Third DCA decides 2 cases dealing with deportation consequences of guilty plea in light of State v. Green  [Added 8/21/08]

    The Third DCA recently decided 2 cases concerning criminal defendants who allegedly received ineffective assistance of counsel in connection with deportation consequences of their guilty pleas, in light of State v. Green, 944 So.2d 208 (Fla. 2006).

    Morales v. State, ___ So.2d ___ (Fla. 3d DCA, No. 3D07-2241, 8/13/2008).  Defendant pleaded guilty in 1996, receiving what admittedly was insufficient advice concerning the deportation consequences of his plea.  In 1997 Defendant was ordered to be deported.  Over the next 2 years Defendant took no action to seek relief from his 1996 plea.  A 2-year window for bringing his failure-to-warn claim reopened in 2000 under Peart v. State, 756 So.2d 42 (Fla. 2000), then closed in 2002 without any action being taken by Defendant.  Defendant moved for relief in 2007, arguing that State v. Green reopened his time-barred claim.  The trial court disagreed, and the Third DCA affirmed.  "Our court has held that 'Green did not revive . . . unadjudicated claims that unquestionably were time-barred at the time Green was announced . . . .'  State v. Freijo, No. 3D07-1421, slip op. at 2 (Fla. 3d DCA July 23, 2008).  We certify that we have passed on the same question of great public importance that was stated in Freijo:  WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE v. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?"

    Dumenigo v. State, ___ So.2d ___ (Fla. 3d DCA, No. 3D07-3079, 8/13/2008).  Defendant appealed from an order denying his postconviction motion to vacate his 1997 guilty plea.  Defendant asserted that the plea had been "involuntary for failure to warn of immigration consequences."  The Third DCA affirmed, noting that Defendant was subject to deportation for a 1988 conviction, independent of his 1997 conviction and citing Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002).  "In essence, [Defendant] argues that Prieto has no application post State v. Green, 944 So.2d 208, 210 (Fla. 2006).  We disagree.  See Ojurongbe v. State, 973 So.2d 621, 623 (Fla. 3d DCA 2008) (recognizing Prieto's continued application); see also Forrest v. State, 2008 WL 2663770, 1 (Fla. 4th DCA July 9, 2008) (observing that the burden was on the movant to establish that the plea in the case under attack was the only basis for deportation.); Rodriques v. State, 980 So.2d 1203, 1204 (Fla. 4th DCA 2008) (concluding 'the motion fails to meet the specific pleading requirements of State v. Green, 944 So.2d 208 (Fla. 2006), insomuch as it fails to make any allegation as to how the appellant could prove the warnings were not given and fails to make any allegation that the appellant is deportable solely due to the conviction challenged herein. Absent such specific allegations in the sworn motion, the pleading is legally insufficient and should have been dismissed without prejudice')."

Third DCA addresses when, in light of State v. Green, defendant may withdraw prior plea due to counsel's alleged failure to advise of possible immigration consequences of plea  [Added 7/29/08]

    Defendant entered a guilty plea and was convicted in 1995.  He was served with a deportation notice on November 8, 2002.  Under Peart v. State, 756 So.2d 42 (Fla. 2000), Defendant was required to file a motion under Fla.R.Crim.P. 3.850 to withdraw his plea prior to November 8, 2004, or his motion would be time-barred.  Defendant did not move to withdraw his plea until 2007.  Defendant urged that under State v. Green, 944 So.2d 208, his claim had been revived and thus was timely.  The trial court apparently agreed and vacated his conviction.  The state appealed.

    The Third DCA reversed the order vacating Defendant's conviction.  The court framed the issue presented as "whether the Florida Supreme Court’s decision in State v. Green, 944 So.2d 208 (Fla. 2006), revived certain categories of cases in which a defendant seeks to withdraw a prior plea because of the trial court’s alleged failure to advise the defendant of the possible immigration and deportation consequences of the plea."  The court's opinion traced the development of the law in this area and the purpose and effect of Green.  The court concluded that "Green did not revive claims previously adjudicated on the merits, or unadjudicated claims that unquestionably were time-barred at the time Green was announced" and reversed the order granting Defendant's motion to vacate his conviction.

    The appeals court also certified, pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v), that it had passed on the following question of great public importance:  "WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?"  State v. Freijo, ___ So.2d ___ (Fla. 3d DCA, No. 3D07-1421, 7/23/2008) (on rehearing), 2008 WL 2811745.

    See also Pena v. State, 980 So.2d 542, 545 (Fla. 4th DCA 2008) (2-year window in Green applies "to litigants who had not yet been made aware of pending removal proceedings or who had not yet made any attempt to have their pleas withdrawn"); State v. DeArmas, ___ So.2d ___ (Fla. 1st DCA, No. 3D07-1576, 8/6/2008) (Green did not open new two-year window for filing of motion to withdraw plea by defendant with over 2 years of actual knowledge of immigration consequences of challenged plea).

Appeals court reversed summary denial of postconviction ineffective assistance claims based on alleged misadvice about consequences of guilty plea and about motion to suppress  [Added 7/24/08]

    A convicted Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging ineffective assistance of counsel in connection with, inter alia, trial counsel's alleged misadvice about the consequences of Defendant's guilty plea and misadvice regarding a motion to suppress.  After the court summarily denied these claims, Defendant appealed.  The Second DCA reversed on these (and other) claims.

