WALTER EDWARD HOPE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1996-11-06
No. 95-2927
DELL, J., and COLBATH, Associate Judge, concur.
682 So. 2d 1173 Florida District Court of Appeal, Fourth District (1996) Positive Treatment
Cited by 14 cases

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Holding

The court held that the defendant was denied effective assistance of counsel when his attorney advocated against his motion to withdraw his plea.


Headnotes

[1] A defendant is denied effective assistance of counsel when counsel fails to advocate for the defendant's motion to withdraw a plea and instead argues against it, especial…

[2] A trial court may impose consecutive probationary periods for separate offenses, even when the prison terms are concurrent, provided the total probation does not exceed s…

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Facts & Procedural History

The defendant pleaded no contest to attempted sexual battery and later sought to withdraw his plea, alleging ineffective assistance of counsel. His co…

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Opinion of the Court
SHAHOOD, Judge.

SHAHOOD, Judge.

Appellant, Walter Edward Hope, was charged with two counts of sexual battery on a child under twelve. He originally entered a plea of not guilty to the charges, but later agreed to plead no contest to two counts of the lesser included offenses of attempted sexual battery on a child under twelve.

Pursuant to the negotiated plea, appellee agreed to a sentence of seventeen years in prison followed by thirty-eight years’ probation. After it was determined that the plea was freely and knowingly entered and that there was a factual basis for the acceptance of the plea, the court accepted the plea.

On the day of sentencing, prior to the court’s imposing the sentence, appellant made a pro se, ore tenus motion to change his plea to not guilty and to discharge his counsel on the grounds that counsel failed to investigate all of the allegations against him and did not interview all witnesses. In addition, appellant alleged that counsel had told him that if he did not accept the negotiated plea, he would get “50 years mandatory time.” Appellant also alleged that one day after he entered his plea, he had contacted his attorney and had asked him to file a motion to withdraw the plea; however, counsel failed to file the motion.

Counsel responded to appellant’s allegations, stating to the court that he (counsel) had “talked to every material witness in the case” and had conducted “complete discovery in this ease” and “without one scintilla of doubt in [his] mind, believe[d] that [the plea bargain was] definitely in [appellant’s] best interest.” Counsel further stated that, in his opinion, if the case proceeded to trial, “there would be a substantial chance that [appel lant] would be spending the rest of his life in prison.” Appellant declined to say anything further and was sentenced, pursuant to the negotiated plea, to seventeen years in prison followed by thirty-eight years’ probation.

In Roberts v. State, 670 So. 2d 1042 (Fla. 4th DCA 1996), prior to sentencing, counsel had filed a written motion to withdraw asserting that the attorney-client relationship was irretrievably broken. Id. at 1043. The motion was never set for hearing. At sentencing, counsel advised the court that Roberts wished to withdraw his guilty plea on the basis that he was misled or coerced by counsel into entering it. Id. At that time, because counsel would be placed in a position which was adverse to that of his client’s, counsel requested that he be permitted to withdraw and that a special public defender be appointed to argue Roberts’ motion to withdraw his plea. Id. The trial court denied both motions, and this court reversed that ruling on appeal holding that Roberts had been denied effective assistance of counsel at a critical stage of the proceeding. Id. at 1045.

In this case, appellant made a pro se motion to withdraw his plea of guilty and stated his grounds in support of the motion. His counsel then fervently insisted that he had not coerced appellant to enter his plea, had adequately investigated the case, and had interviewed all relevant witnesses. Appellant’s counsel stated further to the court his opinion that appellant would not prevail at trial and gave reasons why he thought the plea was in appellant’s best interest.

