Opinion
Case No. 1D03-2489.
Opinion filed February 15, 2005.
An appeal from the Circuit Court for Leon County, Kathleen F. Dekker, Judge.
Appellant, pro se.
Charlie Crist, Attorney General, Tallahassee, for Appellee.
In Dickey v. State, 28 Fla. L. Weekly D2108 (Fla. 1st DCA September 5, 2003), this Court per curiam affirmed the trial court's summary denial of appellant's postconviction claims of ineffective assistance of counsel with a citation to this Court's decision in Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002),review granted, 832 So. 2d 103 (Fla. 2002), quashed, 887 So. 2d 1214 (Fla. 2004). In Bates, we certified the question:
WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT'S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?
818 So. 2d at 626.
Due to the Florida Supreme Court's quashal of our decision inBates, see 887 So. 2d at 1214, and the continuing importance of the certified question, we sua sponte withdraw our pre-mandate opinion in Dickey, 28 Fla. L. Weekly at D2108, and grant rehearing. We affirm without comment the summary denial of appellant's remaining claims; however, upon further consideration of appellant's timely claim that he entered a plea in reliance on his counsel's mistaken advice that the plea could not be used to enhance a future sentence, we reverse the trial court's summary denial of that claim and remand for an evidentiary hearing.
In 1996, appellant was sentenced to two years' probation on a conviction obtained by the state when appellant pled nolo contendere to charges of criminal mischief and failure to appear. Some time after successfully completing his Florida probation, appellant was convicted of a crime in Alabama, and Alabama enhanced appellant's sentence based upon appellant's 1996 Florida conviction. On May 9, 2001, more than two years after appellant's Florida conviction became final for purposes of 3.850, appellant filed a motion for postconviction relief pursuant to that rule. Among other grounds, appellant alleged to have suffered ineffective assistance of counsel in that his counsel affirmatively misadvised him regarding the potential future sentence enhancement consequences of his plea, which misadvice only surfaced as newly discovered evidence when appellant learned that his Alabama sentence was to be enhanced based upon the Florida conviction. The trial court correctly accepted as timely his claim of newly discovered evidence (which was filed within two years of the discovery of enhancement), reviewed the merits, and then denied relief with a citation to this Court's decision in Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002),quashed, 887 So. 2d 1214 (Fla. 2004).
This Court had received numerous petitions for writs of error coram nobis and untimely 3.850 motions raising this exact claim and asserting timeliness pursuant to Wood v. State,750 So. 2d 592 (Fla. 1999) (providing that all defendants previously adjudicated would have two years from May 27, 1999, in which to file rule 3.850 motions raising claims traditionally cognizable under coram nobis). We therefore decided to per curiam affirm those claims with a citation to our decision in Bates, and we entered separate orders instructing those defendants that they would have until fifteen days after the Supreme Court answered the certified question in which to seek rehearing of this Court's affirmance of the summary denial of their claims. Appellant's claim was one of many to receive this treatment. The Supreme Court accepted review of our decision in Bates, but did not answer the certified question because it determined that our decision as to the timeliness of Bates' claim was incorrect; rather, the Supreme Court quashed this Court's decision and elected not to answer the procedurally barred question. Bates, 887 So. 2d at 1214.
Based on the following, we now answer the question certified affirmatively and hold that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant's plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim. We certify conflict with the Second, Third, and Fifth Districts, each of which has held that this claim does not entitle a defendant to an evidentiary hearing.See Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002) (acknowledging that affirmative misadvice about collateral consequences can constitute basis for withdrawal of plea, but denying relief on the claim of affirmative misadvice on future sentence enhancement consequences because "unlike other collateral consequences, such as deportation or gain time eligibility, the future sentence-enhancing effects of a guilty plea only apply if the defendant commits a future criminal offense"); Scott v. State, 813 So. 2d 1025, 1026-27 (Fla. 3d DCA 2002) ("[T]he defendant is under a legal duty to refrain from committing further crimes. It makes no difference whether the defendant is given correct, or incorrect, advice regarding the possibility of enhanced punishment."); McKowen v. State, 831 So. 2d 794 (Fla. 5th DCA 2002) (denying relief because "[t]o rule otherwise would be to encourage recidivism and frustrate the purpose of the statutory sentencing scheme which enhances sentences based on past criminal behavior"). We align ourselves with the Fourth District, which has held that "[w]hen a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he was thereby prejudiced, the defendant may seek to withdraw the plea even if the misadvice concerns collateral consequences as to which the trial court was under no obligation to advise." Burns v. State, 826 So. 2d 1055, 1056-57 (Fla. 4th DCA 2002) (citing Ghanavati v. State, 820 So. 2d 989, 991 (Fla. 4th DCA 2002); Murphy v. State, 820 So. 2d 375 (Fla. 4th DCA 2002); Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)).
Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a defendant alleging ineffective assistance of counsel must prove both deficient performance of counsel and prejudice to the defendant. We hold, as a matter of law, that counsel's misadvice regarding the collateral consequence of future sentence enhancement constitutes deficient performance. Deficiency having been established, relief must be afforded if prejudice is shown.Id. Thus, the only remaining question is whether the harm suffered by a defendant who relies on misadvice regarding future sentence enhancement consequences when entering a plea is sufficient to meet the prejudice prong of Strickland.
Future sentence enhancement has been categorized as a collateral consequence of a plea in Florida. See Major v. State, 790 So. 2d 550, 552 (Fla. 3d DCA 2001), aff'd, 814 So. 2d 424 (Fla. 2002). The collateral consequences rule originated in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970), wherein the Supreme Court ruled that a plea of guilty will not be found to be unknowing and involuntary in the absence of proof that the defendant was not advised of, or did not understand, the direct consequences of his plea. (Emphasis added). Accord State v. Leroux, 689 So. 2d 235, 238 (Fla. 1996) (holding that although a trial court's correct advice during the plea colloquy may refute a claim of reliance on counsel's misadvice regarding a direct consequence of a plea, "[i]t is only when the record `conclusively' establishes that the defendant did not rely on the advice of counsel that a summary adjudication will be proper"); State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987) (holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea), superseded by rule on other grounds,State v. De Abreu, 613 So. 2d 453 (Fla. 1993). A direct consequence is one which has a "definite, immediate, and largely automatic effect on the range of the defendant's punishment."State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003) (quotingMajor, 814 So. 2d at 431). If the consequence does not affect the range of the defendant's punishment, "it is merely a collateral consequence of the plea." Id. at 1043. Included in the category of collateral consequences are such matters as damage to reputation, loss of professional licenses, and loss of certain civil rights, examples of which are the right to vote and the right to own a firearm. See §§ 944.292(1); 790.23; 97.041(2)(b), Fla. Stat. (2004).
Although the Florida Supreme Court initially held that a defendant did not have to be informed by court or counsel of any collateral consequences of a plea and only had to be informed of direct consequences in order for the plea to be considered knowing and voluntary, Ginebra, 511 So. 2d at 962, that holding was superseded by Rule 3.172(c), De Abreu, 613 So. 2d at 453 (Fla. 1993), which now requires that a defendant be informed by the trial court of the potential deportation consequences of his plea. See Partlow, 840 So. 2d at 1042-43. Also, the Florida Supreme Court mandated that a defendant who pleads guilty to a crime that subjects him to a potential habitual felony offender sentence must be told that habitualization could affect the possibility of early release.See State v. Wilson, 658 So. 2d 521 (Fla. 1995); Ashley v. State, 614 So. 2d 486, 490 n. 8 (Fla. 1993).