Misadvice regarding consequences of plea.  Defendant alleged that he was entitled to withdraw his plea because trial counsel "affirmatively misadvised him concerning a collateral consequence of his guilty plea" relating to the Florida Career Offender Registration Act (Fla.Stat. sec. 775.261 (2004)).  Counsel's advice was incorrect.  Defendant alleged that he would not have accepted the plea offer but for this misadvice.

    The postconviction court denied this claim because trial counsel "is not responsible for warning the Defendant of indirect or collateral consequences stemming from the Defendant entering his plea that the court has no control over."  The appellate court took a different view.  "Although the postconviction court was correct that trial counsel has no obligation to advise a defendant about the collateral consequences of a guilty plea, see, e.g., State v. Partlow, 840 So.2d 1040, 1042 (Fla. 2003), this finding does not address [Defendant]'s actual claim, which was that trial counsel affirmatively misadvised him of the collateral consequences of his plea.  This court has held that '[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel.'  Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001).  Thus, while counsel has no obligation to be proactive by voluntarily advising a defendant about the collateral consequences of a guilty plea, if counsel chooses to offer such advice, then the advice given must be accurate."

Misadvice regarding motion to suppress.  Defendant alleged that his guilty plea was involuntary because his trial counsel misadvised him about his ability to suppress his confession.  Defendant allegedly wanted to move to suppress the confession because he was intoxicated when he waived his Miranda rights.  Counsel allegedly advised Defendant that intoxication was irrelevant to the voluntariness of a Miranda waiver.  Defendant further alleged that he would not have entered a guilty plea but for counsel's misadvice.

    The postconviction court denied this claim because Defendant did not allege that the motion he sought would have been granted.  The appeals court, however, concluded that such an allegation was not necessary.  "'[T]o show prejudice in a plea bargain case, [the defendant] must show only that without the misadvice of counsel, there was a reasonable probability he would not have pleaded guilty and would have chosen to go to trial.'  Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985)."  Defendant's motion included this allegation and so was facially sufficient.  Deck v. State, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-4299, 7/18/2008).

Postconviction motion based on court's failure to advise of deportation consequences of plea must allege that the plea was the only basis for deportation  [Added 7/21/08]

    Convicted Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850, alleging that his plea was involuntary because the trial court did not advise him that the plea may subject Defendant to deportation.  The trial court summarily denied the motion.  Defendant appealed.

    The Fourth DCA's opinion addressed several issues.  One of them was the requirements of this type of claim.  The trial court had denied the motion "finding that it was insufficient as it failed to allege that the plea in this case was the sole basis upon which [Defendant] was subject to deportation."  The appellate court agreed.  "[T]o state a sufficient claim the movant must allege that he is subject to deportation based solely on the plea under attack.  See State v. Seraphin, 818 So.2d 485, 488-89 (Fla. 2002) (explaining that to establish prejudice in this type of claim the motion must show that the movant would not have entered the plea if properly advised).  The burden is on the movant to establish that the plea in the case under attack is the only basis for deportation.  Only then can the movant show prejudice resulting from the failure to advise of deportation consequences in the case under attack."  (Emphasis by court.)

    The appeals court remanded for the trial court to give Defendant an opportunity to amend his motion, under Spera v. State, 971 So.2d 754 (Fla. 2007).  Forrest v. State, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-4831, 7/9/2008), 2008 WL 2663770.

Per Florida Supreme Court, evidentiary hearing may be required for ineffective assistance claim based on counsel's advice regarding plea offer  [7/12/08]

    Resolving a conflict among the DCAs, the Florida Supreme Court addressed the requirements for an ineffective assistance of counsel claim based on counsel's advice regarding and the need for an evidentiary hearing.

    Convicted Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging that his trial counsel had been ineffective.  Specifically, Defendant asserted that trial counsel told him that they could win at trial and urged him to reject a plea offer.  He rejected the offer.  He was convicted and received a harsher sentence than had been offered in the plea offer.  The postconviction court summarily denied the motion.  The Fourth DCA affirmed the summary denial.  Morgan v. State, 941 So.2d 1198 (Fla. 4th DCA 2006).

    The Fourth DCA also certified conflict with the Third DCA "on the issue of whether a defendant is entitled to an evidentiary hearing when claiming ineffective assistance of counsel based on trial counsel advice to reject a plea offer because counsel believed the defendant could win or do better going to trial."  The Florida Supreme Court accepted Defendant's petition for discretionary review.  The Supreme Court approved the result reached in Morgan, but stated that "we do not agree with the Fourth District's implicit reasoning that this type of claim cannot be the basis for ineffective assistance of counsel."

    The Court reaffirmed that an ineffective assistance of counsel may be based on counsel's advice to reject a plea offer.  In order to prevail on such a claim, a defendant "must allege and prove that (1) counsel failed to convey a plea offer or misinformed the defendant concerning the possible sentence he faced, (2) the defendant would have accepted the plea but for counsel’s failures, and (3) acceptance of the plea would have resulted in a lesser sentence than was ultimately imposed."  The Court further noted that in Cottle v. State, 733 So.2d 963, 969 (Fla. 1999), footnote 6, "we said that an evidentiary hearing should be ordered if the claim is sufficiently alleged."

