Florida Court of Appeals Overturns Conviction After Defendant’s Attorney Does Not Comply with the Defendant’s Wishes to Withdraw his Plea

A defendant charged with a crime in Florida can enter any plea provided for by the law. While a person charged should not enter a plea without thoroughly weighing the consequences, in some cases even if a plea was entered after careful consideration a defendant may wish to change his plea. Under Florida law, a defendant can file a motion to withdraw a plea at any time prior to sentencing. In a recent case ruled on by the District Court of Appeals for the Second District of Florida, if a defendant’s attorney does not honor his or her wish to withdraw a plea, it can result in a conviction being overturned.

Reportedly, the defendant entered a no contest plea to burglary and grand theft charges. The defendant was then found incompetent and his sentencing hearing was delayed for two years. He was represented by one attorney while negotiating his plea deal and a second attorney at his sentencing. At the sentencing hearing, per the defendant’s request, his attorney requested a renegotiation of his plea deal, due to the fact he did not understand the plea colloquy and proceedings.

The court declined to renegotiate. The defendant’s attorney stated he did not believe a good faith basis existed for withdrawing the plea and did not move to withdraw the plea. Additionally, the court never asked the defendant if he wanted to withdraw his plea. The trial court subsequently sentenced the defendant to fifteen years in prison followed by fifteen years of probation. The defendant then filed an appeal, arguing ineffective assistance of appellate counsel on several grounds. The appellate court found in favor of the defendant and reversed his sentencing.

Florida Rules of Civil Procedure Regarding Withdrawal of a Plea

The Florida Rules of Civil Procedure provide that it is within the discretion of the trial court to allow a defendant to withdraw a guilty or no contest plea at any time before a sentence. On appeal, the state admitted the defendant’s appellate counsel was ineffective for failing to argue on appeal, that once the defendant’s attorney at the sentencing hearing took a position adverse to the defendant’s wish to withdraw his plea, the trial court should have allowed the attorney to withdraw or dismissed the attorney and appointed the defendant and attorney with whom he did not have a conflict. The appellate court noted that the trial court deprived the defendant of both his right to effective assistance of counsel and his right to argue that he should be permitted to withdraw his plea. As such, in failing to raise these issues on appeal, the court found that the defendant’s appellate counsel was ineffective. As such, the court reversed his sentence and remanded the case to permit the trial court to appoint conflict-free counsel to allow the defendant to file a motion to withdraw his plea.

Violent Felony Offender of Special Concern Designation

Additionally, the trial court granted the defendant’s motion to correct a sentencing error designating him as a violent felony offender of special concern (VFOSC), due to the fact he was not on probation or community control at the time he allegedly committed the crime, and his prior offense was not a qualifying offense. The court agreed with the defendant, finding that the terms of the statute made it clear it only applied to a person on probation. The court noted that if the defendant did not file a motion to withdraw his plea on remand, his sentence should be modified to remove the VFOSC designation.

Meet with an Experienced Tampa Sex Crime Defense Attorney

If you are a Tampa resident charged with a crime, you should meet with a seasoned criminal defense attorney as soon as possible to analyze the facts of your case and develop a strategy to defend you against the charges you face. William Hanlon of Hanlon Law is an experienced Tampa criminal defense attorney who will work diligently to help you protect your liberties. Contact our offices at 813-229-2439 or via the online form to set up a meeting.

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