Nonetheless, despite the fact that failure to advise as to collateral consequences cannot constitute ineffective assistance of counsel, "[t]he law is well settled that if a defendant enters a plea in reasonable reliance on his attorney's advice, which in turn was based on the attorney's honest mistake or misunderstanding, the defendant should be allowed to withdraw his plea," see Leroux, 689 So. 2d at 238 (citing Costello v. State, 260 So. 2d 198 (Fla. 1972); Brown v. State, 245 So. 2d 41 (Fla. 1971)), even if the mistaken advice regards a collateral consequence of the plea. See Watrous v. State, 793 So. 2d 6, 11 (Fla. 2d DCA 2001) ("It is well-settled that affirmative misadvice regarding even collateral consequences of a plea forms a basis for withdrawing the plea.") Although the Second, Third, and Fifth Districts have concluded that a claim of misadvice on future sentence enhancement implies insufficient prejudice to warrant relief, see Stansel, 825 So. 2d at 1007; Scott, 813 So. 2d at 1026-27; McKowen, 831 So. 2d at 794, relief has nevertheless been granted to defendants claiming to have entered pleas in reliance on affirmative misadvice regarding whether the plea would subject the defendant to:
(i) difficulties becoming a permanent United States citizen. See State v. Sallato, 519 So. 2d 605 (Fla. 1988);
(ii) deportation. See Moreno v. State, 592 So. 2d 1226 (Fla. 4th DCA 1992). Accord Bermudez v. State, 603 So. 2d 657, 657 (Fla. 3d DCA 1992) (holding that trial court's correct advice during plea colloquy cures any prejudice stemming from misadvice regarding deportation), rev. denied, 613 So. 2d 1 (Fla. 1992);
(iii) commitment under the Involuntary Civil Commitment of Sexually Violent Predators Act. See Ghanavati, 820 So. 2d at 989, Roberti v. State, 782 So. 2d 919 (Fla. 2d DCA 2001); Watrous, 793 So. 2d at 6;
(iv) ineligibility for gain time. See Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993), Middleton v. State, 603 So. 2d 46 (Fla. 1st DCA 1992), Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992); Ray v. State, 480 So. 2d 228 (Fla. 2d DCA 1985);
(v) difficulties obtaining future occupational licensing by the State. See Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003); Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002), Kelly v. State, 833 So. 2d 256, 256 (Fla. 4th DCA 2002);
(vi) difficulties obtaining future employment as a correctional officer. See State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993); and
(vii) loss of the right to vote. See Joyner v. State, 795 So. 2d 267, 268 (Fla. 1st DCA 2001).
The crucial factor militating that relief be granted in each of the above cases was the defendant's reliance on the misadvice when entering the plea, not the nature of the collateral consequence about which advice was sought. The fact that relief was granted indicates judicial approval of the thought processes involved when the misadvice was received and relied upon by the defendant. In other words, these cases establish that it is acceptable for a defendant who is being advised whether to plead to a felony to ask his counsel whether that plea will prevent him from voting or working as a correctional officer. See Joyner, 795 So. 2d at 268; Johnson, 615 So. 2d at 179. It is acceptable for a defendant to ask his counsel if his plea will affect his occupational business licenses, see Miralles, 837 So. 2d at 1083; Rodriguez, 824 So. 2d at 328; Kelly, 833 So. 2d at 256, and it is acceptable for a defendant to inquire of his counsel whether his plea will affect how much gain-time he may receive.See Montgomery, 615 So. 2d at 226; Middleton, 603 So. 2d at 46; Simmons, 611 So. 2d at 1250; Ray, 480 So. 2d at 228. It is also acceptable for a defendant to ask his counsel whether his plea will subject him to civil commitment as a sexual predator.See Ghanavati, 820 So. 2d at 989; Roberti, 782 So. 2d at 919; Watrous, 793 So. 2d at 6. If misadvice on any of these collateral consequences is given and reasonable reliance thereon is shown, relief will be granted.
By contrast, the ineluctable inference to be drawn from the Second, Third, and Fifth Districts' denial of relief on the claim of misadvice regarding future sentence enhancement consequences of a plea is that the thought process of a defendant that is involved when the defendant asks his counsel whether or not his present plea could be used to enhance a future sentence is not acceptable.
Unlike the Second, Third, and Fifth Districts, the Fourth District holds that this claim is facially sufficient to warrant an evidentiary hearing. See Burns, 826 So. 2d at 1056-57;Ghanavati, 820 So. 2d at 991; Murphy, 820 So. 2d at 375;Love, 814 So. 2d at 475; Jones, 814 So. 2d at 446. Thus, in the Fourth District, counsel can be deemed ineffective for giving mistaken advice on any collateral consequence, regardless of the nature of the consequence, if that mistaken advice was material to the defendant's decision to plead. In short, a defendant in the Fourth District is not penalized for trying to ascertain from his counsel the future sentence enhancement impact of a plea that he is being advised to enter.