    In the instant case, however, Defendant was not entitled to an evidentiary hearing.  "[Defendant] does not contend that his counsel failed to communicate a plea offer or misinformed him concerning the penalties. Morgan has failed to allege any deficient performance on the part of counsel.  The mere fact that [Defendant] did not prevail at trial does not translate into misadvice.  Some specific deficiency on the part of counsel must be alleged.  There is no allegation that counsel’s assessment of the chances of success at trial was unreasonable under the facts and circumstances of this case or that counsel had not investigated or otherwise was not familiar with the case.  Therefore, [Defendant] is not entitled to an evidentiary hearing because his claim is legally insufficient."  Morgan v. State, ___ So.2d ___ (Fla., No. SC06-2350, 7/10/2008).

court erred by summarily denying motion for postconviction relief that was based on the "messy car defense"  [Added 7/6/08]

    Defendant was convicted of attempted trafficking in heroin.  He filed a motion for postconviction relief, alleging that his trial counsel had provided ineffective assistance.  One of the allegations summarily denied by the postconviction court was that counsel had failed to adequately investigate what the appeals court termed his "messy car defense."  The Second DCA reversed this summary denial.

    The prosecution accused Defendant of driving from his home in Sarasota County to Miami to pick up heroin, which was found in his car when he as stopped by police.  Defendant contended that he went to Miami for an auto part and that he was unaware of the heroin in his car.  He asserted that his car was routinely so messy "that it was entirely possible for him to be unaware that a contraband substance was in a plastic bag on the passenger seat next to him because he regularly left scattered about the vehicle the plastic supermarket bags in which his wife packed his daily lunches.  This somewhat novel explanation for the unwitting transport by automobile of a contraband substance might be characterized as 'the messy car defense.'"  Defendant alleged that trial counsel had failed to follow up his leads that would have supported his "messy car defense" in front of the jury.

    The Second DCA concluded that this claim should not have been summarily denied.  "[W]e conclude that the documents and witnesses [Defendant] allegedly asked his trial counsel to investigate would not have been cumulative to [Defendant]'s trial testimony.  It follows that the postconviction court erred when it summarily denied [Defnednat]'s claims that his trial counsel provided ineffective assistance in failing to investigate evidence and witnesses that would have supported [Defendant]'s defense.  Accordingly, we reverse the postconviction court's order  . . . and we remand for the postconviction court to reconsider these claims."  Balmori v. State, 985 So.2d 646 (Fla. 2d DCA 2008).

Fla.R.Crim.P. 3.850 motion based on misadvice regarding collateral civil consequences of plea must be filed within 2 years after conviction is final, per Fourth DCA  [Added 6/14/08]

    Defendant entered a guilty plea and was convicted in 1998.  In 2007 he filed a motion for postconviction relief under Fla.R.Crim.P. 3.850, alleging "that counsel told him that, because adjudication would be withheld, he would not have a criminal record.  He added that counsel did not explain that the conviction would follow him the rest of his life or that it would subject him to future sentence enhancement or deportation."  (Footnotes omitted.)   The court noted that Defendant's motion appeared to be a "form memorandum" relying on Rodriguez v. State, 824 So.2d 328 (Fla. 3d DCA 2002).

    Although the Fourth DCA had followed Rodriguez in Miralles v. State, 837 So.2d 1083 (Fla. 4th DCA 2003), the court concluded:  "We recede from Miralles’ holding that a rule 3.850 motion may be filed within two years of discovering counsel’s misadvice regarding a collateral civil consequence of entering a plea.  If a collateral consequence of a plea, such as the impact on professional licensing, is of such import that it would cause a defendant to not enter a plea and insist on proceeding to trial, then it should be discovered with the exercise of due diligence within two years of the conviction becoming final."  The court continued:  "The time limit for bringing a rule 3.850 motion cannot be held open indefinitely until a movant learns of some unforeseen collateral civil consequence ensuing from a guilty plea.  In Rodriguez, almost eight years had elapsed from the date that the plea had been entered.  In this case, almost nine years had passed.  Collateral civil consequences may not materialize in some circumstances until a decade or more after the plea.  We see no legitimate reason for keeping the rule 3.850(b) time limit open for such extended periods and certify conflict with Rodriguez and [State v.] Johnson [615 So.2d 179 (Fla. 3d DCA 1993)]."  (Footnote omitted.)  Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (en banc).

Per Florida Supreme Court, partial deprivation of counsel during sentencing hearing is not a "sentencing error" as contemplated by Fla.R.Crim.P. 3.800(b)  [Added 6/4/2008]

    Following Defendant's criminal trial, the trial judge held a hearing at which victim impact testimony was taken.  Defendant's counsel was not physically present in the courtroom during the testimony.  At a subsequent hearing the judge adjudged Defendant guilty and sentenced her to 5 years in prison.  Defendant appealed.  The Second DCA affirmed, concluding that the absence of counsel at the sentencing hearing was a sentencing error that should have been preserved for appeal pursuant to Fla.R.Crim.P. 3.800(b) and Fla.R.App.P. 9.140(e).  Jackson v. State, 952 So.2d 613 (Fla. 2d DCA 2007).  The Second DCA certified with the First DCA's decision in Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003).  The Florida Supreme Court granted review to resolve the conflict.

    The Supreme Court concluded:  "[W]e hold that the denial of counsel at sentencing is not a "sentencing error" under rule 3.800(b).  The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process -- in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections.  Denial of counsel at sentencing, while occurring during the sentencing process, is not an error in an 'order[] entered as a result of the sentencing process.'  Fla. R. Crim. P. 3.800 court cmt.  Therefore, to assert such a claim on appeal, no motion under rule 3.800(b) need be filed.  Such errors, however, remain subject to the contemporaneous objection rule; if not preserved at trial, they may be reviewed on appeal only for fundamental error.  While a denial of counsel for an entire sentencing proceeding would constitute fundamental error, the temporary absence of counsel, at least under the facts of this case, does not."  Jackson v. State, 983 So.2d 562 (Fla. 2008).

