6) IAC for failure to move to suppress or dismiss based on an illegal stop and search. The trial court summarily denied this motion as successive and repetitive of some of the claims in the first motion. Wimberly appealed and this Court affirmed per curiam in Wimberly v. State, 917 So. 2d 204 (Fla. 4th DCA 2005).

Next, Wimberly filed his third rule 3.850 motion in 2007, alleging newly discovered evidence and two more claims of IAC. This motion was summarily denied as successive, procedurally barred on the IAC claims, a n d for legally insufficient claims of newly-discovered evidence. Wimberly appealed and this Court affirmed per curiam in Wimberley v. State, 986 So. 2d 617 (Fla. 4th DCA 2008).1

Finally, Wimberly filed this fourth rule 3.850 motion in 2009, alleging:

(1) manifest injustice d u e to “erroneous advice of counsel” about sentencing; (2) involuntary plea due to his misunderstanding about the factual basis for the pleas and a substantial assistance agreement; and

(3) IAC for failure to challenge the factual bases for the open pleas. The circuit court again summarily denied this motion as successive and procedurally barred, and further directed that a copy of its order be forwarded to the warden at Wimberly’s place of incarceration for consideration of sanctions pursuant to sections 944.279(1), 944.28 and

1 Wimberly’s last name appears to have been misspelled in the published decision.

2

944.09, Florida Statutes. The circuit court recommended forfeiture of gain time.

In addition to our per curiam affirmance of that order, this court issued an order to show cause why Wimberly should not be prohibited from filing future pro seappeals and other challenges in this court from his convictions and sentences in this case, as a sanction for his repeated and frivolous motions in the circuit court and appeals to this court from the orders denying them. This was pursuant to State v. Spencer, 751 So. 2d 47 (Fla. 1999). Wimberly has now filed a response which is largely argumentative and which fails to overcome our conclusion that his appeal was frivolous and abusive. He also appears unaware of Ibarra v. State, 45 So. 3d 911 (Fla. 4th DCA 2010), in which this court recognized that a circuit court c a n refer a defendant to the Department of Corrections for consideration of disciplinary procedures based on a finding that the defendant’s post-conviction motions were frivolous, without any requirement of prior notice or an opportunity to show cause.

While not all of the claims raised in this latest motion were identical to those raised earlier, this is not required for there to be an abuse of the post-conviction process. As this Court said in Johnson v. State, 44 So. 3d 198 (Fla. 4th DCA 2010):

A claim need not be repetitive to be frivolous or to be an abuse of the post-conviction process. Under section 944.279, a court ma y sanction any frivolous post- conviction filing and/or appeal regardless of the prisoner’s history of filing. Untimely post-conviction challenges, which do not establish an exception to the two-year time limit, are abusive and sanctionable, and an appeal from the denial of an untimely claim is frivolous when no arguable basis for an exception to the time limitation exists. [e.s.]

Id. at 200.

Wimberly did not overcome the bar against successive and untimely filing for post-conviction relief in this latest motion. The record as summarized above demonstrates abuse of the post-conviction process. Sanctions are warranted. As we said in Marc v. State, 35 Fla. L. Weekly D2159 (Fla. 4th DCA Sept. 29, 2010), the possibility of sanctions should cause prisoners to “stop and think” before filing frivolous collateral challenges of this nature. See also Spencer v. Fla. Dep’t of Corr., 823 So. 2d 752, 756 (Fla. 2002).

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We therefore impose the sanction of prohibiting further pro se filings in this Court by Wimberly arising from the three cases here and direct the clerk of this Court to reject any future attempts by petitioner to file such papers. Rehearing will not be entertained.

STEVENSON, MAY and DAMOORGIAN, JJ., concur.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Robert E. Belanger, Judge; L.T. Case Nos. 00-CF-420, 02-CF-675 and 02-CF-697.

Marvin Wimberly, Okeechobee, pro se.

No appearance required for appellee.

Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

cafeteria. While some of the locations used by Tripoli were selected by the school administration, no one instructed Tripoli to use the cafeteria stage. When Tripoli used the cafeteria stage, he sometimes tutored K.H. behind closed curtains.

K.H. was the first student to complain about Tripoli or make allegations of improper behavior. K.H. had been tutored by Tripoli for approximately four months when she reported the alleged abuse to her mother. According to K.H., while Tripoli was tutoring her, he would partially lower her pants and touch her “private area.” These acts included digital penetration. K.H. testified that she told her mother about the abuse because she wanted it to stop and was afraid of Tripoli.

