KEVIN MCPHEE, A/K/A DONTE RAMON LAWS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that affirmative misadvice by counsel regarding potential sentence-enhancing consequences of a guilty plea does not render the plea involuntary.
Kevin McPhee alleged affirmative misadvice from his counsel regarding the consequences of his guilty plea. The court previously affirmed the denial of…
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PER CURIAM.
Kevin McPhee, a/k/a Donte Ramon Laws, moves to recall the opinion or set aside this court’s mandate in case number 3D01-1921, wherein this court affirmed the trial court’s order denying relief and certified the matter to the Florida Supreme Court as we did in Major v. State, 790 So. 2d 550 (Fla. 3d DCA 2001). We grant McPhee’s motion, set aside the mandate, recall our previously issued opinion and replace it with the following:
As this court recently explained in Cifuentes v. State, 816 So. 2d 804 (Fla. 3d DCA 2002):
“The recent supreme court decision in Major v. State, 814 So. 2d 424 (Fla.2002) left undecided whether affirmative mis-advice by counsel, as alleged in Cifuentes’ motion, could form the basis for withdrawing a guilty plea. There is a conflict in the districts on this issue. The Fourth District has held that such an allegation could form the basis for relief. See Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000). The Second District disagrees. See Horne v. State, 792 So. 2d 581, 582 (Fla. 2d DCA 2001), certifying conflict with Smith. We have aligned ourselves with the Second District in that when counsel misinforms his client of the potential sentence-enhancing consequences of his plea, it is a collateral consequence which does not render a plea involuntary. See Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002).”
As McPhee here alleges affirmative misad-vice of counsel, following Cifuentes we affirm and certify conflict with Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000).
Affirmed; conflict certified.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…2d DCA 2002) (certifying the same question as in Bates); Jaworski v. State, 828 So. 2d 1046 (Fla. 4th DCA 2002) (certifying conflict with Bates); Wallace v. State, 833 So. 2d 796 (Fla. 3d DCA 2002) (certifying conflict with Smith); McPhee v. State, 823 So. 2d 160 (Fla. 3d DCA 2002) (certifying conflict with Smith). Many cases raising the same issue remain pending in the several district courts of appeal awaiting our resolution of this case. . I do not address here the situation where at the time of the plea…
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Wallace v. State, 833 So. 2d 796 (Fla. 3d DCA 2002)…he Fourth District Court of Appeal follows a different rule. See Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000). As we did in McPhee v. State, 823 So. 2d 160(Fla. 3d DCA 2002), and Cifuentes v. State, 816 So. 2d 804 (Fla. 3d DCA 2002), we certify direct conflict with Smith. Affirmed; direct conflict certified. * Although not argued by the defendant, only one of the two 1993 convictions could be used a…
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Torrance Jones v. State, 838 So. 2d 685 (Fla. 3d DCA 2003)…te, 813 So. 2d 1025, 1026-27 (Fla. 3d DCA 2002). The Fourth District Court of Appeal has decided differently. See Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000). As we did in McPhee v. State, 823 So. 2d 160 (Fla. 3d DCA 2002), Wallace v. State, 833 So. 2d 796 (Fla. 3d DCA 2002), and Cifuentes v. State, 816 So. 2d 804 (Fla. 3d DCA 2002), we certify direct conflict with Smith. See also Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002)(conflict certified…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daron Merritt v. State, 814 So. 2d 424 (Fla. 2002)
- Fritz Major v. State, 790 So. 2d 550 (Fla. 3d DCA 2001)
- Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000)
- Vrain Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002)
- Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)
- Carrazana v. State, 816 So. 2d 804 (Fla. 3d DCA 2002)
- A. Rodolfo Barrera, Jr., M.D. v. Columbia Deering Hosp., 792 So. 2d 581 (Fla. 3d DCA 2001)