final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Karen M. Miller, Judge; L.T. Case No.
J. Butler of Thomas Butler, P.A., Miami Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for
moved to withdraw his plea after sentencing. The trial court
ordered an evidentiary hearing on the issue of whether his
counsel misadvised him regarding the strength of his case.
Nevertheless, the court refused to appoint counsel to
represent him at the evidentiary hearing. On appeal from the
denial of the motion to withdraw his plea, appellant argues
that the failure to appoint counsel constituted fundamental
error. Because the motion to withdraw a plea is a critical
stage of the criminal proceedings, appellant was entitled to
counsel. We therefore reverse and remand for a new hearing on
the motion to withdraw.
pled guilty to burglary while armed with a firearm, robbery
with a firearm, and felon in possession of firearm or
ammunition. For burglary with a firearm and robbery with a
firearm, the court sentenced him to fifteen-year concurrent
sentences as a Prison Release Reoffender, and, for the charge
of felon in possession of a firearm, to a three-year
concurrent sentence, the mandatory minimum.
thirty days of the sentence, appellant filed a motion to
withdraw his plea and an amended motion. In the motion, he
alleged that his counsel had coerced him and his family to
accept the plea, telling them that he would receive a life
sentence if he did not accept. He also alleged that counsel
had not informed him of favorable evidence - the DNA found on
the gun retrieved at the scene of the burglary did not
contain his DNA. The court denied an evidentiary hearing on
the issue of whether Jones's attorney coerced him into
accepting the plea, finding that the plea colloquy, where
appellant testified that no one had coerced him to accept the
plea, conclusively refuted appellant's new allegations.
It granted an evidentiary hearing, however, on the second
issue, namely whether his counsel misadvised him by failing
to inform him of an available defense, as well as failing to
tell him about the report that showed the DNA results from
the gun involved in the incident were inconclusive.
requested that counsel be appointed to represent him, but
both the prosecutor and the court thought that appointment of
counsel was discretionary. The court denied appointment,
believing that the issues were not complex. The court
conducted the evidentiary hearing, and based upon the
testimony, denied the motion to withdraw. Appellant now
appeals this decision, claiming that the court denied him his
right to counsel.
well established that a motion to withdraw a plea pursuant to
Florida Rule of Criminal Procedure 3.170(1) is a critical
stage of the criminal proceedings, entitling the defendant to
his Sixth Amendment right to counsel. See Padgett v.
State, 743 So.2d 70, 72 (Fla. 4th DCA 1999); see
also Bienaime v. State, 971 So.2d 278 (Fla. 4th DCA
2008); Schriber v. State, 959 So.2d 1254, 1256 (Fla.
4th DCA 2007); Kelly v. State, 925 So.2d 383, 386
(Fla. 4th DCA 2006); Roblero v. State, 843 So.2d 984
(Fla. 4th DCA 2003). Other courts are in agreement that a
defendant is entitled to counsel for a motion to withdraw a
plea pursuant to Rule 3.170(1). See Mosley v. State,
932 So.2d 1239 (Fla. 1st DCA 2006); Banks v. State,
927 So.2d 169 (Fla. 1st DCA 2006); Norman v. State,
897 So.2d 553 (Fla. 1st DCA 2005); Smith v. State,
849 So.2d 485, 486-87 (Fla. 2d DCA 2003); Meeks v.
State, 841 So.2d 648 (Fla. 2d DCA 2003); Wofford v.
State, 819 So.2d 891 (Fla. 1st DCA 2002).
Sheppard v. State, 17 So.3d 275, 287 (Fla. 2009),
the court set forth the procedure to follow when a pro se
defendant moves to withdraw his plea under the rule and
alleges a ground that would create an adversarial
relationship with current counsel, "such as
counsel's misadvice, misrepresentation, or coercion that
led to the entry of the plea."
[T]he trial court should hold a limited hearing at which the
defendant, defense counsel, and the State are present. If it
appears to the trial court that an adversarial relationship
between counsel and the defendant has arisen and the
defendant's allegations are not conclusively refuted by
the record, the court should either permit counsel to
withdraw or discharge counsel and appoint conflict-free
counsel to represent the defendant. (footnote omitted.)
Id. In this case, the trial court failed to conduct
such a hearing, although the adversarial relationship appears
obvious in that appellant claimed misadvice of counsel and
counsel denied any misrepresentation or misadvice. Further,
as the court concluded that an evidentiary hearing was
necessary on one of the claims, the court established that
the allegations in the motion were not conclusively refuted
by the record. Defendant requested counsel to represent him,
and the court, believing that this was a postconviction
proceeding where the appointment of counsel was
discretionary, erroneously denied counsel to appellant.
reverse, because appellant was denied his Sixth Amendment
right to counsel in these proceedings. See Padgett, 743 So.2d
at 72. We remand for a new hearing on the motion to withdraw
the plea and ...