Clearly, this is the type of adversarial situation contemplated in Roberts. Indeed, the facts in this case more strongly compel reversal since, here, counsel not only failed to argue on behalf of appellant’s motion to withdraw his guilty plea, but strongly advocated against the motion. In addition, appellant alleged that he had instructed his counsel to file a written motion to withdraw his guilty plea the day after the entry of the plea. Even if some or all of appellant’s allegations were unfounded, his interests were indisputably adverse to those of his counsel. On these facts, we hold that appellant was denied effective assistance of counsel. Accordingly, we reverse and remand as to this issue with instructions to the trial court to appoint conflict-free counsel for the purpose of conducting a full evidentiary hearing on appellant’s motion to withdraw his guilty plea.

As his second point on appeal, appellant alleges that the trial court erred in imposing a sentence of seventeen years in prison followed by thirteen years’ probation on one count, and five years in prison followed by twenty-five years’ probation on the other count, with the prison terms to run concurrently and the probation terms to run consecutively.

We affirm the sentence imposed by the trial court. Where, as here, there are two victims and two offenses, the court may impose consecutive probationary periods for offenses separate from the offense for which the prison term was imposed, which do not exceed the statutory maximum. See Stoudmire v. State, 636 So. 2d 118 (Fla. 1st DCA 1994); Petrillo v. State, 554 So. 2d 1227 (Fla. 2d DCA 1990); Weiner v. State, 562 So. 2d 392 (Fla. 5th DCA 1990).

As his third point on appeal, appellant points to an apparent conflict between the written order of probation and the restitution order. Specifically, while the restitution order indicates that restitution is not applicable, the probation order states that the court shall reserve jurisdiction to determine restitution at a later date. In addition, the court orally stated at sentencing the following:

I’m also going to award, reserve jurisdiction for any restitution for counseling for the two victims. Since it’s 17 years, there’s not much point going into that now because it’ll be a long time before he gets out.

In the event of conflict between the restitution order, the oral pronouncement, and the probation order, the oral pronouncement controls. Williamson v. State, 569 So. 2d 1368 (Fla. 4th DCA 1990).

Reversed and remanded.

DELL, J., and COLBATH, Associate Judge, concur.


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Citator

Cited By

  • Wadie Michael Holifield v. State, 717 So. 2d 69 (Fla. 1st DCA 1998)
    …her. This is precisely the type of adversarial situation Roberts v. State, 670 So. 2d 1042 (Fla. 4th DCA 1996), addresses. See also Brye v. State, 702 So. 2d 256 (Fla. 1st DCA 1997); Lopez v. State, 688 So. 2d 948 (Fla. 5th DCA 1997); Hope v. State, 682 So. 2d 1173 (Fla. 4th DCA 1996). This is not a motion based solely on allegations of ineffective assistance of counsel, as in Cunningham v. State, 677 So. 2d 929 (Fla. 4th DCA 1996). The preferred course to follow once a defendant flies a motion to withdraw p…
  • Karg v. State, 706 So. 2d 124 (Fla. 1st DCA 1998)
    …cord, the trial court must appoint conflict-free counsel to represent appellant with regard to his motion to withdraw his plea. See Brye v. State, 702 So. 2d 256 (Fla. 1st DCA 1997); Lopez v. State, 688 So. 2d 948 (Fla. 5th DCA 1997); Hope v. State, 682 So. 2d 1173 (Fla. 4th DCA 1996). The denial of appellant’s motion to withdraw plea is REVERSED and REMANDED with directions to appoint conflict-free counsel to represent appellant in further proceedings. JOANOS, MINER and WEBSTER, JJ., concur.…
  • Moses L. Banks v. State, 704 So. 2d 195 (Fla. 5th DCA 1998)
    …proceeding.” Roberts at 1045. The appellate court reversed the conviction, remanded for a new hearing on the motion to withdraw the plea, and directed that Roberts be provided with conflict-free counsel. The appellant also relies on Hope v. State, 682 So. 2d 1173 (Fla. 4th DCA 1996). There, the defendant filed a pro se, ore terms motion to withdraw his plea at sentencing, alleging that his attorney failed to investigate the allegations against him and told him he would get 50 years of mandatory prison time i…

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