Fourth DCA addresses proper test in reviewing ineffective assistance claim based on counsel's alleged failure to preserve error for appeal  [Added 5/17/08]

    A convicted Defendant filed a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850.  Defendant alleged that trial counsel's performance was constitutionally ineffective because counsel failed to object to admission of certain testimony.  The trial court denied the motion, and Defendant appealed.

    The Fourth DCA affirmed, but wrote an opinion "to address the proper test in reviewing a post-conviction ineffective assistance of counsel claim, where the defendant alleges counsel’s failure to object or preserve a claim for appeal."  The court noted that counsel's performance was deficient under the first prong of Stickland v. Washington, 466 U.S. 668 (1984).  The real question was "whether the deficiency in failing to preserve the error prejudiced [Defendant], pursuant to the second Strickland prong."

    Applying the Florida Supreme Court's decision in Carratelli v. State, 961 So.2d 312 (Fla. 2007), the appeals court concluded that Defendant had not shown prejudice.  "In Carratelli, the supreme court held that the defendant, alleging ineffective assistance of counsel for failure to object/preserve claim of reversible error in jury selection, was required to demonstrate prejudice at trial, rather than on appeal (i.e., show, in that case, that the juror was actually biased)."  Consequently, the court concluded:  "[T]he focus, in reviewing the denial of post-conviction relief, is on the effect of defense counsel’s deficient performance on the original trial outcome, and not on whether the defendant could have prevailed on appeal if an objection had been raised.  In focusing on the original trial, the court must apply the Strickland test (whether the deficient performance was so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable, and that, but for counsel’s unprofessional errors, the result of the proceeding would have been different) . . ."  Defendant failed to demonstrate reversible error.  Diaz v. State, 980 So.2d 1275 (Fla. 4th DCA 2008).

Allegation of wrong advice by trial counsel about effect of plea on sentence for separate, already-committed crime is cognizable an ineffective assistance claim, per Florida Supreme Court  [Added 5/15/08]

    Addressing a question left open in State v. Dickey, 928 So.2d 1193 (Fla. 2006), the Florida Supreme Court considered "whether, when a defendant has committed two separate crimes and informs his attorney about both of them, the attorney's erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel."  The Court distinguished Dickey on the basis that, unlike the instant case, Dickey dealt with future crimes:  the defendant in Dickey had not committed another crime at the time the erroneous advice was given.

    The Court ruled:  "[W]e hold that a claim that counsel erroneously advised a defendant about the effect of his plea on the subsequent sentence imposed in another case for a crime committed before the plea was entered is a cognizable claim of ineffective assistance of counsel."

    The Court then set forth the pleading requirements for such a claim.  To raise a facially sufficient claim, a defendant "must do more than allege that counsel provided erroneous advice.  A defendant must plead that (1) before entering the plea, he informed defense counsel that he committed another crime for which he had not yet been sentenced, (2) he explained to counsel the nature of the crime, (3) counsel erroneously advised the defendant about the potential use of the conviction to enhance a subsequent sentence for that other crime (explaining why the advice was erroneous), and (4) had counsel not erroneously advised the defendant, the defendant would have exercised his right to a trial."  To prevail on the claim, the defendant must prove that there was a reasonable probability that the defendant would have gone to trial instead of entering the plea.  Finally, the Court held that the claim must be filed within two years after the conviction based on the plea the defendant is attacking becomes final.  Ey v. State, 982 So.2d 618 (Fla. 2008) (opinion on rehearing).

Criminal defendant's allegation of attorney coercion in plea process results in reversal and appointment of conflict-free counsel  [Added 5/7/08]

    A criminal Defendant entered a guilty plea and was convicted.  He subsequently filed a pro se motion pursuant to Fla.R.Crim.P. 3.170(l) seeking to withdraw his plea on the ground of alleged "coercion by his attorney in plea process."  The trial court denied the motion.  Defendant did not appeal.  Defendant later filed an "amended" Rule 3.170(l) motion and a motion to appoint conflict-free counsel to advise him on the motion.  The court denied the motions.  Defendant appealed.

    The Third DCA reversed and remanded for an evidentiary hearing.  "A post-sentence motion to withdraw a plea pursuant to rule 3.170(l) is a critical stage of criminal proceedings.  The trial court is obligated to appoint conflict-free counsel if the defendant is, at the time of filing the rule 3.170(l) motion, represented by trial counsel and the motion is facially sufficient to show that a conflict between the defendant and trial counsel exists with regard to the plea.  In the facts presented here, it is unknown whether [Defendant] was represented by counsel at the time he filed his motion to withdraw the plea.  [Defendant] made claims that his trial counsel coerced him into taking the plea. At that point, the trial court was obligated to appoint conflict-free counsel to advise [Defendant] further."  (Footnotes omitted.)  Camon v. State, ___ So.2d ___ (Fla. 3d DCA, No. 3D07-115, 4/30/2008).

postconviction motion alleging ineffective assistance of counsel can be used to challenge allegedly vindictive sentencing  [Added 4/22/08]

    A convicted criminal Defendant filed a motion for postconviction relief pursuant to Fla.R.Crim.P. 3.850 alleging, inter alia, that his trial counsel "was ineffective in not objecting to the purportedly vindictive sentencing he received."  The postconviction court denied the motion.  Defendant appealed.