Although K.H. reported the abuse five days after she alleged the most recent incident had occurred, the testimony at trial indicated that Tripoli was not at K.H.’s school on the day in question. K.H. also showed partial uncertainty at trial regarding where the incidences of abuse had taken place.

K.H.’s mother testified that about two-and-a-half months before K.H. reported the alleged abuse to her, she had observed an incident involving K.H. and her Barbie dolls. A dressed male doll was touching the genitalia of a nude female doll with his hand. K.H.’s mother had never seen K.H. play with her dolls in this manner.

The State also presented the testimony of Amanda Gooch, who was a teacher at the school. Gooch testified that Tripoli had previously tutored a male student in Gooch’s class during the 2005-2006 school year. This time frame was approximately two school years before the alleged incident with K.H. All tutoring of the student took place in Gooch’s classroom. At the end of the year, Gooch requested that Tripoli not return to her classroom because her “relationship” with Tripoli “didn’t seem to work well.”

During direct examination, th e State asked Gooch if she “ever personally observe[d] anything . . . out of the ordinary.” Tripoli’s counsel objected on relevancy grounds. The State had not given pre-trial notice that it was offering Gooch’s testimony as Williams1 rule evidence. The following exchange then occurred outside the jury’s presence:

1 Williams v. State, 110 So. 2d 654, 659-63 (Fla. 1959).

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[THE STATE]: Uh, Your Honor, this is not Williams’ Rule. It’s not any –

THE COURT: He [defense counsel] didn’t raise – he didn’t raise Williams’ Rule.

[THE STATE]: Okay. Uh, I think it’s relevant for how she observed his interaction with young students and there’s not actual crime there, but I think it’s relevant to how he would (indiscernible) to students that she could see.

THE COURT: I don’t know what the answer is.

[THE STATE]: The answer is that, uh, he had a little more physical contact [than] she thought should be done. . . .

[THE STATE]: Uh, sitting somebody on his lap. . . .

[THE STATE]: Having somebody sit on his lap while he was reading with them in the classroom. . . .

THE COURT: Your objection is?

DEFENSE COUNSEL: Your Honor, it’s not relevant to the issue. I mean [K.H] has never, never testified here in court or in her pretrial statements, her deposition that she was – ever sat on his lap. It’s not relevant to the issue of what was the conduct between my client and [K.H.] and this is just here to inflame the jury, that’s all it is. And Ms. Gooch here is just trying to throw innuendo at this time. She’s indicated she doesn’t like him.

THE COURT: Okay. I take it as a 90.403 objection. I do not find the probative value is substantially outweighed by the factors in 90.403 so the objection is overruled.

Gooch went on to testify in relevant part as follows.

[Tripoli] worked with one particular student in my class. When I would arrange an area for him to read with the student, uh, I would try to place chairs on opposite sides of the table and he would take the chair and move it around to the other side and actually bump them right next to each other was the initial thing I would notice that he would

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always move it around. And then, uh, he started becoming more physically affectionate toward the student in my class, more than what seemed appropriate to me at the time. . . .

I would see Mr. Tripoli, uh, put his hand on the back of my student and kind of rub it up and down as the child was reading to him. He would also pat the student, uh, on his leg near his thigh, uh, and the hand would stay there longer as, you know it would progress, uh, to him keeping his hands on that child. . . .

In closing, the State then made reference to Gooch’s testimony:

Ms. Gooch told you that after having [Tripoli] in her class for awhile and seeing his interactions with some of her students, she . . . did not want him back. She saw him rubbing on the back, touching on the thigh, children. She did not want him back in her classroom.

Tripoli argues that the trial court erred in allowing the testimony of Amanda Gooch because it was only relevant to show character or propensity. Tripoli further argues that, even if Gooch’s testimony was relevant to show something other than character or propensity, its relevance was outweighed by its prejudicial nature. Finally, he contends that this error was harmful.

A trial court’s decision to admit collateral act evidence is reviewed for abuse of discretion, Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th DCA 2006) (citingLaMarca v. State, 785 So. 2d 1209, 1212 (Fla. 2001)), but this discretion is limited by the rules of evidence. Id. (citing Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)).