Effective representation is guaranteed to all defendants by the Sixth Amendment to the United States Constitution, which provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
U.S. Const. amend. VI. Nowhere in the Sixth Amendment is the right to effective counsel limited by the nature of the question asked by client of counsel. Because the Sixth Amendment does not state or suggest that a defendant is only entitled to effective representation if the defendant asks an approved question of counsel, we align ourselves with the Fourth District. A defendant who inquires of his counsel about the future sentence enhancement consequences of his plea and who reasonably relies on the answer provided by his attorney when deciding to enter that plea is constitutionally entitled to representation that is as effective as that guaranteed to a defendant who is concerned with whether his plea will subject him to civil commitment as a sexual predator.
Because every defendant is entitled to equally effective representation, we conclude that counsel's misadvice on even a collateral consequence about which counsel has no obligation to advise the accused is, as a matter of law, deficient performance under Strickland. Therefore, as previously stated, the remaining question is whether this claim can meet the prejudice prong of Strickland such that an evidentiary hearing is warranted.
It has been asserted that any harm suffered by a defendant who relies on misadvice regarding future sentence enhancement consequences when entering a plea is too attenuated to satisfy the prejudice prong of Strickland because in order for the harm to materialize, a defendant must commit some future crime. We agree; the enhancement of a future sentence is an attenuated result of a current plea. This fact works in perfect harmony with the rule of law that neither court nor counsel need advise a defendant of this collateral consequence. However, the fact that the future sentence enhancement is attenuated does not require a rule of law that sanctions mistaken advice by counsel on an issue that is relevant to a defendant's decision to enter a plea.
The Second, Third, and Fifth Districts' cases measure prejudice by whether or not the future enhancement could have been avoided. This procedure runs afoul of the tests set forth by both the Florida Supreme Court and the United States Supreme Court. The Florida Supreme Court's decision in Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004), is controlling precedent and mandates the result we reach in the present case. In Grosvenor, Justice Cantero, writing for the majority, said:
The First District Court of Appeal has offered a cogent analysis of Hill:
As the Court explained in Hill, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d 203 . . . And the Court further elaborated that, in order to show prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. (emphasis added). Immediately following this language, the Court offered a footnote indicating that several federal appeals courts had previously "adopted this general approach" in their decisions. Id. Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984), and United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985), were cited as examples of such decisions. These federal appeals court decisions in turn make it clear that the relevant inquiry for purposes of a Strickland prejudice analysis in conjunction with a motion to withdraw a plea because of attorney incompetence is whether the outcome of the "plea proceedings" would have been different had competent assistance of counsel been provided. See Thomas v. Lockhart, 738 F.2d at 307; United States v. Gavilan, 761 F.2d at 228.
Brazeail v. State, 821 So.2d 364, 368 (Fla. 1st DCA 2002). We agree with this analysis and conclude that the proper interpretation of Hill is to follow its express language. . . .
Our conclusion is buttressed by the Supreme Court's recent reaffirmation of Hill in Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L.Ed. 2d 985 (2000). In Flores-Ortega, counsel failed to notify the defendant of his right to appeal. In granting relief, the Supreme Court explained that the defendant need not demonstrate grounds for a meritorious appeal or even" specify the points he would raise were his right to appeal reinstated." Id. at 486, 120 S. Ct. 1029. Instead, all that is required is that the defendant show that but for counsel's error he would have appealed. The Court noted that although evidence of nonfrivolous grounds for appeal will give weight to the contention that the defendant would have appealed, such evidence is not required where there are other substantial reasons to believe he would have appealed. Id.
In Flores-Ortega, the Court expressly noted that its analysis "[broke] no new ground, for it mirrors the prejudice inquiry applied in [Hill]." Id. at 485, 120 S.Ct. 1029. The Court then compared the failure to advise of an appeal to the failure to advise of an available defense:
Like the decision whether to appeal, the decision whether to plead guilty (i.e., waive trial) rested with the defendant and, like this case, counsel's advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled. We held that "to satisfy the `prejudice' requirement [of Strickland], the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, at 59, 106 S. Ct. 366.