    The Fifth DCA reversed on this point.  "The trial court in denying the 3.850 motion on this ground held that the issue of vindictive sentencing should have been raised on direct appeal and was, therefore, not cognizable under this rule.  The case law does not appear to bear this out.  We have previously considered, and granted relief in cases in which the failure of counsel to object to a potentially vindictive sentence under rule 3.850 was raised."  (Citations omitted.)  Noting that the sentencing judge seemed "to have strayed into forbidden territory" and engaged in actions giving rise to a presumption of judicial vindictiveness, the appeals court remanded for resentencing before a different judge.  Evans v. State, 979 So.2d 383 (Fla. 5th DCA 2008).

Convicted defendant raised cognizable claim of ineffective assistance by alleging that he rejected plea offer because lawyer advised him they would win at trial  [Added 4/18/08]

    Defendant was charged with armed robbery.  He was offered a plea agreement of 5 years imprisonment followed by 5 years of probation if he would testify against his co-defendant.  He turned down the plea deal and went to trial.  Defendant was convicted and sentenced to life imprisonment.

    Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850.  One of his allegations was that "his trial counsel was ineffective for advising him to reject the plea offer, in view of the evidence against him."  Counsel allegedly told Defendant that they would win Defendant's case if it went to trial.  The trial court denied the motion for postconviction relief.  Defendant appealed.

    The Third DCA reversed and remanded for an evidentiary hearing on this issue.  Defendant "was told of the plea offer and, according to the sworn allegations, states that his counsel advised him to reject the offer. The defendant alleges that counsel was ineffective in rendering that advice.  Because this is a cognizable claim under Perez [v. State, 893 So.2d 629 (Fla. 3d DCA 2005)] and Gomez [v. State, 832 So.2d 793 (Fla. 3d DCA 2002)], we reverse for a hearing."

    The Chief Judge filed a vigorous dissent, in which he stated:  "Boiled down to its essence, the majority’s position is that if a defendant alleges that his attorney advised that he should win, and does not, then a defendant has a legitimate claim for ineffective assistance of counsel.  If the majority is correct, then all defendants will allege that their attorneys advised that they should win their case.  This would open the door to rampant rule 3.850 motions, which, according to the majority, will necessitate evidentiary hearings.  The practical effect is that already overburdened trial courts will be even more overburdened using valuable court time to hear spurious post-trial motions."  Garcia v. State, ___ So.2d ___ (Fla. 3d DCA, No. 3D04-1326, 4/16/2008).

Ineffective assistance of counsel claims under Fla.R.Crim.P. 3.850 can arise out of probation revocation proceedings  [Added 3/26/08]

    A criminal Defendant was convicted of violating his probation.  He filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel.  The postconviction court summarily denied the motion.  Defendant appealed.

    The First DCA affirmed, noting that Defendant's claims "are without merit."  The appeals court, however, did point out that the trial court was wrong when it "indicated that rule 3.850 motions do not apply to probation revocation proceedings and there is no claim for ineffective assistance of counsel arising out of probation proceedings.  This proposition is incorrect.  Contrary to the findings of the postconviction court, there are numerous examples of appellate cases applying rule 3.850 to probation revocation hearings.  See, e.g., Flowers v. State, 947 So.2d 639 (Fla. 4th DCA 2007); Hollander v. State, 920 So.2d 204, (Fla. 4th DCA 2006); Gilbert v. State, 913 So.2d 84, 85 (Fla. 2d DCA 2005); Phelps v. State, 911 So.2d 186 (Fla. 1st DCA 2005); Mikell v. State, 903 So.2d 1054, 1054 (Fla. 2d DCA 2005); Medrano v. State, 892 So.2d 508 (Fla. 3d DCA 2004)."  Ganey v. State, 977 So.2d 698 (Fla. 1st DCA 2008).

    NOTE:  See also Ford v. State, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-5022, 8/4/2008) ("an appellant may raise ineffective assistance of counsel at a probation revocation proceeding").

Criminal defendant's familiarity with criminal justice system is not a substitute for adequate Faretta hearing  [Added 3/19/08]

    A criminal defendant was convicted for failing to properly register as a sex offender.  Defendant appealed, asserting that the trial court erred by not conducting an adequate Faretta [v. California, 422 U.S. 806 (1975)] inquiry before permitting him to represent himself at trial.

    The First DCA agreed and reversed.  "Although the trial court did advise the defendant of the disadvantages and dangers of self-representation, the trial court did not advise the defendant of the advantages of representation by counsel nor did it inquire into the defendant’s age, education, ability to read and write, or any mental or physical conditions."  The court rejected the State's contention that the inquiry was adequate "because the defendant was familiar with the criminal justice system," he could read and write, and "the trial court had the opportunity to observe the defendant’s demeanor and ability to express himself."  The appeals court remanded for a new trial with either appointed counsel or a valid waiver of the right to counsel following an adequate Faretta hearing.  Flowers v. State, 976 So.2d 665 (Fla. 1st DCA 2008).

Florida Supreme Court rules that Legislature's creation of 5 Offices of Criminal Conflict and Civil Regional Counsel does not violate state constitution  [Added 3/14/08]

    The Florida Association of Criminal Defense Lawyers ("FACDL") filed a petition for writ of quo warranto seeking to block implementation of Chapter 2007-62, Laws of Florida, which created 5 Offices of Criminal Conflict and Civil Regional Counsel.  The regional counsel would represent indigent criminal defendants who could not be represented by the public defenders due to conflicts of interest.  FACDL alleged that the law was unconstitutional because the leaders of the five regional offices would be appointed by the governor rather than elected.  Article V, Section 18 of the Florida Constitution requires that public defenders be elected.  FACDL also alleged that the new regional counsel would lose their independence and face an inherent ethical conflict because they would be defending persons charged by the state while being appointed and employed by the state.