Evidence of the collateral acts of a defendant is admissible under one of two provisions. Evidence “not linked or related circumstantially to the crime charged” is admissible under section 90.404(2)(a), Florida Statutes (2008). Titel v. State, 788 So. 2d 286, 288 n.1 (Fla. 4th DCA 2000); see also Dorsett v. State, 944 So. 2d 1207, 1212 (Fla. 3d DCA 2006) (“Similar fact evidence under section 90.404 is evidence totally unrelated to the charged offenses[.]”). Such evidence is commonly referred to as Williams rule evidence. See Dorsett, 944 So. 2d at 1212; Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994) (holding that evidence of acts inseparable from or inextricably intertwined with the crime charged is not Williams rule evidence). Williams rule evidence may be used to prove “a material fact in issue, including, but not limited to, proof of motive, opportunity,

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intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]” § 90.404(2)(a), Fla. Stat. In particular, it is often used to establish identity through a demonstration of modus operandi. See Williams v. State, 622 So. 2d 456, 462 (Fla. 1993); Miller v. State, 791 So. 2d 1165, 1169-70 (Fla. 4th DCA 2001); Smith v. State, 539 So. 2d 556, 558 (Fla. 4th DCA 1989) (Glickstein, J., concurring specially in part and dissenting in part). If the State wishes to admit Williams rule evidence, it must provide the defendant ten days notice “of the acts or offenses it intends to offer.” § 90.404(2)(c)1., Fla. Stat. (2008); see also Griffin, 639 So. 2d at 968.

Notice is not required if the State seeks to introduce evidence of collateral acts which are inextricably intertwined with the crime charged under the general rule of relevance. See § 90.402, Fla. Stat. (2008); Dorsett, 944 So. 2d at 1213; Griffin, 639 So. 2d at 968. Examples of such evidence is evidence which is necessary to (1) “adequately describe the deed[;]” (2) “provide an intelligent account of the crime(s) charged[;]”

(3) “establish the entire context out of which the charged crime(s) arose[;]” or (4) “adequately describe the events leading up to the charged crime(s)[.]” Dorsett, 944 So. 2d at 1213 (citations and internal quotation marks omitted).

Conversely, evidence of the collateral acts of a defendant is not admissible if its only role is to show the defendant’s bad character or his propensity to commit the crime for which he is charged. Williams v. State, 621 So. 2d 413, 414 (Fla. 1993) (holding that evidence of other crimes, wrongs or acts is admissible only “if it casts light on a material fact in issue other than the defendant’s bad character or propensity.”).

The State concedes that Gooch’s testimony was not offered as Williams rule evidence under section 90.404(2)(a).2 Moreover, even under

2 We recognize that, under section 90.404(2)(b)1., Florida Statutes (2008), “evidence of the defendant’s commission of other crimes, wrongs, or acts of molestation is admissible” in child molestation cases, and “may be considered for its bearing on any matter to which it is relevant.” See also Zerbe, 944 So. 2d at 1194 (noting that, for collateral evidence of child molestation to be admissible, “the State must present clear and convincing proof that the collateral act occurred.” (citing McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006) (providing a non-exclusive list of factors for the trial court to evaluate to determine whether the probative value of evidence of prior molestations is substantially outweighed by the danger of unfair prejudice))). Neither party raised subsection (2)(b)1., and the State’s argument on appeal does not center on the relevancy of Gooch’s testimony, but on the use of the testimony to impeach Tripoli by contradictory evidence.

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a relevancy analysis, Gooch’s testimony was not necessary to (1) adequately describe the deed; (2) provide an intelligent account of the charged crimes; (3) establish the entire context out of which the charged crimes arose; or (4) adequately describe the events leading up to the charged crimes. See Dorsett, 944 So. 2d at 1213.

Instead, the State argues that Gooch’s testimony was offered to rebut Tripoli’s argument that h e ha d minimum physical contact with the children he tutored. Tripoli counters that, at trial, the State did not make such an argument, and as proof, refers to the State’s response to defense counsel’s objection to Gooch’s testimony a n d its closing argument. Tripoli is correct that the State never raised this ground for admission of Tripoli’s conduct while in Gooch’s classroom.

Even if the State had properly argued this ground before the trial court, Gooch’s testimony would be inadmissible under section 90.608(5), Florida Statutes (2008). “Section 90.608(5) provides that any party may attack the credibility of a witness by contradictory testimony given by another witness as long as the facts testified to are not collateral to the issue.” Griffin v. State, 827 So. 2d 1098, 1099 (Fla. 1st DCA 2002) (citations omitted). Moreover, “[a]n issue is collateral for purposes of impeachment by contradiction, if it cannot be introduced for any reason other than contradiction.” Id. (citation omitted).

