FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Duval County. Linda F.
S. Barnett and Curtis S. Fallgatter, Fallgatter & Catlin,
P.A., Jacksonville, for Appellant.
Jo Bondi, Attorney General, and David Llanes, Assistant
Attorney General, Tallahassee, for Appellee.
Anthony Tubbs appeals from the summary denial of his motion
to withdraw plea, pursuant to Florida Rule of Criminal
Procedure 3.170(l). We agree with Mr. Tubbs that he
is entitled to an evidentiary hearing on the motion because
it is facially sufficient and is not conclusively refuted by
Tubbs was charged with possession of a firearm by a convicted
felon, possession of cocaine, and possession of less than 20
grams cannabis. Because of his prior record he faced a
lengthy prison sentence of up to 30 years. After an
unsuccessful motion to suppress, Mr. Tubbs entered into a
plea agreement with the State. The plea agreement called for
a 13-year prison sentence, with a 10-year mandatory minimum.
And the agreement allowed Mr. Tubbs to appeal the denial of
his motion to suppress.
almost completing the process of accepting the plea, the
trial court abruptly stated that it would not accept the
agreement. Following a bench conference that wasn't
transcribed, Mr. Tubbs tendered and the court accepted a
revised plea agreement that eliminated Mr. Tubbs' right
to appeal the denial of his motion to suppress.
Tubbs subsequently filed a timely motion to withdraw his plea
pursuant to Florida Rule of Criminal Procedure
3.170(l), alleging that his plea was involuntary.
Mr. Tubbs' motion alleged that during the side-bar the
court informed the parties that it would not accept the
agreed-upon negotiated plea and sentence due solely to the
reservation of the right to appeal. His motion further
alleged that the court conditioned its acceptance of a plea
on whether Mr. Tubbs (1) waived his right to appeal, or (2)
pled open to the court, retaining his right to appeal, upon
which the court would sentence him to more than the agreed
upon 13 years, but less than 30 years. A successor trial
judge summarily denied the motion to withdraw plea. The court
found that the motion was conclusively refuted by the plea
colloquy, in which the judge advised Mr. Tubbs that by
entering his plea, he was forfeiting certain constitutional
rights. Mr. Tubbs testified that he understood and still
wished to enter his plea.
to Florida Rule of Criminal Procedure 3.170(l), a
defendant seeking to withdraw a plea after sentencing must
show a manifest injustice requiring correction. Flemming
v. State, 204 So.3d 950, 951 (Fla. 1st DCA 2016).
"Examples of situations where withdrawal is necessary to
correct a manifest injustice include cases where the
defendant proves that he received ineffective assistance of
counsel or where the defendant's plea was
involuntary." Nelfrard v. State, 34 So.3d 221,
222 (Fla. 4th DCA 2010) (citing Williams v. State,
316 So.2d 267, 274 (Fla. 1975)). When engaging in plea
discussions with a defendant, "[t]o avoid the potential
for coercion, a judge must neither state nor imply
alternative sentencing possibilities which hinge upon future
procedural choices, such as the exercise of a defendant's
right to trial." State v. Warner, 762 So.2d
507, 514 (Fla. 2000). Thus, pleas have been found involuntary
under rule 3.170(l) when the trial judge indicates
that a harsher sentence would be given if the defendant opts
against a negotiated plea and wishes to pursue a motion to
suppress. Opas v. State, 868 So.2d 598 (Fla. 5th DCA
2004). See also Taylor v. State, 870 So.2d 72, 73
(Fla. 2d DCA 2003) ("[T]he trial court's statements
strongly implied that Taylor would receive a harsher sentence
if he did not accept the plea at that time."). Cf.
Fudge v. State, 45 So.3d 982 (Fla. 3d DCA 2010) (finding
a sentence vindictive where it was increased because the
defendant refused to waive his right to appeal); Correa
v. State, 892 So.2d 1067 (Fla. 2d DCA 2004) (same).
trial court rules on a motion to withdraw plea it may only
deny a legally sufficient motion without a hearing if the
motion is conclusively refuted by the record. See, e.g.,
Jones v. State, 885 So.2d 449, 452 (Fla. 1st DCA 2004).
"Because the defendant bears the burden of proof, when a
defendant files a facially sufficient motion to withdraw a
plea, the trial court must either afford the defendant an
evidentiary hearing or accept the defendant's allegations
in the motion as true except to the extent that they are
conclusively refuted by the record." Sheppard v.
State, 17 So.3d 275, 283 (Fla. 2009) (quoting
Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA
2004)). "When determining 'whether an allegation is
conclusively refuted by the record, [a trial court] may rely
on the sworn testimony the defendant has given in the plea
colloquy. Any allegations that contradict those answers
should not be entertained.'" Johnson v.
State, 22 So.3d 840, 844 (Fla. 1st DCA 2009) (citation
Mr. Tubbs filed a facially sufficient motion alleging that
his plea was involuntary because of the trial court's
unrecorded side-bar statements indicating that Mr. Tubbs
would receive a more severe sentence if he did not take a
negotiated plea and waive his right to appeal. See Fudge
v. State, 45 So.3d at 983 (noting that a defendant's
refusal to waive his appellate rights is not a valid basis
for imposing a harsher sentence). The record doesn't
conclusively refute Mr. Tubbs' allegations. It only shows
that the trial court held an unrecorded side-bar right after
stating that it couldn't accept a plea deal previously
agreed to by the State and Mr. Tubbs. Immediately after the
unrecorded side-bar, the court accepted a new plea agreement
that was identical to what had been agreed to before, except
that Mr. Tubbs waived his right to appeal. In addition, the
standard plea colloquy questions from the trial judge
regarding the voluntariness of the plea asked after the
side-bar-"Has anybody threatened you or coerced you or
promised you anything to get you to do this?"- do not
conclusively refute Mr. Tubbs' coercion allegations.
See, e.g., Voshell v. State, 187 So.3d 370, 371
(Fla. 1st DCA ...