BOBBY LEE WALKUP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby Lee Walkup appeals the summary denial of his Rule 3.850 postconviction motion challenging his guilty plea to attempted capital sexual battery and lewd/lascivious conduct on a child. The court affirmed two claims without comment but reversed and remanded the third claim regarding alleged misadvice by counsel about civil commitment consequences.
The court held that affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel. Walkup made a facially sufficient claim that required an evidentiary hearing, as the trial court's attachments did not conclusively refute his allegations.
[1] Affirmative misadvice from counsel regarding a collateral consequence of a plea may render the plea involuntary.
[2] A defendant is entitled to an evidentiary hearing on a motion to withdraw a plea if the motion alleges that the plea was involuntary due to affirmative misadvice regardin…
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Join FLexlaw to unlock all legal intelligence“[a]ffirmative mis-advice 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 legal standard that misadvice about collateral consequences is grounds for withdrawing a plea
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Join FLexlaw to unlock all legal intelligenceWalkup entered a guilty plea to attempted capital sexual battery and committing a lewd and lascivious act on a child, receiving concurrent thirteen-ye…
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BLUE, Chief Judge.
Bobby Lee Walkup appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Walkup raised three claims in his motion. We affirm the first two claims without comment but reverse and remand for an evidentiary hearing on the third claim.
Walkup entered a plea of guilty to the lesser charge of attempted capital sexual battery and to committing a lewd and lascivious act on a child. Pursuant to the plea agreement, he was sentenced to concurrent thirteen-year prison sentences on the two charges, followed by ten years of probation on attempted capital sexual battery. Walkup alleged that his plea was involuntary. He claimed that because of misadvice from trial counsel, he believed his refusal to plead would subject him to commitment under the Involuntary Civil Commitment of Sexually Violent Predators Act in sections 394.910-931, Florida Statutes (1999). In actuality, Walkup’s plea itself can subject him to commitment under this act. Generally, “[a]ffirmative mis-advice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.” Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001) (ordering an evidentiary hearing in a rule 3.850 proceeding when defendant alleged affirmative misadvice regarding the Involuntary Civil Commitment of Sexually Violent Predators Act). Walkup has made a facially sufficient claim.
The trial court denied the claim, but we have examined the attachments to the trial court’s order and disagree that they conclusively refute Walkup’s allegation. We reverse the trial court’s denial of this claim and remand for an evidentiary hearing. To prevail at that hearing, Walkup “must demonstrate that counsel affirmatively misadvised him and that he would not have pleaded had he been properly advised.” Roberti, 782 So. 2d at 920. We note that the relief sought by Walkup may not be exactly what he wants since he may face charges that could bring a life sentence.
Affirmed in part, reversed in part, and remanded.
FULMER and COVINGTON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003)…es not provide a basis on which to withdraw the plea. Watrous 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.…
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Smith v. State, 829 So. 2d 940 (Fla. 4th DCA 2002)…fendant to enter a plea he otherwise would not have entered, both the performance and prejudice prongs of Strickland are satisfied and the plea may be withdrawn.”) (Allen, C.J., dissenting in part) (citations omitted); see generally Walkup v. State, 822 So. 2d 524 (Fla. 2d DCA 2002)(holding that allegation of affirmative misadviee that refusal to plead would subject defendant to commitment under Involuntary Civil Commitment of Sexually Violent Predators Act stated facially sufficient claim); Joyner v. State,…
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State v. Jones (9th Cir. Ct. App. Div. 2011)…onditions would run consecutive for a total of two years. Affirmative misadvice by counsel about a collateral consequence of a plea provides a basis upon which to withdraw the plea. Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003); Walkup v. State, 822 So. 2d 524 (Fla. 2d DCA 2002); Roberti v. State, 782 So. 2d 919 (Fla. 2d DCA 2001). The license to practice medicine is a valuable property right when acquired, the suspension of which in this case was a collateral consequence of the pleas. State Bd. of Med. E…
Authorities Cited
- Roberti v. State, 782 So. 2d 919 (Fla. 2d DCA 2001)