HAROLD GRAHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harold Graham sought to withdraw his guilty plea prior to sentencing after discovering that his attorney had given him mistaken advice regarding a collateral consequence of the plea. The Florida appellate court held that Graham established good cause for withdrawal because his plea was based on measurably deficient counsel advice, reversing the trial court's denial of the withdrawal motion.
Graham established good cause for withdrawing his plea because his plea was entered based on measurably deficient counsel advice regarding a collateral consequence. When counsel discusses collateral matters and provides advice that is measurably deficient, a plea based on that advice may be involuntary, entitling a defendant to withdraw it prior to sentencing as a matter of right.
[1] A defendant is entitled to withdraw a guilty plea as a matter of right upon showing good cause prior to sentencing.
[2] A plea entered under mistake, surprise, misapprehension, or other circumstances affecting a defendant's rights may be withdrawn.
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“The burden is upon a defendant to establish good cause under the rule, and use of the word "shall" indicates that such a showing entitles a defendant to withdraw a plea as a matter of right.”
Establishes the standard for plea withdrawal: good cause is mandatory grounds for withdrawal prior to sentencing.
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Join FLexlaw to unlock all legal intelligenceGraham pleaded guilty to lewd and lascivious conduct in the presence of a child under sixteen and failure to report. Prior to sentencing, Graham moved…
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BLUE, Acting Chief Judge.
Prior to sentencing, Harold Graham sought to withdraw his plea because it was based on defense counsel’s mistaken advice. The trial court denied the motion and sentenced Graham for lewd and lascivious conduct in the presence of a child under sixteen, a second-degree felony in violation of section 800.04(4), Florida Statutes (1997), and failure to report, a second-degree misdemeanor in violation of sections 39.201 and 39.205, Florida Statutes (Supp.1998). Because Graham’s plea was based on mistaken advice from counsel, we conclude that he established good cause for withdrawing his plea'. Accordingly, we reverse.
Florida Rule of Criminal Procedure 3.170(f) states that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty.”1 In seeking to withdraw a plea prior to sentencing, “[t]he' burden is upon a defendant to establish good cause under the rule, and use of the word “shall” indicates that such a showing entitles a defendant to withdraw a plea as a matter of right.” Robinson v. State, 761 So. 2d 269, 274 (Fla.1999) (quoting Yesnes v. State, 440 So. 2d 628, 634 (Fla. 1st DCA 1983)).
The law favors a trial on the merits, and this rule should be liberally construed in favor of the defendant. See Robinson, 761 So. 2d at 274. A defendant should be allowed to withdraw a plea that was “entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other' circumstances affecting his rights.” Baker v. State, 408 So. 2d 686, 687 (Fla. 2d DCA 1982).
The standard of review on appeal is abuse of discretion. See Robinson, 761 So. 2d at 274.
In this case, the record establishes that Graham sought to withdraw his plea prior to sentencing based on counsel’s mistaken advice regarding a collateral consequence. While counsel is not required to warn a defendant about collateral consequences of a plea, if collateral matters are discussed and counsel’s advice is “measurably deficient,” then a plea based on that advice could be involuntary. Dolan v. State, 618 So. 2d 271, 273 (Fla. 2d DCA 1993) (addressing postconviction motion seeking plea withdrawal).
The record shows that Graham entered his plea under the mistaken assurances by defense counsel that his photo would not be placed on the Internet. Graham testified that he asked his attorney about this point several times before the plea and would not have entered the plea if he had been told that his picture would be on the Internet.
We conclude that the trial court abused its discretion by failing to allow Graham to withdraw his plea prior to sentencing.
Accordingly, we reverse.
Reversed and remanded for further proceedings.
FULMER and DAVIS, JJ., concur. . "The same rules apply to the withdrawal of a plea of nolo contendere as apply to the withdrawal of a guilty plea.” Stovall v. State, 252 So. 2d 376, 378 (Fla. 4th DCA 1971).
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Partlow, 840 So. 2d 1040 (Fla. 2003)…use, at any time before a sentence, permit a plea of guilty to be withdrawn.” Fla. R.Crim. P. 3.170(f) (emphasis added). Under this provision, a trial court plainly has broad discretion in determining motions to withdraw a plea. See Graham v. State, 779 So. 2d 604, 605 (Fla. 2d DCA 2001); Yesnes v. State, 440 So. 2d 628, 634 (Fla. 1st DCA 1983). Here, however, Partlow sought to withdraw his plea after his sentence. Therefore, rule 3.170(f) does not apply. Rule 3.170(0 applies to motions to withdraw filed aft…1 / 2
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Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)…he plea agreement. The trial court declared Gunn to be a sexual predator pursuant to section 775.21, Florida Statutes (1999). The standard of review of a trial court’s decision on a motion to withdraw a plea is abuse of discretion. Graham v. State, 779 So. 2d 604, 605 (Fla. 2d DCA 2001). In order to withdraw a guilty plea before sentencing, the defendant has the burden to show good and sufficient cause to support the withdrawal. See Fla. R.Crim. P. 3.170(f); Caddo v. State, 806 So. 2d 520, 521 (Fla. 2d DCA 2…
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Smith v. State, 840 So. 2d 404 (Fla. 4th DCA 2003)…o. 2d 827 (Fla. 4th DCA 1998) (holding that defendant entitled to withdraw plea where neither in written petition to enter plea, nor in the plea colloquy, was he informed that he faced a possible suspension of his driver’s license); Graham v. State, 779 So. 2d 604 (Fla. 2d DCA 2001) (determining defendant entitled to withdraw his plea based on counsel’s mistaken advice that his photo would not be placed on the Internet). REVERSED AND REMANDED. STONE, J., concurs. MAY, J., concurs specially with opinion. .…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robinson v. State, 761 So. 2d 269 (Fla. 1999)
- Yesnes v. State, 440 So. 2d 628 (Fla. 1st DCA 1983)
- Bragg v. Louie L. Wainwright, 252 So. 2d 376 (Fla. 2d DCA 1971)
- Dolan v. State, 618 So. 2d 271 (Fla. 2d DCA 1993)
- Cleveland Plummer v. Cindy Copeland & the State of Fla., 408 So. 2d 686 (Fla. 1st DCA 1982)
- Baker v. State, 408 So. 2d 686 (Fla. 2d DCA 1982)