TONY RAY BETHUNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Failure to inform a defendant of potential future sentence-enhancing consequences of a plea does not constitute ineffective assistance of counsel or render the plea involuntary.
[1] A defendant's claim of ineffective assistance of counsel based on counsel's failure to advise of potential future sentence-enhancing consequences of a plea is not substan…
[2] The failure to inform a defendant of potential sentence-enhancing consequences of a plea does not render the plea involuntary.
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Join FLexlaw to unlock all legal intelligenceDefendant sought postconviction relief, claiming ineffective assistance of counsel and an involuntary plea due to counsel's failure to warn of future …
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PER CURIAM.
Tony Ray Bethune appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Bethune claims that he received ineffective assistance of coun sel and that his plea of nolo contendere was involuntary due to trial counsel’s failure to inform him of the potential future sentence-enhancing consequences of his plea, should Bethune receive a subsequent conviction.
The trial court denied the motion, finding it was untimely and not subject to an exception to the two-year time limit for filing rule 3.850 motions.
We affirm, but on different grounds than those expressed in the trial court’s order. Bethune filed his motion within two years of the date he learned of the potential for imposition of a habitual offender sentence as a result of his earlier conviction resulting from his plea. Based upon Peart v. State, 756 So. 2d 42 (Fla.2000), decided after the trial court entered its order, we find the motion was timely filed.
Nevertheless, we affirm.
Trial counsel need only advise a defendant of direct consequences of a plea. See State v. Ginebra, 511 So. 2d 960 (Fla.1987), superseded on other grounds by Florida Rule of Criminal Procedure 3.172; State v. De Abreu, 613 So. 2d 453, 453 (1993) (holding “In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla.1988) ... supersede^] Ginebra to the extent of any inconsistency”). Counsel is not required to inform his client of potential sentence-enhancing consequences of his plea because it is a collateral consequence. See Rhodes v. State, 701 So. 2d 388 (Fla. 3d DCA 1997).
Thus, failure to do so cannot substantiate an ineffective assistance of counsel claim. Id. at 389. Similarly, as a collateral consequence, use of a conviction to enhance a future sentence does not render a plea involuntary. See Sherwood v. State, 743 So. 2d 1196 (Fla. 4th DCA 1999).
Therefore, the trial court’s order is affirmed.
Affirmed.
CAMPBELL, A.C.J., and FULMER and STRINGER, JJ., Concur.
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Citator
Cited By (12 total)
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EY v. State, 982 So. 2d 618 (Fla. 2008)…e v. State, 814 So. 2d 475, 477 (Fla. 4th DCA 2002) (holding timely a claim of erroneous advice about the consequences of a plea on a future sentence filed within two years after the defendant learned that the advice was mistaken); Bethune v. State, 774 So. 2d 4 (Fla. 2d DCA 2000) (finding timely a claim filed within two years after the defendant learned of the potential habitual offender enhancement). These holdings were based by analogy on our decision in Peart v. State, 756 So. 2d 42 (Fla.2000). In Pear…
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LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)…cable to claim that trial court failed to inform defendant of possible deportation following guilty plea begins to run when defendant “has or should have knowledge” of threat of deportation based on plea); Smith, 784 So. 2d at 461; Bethune v. State, 774 So. 2d 4, 4 (Fla. 2d DCA 2000) (holding, based upon Peart, that two-year limitations period began to run on date postconviction movant learned of potential future sentence-enhancing consequences of his nolo contendere plea, though counsel’s failure to inform…
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Bismark v. State, 796 So. 2d 584 (Fla. 2d DCA 2001)…ld have proceeded to trial had he been advised of the possible future sentence-enhancing consequences of his plea. The trial court found that the motion was timely pursuant to Wood but summarily denied it on its merits. Relying on Bethune v. State, 774 So. 2d 4 (Fla. 2d DCA 2000), the trial court concluded that the potential sentence-enhancing effect of the plea on the subsequent conviction was a collateral consequence of which neither counsel nor the trial court was required to advise Mr. Bismark. Prior…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)
- State v. Ginebra, 511 So. 2d 960 (Fla. 1987)
- In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla. 1988)
- Rhodes v. State, 701 So. 2d 388 (Fla. 3d DCA 1997)
- State v. de Abreu, 613 So. 2d 453 (Fla. 1993)
- Sherwood v. State, 743 So. 2d 1196 (Fla. 4th DCA 1999)