JACOB SIEGEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jacob Siegel appealed from summary denial of his rule 3.850 post-conviction relief motion, claiming his guilty plea was involuntary and his counsel was ineffective. The court affirmed the denial of the ineffective assistance claim but reversed the denial of the involuntary plea claim, remanding for an evidentiary hearing.
The court held that a defendant on probationary status has standing to file a rule 3.850 motion. The trial court properly denied relief on the ineffective assistance claim because the defendant failed to demonstrate a viable defense. However, the trial court erred in summarily denying the involuntary plea claim without either conducting an evidentiary hearing or attaching record portions conclusively refuting the claim.
[1] A defendant on probation has standing to file a motion for post-conviction relief.
[2] To maintain a claim of ineffective assistance of counsel in connection with a guilty or nolo contendere plea, the defendant must show they had a viable defense.
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Join FLexlaw to unlock all legal intelligence“In order to maintain a claim of ineffective assistance of counsel in connection with either a nolo contendere or guilty plea, a complaining defendant must show that he, in fact, had a viable defense.”
Establishes the legal standard for ineffective assistance claims in plea cases
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Join FLexlaw to unlock all legal intelligenceSiegel pled guilty or nolo contendere to burglary of a dwelling and grand theft, receiving a sentence of two years imprisonment followed by five years…
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DIAMANTIS, Judge.
Appellant appeals from an order summarily denying a motion for post-conviction relief pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
After having pled guilty or nolo conten-dere to the offenses of burglary of a dwelling and grand theft, appellant received a sentence of two years imprisonment followed by five years probation. Appellant completed his two-year prison term and, while on probation, he filed a motion for post-conviction relief claiming that his plea was involuntary and his counsel was ineffective. The trial court summarily denied the motion stating: “The [c]ourt having determined that the [djefendant was released from custody on February 1, , hereby denies [djefendant’s [mjotion since it is without merit.”
First, we note that appellant’s probationary status affords him standing to file a rule 3.850 motion. State v. Bolyea, 520 So. 2d 562 (Fla.1988). See also Shell v. State, 501 So. 2d 1334 (Fla. 2d DCA 1987); Simmons v. State, 485 So. 2d 475 (Fla. 2d DCA 1986).
In his motion appellant claims that his counsel was ineffective for failing to conduct an adequate pretrial investigation and to take other enumerated steps to adequately protect appellant’s rights or interests. In order to maintain a claim of ineffective assistance of counsel in connection with either a nolo contendere or guilty plea, a complaining defendant must show that he, in fact, had a viable defense. Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988); Frazier v. State, 447 So. 2d 959 (Fla. 1st DCA 1984). Appellant fails to make such a showing and, therefore, we find that the trial court properly denied appellant’s motion for post-conviction relief based on his claim of ineffective assistance of counsel.
Appellant also alleges that he was coerced into pleading by his attorney who pressed him to accept this sentence even though appellant said “No” and demanded to go to trial. Appellant claims that his attorney told him that he would drop appellant and that appellant would spend the rest of his life in prison if he did not plead. On a claim of an involuntary plea the trial court must determine whether the motion on its face conclusively demonstrates that the defendant is not entitled to relief. We conclude that if appellant’s allegation that his plea was involuntarily entered is true, there exists sufficient ground for post-conviction relief. Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991); Shell v. State, supra; Simmons v. State, supra. Compare Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991). Accordingly, it was error for the trial court to deny appellant relief without either conducting an evidentiary hearing or attaching portions of the record to refute this claim.
Accordingly, we affirm the trial court’s order denying appellant’s motion based on the contention of ineffective assistance of counsel, but we reverse the denial of appellant’s motion based upon the claim that his plea was involuntarily entered. We further remand this cause to the trial court for either the attachment of portions of the record which conclusively show that appellant is entitled to no relief or for the trial court to hold an evidentiary hearing, if appropriate, on appellant’s claim that his plea was involuntary.
AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.
COBB and HARRIS, JJ., concur.
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Citator
Cited By (20 total)
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Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)…rite separately because I believe that the holdings of the two cases with which the present majority notes conflict are worthy of serious consideration by our Supreme Court. Both Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988), and Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991), rely upon this court’s opinion in Frazier v. State, 447 So. 2d 959 (Fla. 1st DCA 1984), for the proposition that a defendant seeking to set aside a no contest or guilty plea must show the existence of a viable defense. The trial…
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Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002)…facts indicating that, had the plea not been entered, there was a reasonable probability of acquittal, conviction of a lesser offense, or a more advantageous plea offer. For example, Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988), Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991), and Maples v. State, 804 So. 2d 599 (Fla. 5th DCA 2002), appear to hold that, in order to state a facially sufficient claim in a case such as this, the defendant must allege that he had a “viable defense” in addition to an alleg…
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McCOY v. State, 598 So. 2d 169 (Fla. 1st DCA 1992)…dvice. See Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990). See also Jones v. State, 589 So. 2d 1023 (Fla. 4th DCA 1991); Lampkin v. State, 589 So. 2d 458 (Fla. 5th DCA 1991); Brown v. State, 588 So. 2d 658 (Fla. 2d DCA 1991); Siegel v. State, 586 So. 2d 1341 (Fla. 5th DCA 1991); Colon v. State, 586 So. 2d 1305 (Fla. 2d DCA 1991). Similarly, a defendant’s allegation that his attorney failed to [*171] consider a voluntary intoxication defense although appellant informed the attorney of his history of alco…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Bolyea, 520 So. 2d 562 (Fla. 1988)
- Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991)
- Frazier v. State, 447 So. 2d 959 (Fla. 1st DCA 1984)
- Edmond Boris Shell v. State, 501 So. 2d 1334 (Fla. 2d DCA 1987)
- Simmons v. State, 485 So. 2d 475 (Fla. 2d DCA 1986)
- Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991)
- Diaz v. State, 534 So. 2d 817 (Fla. 3d DCA 1988)
- Stewart v. Stewart, 534 So. 2d 817 (Fla. 3d DCA 1988)