The State argues that Tripoli had made claims, both during trial and during a taped police interrogation which was played at trial, indicating that he had generally not been affectionate with the children. According to the State, Gooch’s description of Tripoli placing another child on his lap while he was tutoring the child served to rebut these claims.

We find that, beyond its tendency to show that Tripoli had a propensity to molest children or that it was in his character to do so, Gooch’s testimony was not probative of Tripoli’s guilt or innocence of the charges of sexual battery or lewd and lascivious conduct against K.H.

See Griffin, 827 So. 2d at 1099; United States v. Payne, 102 F.3d 289, 291, 294-95 (7th Cir. 1996) (holding that the proffered testimony of accomplice’s girlfriend was collateral because it was not related to the central issue concerning the defendant’s guilt or innocence on cocaine charges a n d was offered only for the sake of contradicting the accomplice’s testimony). Accordingly, the trial court erred by allowing Gooch to testify about Tripoli’s actions with another child.

Having concluded that the trial court erred, we next resolve whether the error was harmless. In the context of a criminal case, the harmless

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error test “places the burden on the [S]tate, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Here, the State cannot make this showing. Where the evidence supporting conviction is “not overwhelming,” it is more likely that the erroneous admission of evidence is not harmless beyond a reasonable doubt. See Elisha v. State, 949 So. 2d 271, 274 (Fla. 4th DCA 2007). Not only was the evidence here not overwhelming, but the credibility of K.H. and Tripoli was key to the case. See Arrington v. State, 700 So. 2d 777, 778 (Fla. 2d DCA 1997) (holding error was not harmless because credibility was a major issue in the case).

Evidence suggesting Tripoli was guilty included: (a) K.H’s testimony as to the alleged events; (b) K.H’s mother’s testimony as to the disturbing incident with the Barbie dolls; (c) testimony b y school personnel indicating that Tripoli had the opportunity to commit the crimes; and (d) the propensity evidence provided by Gooch. Evidence suggesting Tripoli was not guilty included: (a) Tripoli’s testimony asserting that the alleged abuse never took place; (b) the absence of any physical signs of abuse; (c) the fact that Tripoli was not at the school on the Friday the most recent incident of abuse was alleged to have taken place; and (d) the testimony of K.H.’s teacher and the Big Brothers/Big Sisters coordinator, who both testified that K.H. did not show signs that anything was wrong concerning her relationship with Tripoli.3

The evidence taken as a whole, together with the abhorrent nature of the crimes for which Tripoli was charged, leads us to conclude that the error was not harmless.

3 Courts are also less likely to find an error harmless where the State relies on the erroneously admitted evidence during its closing argument. See McKeown v. State, 16 So. 3d 247, 249 (Fla. 4th DCA 2009) (holding that erroneous admission of officer’s irrelevant testimony was not harmless, in part, because the State “compounded the error by repeating the improper testimony during closing argument.”); Deville v. State, 917 So. 2d 1058, 1059-60 (Fla. 4th DCA 2006) (holding that error was not harmless, in part, because the State mentioned the inadmissible evidence during its closing argument);Woodard v. State, 978 So. 2d 217, 220 (Fla. 1st DCA 2008) (holding, in child molestation case, that the erroneous admission of collateral act evidence was not harmless, in part, because the State referred to it during both the opening statement and closing argument).

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Reversed and Remanded.

MAY and GERBER, JJ., concur.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562008CF000727A.

Bryan S. Gowdy and Jessie L. Harrell of Creed & Gowdy, P.A., Jacksonville, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

DEFENDANT: Your Honor . . . [c]onsidering that I use my vehicle to run my business, is there any way I could –

THE COURT: You shouldn’t be driving a vehicle. I’m sorry. Have someone drive you there.

DEFENDANT: I understand.

THE COURT: Last thing I want you to do is lose your license, but when you have the nerve to be smoking dope and driving, that’s a no, no.

Within thirty days after rendition of the sentence, the defendant filed a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(l), which states:

A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law.

The ground upon which the defendant sought to withdraw his plea was that his plea was involuntary, as specified in rule 9.140(b)(2)(A)(ii)c. The motion explained, in pertinent part:

. . . As a result of his plea, [the defendant’s] license was suspended and [the defendant] has been unable to procure a hardship license.

[The defendant] claims that his plea . . . was not knowingly and voluntarily entered in that he did not understand the “direct” consequences of entering a plea to the charge of Felony Possession of Marijuana. [The defendant] would like an opportunity to further explain to the Court that he was unaware of the parameters of the driver’s license suspension that occurred as a result of his plea. Based on [the defendant’s] assertions, attorneys from the Public Defender’s office would likely become witnesses in the hearing on [the defendant’s] Motion to Withdraw his Plea.

