DERIC L. MCAROY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McAroy appealed his denial of postconviction relief, challenging the voluntariness of his no-contest plea to burglary, petit theft, and probation violation. The court reversed, finding that the trial court failed to conduct the required colloquy under Rule 3.172 and that the record did not refute allegations of mental incompetence that would have vitiated the plea's voluntariness.
The trial court's denial of postconviction relief was reversed because the record established that the required Rule 3.172 colloquy was not conducted, and the attachments did not refute the allegation that mental incompetence vitiated the voluntariness of the plea. The allegation of ineffective assistance of counsel regarding failure to pursue an insanity defense was also reversed as intertwined with the plea voluntariness issue.
[1] A trial court's denial of a motion for postconviction relief must be reversed when the record attachments do not refute the defendant's allegation that mental incompetenc…
[2] A plea is involuntary when the required colloquy under Rule 3.172, Florida Rules of Criminal Procedure, is not conducted at the time of the plea change.
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Join FLexlaw to unlock all legal intelligence“the very portions of the record attached by the trial court indicate that the colloquy provided for in Rule 3.172, Florida Rules of Criminal Procedure, was not conducted at the time of the plea change”
Establishes the critical procedural failure that required reversal of the denial of postconviction relief
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Join FLexlaw to unlock all legal intelligenceMcAroy was on probation when he was committed to a state psychiatric facility. Shortly after release, he returned to Pensacola and stole a wallet from…
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KAHN, Judge.
We reverse the trial court’s denial of McAroy’s motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure.
At the time of the events giving rise to the present sentences, appellant was serving a period of probation for several earlier offenses. According to his 3.850 motion, McAroy, while on probation, was sent to the state psychiatric facility at Chattahoochee. Shortly after his release from Chattahoochee, McAroy returned to Pensacola. While walking down the street, he noticed a car with the window rolled down and reached in and stole a wallet. As a result, the state charged McAroy with burglary, petit theft, and violation of probation. Pursuant to a plea of no contest, the trial court adjudged McAroy to be a habitual violent felon, and sentenced him to ten years on the burglary charge, one year on the petit theft charge, and 17 years on the violation of probation.
In his motion for postconviction relief, appellant contends first that his pleas were involuntary and entered as a result of ineffective assistance from trial counsel. Appellant further contends that he was mentally incompetent at the time the crime was committed, that trial counsel was aware of this fact, and that trial counsel failed to render effective assistance by proceeding with an insanity defense.
As to the question of the voluntariness of appellant's plea, the very portions of the record attached by the trial court indicate that the colloquy provided for in Rule 3.172, Florida Rules of Criminal Procedure, was not conducted at the time of the plea change. The attachments provided by the trial court further do not refute appellant’s allegation that his mental incompetence vitiated any arguable voluntariness of the plea. On this basis, the trial court’s ruling must be reversed. Evans v. State, 539 So. 2d 33 (Fla. 1st DCA 1989); Van Meter v. State, 527 So. 2d 306 (Fla. 1st DCA 1988).
Appellant’s allegation of ineffective assistance of counsel by the failure to pursue an insanity defense is intertwined with factual matters concerning the voluntariness of the plea, and accordingly we reverse on this basis as well. See Myers v. State, 539 So. 2d 525 (Fla. 1st DCA 1989); Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986).
REMANDED for further proceedings consistent with Rule 3.850.
ERVIN and WIGGINTON, JJ., concur.
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Ladon Maurice Green v. State, 620 So. 2d 1126 (Fla. 1st DCA 1993)…hearsay. Rock v. State, 584 So. 2d 1110, 1112 (Fla. 1st DCA 1991), approved in part, disapproved in part on other grounds by State v. Rock, 605 So. 2d 456 (Fla.1992); Purvis v. State, 397 So. 2d 746, 747 (Fla. 5th DCA 1981). See also Glass v. State, 597 So. 2d 984 (Fla. 1st DCA 1992). By the same token, it is improper to revoke probation based solely upon proof that the probationer was arrested. Hines v. State, 358 So. 2d 183, 185 (Fla.1978); Rock, 584 So. 2d at 1112. In the instant case, appellant’s unrefut…
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Moore v. State, 623 So. 2d 795 (Fla. 1st DCA 1993)…ince it is not apparent from the record that probation would have been revoked in this case based solely on the one valid violation, we conclude that remand is required as well for reconsideration of the decision to revoke probation. Glass v. State, 597 So. 2d 984, 985 (Fla. 1st DCA 1992). See also Jordan v. State, 610 So. 2d 616, 619 (Fla. 1st DCA 1992); Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983). If the trial court again decides to revoke, then reinstate, appellant’s probation, the total combined pe…
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Benny Watts v. State, 136 So. 3d 1225 (Fla. 1st DCA 2014)…ense, but his attorney never discussed it with him. Such allegations should be addressed in an evidentiary hearing if there is nothing in the record to refute them. See, e.g., Childers v. State, 782 So. 2d 513 (Fla. 1st DCA 2001); McAroy v. State, 597 So. 2d 984 (Fla. 1st DCA 1992); Spencer v. State, 889 So. 2d 868 (Fla. 2d DCA 2004); Stinyard v. State, 870 So. 2d 78 (Fla. 2d DCA 2003); Munoz v. State, 819 So. 2d 874 (Fla. 4th DCA 2002); Forster v. State, 779 So. 2d 550 (Fla. 2d DCA 2001). The lower court…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986)
- Myers v. State, 539 So. 2d 525 (Fla. 1st DCA 1989)
- Van Meter v. State, 527 So. 2d 306 (Fla. 1st DCA 1988)
- Orange v. State, 539 So. 2d 33 (Fla. 1st DCA 1989)