    The trial court granted the petition for quo warranto.  The court "determined that the regional counsel 'are essentially public defenders that have not been subject to the qualifications' of the constitution.  The court found that the Legislature has attempted to create a hybrid state office, which is a public defender for purposes of funding but not for purposes of the qualifications under article V, section 18.  Because the constitution expressly requires public defenders to be elected and reside in the circuit, the court concluded that the Legislature was improperly attempting 'to amend the Constitution by legislative fiat'."  The trial court quashed the governor's appointment of the 5 regional counsel and enjoined the counsel from performing their duties.  The governor then appealed to the First DCA, which certified the matter as one requiring immediate resolution by the Florida Supreme Court.

    The Supreme Court reversed.  "[W]e we conclude that the Offices of the Criminal Conflict and Civil Regional Counsel are not a second-tier 'appointed' public defender system in violation of article V, section 18 of the Florida Constitution.  The Legislature’s primary intent was to create a backup system to handle those cases in which a public defender has a conflict and to do so in a fiscally sound manner in accordance with constitutional principles of due process.  Because the OCCCRC do not supplant or otherwise compete with the public defender, the five regional counsel are not subject to the qualifications for public defenders set forth in article V, section 18.  . . .  For these reasons, we reverse the trial court’s order and hold that the Act does not violate the constitution by allowing for the appointment and confirmation of the five regional counsel."

    The Court also rejected the argument that the law would affect the regional counsels' professional independence or impair the right to effective assistance of counsel.  "[W]e conclude that the mere creation of the OCCCRC does not adversely impact either the independent judgment of the appointed attorneys or the right to effective representation under the Sixth Amendment."  Crist v. Florida Association of Criminal Defense Lawyers, Inc., 978 So.2d 134 (Fla. 2008).

Third DCA declines invitation to "brush aside formal technicalities" in ruling on habeas corpus claim  [Added 3/7/08]

    A convicted Defendant filed a petition for a writ of habeas corpus seeking reversal of his convictions.  In his petition Defendant asked the Third DCA to "brush aside formal technicalities" in ruling on his petition.  The court noted that Defendant was asserting ineffective assistance on the part of his trial counsel, but that habeas corpus was "the improper vehicle" to address such claims.  Rather, such claims should be addressed during direct appeal or in a timely filed Fla.R.Crim.P. 3.850 motion for postconviction relief.

    The court concluded:  "It would appear that Griffin is well-aware of his inability to file a legally sufficient motion under rule 3.850, which is why he has filed the instant petition and has urged us to dispense with the 'formal technicalities.'  Petition denied."  Griffin v. State, 976 So.2d 107 (Fla. 3d DCA 2008).

Filing petition for discretionary review based on PCA with citation to case pending review in Florida Supreme Court tolls time for filing Fla.R.Crim.P. 3.850 motion  [Added 2/15/08]

    A convicted Defendant's appeal was per curiam affirmed with citations on August 29, 2003.  Defendant sought discretionary review in the Florida Supreme Court.  The Supreme Court dismissed the case on November 24, 2004.  Defendant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 on July 10, 2006.  The trial court denied that motion as untimely filed.  Defendant appealed.

    The Third DCA summarized:  "The question presented on appeal is whether filing a petition for discretionary review based on an appellate per curiam decision with citations, one or more of which are pending review in the Florida Supreme Court, tolls the time for filing a postconviction motion under Florida Rule of Criminal Procedure 3.850 until the date the Florida Supreme Court either accepts or denies review.  [Defendant] argues that his petition for discretionary review in the Florida Supreme Court tolled the two-year time limits of Rule 3.850 because this Court’s per curiam affirmance was accompanied by citations to cases, one of which was pending review in the Florida Supreme Court."

    Defendant contended that he had 2 years from November 24, 2004 (the date the Supreme Court dismissed his case) to file his Rule 3.850 motion, and that he filed his motion within that period.  The appeals court agreed with Defendant and reversed.  The Supreme Court retained jurisdiction until it dismissed Defendant's case because it has subject-matter jurisdiction to hear petitions for discretionary review based on a PCA with citations, where one of the citations is pending review in the Court.  Mullins v. State, 974 So.2d 1135 (Fla. 3d DCA 2008).

Per Second DCA, criminal defense lawyer can provide ineffective assistance by not moving for judge's disqualification when there is legally sufficient reason, regardless of whether trial's outcome would have been different  [Added 1/31/08]

    In a motion for postconviction relief, Defendant alleged that his trial Counsel was ineffective because Counsel failed to move for disqualification of the judge presiding over Defendant's sentencing.  Defendant alleged "the sentencing judge in this case was a former assistant state attorney and that, while an assistant state attorney, he had signed a felony information filed against [Defendant] in another county in the same circuit."  Defendant further alleged that, had Counsel exercised due diligence and discovered the judge's conflict and moved for disqualification, the judge "would have been disqualified from presiding over this case."  The postconviction court denied Defendant's claim as facially insufficient, "finding that [Defendant] did not allege facts to show that the court was actually biased and that [Defendant] did not allege that but for counsel's deficient performance the outcome of the proceeding would have been different."  Defendant appealed.