Therefore, [the defendant] requests that this Court enter an Order removing the Public Defender’s office from representing him and enter a n Order setting this Motion to Withdraw Plea for hearing.

2

The record does not indicate that the circuit court ever set the motion for hearing. Instead, the next action in the record occurred two months later, when the court entered an order granting in part the defendant’s motion to modify his probation. After that order, the next action in the record occurred six months later, when the court entered an order granting the defendant’s motion to terminate his probation. Ten months after that order, the defendant filed a pro se notice of appeal of his judgment and sentence. This court dismissed that appeal as untimely.

Six months later, the circuit court entered a written order denying the defendant’s motion to withdraw plea. The record does not indicate how the court came to review the motion at that time. In any event, the court did not refer to the plea hearing as its basis for denying the motion. Instead, the court referred to the facts that, after filing the motion, the defendant obtained a modification of his probation, obtained the termination of his probation, and then filed an appeal which this court dismissed. The circuit court also noted that “[t]he case and sentence are closed and over.” These facts led the court to find that the defendant “waived or abandoned his motion and, further, the motion is moot.”

This appeal followed. The defendant argues that the court erred by summarily denying his motion. He argues more specifically that an evidentiary hearing is required to determine if his counsel affirmatively misadvised him regarding the license suspension. As for the circuit court’s findings that the defendant waived or abandoned his motion and that the motion was moot, the defendant responds merely by way of a footnote at the end of his brief. In the footnote, the defendant states:

The filing of a notice of appeal before a ruling is rendered on a motion to withdraw a plea filed under rule 3.170(l) does not waive or abandon the motion. [See] Fla. R. App. P. 9.020(h). Although [the defendant’s] term of probation expired before his motion was ruled upon, because his plea resulted in a felony conviction and the motion was addressed to the conviction, not the sentence, it cannot be said that his motion was moot.

We review the circuit court’s denial of the motion to withdraw plea for abuse of discretion. See Johnson v. State, 971 So. 2d 212, 214 (Fla. 4th DCA 2008) (“Denial of a motion to withdraw plea is reviewed for abuse of discretion.”).

The record is insufficient to allow us to determine whether the circuit court abused its discretion in finding that the defendant waived or abandoned his motion to withdraw plea. The record does not contain the

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motions or transcripts of the hearings which led the court to modify and later terminate the defendant’s probation. Thus, we d o not know whether the defendant, at either of those hearings, notified the court that he was waiving or abandoning his motion to withdraw plea. Conversely, we are not prepared to say that the defendant’s motions to modify and later terminate his probation automatically should be deemed as waivers or abandonment of his motion to withdraw plea.

We agree with the defendant that the circuit court should not have deemed his filing of a notice of appeal as a waiver or abandonment of his motion to withdraw plea. See Fla. R. App. P. 9.020(h)(3) (2009) (“[A] motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt.”). We also agree with the defendant that the court should not have found the motion to be moot because “[t]he case and sentence are closed and over.” Because the conviction remains on the defendant’s record, the motion was not moot.

Given the possibility that the circuit court erred in its findings, we have reviewed the record to determine whether there is any other theory or principle of law in the record which would support the ruling. See Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“‘[E]ven though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling.’”) (citation and emphasis omitted).

We find that there are three theories or principles of law which support the ruling. First, at the time the defendant entered the plea, our supreme court had held that neither defense counsel nor a trial court was required to inform a defendant about mandatory license suspension or revocation before entry of a plea because such actions are not punishment and therefore not direct consequences of a plea.Bolware v. State, 995 So. 2d 268, 275-76 (Fla. 2008). Although the court in Bolwarewent on to direct that Florida Rule of Criminal Procedure 3.172 be amended to require that a trial court inform a defendant that a plea may result in mandatory license suspension or revocation, that amendment was to apply only prospectively. 995 So. 2d at 276.

Second, even if a trial court had been required to inform a defendant about mandatory license suspension before entry of a plea, the record here conclusively shows that the court provided such information. The court told the defendant that if he entered a plea, he “will lose his driver’s license for two years.” The defendant replied “[t]hat’s fine” and entered his plea. After the defendant entered his plea, the court immediately stated, “He is going to lose his driver’s license privilege for two years.”

