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Smith v. State

Florida Court of Appeals, First District

June 22, 2018

Joseph Wayne Smith, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Darlene F. Dickey, Judge.

          Andy Thomas, Public Defender, Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          B.L. THOMAS, C. JUDGE

         Appellant challenges the trial court's summary denial of his pro se motion to withdraw plea, arguing that, because his motion alleged an adversarial relationship with his counsel, he was entitled to appointment of conflict-free counsel.

         Facts

         On January 13, 2016, Appellant was charged by information with Felony Petit Theft and pled nolo contendere. At his plea hearing on August 24, 2016, Appellant told the court that he understood that by pleading straight up, he did not know what his sentence would be. Appellant stated that he understood he was charged with six counts of felony theft, and he understood each of the charges. He understood that each case carried a maximum five-year sentence and a $5, 000 fine. Appellant stated that he agreed with the facts in each of the charges and understood that, based on his scoresheet, he faced a minimum of 19 months in state prison. Appellant further stated that he understood that, by pleading no contest, he waived his right to a jury trial, the right to cross-examine witnesses, the right to present witnesses, and any legal defenses he may have had. Appellant stated that no one was forcing him to plead no contest and that he was not under the influence of alcohol, drugs, or medication. Appellant stated that he had had time to go over the charges with his attorney, and he was satisfied with his attorney's advice and the representations his attorney had made to him.

         The court accepted Appellant's plea, finding that in each case, each count was knowingly and voluntarily entered, and there was a factual basis for each. The court adjudicated Appellant guilty and sentenced him to serve 36 months in state prison, with credit for 212 days of time served.

         On December 21, 2016, Appellant filed a pro se motion to withdraw plea, in which he alleged that he "scored out to 19.3 months," and his attorney did not inform him that he would receive a three-year prison sentence. Appellant alleged that he pled out based on his attorney's advice, but he wasn't advised as to "what cost or risk that [he] would be facing."

         The trial court entered an order denying Appellant's motion to withdraw plea, stating that, despite Appellant's allegations that he did not know he would be given a three-year prison sentence, Appellant's plea was entered freely, voluntarily, and intelligently given.

         Analysis

         The standard of review of a trial court's denial of a motion to withdraw plea is abuse of discretion. Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006). Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations. Id.

         A motion to withdraw a plea pursuant to rule 3.170(l) is a critical stage in the direct criminal proceeding at which the defendant is entitled to effective assistance of counsel. ...


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