RONALD W. ROBERTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Roberti appealed the denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel and an involuntary plea. The court affirmed the denial of most claims but reversed and remanded on one claim involving counsel's affirmative misadvice that Roberti would not be subject to the Involuntary Commitment of Sexually Violent Predators Act.
Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis to withdraw the plea. The trial court's denial of Roberti's claim was reversed and remanded for an evidentiary hearing where Roberti must demonstrate that counsel affirmatively misadvised him and that he would not have pleaded had he been properly advised.
[1] Affirmative misadvice from counsel regarding a collateral consequence of a plea constitutes ineffective assistance of counsel.
[2] A defendant must demonstrate that counsel affirmatively misadvised them and that they would not have pleaded had they been properly advised to prevail on a claim of ineff…
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Join FLexlaw to unlock all legal intelligence“Affirmative misadviee about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.”
Establishes the critical legal distinction between failure to advise (which is permissible for collateral consequences) and affirmative misadvice (which constitutes ineffective assistance regardless of whether the consequence is collateral).
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Join FLexlaw to unlock all legal intelligenceRoberti pleaded no contest to two counts of handling and fondling and one count of attempted capital sexual battery, receiving concurrent sentences of…
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FULMER, Acting Chief Judge.
Ronald W. Roberti appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Roberti pleaded no contest to two counts of handling and fondling and one count of attempted capital sexual battery in exchange for concurrent sentences of seventeen years’ prison to be followed by ten years’ probation. He now alleges that counsel was ineffective in numerous regards and that his plea was involuntary. We affirm without comment the denial of all of Roberti’s claims except one.
Roberti alleges that counsel told him that he would not be subject to the Involuntary Commitment of Sexually Violent Predators Act1 because the court had agreed that the probationary portion of his sentence could be served out of state. This is an incorrect statement of the law. The Act applies to all persons convicted of sexually violent offenses who are sentenced to total confinement. See § 394.925, Fla. Stat. (2000). That the trial court provided for Roberti’s probation to be transferred has no effect on this. The Act is in fact applicable to Roberti.
The trial court denied this claim stating that commitment under the Act is a collateral consequence of a plea about which the defendant need not be warned. See Watrous v. State, 26 Fla. L. Weekly D686, - So. 2d -, 2001 WL 219982 (Fla. 2d DCA Mar. 7, 2001); Pearman v. State, 764 So. 2d 739 (Fla. 4th DCA 2000). While this is a correct statement of the law, it fails to address Roberti’s actual claim. Roberti alleged not that counsel failed to advise him that his pleas could subject him to commitment under the Act, but rather that counsel affirmatively misadvised him that they could not. Affirmative misadviee about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea. See Watrous, 26 Fla. L. Weekly D686, — So. 2d -, 2001 WL 219982 (Fla. 2d DCA March 7, 2001); Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992); Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993).
We, therefore, reverse and remand for an evidentiary hearing on this claim. In order to prevail at that hearing Roberti must demonstrate that counsel affirmatively misadvised him and that he would not have pleaded had he been properly advised. We affirm the remaindér of the trial court’s order without comment.
Affirmed in part; reversed in part; and remanded for an evidentiary hearing.
NORTHCUTT and CASANUEVA, JJ., concur. . See §§ 394.910-931, Fla. Stat. (2000).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…1st DCA 2001) (reversing for eviden-tiary hearing on defendant’s claim that counsel affirmatively misadvised him that his youthful offender adjudication would not count as a prior conviction causing him to lose his right to vote); Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001) (reversing for evidentiary hearing on de [*1223] fendant’s allegation that counsel was ineffective for misinforming him regarding applicability of the Involuntary Commitment of Sexually Violent Predators Act); Ray v. State, 4…1 / 2
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Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)…at Stansel is not entitled to relief. This court has held that affirmative mis-adviee about even a collateral consequence of a plea may constitute ineffective assistance of counsel and provide a basis for withdrawal of a plea. See Roberti v. State, 782 So. 2d 919 (Fla. 2d DCA 2001) (holding that defendant was entitled to an eviden-tiary hearing after he alleged that his counsel advised him that he would not be subject to the Involuntary Civil Commitment of Sexually Violent Predators); see also Ray v. State,…
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Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)…ous v. State, 793 So. 2d 6, 10 (Fla. 2d DCA 2001). However, affirmative misadvice about a collateral consequence of a plea provides a basis on which to withdraw the plea. See Walkup v. State, 822 So. 2d 524, 525 (Fla. 2d DCA 2002); Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001). B&cause Gunn’s claim concerning defense counsel’s alleged affirmative misadvice was not addressed by the trial court, reversal is required for an evidentiary hearing. See Ayers v. State, 831 So. 2d 1260 (Fla. 2d DCA 2002); S…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)
- Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)
- Holloman v. Wheeler, 764 So. 2d 739 (Fla. 5th DCA 2000)
- Pearman v. State, 764 So. 2d 739 (Fla. 4th DCA 2000)