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The defendant then asked “is there any way I could [drive a vehicle]?” The court responded, “You shouldn’t be driving a vehicle. I’m sorry. Have someone drive you there.” The defendant replied, “I understand.” A defendant is bound by his sworn answers during a plea colloquy. Iacono v. State, 930 So. 2d 829, 831 (Fla. 4th DCA 2006). Because these record excerpts conclusively show that the defendant is entitled to no relief, the court was not required to conduct an evidentiary hearing on the defendant’s motion to withdraw plea. See Nelfrard v. State, 34 So. 3d 221, 222-23 (Fla. 4th DCA 2010) (“When a defendant files a facially sufficient motion to withdraw plea under rule 3.170(l), due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief.”).

Third, the defendant’s argument in this appeal regarding affirmative misadvice was unpreserved in the circuit court. The defendant did not expressly allege affirmative misadvice in his motion to withdraw plea and has yet to allege what that affirmative misadvice was. In Bach v. State, 953 So. 2d 22 (Fla. 4th DCA 2007), we held that a claim of affirmative misadvice cannot b e entertained for the first time on a motion for rehearing in the trial court. Id. at 23. Logically, such a claim cannot be entertained for the first time on appeal either. Although the defendant may claim that his motion’s request to remove his counsel was intended to suggest affirmative misadvice, we believe that such a request also could apply to an omission of advice, which Bolware held was not a cognizable basis for relief. 995 So. 2d at 275-76.

For the foregoing reasons, we affirm the circuit court’s denial of the defendant’s motion to withdraw plea.

Affirmed.

GROSS, C.J., and TAYLOR, J., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanton S. Kaplan and Carlos A. Rodriguez, Judges; L.T. Case No. 06-12394CF10A.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

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Not final until disposition of timely filed motion for rehearing.

MR. CAHILL: Not really, no.

Defense counsel then asked all potential jurors whether they felt the State needed less proof when the victim was a police officer. One prospective juror, not Cahill, responded in the affirmative.

Levy’s counsel later moved to strike prospective juror Cahill for cause arguing his responses during voir dire showed a reasonable doubt as to his ability to remain impartial. The trial court denied Levy’s motion and thereafter Levy used a peremptory strike to remove prospective juror Cahill. Levy then sought an additional peremptory challenge to strike another juror but that request was denied. Thus, the claimed error has been properly preserved for our review. See Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

We review a trial court’s decision to deny a cause challenge for an abuse of discretion.Lewis v. State, 931 So. 2d 1034, 1039 (Fla. 4th DCA 2006). The appropriate test when determining juror competency is “whether the juror can lay aside any bias or prejudice and render his or her verdict solely upon the evidence presented and the instructions on the law given by the court.” Davis v. State, 859 So. 2d 465, 473 (Fla. 2003). If there is any reasonable doubt about a juror’s impartiality, the juror should be excused for cause.Carratelli v. State, 832 So. 2d 850, 854 (Fla. 4th DCA 2002).

In the instant case, Levy contends that when defense counsel asked prospective juror Cahill about whether having a police officer for a brother-in- law would impact Cahill’s ability to remain impartial, Cahill’s response of “Not really, no” constituted an equivocal answer creating reasonable doubt as to whether Cahill could serve as a fair and impartial juror.

We disagree and find that when viewed as a whole, Cahill’s responses do not emulate the sort of equivocation typically held to raise doubts about a potential juror’s impartiality.Cf. Hamilton v. State, 547 So. 2d 630, 633 (Fla. 1989) (holding that potential juror’s equivocal answers raised reasonable doubts about impartiality when juror claimed she could remain impartial but also stated she believed the defendant had the burden to prove his innocence); Street v. State, 592 So. 2d 369, 371-72 (Fla. 4th DCA 1992) (holding prospective juror’s answers created reasonable doubt as to impartiality where juror stated he “might not be as fair and impartial” as he would in other cases where the defendant had no criminal past but that he would “try” to put those issues aside). Rather than show any bias, prospective juror Cahill’s responses indicated that he would treat crimes against a police officer much the same as if the crimes were committed against any other person “on the street.” Cahill’s responses and then silence to the follow-up inquiry from defense counsel to the entire venire showed that he would not hold the State to a lesser burden of proof because the victim was a police officer and that he would remain fair and

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impartial regardless of the victim’s identity. Because the record fails to reveal statements raising a reasonable doubt as to prospective juror Cahill’s impartiality, the trial court was well within its discretion when denying Levy’s motion to strike for cause.

Affirmed.

GROSS, C.J., and WARNER, J., concur.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562004CF002713A.

Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.

Not final until disposition of timely filed motion for rehearing.