HAROLD RHODES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harold Rhodes sought to vacate his nolo contendere plea to drug-possession charges, claiming his public defender affirmatively misadvised him that the conviction could not enhance future sentences. The Florida appellate court affirmed the trial court's denial of his petition, distinguishing between affirmative misadvice regarding collateral consequences and misadvice about sentence enhancement for future crimes.
Rhodes is not entitled to an evidentiary hearing. While courts have permitted evidentiary hearings for affirmative misadvice regarding collateral consequences such as deportation or parole eligibility, misadvice regarding potential enhancement of future sentences for subsequent crimes does not warrant such relief because it involves a fundamentally different public policy concern: discouraging recidivism.
[1] A trial court is not required to advise a defendant of the collateral consequences of a plea, such as the potential for enhanced penalties in future sentences.
[2] Affirmative misadvice from counsel regarding the potential for enhanced penalties on future criminal behavior does not warrant an evidentiary hearing to vacate a plea.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Mere failure to advise a defendant of the collateral consequences of his plea does not mean that the plea was involuntary.”
Establishes the general rule that courts need not advise defendants of all collateral consequences at the plea colloquy.
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Join FLexlaw to unlock all legal intelligenceRhodes entered a nolo contendere plea to drug-possession charges after allegedly being advised by his public defender that his conviction could not be…
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NESBITT, Judge.
Harold Rhodes alleges in this writ of error coram nobis that the public defender “affirmatively misadvised” him into entering a plea of nolo contendere to the drug-possession charges below by informing him that his conviction could not be used to enhance any future federal or state sentence. Rhodes claims that, absent this erroneous advice, he would not have pled nolo contendere to the charges. The rules of criminal procedure require defense counsel to advise the defendant of the consequences of his plea. Fla. R.Crim. P. 3.171(c)(2)(B)1. Rhodes requests an evidentiary hearing to ascertain whether he was, in fact, incorrectly advised by his counsel in connection with his plea and whether such advice influenced his decision to so plead. We affirm the trial court’s denial of the petition.
Both Florida and federal courts have, in fact, distinguished attempts to vacate pleas based on affirmative misadvice from those alleging failure to advise of certain consequences of the plea. See, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Woods, 870 F. 2d 285 (5th Cir.1989); State v. Ginebra, 511 So. 2d 960 (Fla.1987); State v. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995); Zambuto v. State, 413 So. 2d 461 (Fla. 4th DCA 1982). Cf. United States v. Whyte, 3 F. 3d 129 (5th Cir.1993); Strader v. Garrison, 611 F. 2d 61 (4th Cir.1979); State v. Sallato, 519 So. 2d 605 (Fla.1988); State v. Johnson, 615 So. 2d 179 Mere failure to advise a (Fla. 3d DCA 1993). defendant of the collateral consequences of his plea does not mean that the plea was involuntary. See State v. Fox, 659 So. 2d at 1327.
The court, in its plea colloquy, is not required to advise the defendant as to collateral consequences of his plea, such as the plea’s “possible enhancing effect on a subsequent sentence.” Id. Where the defendant has been affirmatively misadvised by his counsel, however, courts have been willing to allow an evidentiary hearing on the voluntariness of the defendant’s plea. See, e.g., Henderson v. State, 626 So. 2d 310, 311 (Fla. 3d DCA 1993).
Despite the distinction made in the above-cited cases, however, we believe that Rhodes is not entitled to an evidentiary hearing. First, we point out that none of the “affirmative misadvice” cases involve misad-vice as to the potential for enhanced penalties for future criminal behavior, as alleged in the instant ease. Further, we are convinced that the analyses in the cases emphasize the impropriety of placing a duty on either the trial court or defense counsel to “anticipate a defendant’s recidivism.” Fox, 659 So. 2d at 1327 (quoting Woods, 870 F. 2d at 288).
As a matter of public policy, recidivism should not be encouraged. The “misad-vice” allegedly given the defendant in the instant case—the possibility of an enhanced sentence on future crimes—must be distinguished from the “misadvice” given in the cases cited above—advice regarding deportation, gain time eligibility, parole eligibility. The latter issues affect only the defendant himself, whereas the former could involve the safety of the community as well. We should not encourage recidivism, even implicitly, by adopting a rule of law which requires a defense attorney or trial court to “warn” a defendant of the sentence-enhancing consequences his plea will have as to any future crimes he may commit. See 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....”) Moreover, we believe that the possibility of enhanced future sentences has an even more attenuated connection to the disputed plea than do the other collateral consequences deemed sufficiently harmful to the defendant to permit vacation of his plea.
Because of these distinctions, we affirm the trial court’s denial of the petition for writ of error coram nobis.
. Rule 3.171(c)(2)(B) states: "Defense counsel shall advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant."
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (26 total)
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Fritz Major v. State, 790 So. 2d 550 (Fla. 3d DCA 2001)…993 conviction pursuant to the plea could be used as a basis for enhancing a sentence for a future crime. The trial court denied relief on authority of this court’s decisions in State v. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995), and Rhodes v. State, 701 So. 2d 388 (Fla. 3d DCA 1997); see also Dixson v. State, 785 So. 2d 744 (Fla. 3d DCA 2001). Defendant has appealed. II. We are firmly committed to the proposition that the type of claim advanced by the defendant is not cognizable by motion for postconvictio…
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…des the First District in this case, three other courts have held that such misadvice does not constitute ineffective assistance of counsel or render a plea involuntary. See McKowen v. State, 831 So. 2d 794, 796 (Fla. 5th DCA 2002); Rhodes v. State, 701 So. 2d 388, 389 (Fla. 3d DCA 1997); Stansel v. State, 825 So. 2d 1007, 1010 (Fla. 2d DCA 2002). One court has held differently. See Smith v. State, 829 So. 2d 940, 941 (Fla. 4th DCA 2002). Many of these courts have analyzed the issue in terms of a plea’s volun…
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Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)…y for gain time). However, 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. See Rhodes v. State, 701 So. 2d 388 (Fla. 3d DCA 1997) (noting that the possibility of enhanced future sentences has an even more attenuated connection to the disputed plea than do the other collateral consequences deemed sufficiently harmful to allow a defendant to withdraw his plea)…
Previewing 3 of 26 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- State v. Ginebra, 511 So. 2d 960 (Fla. 1987)
- State v. A.J. FOX, 659 So. 2d 1324 (Fla. 3d DCA 1995)
- Francesco Zambuto v. State, 413 So. 2d 461 (Fla. 4th DCA 1982)
- Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979)
- State v. Sallato, 519 So. 2d 605 (Fla. 1988)
- United States v. Woods, 870 F.2d 285 (5th Cir. 1989)
- Lewis v. United States, 902 F.2d 576 (7th Cir. 1990)
- State v. Johnson, 615 So. 2d 179 (Fla. 3d DCA 1993)
- Henderson v. State, 626 So. 2d 310 (Fla. 3d DCA 1993)