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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).

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