RICHARD WILCOX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilcox appeals the denial of his Rule 3.850 ineffective assistance of counsel claim, arguing his defense counsel failed to advise him before his plea that adjudication as an habitual offender would forfeit his right to basic gain time. The court reverses, holding that defense counsel has an obligation to ensure a defendant understands the direct consequences of a plea, including loss of gain time.
Defense counsel has an obligation to ensure that a defendant understands the direct consequences of his plea, including that adjudication as an habitual offender will result in loss of all basic gain time entitlements. The trial court erred in denying the motion to withdraw the plea without hearing and without allowing the defendant to present evidence or argument on this claim.
[1] A defendant may withdraw a plea if not informed of the minimum mandatory term of a habitual violent felony offender sentence.
[2] A trial court's conclusion that a defendant was informed of the consequences of a habitual violent felony offender sentence is not supported by a colloquy merely stating…
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Join FLexlaw to unlock all legal intelligence“defense counsel has the obligation to ensure that a defendant understands the direct consequences of his plea”
Establishes the core principle that counsel must advise clients about direct consequences of guilty pleas
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Join FLexlaw to unlock all legal intelligenceWilcox pleaded guilty as an habitual offender without being advised by counsel that he would forfeit his right to receive any basic gain time. He late…
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HARRIS, Chief Judge.
Wilcox appeals the trial court’s denial without hearing of his Rule 3.850 claim of ineffective assistance of counsel. He claims counsel was ineffective in failing to advise him, prior to his plea as an habitual offender, that he would not be entitled to basic gain time. He now seeks to withdraw his plea.
We are bound in this district by Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991). In holding that defense counsel has the obligation to ensure that a defendant understands the direct consequences of his plea, the Setzer court stated:
Here, in his motion to withdraw his guilty plea, appellant alleges as good cause the fact that he did not understand that by agreeing to be adjudicated as an habitual offender he forfeited his right to receive any basic gain time. At the motion hearing appellant was not permitted to introduce any evidence or to present any argument in support of this claim. Instead, the trial court simply denied the motion. In making this determination the trial court apparently concluded that, even assuming that appellant’s claim is true, such a claim fails to constitute a valid basis for withdrawal. This conclusion is erroneous.
Setzer, 575 So. 2d at 748.
While we acknowledge that Levens v. State, 598 So. 2d 120 (Fla. 1st DCA 1992), and Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992), hold that there must be misad-vice by counsel rather than mere nonadvice before a plea may be withdrawn on this basis, we believe that the supreme court in Ashley v. State, 614 So. 2d 486 (Fla.1993), has applied the reasoning of Setzer:
[O]ur ruling in Williams [v. State, 316 So. 2d 267, 271 (Fla.1975)] and the plain language of rule 3.172 require that before a court may accept a guilty or nolo plea from an eligible defendant it must ascertain that the defendant is aware of the possibility and reasonable consequences of habitualization.... the defendant must “know” beforehand that his or her potential sentence may be many times greater [than] what it ordinarily would have been under the guidelines and that he or she will have to serve more of it.
Ashley, 614 So. 2d at 489. With this language, can there be any doubt that the defendant must be advised before his plea that he will lose any entitlement to basic gain time if he is adjudicated an habitual offender?
REVERSE for an evidentiary hearing on Wilcox’s claim of ineffective assistance of counsel in accordance with Setzer. PETERSON, J., concurs.
GRIFFIN, J., dissents, without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 316 So. 2d 267 (Fla. 1975)
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)
- Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991)
- Levens v. State, 598 So. 2d 120 (Fla. 1st DCA 1992)