CLINTON BURNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clinton Burns sought post-conviction relief claiming ineffective assistance of counsel based on his trial attorney's affirmative misrepresentation that his 1991 plea to felony charges involved misdemeanor offenses that could not be used for sentence enhancement. The Fourth District reversed the denial of his motion, holding that affirmative misadvice about collateral consequences of a plea can constitute grounds for post-conviction relief and plea withdrawal, even if the trial court had no duty to advise on such matters.
The court held that when a defendant enters a plea in reliance on affirmative misadvice by counsel concerning collateral consequences and demonstrates prejudice, the defendant may seek to withdraw the plea even if the trial court had no obligation to advise on those collateral consequences. The court reversed the denial of the 3.850 motion and remanded for an evidentiary hearing on the issue of affirmative misadvice.
[1] Affirmative misadvice from counsel regarding the collateral consequences of a plea constitutes a valid ground for post-conviction relief.
[2] A defendant may seek to withdraw a plea entered in reliance on affirmative misadvice, even if the misadvice concerns collateral consequences about which the court had no…
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Join FLexlaw to unlock all legal intelligence“When a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he was thereby prejudiced, the defendant may seek to withdraw the plea even if the misadvice concerns collateral consequences as to which the trial court was under no obligation to advise.”
States the core holding that affirmative misadvice about collateral consequences can be grounds for plea withdrawal and post-conviction relief
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Join FLexlaw to unlock all legal intelligenceIn 1991, Burns pleaded guilty to tampering with evidence and possession of cocaine. His counsel allegedly misrepresented that these were misdemeanor o…
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PER CURIAM.
We reverse an order denying Appellant’s 3.850 motion for post-conviction relief.
In 1991, Appellant was convicted, through a negotiated plea, of: (1) tampering with evidence, and (2) possession of cocaine, both felonies. He did not appeal his convictions. In 1995, Appellant received an enhanced sentence in federal court to life in prison as a result of his prior felony convictions.
Here, Appellant asserts ineffective assistance of trial counsel as to his 1991 conviction, in part, on the ground that his counsel misrepresented to him that the crimes to which he was pleading were misdemean-or offenses that could not be used to enhance any future sentence.
In response to this court’s order to show cause, the state argued that in Major v. State, 814 So. 2d 424, 431 (Fla.2002), the Florida Supreme Court held that “neither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future.” Major, however, does not address counsel’s affirmative misadvice regarding collateral consequences of a plea.
This court has recognized that a claim of affirmative misadvice is a proper ground for rule 3.850 review. See Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000).
When a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he was thereby prejudiced, the defendant may seek to withdraw the plea even if the misadvice concerns collateral consequences as to which the trial court was under no obligation to advise. See Ghanavati, 820 So. 2d at 991; Murphy v. State, 820 So. 2d 375 (Fla. 4th DCA 2002); Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001). We note that the Third District has reached a contrary conclusion, certifying conflict with Smith. See Wallace v. State, No. 3D01-3339, 2002 WL 1842697, — So. 2d - (Fla. 3d DCA Aug.14, 2002); McPhee v. State, 823 So. 2d 160 (Fla. 3d DCA 2002); Cifuentes v. State, 816 So. 2d 804 (Fla. 3d DCA 2002). We certify conflict with Wallace, McPhee, and Cifuentes.
We reverse, in part, and remand for an evidentiary hearing on the sole issue of trial counsel’s affirmative misadvice. As to all other grounds raised by Appellant, we affirm.
STONE, STEVENSON, and HAZOURI, JJ., concur.
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Citator
Cited By
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Hope v. State, 909 So. 2d 377 (Fla. 4th DCA 2005)…tself with this court and certifying the question). Nevertheless, we hold that Hope’s claim is outside the purview of this court’s decisions as he is not alleging an anticipated sentence enhancing consequence of his plea. See, e.g., Burns v. State, 826 So. 2d 1055 (Fla. 4th DCA 2002) (federal sentence enhanced); Love, 814 So. 2d 475 (federal sentence enhanced); see also Ghanavati, 820 So. 2d 989 (deportation consequences); Joyner v. State, 795 So. 2d 267, 268 (Fla. 1st DCA 2001) (loss of voting rights). It is…
Authorities Cited
- Daron Merritt v. State, 814 So. 2d 424 (Fla. 2002)
- Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000)
- LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)
- Assadollah Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002)
- Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)
- McPHEE v. State, 823 So. 2d 160 (Fla. 3d DCA 2002)
- Carrazana v. State, 816 So. 2d 804 (Fla. 3d DCA 2002)
- Murphy v. State, 820 So. 2d 375 (Fla. 4th DCA 2002)