    The Second DCA reversed, concluding that the lower court had misstated both the record and the applicable legal standard.  "In Kleppinger v. State, 884 So.2d 146, 149 (Fla. 2d DCA 2004), this court held that when considering a disqualification issue in the context of an ineffective assistance claim, '[t]he finding of prejudice turns on whether disqualification would have been required, not on whether the outcome of a new trial would have been different.'  See also Goines v. State, 708 So.2d 656, 661 (Fla. 4th DCA 1998) (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)).  (Footnote omitted.)"

    The court noted that Defendant's allegations regarding the judge's prior signing of a felony information against him were sufficient to show a reasonable fear of actual bias.  "Further, [Defendant]'s allegations that disqualification would have been required are sufficient to establish the prejudice prong.  Therefore, because [Defendant]'s allegations are sufficient to meet the Kleppinger standard, he presented a facially sufficient claim for relief."

    The Second DCA certified conflict with Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007), review granted 959 So.2d 718 (Fla. 2007).  Cox v. State, 974 So.2d 474 (Fla. 2d DCA 2008).

In postconviction plea agreement defendant may validly waive right to seek postconviction relief  [Added 1/8/08]

    Defendant was found guilty of a felony.  He also had other charges pending against him.  Defendant entered into a negotiated plea agreement under which he agreed to sentences and also waived his right to all postconviction challenges, "including but not limited to any motion for new trial, direct appeal, habeas corpus, and/or motion for post-conviction relief."  Nevertheless, Defendant later did file various motions for postconviction relief.  The trial court denied them based on the waiver in the plea agreement.  Defendant appealed.

    The Second DCA noted that this issue was a matter of first impression before it.  The court affirmed, concluding that the waiver was valid.  Stahl v. State, 972 So.2d 1013 (Fla. 2d DCA 2008). 

Trial court erred by denying criminal defendant's request to replace counsel who was repeatedly unprepared to try case.  [Added 12/20/07]  --  Orta v. State, 970 So.2d 478 (Fla. 5th DCA 2007).

Florida Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim.  [Added 11/19/07]  --  Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).

Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does.  [Added 11/14/07]  --  Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007).

Trial counsel's failure to secure severance of 2 charges results in reversal of defendant's conviction.  [Added 11/17/07]  --  McNabb v. State, 967 So.2d 1086 (Fla. 1st DCA 2007).

Florida Supreme Court resolves conflict between Districts regarding when trial court must permit amendment of postconviction motion that was dismissed for pleading deficiency.  [Added 11/7/07]  --  Spera v. State, 971 So.2d 754 (Fla. 2007).

    NOTE:  The Second DCA has held that Spera does not apply retroactively.  Davis v. State, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-5552, 2/27/2008), 2008 WL 508654.

On direct appeal the court reverses a conviction for ineffective assistance that was apparent on face of record.  [Added 10/25/07]  --  Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007).  See also Berdecia v. State, 971 So.2d 846 (Fla. 3d DCA 2007) (appellate court resolved ineffective assistance in direct appeal rather than remanding for filing of motion under Fla.R.Crim.P. 3.850).

Criminal defendant's experience with self-representation cannot substitute for Faretta hearing.  [Added 9/20/07]  --  O'Neal v. State, 963 So.2d 959 (Fla. 4th DCA 2007).

Florida Supreme Court clarifies that trial counsel is constitutionally ineffective for failing to preserve challenge to potential juror only where that juror is actually biased.  [Added 7/10/07]  --  Carratelli v. State, 961 So.2d 312 (Fla. 2007).

Citing Rule of Professional Conduct 4-1.14, Fourth DCA affirms trial court's refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case.   [Added 6/25/07]  --  S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007).

In self-representation inquiry, proper legal standard is defendant's competence to waive right to counsel, not defendant's competence to represent self.  [Added 5/24/07]  --  Fleck v. State, 956 So.2d 548 (Fla. 2d DCA 2007).

Counsel not ineffective for filing untimely motion to disqualify trial judge, who would have granted timely motion but was not shown to be actually biased; conflict certified with other Districts.  [Added 3/7/07]  --  Thompson v. State, 949 So.2d 1169 (Fla. 1st DCA 2007).

Motion to withdraw plea by represented defendant treated as "nullity" unless motion includes unequivocal request to discharge counsel.  [Added 1/23/07]  --  Kerney v. State, 945 So.2d 657 (Fla. 2d DCA 2007).

Defendant whose lawyer filed Anders brief and withdrew, with defendant not filing his own brief, can now seek relief for ineffective assistance in Fourth District.  [Added 1/4/07]  --  Jackson v. State, 946 So.2d 83 (Fla. 4th DCA 2006).

No cognizable "ineffective assistance of counsel" claim in administrative proceeding for revocation of state-issued professional license.  [Added 12/6/06]  --  Mullins v. Dept. of Law Enforcement, 942 So.2d 998 (Fla. 5th DCA 2006).

Florida Supreme Court rules that criminal defense lawyer who previously represented prosecution witness in unrelated matter did not render ineffective assistance.  [Added 11/14/06]  --  Sliney v. State, 944 So.2d 270 (Fla. 2006).

Ineffective assistance of counsel for lawyer to elicit damaging character evidence against his client without then trying to remedy effects of disclosure.  [Added 10/18/06]  --    Glancy v. State, 941 So.2d 1201 (Fla. 2d DCA 2006).

