final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case
M. Noble, Palm Beach County, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
Harold Ingraham, Jr. appeals the trial court's summary
denial of his motion to withdraw his guilty plea. Appellant
contends his plea was involuntarily made and that he is
entitled to an evidentiary hearing with respect to his
motion. Alternatively, he argues that he was denied due
process because the trial court did not permit his
conflict-free counsel the opportunity to amend the motion. We
agree with the trial court that Appellant's motion was
facially insufficient to entitle him to an evidentiary
hearing. However, we reverse and remand, agreeing with
Appellant that he was entitled to have conflict-free counsel
amend the motion to withdraw plea.
was charged with sexual battery on a victim eighteen-years of
age or older. Pursuant to an agreement with the State,
Appellant entered a guilty plea to the lesser charge of
aggravated battery. Appellant's initial attorney then
filed a motion to withdraw plea. The motion alleged the plea
was involuntary because Appellant's initial attorney
failed to inform him of the "weakness in the State's
case against him until after the plea was accepted." The
motion did not identify what "weaknesses" were
withheld from Appellant. Also in the motion, Appellant's
initial attorney requested to withdraw from the case based on
the nature of the allegations, and asked the court to grant
the motion to withdraw plea or appoint conflict-free counsel
to further pursue the withdrawal. The trial court granted the
initial attorney's request to withdraw and appointed
conflict-free counsel to represent Appellant. However, the
following day, the trial court summarily denied
Appellant's motion to withdraw his plea.
review the trial court's summary denial of a motion to
withdraw a plea after sentencing for abuse of discretion.
Hamil v. State, 106 So.3d 495, 497 (Fla. 4th DCA
2013) (citing Woodly v. State, 937 So.2d 193, 196
(Fla. 4th DCA 2006)).
a facially sufficient motion to withdraw plea after
sentencing, the burden is on the defendant to prove that a
manifest injustice has occurred (for example, that the plea
was involuntarily entered) and that withdrawal is necessary
to correct this injustice. See id. (citing
Panchu v. State, 1 So.3d 1243, 1245 (Fla. 4th DCA
2009)). But the motion to withdraw plea must be more than a
mere recitation of general allegations. See Saintiler v.
State, 109 So.3d 303, 305 (Fla. 4th DCA 2013) (finding
the motion "facially insufficient because the appellant
did not set forth any factual basis to support his conclusory
allegations."); Powell v. State, 929 So.2d 54,
55 (Fla. 5th DCA 2006) ("[C]onclusory allegations are
insufficient[;] a defendant must offer some proof that his
plea was not voluntarily entered."). Here,
Appellant's motion was facially insufficient because it
did not set forth any factual basis to support his
conclusory allegation that his initial attorney failed to
inform him of certain "weaknesses" in the
Appellant's motion was filed by the same attorney whose
purported action/inaction was the basis of the motion to
withdraw plea. Not every motion to withdraw plea based on
failure to advise requires conflict-free counsel. A trial
court is only required to appoint conflict-free counsel if an
adversary relationship exists and the defendant's
allegations are not conclusively refuted by the record.
See Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th
DCA 2010) (citing Sheppard v. State, 17 So.3d 275,
286-87 (Fla. 2009)). Here, the trial court granted the
initial attorney's request to withdraw, implicitly
acknowledging a potential conflict between Appellant and the
initial attorney who prepared the motion to withdraw plea.
is difficult to discern how defense counsel could have
effectively represented defendant at the motion to withdraw
his plea when the very basis for the motion was allegations
concerning defense counsel's own misconduct . . . ."
Roberts v. State, 670 So.2d 1042, 1045 (Fla. 4th DCA
1996). By summarily denying the motion to withdraw plea the
day after conflict-free counsel was appointed, the trial
court did not afford an opportunity for this substitute
counsel to amend the motion. The inconsistency between