KENNETH GUNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Gunn appeals his conviction and sentences for sexual battery and home invasion robbery, challenging the trial court's denial of his motion to withdraw his guilty plea. The appellate court reversed and remanded because the trial court failed to address Gunn's claim of affirmative misadvice regarding sexual predator registration, and because Gunn was denied conflict-free counsel when a conflict of interest arose between him and his defense attorney.
The trial court abused its discretion by failing to hold an evidentiary hearing on Gunn's claim of affirmative misadvice regarding sexual predator registration, as such misadvice constitutes good cause to withdraw a plea. Additionally, once a conflict of interest became apparent between Gunn and his defense counsel during the withdrawal hearing, Gunn was entitled to the appointment of conflict-free counsel.
[1] A defendant seeking to withdraw a plea prior to sentencing based on dissatisfaction with counsel's representation, where counsel acknowledges an inability to effectively…
[2] A trial court errs by denying a defendant's request for conflict-free counsel when defense counsel states an inability to effectively counsel the defendant on withdrawing…
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Join FLexlaw to unlock all legal intelligence“affirmative misadvice about a collateral consequence of a plea provides a basis on which to withdraw the plea”
Establishes the legal standard that distinguishes between mere failure to advise and affirmative misadvice regarding collateral consequences
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Join FLexlaw to unlock all legal intelligenceOn August 14, 2000, Gunn entered a guilty plea to two counts of sexual battery when the victim was physically incapacitated, one count of attempt to c…
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SILBERMAN, Judge.
Kenneth Gunn appeals his judgment and sentences for two counts of sexual battery when the victim was physically incapacitated, one count of attempt to commit sexual battery when the victim was physically incapacitated, and one count of home invasion robbery. He argues that the trial court erred in denying his motion to withdraw plea prior to sentencing and by not affording him conflict-free counsel at the hearing on his motion. We reverse and remand for an evidentiary hearing with conflict-free counsel on the motion to withdraw plea.
On August 14, 2000, Gunn appeared with defense counsel for a plea hearing. Gunn entered a guilty plea in exchange for twenty-four years’ imprisonment followed by five years’ probation. On September 20, 2000, Gunn appeared for sentencing but indicated that he desired to withdraw his plea. He claimed that he had been denied his right to see what was on the videotaped deposition of the alleged victim and that his attorney had assured him that he would not be registered as a sexual predator if he entered the plea.
Defense counsel responded to Gunn’s claim concerning the videotape, stating that on two occasions he set up the videotape for viewing, but Gunn refused to watch. Defense counsel did not respond to the claim that he misadvised Gunn regarding registration as a sexual predator. The trial court denied Gunn’s request to withdraw his plea and proceeded to sentence him in accordance with the plea agreement. The trial court declared Gunn to be a sexual predator pursuant to section 775.21, Florida Statutes (1999).
The standard of review of a trial court’s decision on a motion to withdraw a plea is abuse of discretion. Graham v. State, 779 So. 2d 604, 605 (Fla. 2d DCA 2001). In order to withdraw a guilty plea before sentencing, the defendant has the burden to show good and sufficient cause to support the withdrawal. See Fla. R.Crim. P. 3.170(f); Caddo v. State, 806 So. 2d 520, 521 (Fla. 2d DCA 2001).
The designation of a person as a sexual offender or predator is a collateral consequence of a guilty plea. State v. Partlow, 840 So. 2d 1040 (Fla.2003); Collie v. State, 710 So. 2d 1000, 1008 (Fla. 2d DCA 1998). The failure of the trial court or counsel to advise the defendant of a collateral consequence does not render the plea involuntary and does 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. See Ayers v. State, 831 So. 2d 1260 (Fla. 2d DCA 2002); Snodgrass v. State, 837 So. 2d 507 (Fla. 4th DCA 2003).
Gunn also asserts that when he raised the issue of withdrawing his plea, defense counsel took an adversarial position by refuting Gunn’s claim regarding the videotape. Gunn argues that he should have been provided with conflict-free counsel to represent him on his motion to withdraw plea. We agree. Once a conflict becomes apparent between the defendant and defense counsel during a hearing on the defendant’s motion to withdraw plea, the defendant is without representation and is entitled to the appointment of conflict-free counsel. See Smith v. State, 835 So. 2d 1259 (Fla. 2d DCA 2003); see also Padgett v. State, 743 So. 2d 70, 73 (Fla. 4th DCA 1999).
Accordingly, we reverse the judgment and sentences and remand with instructions that the trial court appoint conflict-free counsel for the purpose of an evidentiary hearing on Gunn’s motion to withdraw his plea.
Reversed and remanded.
NORTHCUTT and SALCINES, JJ., Concur.
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Citator
Cited By (31 total)
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Garcia v. State, 846 So. 2d 660 (Fla. 2d DCA 2003)…adverse to Garcia’s. Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel. See Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003); Jones v. State, 827 So. 2d 1086 (Fla. 1st DCA 2002); Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999). The denial of the constitutional right to assistance of counsel can never be treated as harmless error. Jones, 827 So. 2d a…
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Arlis R. Jones v. State, 846 So. 2d 1224 (Fla. 2d DCA 2003)…teral consequence about which a defendant does not have to be informed, see State v. Partlow, 840 So. 2d 1040 (Fla.2003), Jones may be entitled to relief if his counsel affirmatively misled him about such a collateral consequence. See Gunn v. State, 841 So. 2d 629, 631 (Fla. 2d DCA 2003); Watrous v. State, 793 So. 2d 6, 11 (Fla. 2d DCA 2001). The transcript of the plea hearing attached to the trial court’s order reflects that Jones answered “no” when the court asked him whether anyone had promised him any [*1…
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Brendon John Boule v. State, 884 So. 2d 1023 (Fla. 2d DCA 2004)…re refuted by the plea transcript. The trial court then denied Boule’s motion. Our review of the trial court’s denial of the motion to withdraw plea is for abuse of discretion. Crawley v. State, 851 So. 2d 739, 740 (Fla. 2d DCA 2003); Gunn v. State, 841 So. 2d 629, 631 (Fla. 2d DCA 2003). Because Boule filed his motion after sentencing, it is governed by Florida Rule of Criminal Procedure 3.170(0, which permits a motion to withdraw plea pursuant to the grounds specified in Florida Rule of Appellate Procedure…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Partlow, 840 So. 2d 1040 (Fla. 2003)
- Collie v. State, 710 So. 2d 1000 (Fla. 2d DCA 1998)
- Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999)
- Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001)
- Snodgrass v. State, 837 So. 2d 507 (Fla. 4th DCA 2003)
- Roberti v. State, 782 So. 2d 919 (Fla. 2d DCA 2001)
- Caddo v. State, 806 So. 2d 520 (Fla. 2d DCA 2001)
- Graham v. State, 779 So. 2d 604 (Fla. 2d DCA 2001)
- Walkup v. State, 822 So. 2d 524 (Fla. 2d DCA 2002)
- Smith v. State, 835 So. 2d 1259 (Fla. 2d DCA 2003)