FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Chris Helinger,
L. Dimmig, II, Public Defender, and Richard J. Sanders,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs
Cline, Assistant Attorney General, Tampa, for Appellee.
Benjamin challenges his convictions and sentences for
manslaughter and felonious possession of a firearm.
Benjamin's sole argument is that the trial court erred in
denying his presentence motion to withdraw plea without
sufficient inquiry or conducting an evidentiary hearing. We
reverse Benjamin's sentences and remand for further
proceedings consistent with this opinion.
was initially charged with second-degree murder and felonious
possession of a firearm. The murder charge was a life felony,
and Benjamin's lowest permissible guidelines sentence was
forty-five years in prison. In exchange for a guilty plea,
the State amended the information to charge manslaughter and
felonious possession of a firearm and agreed to a
twenty-five-year prison sentence on the manslaughter
conviction and fifteen years' concurrent on the
possession conviction, with the latter carrying a ten-year
minimum mandatory term. The court accepted Benjamin's
plea, and his sentencing was set off for two weeks in order
to have the victim's family present.
beginning of the sentencing hearing, counsel stated,
"Mr. Benjamin indicates this morning that he is wishing
to withdraw his plea." When asked for a reason, counsel
I think buyer's remorse. I don't know. That
[twenty-five]-year sentence would be essentially a life
sentence which, obviously, we have discussed previously. And
that he doesn't have his discovery which-he doesn't
have his discovery. I don't take (unintelligible)
discovery to them at the jail. We've reviewed discovery,
reviewed the depositions, how those went, on a number of
court then advised Benjamin that if he wanted to file a
written motion he could do so but that the oral motion was
denied. The court proceeded with sentencing.
Rule of Criminal Procedure 3.170(f) provides that "[t]he
court may in its discretion, and shall on good cause, at any
time before a sentence, permit a plea of guilty or no contest
to be withdrawn." "When a defendant files a motion
to withdraw a plea before sentencing under [rule] 3.170(f),
the trial court must either deny the motion for facial
insufficiency or grant an evidentiary hearing to develop the
facts surrounding the entry of the plea." Lee v.
State, 875 So.2d 765, 766 (Fla. 2d DCA 2004).
trial court made no inquiry as to the potential for conflict
where counsel remarked that Benjamin had "buyer's
remorse." See Grainger v. State, 906 So.2d 380,
382 (Fla. 2d DCA 2005) ("[Counsel's]
'buyer's remorse' comment, which was made prior
to Mr. Grainger being brought into the courtroom, was adverse
to his client's interests and demonstrates a failure to
act in a representative capacity. . . . Counsel's failure
to act in a representative capacity for Grainger laid the
groundwork for the third error which occurred when the trial
court proceeded to entertain the motion on its merits without
providing conflict-free counsel to Grainger."),
disapproved on other grounds by Sheppard v. State,
17 So.3d 275, 286-87 (Fla. 2009); Jones v. State, 74
So.3d 118, 121 (Fla. 1st DCA 2011) ("Once [counsel] told
the trial court that he did not believe Mr. Jones had (left
to his own devices, without the assistance of counsel) stated
a legally sufficient basis for withdrawing his plea, the
relationship between Mr. Jones and [counsel] had plainly
become adversarial."); cf. Clark v. State, 112
So.3d 680, 681 (Fla. 4th DCA 2013) ("The [pro se] motion
to withdraw for a change of heart and profession of innocence
was legally insufficient to show good cause for
withdrawal."). Further, "[e]ven if [counsel was]
unpersuaded that the reasons alleged as a basis for
withdrawal rose to the level of good cause, requiring the
court to allow withdrawal, it is not apparent why [counsel]
chose not to argue that the trial court should exercise its
discretion" to permit her client to withdraw his plea.
See Jones, 74 So.3d at 121.
trial court's failure to inquire is also troubling given
the second basis upon which Benjamin sought to withdraw his
plea: that Benjamin did not have his discovery. Without
seeking elaboration on why the discovery might support
withdrawal of Benjamin's plea, the court simply denied
the motion. Cf. Shores v. State, 152 So.3d 93, 94
(Fla. 5th DCA 2014) (concluding that the denial of the motion
to withdraw plea based on defendant not having read his
discovery was not an abuse of discretion where "the
denial was based on a finding that a defendant's failure
to read discovery until after the entry of a plea does not
constitute good cause under [r]ule 3.170(f)"). Benjamin
should have been given the opportunity to present argument
and otherwise be heard on the motion to withdraw his guilty
pleas. See Morales v. State, 973 So.2d 679, 681
(Fla. 2d DCA 2008); see also Lehmkuhle v. State, 20
So.3d 971, 974 (Fla. 2d DCA 2009) ("[T]he trial court
here should have given Lehmkuhle an opportunity to be heard
before ruling on his motion.").
we reverse Benjamin's sentences and remand for the trial
court to conduct a hearing on ...