DOMINICK LAMONICA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's allegations of counsel's affirmative misinformation about plea consequences were sufficient to require an evidentiary hearing.
The appellant pleaded no contest to lewd assault and claims his plea was involuntary because he was not informed of the reporting requirements under t…
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PER CURIAM.
Appellant Dominick LaMonica appeals the summary denial of his postcon-viction motion, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we find that his allegations were sufficient to require an evidentiary, hearing, we reverse.
LaMonica was charged with one count capital sexual battery and one count lewd assault. He entered a plea of no contest to the lewd conduct count, and received a sentence that required him to serve only a brief period of incarceration beyond the time he had already spent in county jail awaiting trial. He now claims that his plea was involuntary because he did not know that he would be subject to the reporting requirements of the 1997 Sexual Offender Act, section 943.0435, Florida Statutes. He says that if he had known, he would have insisted on going to trial.
The trial court was correct in finding that the reporting requirement was a collateral consequence which did not have to be disclosed before the plea was accepted. See Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996). However, LaMoni-ca’s motion related a statement by his counsel that could be construed as affirmative misinformation about the consequences of his plea. An evidentiary hearing is required to resolve that issue.
We note that LaMonica might not have been in custody when he filed his motion. If so, on remand the trial court should treat his rule 3.850 motion as a petition for writ of error coram nobis.
POLEN, FARMER and KLEIN, JJ., concur.
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State v. Partlow, 840 So. 2d 1040 (Fla. 2003)…be collateral consequences of a plea largely rely on Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996). See, e.g., State v. Stapleton, 764 So. 2d 886 (Fla. 4th DCA 2000);5 Oce v. State, 742 So. 2d 464 (Fla. 3d DCA 1999); LaMonica v. [*1047] State, 732 So. 2d 1175 (Fla. 4th DCA 1999). The court in Benitez held in a very brief opinion that the sexual predator designation and registration were collateral to a plea, citing to State v. Will, 645 So. 2d 91, 94-95 (Fla. 3d DCA 1994), and Polk v. State, 405 So. 2d 7…
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…on); State v. Johnson, 615 So. 2d 179, 180-81 (Fla. 3d DCA 1993) (addressing claim of erroneous advice that a plea and withholding of adjudication would not jeopardize the defendant’s employment as a corrections officer); see also LaMonica v. State, 732 So. 2d 1175, 1176 (Fla. 4th DCA 1999) (addressing claim that counsel erroneously stated that statutory sexual offender reporting requirements did not apply). Bates never would have been sentenced as a habitual offender had he not decided to commit another felon…
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Bertram OCE v. State, 742 So. 2d 464 (Fla. 3d DCA 1999)…v. State, 667 So. 2d 476 (Fla. 3d DCA 1996)(held that the provisions of sections 775.21-.23, Florida Statutes (1993), were a “collateral consequence of the plea which was not required to be covered in the plea colloquy”); see also LaMonica v. State, 732 So. 2d 1175 (Fla. 4th DCA 1999); Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998)(coneluding sexual predator designation was a collateral consequence of the guilty plea); State v. Fox, 659 So. 2d 1324, 1327 (Fla. 3d DCA 1995)(concluding a trial judge is requ…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fagundo v. State, 667 So. 2d 476 (Fla. 3d DCA 1996)
- Sigifredo Benitez v. State, 667 So. 2d 476 (Fla. 3d DCA 1996)