Trial court abused discretion by denying criminal defendant's request for self-representation on ground that defendant was not prepared or qualified.  [Added 10/6/06]  --  Reddick v. State, 937 So.2d 1279 (Fla. 4th DCA 2006).

Florida Supreme Court notes that criminal defendants have no constitutional right to confer with counsel during their trial testimony.  [Added 9/1/06]  --  Branch v. State, 952 So.2d 470 (Fla. 2006).

Criminal defense counsel's affirmative misadvice about immediate but "collateral" consequence of plea can constitute ineffective assistance.  [Added 7/7/06]  --  Johnson v. State, 933 So.2d 1203 (Fla. 5th DCA 2006).

Decisional change is not newly discovered fact for purposes of Fla.R.Crim.P. 3.850 motion, per Florida Supreme Court.  [Added 6/29/06]  --  Coppola v. State, 938 So.2d 507 (Fla. 2006).

Defense counsel's strategy to be candid by disclosing details about client's priors that impugned client's credibility was "patently unreasonable" and constituted ineffective assistance.  [Added 6/17/06]  --  Bowers v. State, 929 So.2d 1199 (Fla. 2d DCA 2006).

Allegations of wrong advice by trial counsel about possible effect of plea on sentence for future (i.e., not yet committed) criminal acts not cognizable as claim for ineffective assistance, per Florida Supreme Court.  [Added 4/25/06]  --  State v. Dickey, 928 So.2d 1193 (Fla. 2006).

Criminal defendant's filing of federal suit against his lawyer is not conflict that requires appointment of new counsel.  [Added 3/7/06]  --  Miller v. State, 921 So.2d 816 (Fla. 5th DCA 2006).

Trial court erred in not appointing counsel for indigent father facing petition to terminate parental rights.  [Added 1/4/06]  --  G.C. v. W.J., 917 So.2d 998 (Fla. 1st DCA 2005).

Failure to advise of pretrial intervention program's existence constitutes ineffective assistance; defendant prejudiced by resulting inability to make informed decision on plea offer.  [Added 10/31/05]  --  Julien v. State, 917 So.2d 213 (Fla. 4th DCA 2005).

Defendant's assertion that counsel advised him to reject plea offer and go to trial, resulting in harsher sentence, does not state ineffective assistance claim.  [Added 8/29/05]  --  Dines v. State, 909 So.2d 521 (Fla. 2d DCA 2005).

Lawyer did not provide ineffective assistance by failing to perpetrate fraud on court.  [Added 7/29/05]  --  Morgan v. State, 911 So.2d 162 (Fla. 3d DCA 2005).

MOTION FOR POSTCONVICTION RELIEF ALLEGING CONFLICT FROM TRIAL COUNSEL'S ATTEMPT TO SECURE RIGHTS TO "LIFE STORY" FAILS  [Added 12/6/04]  --  Brown v. State, 894 So.2d 137 (Fla. 2004).

INEFFECTIVE ASSISTANCE FOR APPELLATE COUNSEL TO FAIL TO ARGUE ISSUE SUBSEQUENTLY DETERMINED BY CASE LAW BUT “FORESHADOWED” BY EXISTING CASES  [Added 12/1/04]  --  Davis v. State, 886 So.2d 332 (Fla. 5^th DCA 2004).

NOT PERMITTING DEFENDANT TO CONFER WITH COUNSEL DURING SHORT RECESS VIOLATED RIGHT TO COUNSEL UNDER FLORIDA CONSTITUTION, BUT WAS HARMLESS ERROR  [Added 9/20/04]  --  Leerdam v. State, 891 So.2d 1046 (Fla. 2d DCA 2004).

APPELLATE COUNSEL’S FAILURE TO RAISE ISSUE ADDRESSED BY OTHER DISTRICTS (FAVORABLY IN 2 OF 3) CONSTITUTED INEFFECTIVE ASSISTANCE  [Added 8/30/04]  --  Kist v. State, 900 So.2d 571 (Fla. 2d DCA 2004).

ALLEGATION OF "UNPROFESSIONAL" BEHAVIOR IS TOO GENERAL TO PRESENT CLAIM OF INEFFECTIVE ASSISTANCE  [Added 8/12/04]  --  Baker v. State, 879 So.2d 663 (Fla. 5th DCA 2004).

SUPREME COURT OUTLINES PROCEDURE FOR PROPER DETERMINATION OF Fla.R.Crim.P. 3.850 CLAIMS  [Added 6/30/04]  --  Jacobs v. State, 880 So.2d 584 (Fla. 2004).

"INEFFECTIVE ASSISTANCE" CLAIM NOT COGNIZABLE IN PROFESSIONAL LICENSURE ACTION  [Added 6/23/04]  -- Prieto v. Florida Dept. of Business & Professional Regulation, 876 So.2d 633 (Fla. 3d DCA 2004).

INEFFECTIVE ASSISTANCE CLAIM FOR FAILURE TO CALL WITNESS FACIALLY INSUFFICIENT IF IT DOES NOT ALLEGE WITNESS WAS AVAILABLE TO TESTIFY AT TRIAL, PER FLORIDA SUPREME COURT  [Added 6/3/04]  --  Nelson v. State, 875 So.2d 579 (Fla. 2004).

CRIMINAL DEFENSE LAWYER’S CONDUCT IN ADVISING THE CLIENT TO REJECT A FAVORABLE PLEA OFFER AND GO TO TRIAL COULD CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL  [Added 11/28/03]  --  Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003).