Id. at 485, 120 S. Ct. 1029 (emphasis added). Thus, if Hill needed any clarification, Flores-Ortega provided it.
Grosvenor, 874 So. 2d at 1180-81.
We are also unpersuaded by the argument that to afford relief on the present claim is to encourage recidivism. See Rhodes v. State, 701 So. 2d 388, 389 (Fla. 3d DCA 1997) (citing Lewis v. United States, 902 F. 2d 576, 577 (7th Cir. 1990) ("It [the warning of future sentence enhancement] could even be viewed as an invitation to recidivism. . . .")). The logic of this assertion escapes us, as we cannot discern how telling an accused defendant that he will face harsher penalties if he commits another crime in the future can be construed as encouraging the defendant to go out and break the law again. On the contrary, it is our opinion that advising an accused that his plea and conviction cannot be used to enhance a future sentence is more likely to encourage recidivism.
Because the Fourth District's approach to this issue is, in our view, the only approach that is constitutionally acceptable and which follows the binding precedents of Strickland, Hill, andGrosvenor, we agree with the Fourth District that "[w]hen a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he was thereby prejudiced, the defendant may seek to withdraw the plea even if the misadvice concerns collateral consequences as to which the trial court was under no obligation to advise." Burns, 826 So. 2d at 1056-57. Prejudice sufficient to warrant an evidentiary hearing is established if the defendant alleges that but for the misadvice, the defendant would not have entered the plea. See Grosvenor, 874 So. 2d at 1180. We do not accept that a defendant's thought processes during the plea process should be subject to any further scrutiny than necessary to determine the credibility of the defendant's claim that he would not have entered the plea if his counsel had advised him correctly that his plea would be used to enhance future sentences.
We hold that competent counsel must answer correctly when a defendant asks for, or when counsel volunteers, information relating to whether the decision to plead will impact future sentences. Zealous and effective advocacy demands no less. We are not stating that counsel must familiarize him or herself with every habitualization statute throughout the land. Rather, we merely hold that, if questions about sentence enhancement are asked by the defendant or if counsel volunteers information relating to future sentence enhancement, the information conveyed by counsel to client must be correct. At the very least, common sense dictates that counsel's response to a direct inquiry regarding whether a present plea could be used to enhance a future sentence should be: "It is very likely." Because this claim will recur, we remind both court and counsel that summary denial of this claim will be proper only when it is conclusively refuted by the record. See, e.g., Leroux v. State, 656 So. 2d 558, 559 (Fla. 4th DCA 1995) ("When accepting a plea, trial courts are well advised at a minimum to ascertain whether any promises were made to a defendant concerning the sentence apart from those discussed during the plea colloquy."), approved,State v. Leroux, 689 So. 2d 235, 237-38 (Fla. 1996) ("Although we are not holding that such an inquiry is required . . . such a procedure would add little to the burdens of the trial bench and would hopefully result in facilitating summary disposition of this type of case at the trial and appellate levels. A defendant who has initially acknowledged under oath that no such promises have been made will generally be estopped at a later time to claim otherwise.") (emphasis in original).
In the present case, appellant has stated a timely, facially sufficient claim entitling him to an opportunity to prove at an evidentiary hearing that his counsel volunteered, or was asked and gave, affirmative misadvice on the future sentence enhancement consequences of his plea, that he relied on that misadvice when entering the plea, and that he would not have entered the plea had it not been for this misadvice. Then, and only then, is appellant entitled to the relief he ultimately seeks: a finding that his counsel was ineffective and a vacation of his conviction and sentence through withdrawal of his plea. If withdrawal of his plea is appellant's election, he does so at his own peril, because the state shall have the opportunity to try him.
We reverse the trial court's summary denial of this claim and remand with instructions that the trial court hold an evidentiary hearing thereon. We recertify the earlier question as a question of great public importance.
REVERSED; REMANDED WITH INSTRUCTIONS.
ALLEN and BENTON, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED