ROBERT L. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2001-09-05
No. 4D00-436
DELL and GUNTHER, JJ., concur.
793 So. 2d 1112 Florida District Court of Appeal, Fourth District (2001) Positive Treatment
Cited by 6 cases

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Holding

The court held that a trial court must conduct a Nelson inquiry to determine if a defendant is entitled to conflict-free counsel when alleging ineffective assistance of counsel in a motion to withdraw a plea.


Headnotes

[1] A motion to withdraw a plea filed pursuant to Florida Rule of Criminal Procedure 3.170(f) is a critical stage in criminal proceedings at which a defendant must be entitle…

[2] When a defendant alleges ineffective assistance of counsel in a motion to withdraw a plea, the trial court must conduct a Nelson inquiry to examine the defendant's claims…

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Facts & Procedural History

After pleading guilty, the appellant moved to withdraw his plea, alleging ineffective assistance of counsel. Defense counsel also moved to withdraw, c…

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Opinion of the Court
SHAHOOD, J.

SHAHOOD, J.

We reverse the trial court’s summary denial of appellant’s motion to withdraw plea and remand for a Nelson1 hearing to determine whether appellant is entitled to the appointment of conflict-free counsel prior to addressing the merits of appellant’s motion to withdraw.

Shortly after appellant entered a plea agreement admitting to a violation of his community control and was sentenced to thirty months in prison, defense counsel filed a motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(0. Appellant alleged that defense counsel was ineffective, and thus, his admission of guilt was “not voluntarily and knowingly entered into.” On that same day, defense counsel moved to withdraw as counsel on the grounds that appellant moved to withdraw his plea based on ineffective assistance of counsel, that his plea was not knowingly and voluntarily entered into, that appellant was entitled to “conflict free counsel for purposes of addressing his motion to withdraw plea,” that “an irreconcilable conflict of interest exists,” and other grounds to be argued ore terms. Neither motion was sworn.

The trial court summarily denied the motion to withdraw plea by entering a detailed Order Denying Defendant’s Motion to Withdraw Plea. The court held that appellant’s plea colloquy demonstrated that he knowingly, intelligently and voluntarily waived his rights prior to entering his guilty plea. Following the denial of appellant’s motion to withdraw plea, the trial court granted defense counsel’s motion to withdraw as attorney of record.

On appeal, appellant claims that the trial court erred in denying his motion to withdraw plea on the grounds that he was entitled to conflict-free counsel on his motion to withdraw plea and that the court should have ruled on defense counsel’s motion to withdraw as attorney of record prior to addressing his motion.

A trial court’s decision regarding withdrawal of a plea will generally not be disturbed on appeal absent a showing of abuse of discretion. See State v. Wiita, 744 So. 2d 1232, 1234 (Fla. 4th DCA 1999).

A criminal defendant facing incarceration has a right to counsel at every critical stage of the proceedings against him. See Padgett v. State, 743 So. 2d 70, 72 (Fla. 4th DCA 1999). A motion to withdraw plea filed pursuant to rule 3.170(£), Florida Rules of Criminal Procedure, is considered a critical stage in the direct criminal proceeding against a defendant at which the accused must be entitled to effective assistance of counsel. See id. at 73.

In remanding this matter for a Nelson inquiry, we rely upon our decision in Cunningham v. State, 677 So. 2d 929 (Fla. 4th DCA 1996). In Cunningham, the defendant filed an unsworn, conclusory motion, where he sought to withdraw his plea and to have new counsel appointed, claiming ineffective assistance of counsel.

The trial court conducted a Nelson inquiry at which the defendant alleged the representation was inadequate “because his lawyer, advising him to accept a plea bargain, told him that it was ‘like you playing Russian Roulette with your life if you take it to trial.’ ” Id. at 930.

The trial court found no basis for the claim of ineffective assistance of counsel, and, then, denied Cunningham’s motion to discharge counsel and to vacate his plea. See id. Because the trial court found no basis to Cunningham’s ineffective assistance of counsel claim, there was no reason to appoint new counsel. The Cunningham court held that unlike Roberts v. State, 670 So. 2d 1042 (Fla. 4th DCA 1996), where the trial court erred by denying Roberts’ counsel’s motion to withdraw based on a conflict of interest involving a claim of coercion, Cunningham’s right to effective representation at a critical state in the proceeding was not implicated, and thus, he was not entitled, as a matter of right to new court-appointed counsel before the trial court could proceed to determine the merits of the motion to withdraw plea. See id. at 931.

As in Cunningham, this ease involves an unsworn, conclusory motion to withdraw plea, seeking conflict-free counsel based on a claim of ineffective assistance of counsel. However, the unsworn motion was drafted by the very attorney appellant alleged was ineffective.

Unlike Cunningham, the trial court in this case did not first conduct a Nelson inquiry into the basis for appellant’s motion to discharge counsel. This was error. Instead, the court summarily denied the motion and entered an order finding that the extensive plea colloquy demonstrated that appellant knowingly, intelligently and voluntarily waived his rights when entering his plea. In cases where dissatisfaction with counsel is based on allegations of incompetency, a trial court is obligated to examine the defendant’s reasons in support of his motion to discharge counsel and the grounds behind counsel’s motion to withdraw. See Roberts, 670 So. 2d at 1044.

Accordingly, we remand this matter with directions for the trial court to conduct a Nelson inquiry to examine appellant’s claims of ineffective assistance of counsel and determine whether the appointment of conflict-free counsel is necessary. If new counsel is required, then the court shall conduct a hearing to address the merits of appellant’s motion to withdraw plea.

REVERSED AND REMANDED WITH DIRECTIONS.

DELL and GUNTHER, JJ., concur. . Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).


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Citator

Cited By

  • Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008)
    …State, 897 So. 2d 553 (Fla. 1st DCA 2005) (same); Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003) (same); Wofford v. State, 819 So. 2d 891 (Fla. 1st DCA 2002) (same); Lester v. State, 820 So. 2d 1078 (Fla. 1st DCA 2002) (same); Williams v. State, 793 So. 2d 1112 (Fla. 4th DCA 2001) (same). Here, the defendant indirectly alleges in his motion to withdraw his plea that his plea was involuntary because it was based in part on counsel’s representation that he would be able to get him a longer furlough if he too…
  • Vermont Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003)
    …ood the consequences of his plea. This argument is not persuasive because the issue on appeal is not whether the motion was meritorious but whether Smith was denied conflict-free counsel at a critical stage of the proceedings. See Williams v. State, 793 So. 2d 1112 (Fla. 4th DCA 2001) (holding rule 3.170© proceeding is a critical stage in proceedings at which defendant is entitled to counsel). The denial of the right to counsel is not subject to a harmless error analysis. Pad-gett, 743 So. 2d at 74. Accordingl…
  • Miller v. State, 838 So. 2d 1213 (Fla. 2d DCA 2003)
    …that a defendant is entitled to conflict-free counsel to advise and assist with motions filed pursuant to rule 3.170(i). See Lester v. State, 820 So. 2d 1078 (Fla. 1st DCA 2002); Cadet v. State, 795 So. 2d 228 (Fla. 4th DCA 2001); Williams v. State, 793 So. 2d 1112 (Fla. 4th DCA 2001); Rodgers v. State, 765 So. 2d 195 (Fla. 1st DCA 2000). The order denying the motion to withdraw plea is reversed. On remand the trial court shall appoint conflict-free counsel to represent Miller at a hearing on the motion. R…

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