JOHN MCKOWEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John McKowen appealed the summary denial of his rule 3.850 motion challenging his no-contest plea, arguing that his counsel misadvised him about whether resulting convictions could be used as prior felonies for sentencing purposes. The Fifth District Court of Appeal affirmed the denial, holding that postconviction relief is unavailable for claims of affirmative misadvice regarding collateral consequences of future sentence enhancement.
A defendant is not entitled to postconviction relief based on affirmative misadvice that a plea would have no adverse sentencing effect for subsequently committed crimes, because neither trial counsel nor courts have a duty to advise about potential sentence enhancement for crimes not yet committed, and defendants are under a legal duty to refrain from committing future crimes regardless of such advice.
[1] A defendant is not entitled to postconviction relief based on counsel's misadvice that a plea would have no adverse sentencing effect should the defendant commit future c…
[2] Postconviction relief is not available when counsel affirmatively misadvises a defendant that a conviction resulting from a plea cannot be later considered as prior felon…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“neither the trial court nor defense counsel possess a duty to advise a defendant that entry of a plea in a pending case may have sentencing consequences on sentences imposed for subsequently committed crimes”
Establishes the foundational principle from Major v. State that courts and counsel have no affirmative duty regarding sentence consequences for future crimes.
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Join FLexlaw to unlock all legal intelligenceMcKowen entered a no-contest plea after his counsel misadvised him that the resulting convictions could not later be considered as prior felonies for …
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PALMER, J.
John McKowen (defendant) appeals the summary denial of his rule 3.850 motion, in which he alleged that his no-contest plea was involuntarily entered. See Fla. R.Crim. P. 3.850. The motion alleged defendant’s counsel had misadvised him as to the consequences of entering a plea in that counsel told him that the convictions resulting from the pleas could not be later considered as prior felonies for sentencing guideline purposes. We affirm.
Although the Florida Supreme Court recently held in Major v. State, 814 So. 2d 424 (Fla.2002), that neither the trial court nor defense counsel possess a duty to advise a defendant that entry of a plea in a pending case may have sentencing consequences on sentences imposed for subsequently committed crimes, there is a split of authority among the district courts as to whether postconviction relief is available when counsel affirmatively misadvises a defendant that, if he enters a plea, his conviction could not be used in the future to enhance a sentence for a subsequently committed offense. The First, Second, and Third Districts have held that such a claim does not entitle a defendant to receive postconviction relief, while the Fourth District disagrees.
In Collier v. State, 796 So. 2d 629 (Fla. 3d DCA 2001), the Third District explained that postconviction relief is not warranted under such circumstances because neither the trial court nor defense counsel is required to anticipate a defendant’s recidivism, but instead, are entitled to assume that the defendant will obey the law in the future and not commit any more crimes. In addition, neither the court nor defense counsel is required to advise a defendant what penalty he may expect to receive from crimes not yet committed. In Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002), the First District held that a defendant is not entitled to receive a hearing on a claim of affirmative misadvice as to the potential of receiving enhanced penalties in the future, because granting such relief could be viewed as inviting recidivism, which is contrary to the purpose of the enhancement statutes. Similarly, in Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002), the Second District held that a defendant is not entitled to receive postcon-viction relief on a claim alleging misadvice concerning the consequences of a plea, noting that, unlike other collateral consequences such as deportation or gain time eligibility, the defendant can always avoid the future sentence-enhancing effects of a plea by obeying the law. In Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002), the court held that a defendant is not entitled to receive postconviction relief on such a claim, because he is under a legal duty to refrain from committing further crimes, whether or not counsel’s advice of possible enhanced punishment was correct.
In contrast, the Fourth District has held that any claim of affirmative misadvice, even a claim regarding misadvice as to the collateral consequence of future sentence enhancement, constitutes a valid basis for allowing a defendant to withdraw a plea. See Ghanavati v. State, 820 So. 2d 989 (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). As explained in Love, the Fourth District treats allegations of affirmative misadvice differently than allegations that counsel failed to give advice.
We align ourselves with the First, Second, and Third Districts, concluding that a defendant is not entitled to receive post-conviction relief based on a claim that he relied on the misadvice of counsel that his plea would have no adverse sentencing effect should he decide to commit future crimes. To rule otherwise would be to encourage recidivism and frustrate the purpose of the statutory sentencing scheme which enhances sentences based on past criminal behavior.1
AFFIRMED.
GRIFFIN and ORFINGER, JJ., concur. . Based upon this ruling, we need not reach the State’s argument that certain of defendant's claims are time barred.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Dickey, 928 So. 2d 1193 (Fla. 2006)…DCA 2002) (“A defendant is not entitled to relief where he has been given affirmative misadvice regarding the possible sentence-enhancing consequences of a plea in the event that the defendant commits a new crime in the future.”); McKowen v. State, 831 So. 2d 794, 796 (Fla. 5th DCA 2002) (concluding “that a defendant is not entitled to receive postconviction relief based on a claim that he relied on the misadvice of counsel that his plea would have no adverse sentencing effect should he decide to commit futu…
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…ed question, all five district courts of appeal have. Besides the First District in this case, three other courts have held that such misadvice does not constitute ineffective assistance of counsel or render a plea involuntary. See McKowen v. State, 831 So. 2d 794, 796 (Fla. 5th DCA 2002); Rhodes v. State, 701 So. 2d 388, 389 (Fla. 3d DCA 1997); Stansel v. State, 825 So. 2d 1007, 1010 (Fla. 2d DCA 2002). One court has held differently. See Smith v. State, 829 So. 2d 940, 941 (Fla. 4th DCA 2002). Many of these…
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Hope v. State, 908 So. 2d 507 (Fla. 4th DCA 2005)…2001); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000). We recognize conflict with the districts concluding otherwise. See Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002); Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002); McKowen v. State, 831 So. 2d 794 (Fla. 5th DCA 2002). The Florida Supreme Court accepted review of Bates v. State, 818 So. 2d 626, 631 (Fla. 1st DCA), rev. granted 832 So. 2d 103 (2002), in which the First District had certified the question of whether affirmative misadvice by tri…1 / 2
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)
- Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)
- Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002)
- LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)
- Assadollah Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002)
- Vrain Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002)
- Collier v. State, 796 So. 2d 629 (Fla. 3d DCA 2001)
- Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)