JOSEPH J. WEITZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Weitz appeals the denial of his 3.850 motion for postconviction relief, claiming his guilty plea was involuntary due to ineffective assistance of counsel. The court affirms the denial of most claims but reverses as to Weitz's allegation that counsel failed to advise him of a double jeopardy bar to his convictions for scheme to defraud and grand theft.
The court held that Weitz's claim that his plea was involuntary due to ineffective assistance of counsel is facially sufficient and may entitle him to relief. The claim is not precluded by the negotiated plea bargain because, unlike in Novaton, Weitz explicitly alleges that his agreement was not voluntarily and intelligently entered into due to counsel's failure to advise him of the double jeopardy protection.
[1] A trial court's order allowing appointed appellate counsel to withdraw mid-appeal is disruptive to the appellate process and may be beyond the trial court's jurisdiction.
[2] Appointed counsel seeking to withdraw from an appeal should first file a motion to withdraw in the appellate court with an adequate legal basis.
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Join FLexlaw to unlock all legal intelligence“Novaton is, however, inapplicable to the instant case. In Novaton, the court specifically noted that the defendant 'neither requests that the agreement be vacated nor claims that it was invalid because it was not voluntarily and intelligently entered into.' Id. at 609. In the instant case, Weitz alleges just that — that his plea was involuntary because his counsel was ineffective in failing to advise him of the double jeopardy protection.”
Establishes the distinction between this case and Novaton and why Weitz's claim is not barred by his negotiated plea
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Join FLexlaw to unlock all legal intelligenceWeitz pleaded guilty to racketeering, conspiracy to commit racketeering, scheme to defraud, and fourteen counts of grand theft as part of a negotiated…
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CASANUEVA, Judge.
Joseph J. Weitz appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Weitz pleaded guilty to racketeering, conspiracy to commit racketeering, scheme to defraud, and fourteen counts of grand theft and was sentenced as part of a negotiated plea to fourteen years in prison as a habitual felony offender. We affirm the trial court’s order without comment as to all but Weitz’s claim that his plea was involuntary due to ineffective assistance of counsel. We reverse as to that claim.
We write first, however, to address appointed counsel’s motion to withdraw. The trial court initially determined that Weitz was constitutionally entitled to appointed counsel for purposes of this appeal and appointed an attorney to represent him. No one sought review of this order. For reasons that are not apparent from the record, approximately one month later, that attorney moved the trial court to set aside its order of appointment. The trial court granted that motion and allowed counsel to withdraw. Counsel then filed the instant motion in this court.
We believe that the better course of action would have been for counsel to begin by moving to withdraw in this court in a motion stating an adequate legal basis to do so. It is disruptive to the appellate process for the trial court to allow appellate counsel to withdraw mid-appeal and it is also questionable whether the trial court even had jurisdiction to set aside its order of appointment. We also note that the procedure used in this case has made it impossible for this court to determine the grounds upon which the motion to set aside was granted. Nonetheless, because we independently conclude that appointed counsel is not constitutionally required for this appeal, we grant the motion to withdraw. See Graham v. State, 372 So. 2d 1363 (Fla.1979); Rowe v. State, 777 So. 2d 1088 (Fla. 2d DCA 2001).
As to the merits of the appeal, Weitz alleges that trial counsel was ineffective in failing to advise him that absent a voluntary waiver the convictions for scheme to defraud and grand theft were barred by double jeopardy. See Cherry v. State, 592 So. 2d 292 (Fla. 2d DCA 1991). Weitz alleges that he would not have agreed to the plea bargain had he known about the double jeopardy prohibition. The trial court denied this claim finding that Weitz had waived the double jeopardy claim by entering into a negotiated plea bargain with the State. See Novaton v. State, 634 So. 2d 607 (Fla.1994).
Novaton is, however, inapplicable to the instant case. In Novaton, the court specifically noted that the defendant “neither requests that the agreement be vacated nor claims that it was invalid because it was not voluntarily and intelligently entered into.” Id. at 609. In the instant case, Weitz alleges just that — that his plea was involuntary because his counsel was ineffective in failing to advise him of the double jeopardy protection. We conclude that this is a facially sufficient claim which may entitle Weitz to relief. See Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995) (noting that a negotiated sentence precluded appeal or collateral challenge of conviction and sentence on double jeopardy grounds apart from an allegation of ineffective assistance of counsel). Because Weitz’s allegations are not refuted by the record, we reverse and remand for further proceedings.
We affirm as to Weitz’s other claims without comment.
Affirmed in part, reversed in part, and remanded.
GREEN, A.C.J., and STRINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Pearson v. State, 867 So. 2d 517 (Fla. 1st DCA 2004)…However, a negotiated plea does not preclude an ineffective assistance of counsel claim based on counsel’s failure to challenge the charged offenses on double jeopardy grounds. See Deloach v. State, 831 So. 2d 691 (Fla. 3d DCA 2002); Weitz v. State, 795 So. 2d 1021 (Fla. 2d DCA 2001); Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995). Nevertheless, the appellant’s claim is conclusively refuted by the record. The appellant was charged with two first-degree felonies, which are each punishable by up to thirty…
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Tapp v. State, 44 So. 3d 666 (Fla. 2d DCA 2010)…espect to those charges.” See Novaton, 634 So. 2d at 609 (holding that a defendant who enters into a plea bargain with the State waives “any double jeopardy claim that may affect either his convictions or his sentences”). However, in Weitz v. State, 795 So. 2d 1021, 1023 (Fla. 2d DCA 2001), this court held that Novaton is inapplicable to an allegation of an involuntary plea due to ineffective assistance of counsel for failure to advise of the double jeopardy protection. Unlike Weitz, Novaton “ ‘neither request…
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Upshaw v. State, 840 So. 2d 1064 (Fla. 1st DCA 2003)…ces violate double jeopardy, and there is nothing in the record to indicate that counsel informed the Appellant that he could not lawfully be convicted of both trafficking in cocaine and possession of cocaine with intent to sell. See Weitz v. State, 795 So. 2d 1021 (Fla. 2d DCA 2001). As to the second prong, the Appellant alleged that he would not have pled, but would have proceeded to trial, but for counsel’s error. See Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002). The record reveals that the Appell…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- The Petition of Andrew A. Graham v. State, 372 So. 2d 1363 (Fla. 1979)
- Cherry v. State, 592 So. 2d 292 (Fla. 2d DCA 1991)
- Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995)
- Rowe v. State, 777 So. 2d 1088 (Fla. 2d DCA 2001)