ANTHONY SCIPPIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a habitual offender sentence for possession of a controlled substance with intent to sell is illegal, and that the defendant was entitled to conflict-free counsel for his motion to withdraw his plea.
[1] A habitual offender sentence for possession of a controlled substance with intent to sell is illegal.
[2] A defendant is entitled to relief from an illegal habitual offender sentence even if the sentence was agreed to as part of a plea agreement.
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Join FLexlaw to unlock all legal intelligenceAppellant pled guilty to sale and possession of cocaine near a school and was sentenced as a habitual offender. He appealed the habitual offender sent…
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BROWNING, J.
Appellant pled guilty to sale of cocaine within 1,000 feet of a school and possession of cocaine with intent to sell within 1,000 feet of a school, and was sentenced in accordance with his agreement to serve 14 years of incarceration as a habitual offender. Appellant now alleges that the trial court erred in sentencing him as a habitual offender as to the second count, and that the trial court erred in denying his motion to withdraw his plea. We reverse.
The state concedes the first issue, and correctly so, because a habitual offender sentence on possession of a controlled substance with intent to sell is illegal. See, e.g., § 775.084(1)(a)3, Fla. Stat. (2000); Peterson v. State, 743 So. 2d 1134, 1135 (Fla. 1st DCA 1999). Appellant is entitled to relief despite the fact that he agreed to habitualization as part of his plea. See Bover v. State, 797 So. 2d 1246 (Fla.2001).
Appellant’s second issue also requires reversal. Appellant had the right to conflict-free counsel to argue his motion to withdraw plea. See Lester v. State, 820 So. 2d 1078 (Fla. 1st DCA 2002); Wofford v. State, 819 So. 2d 891 (Fla. 1st DCA 2002). Here, it is clear from the record that Appellant had a conflict with his counsel insofar as his motion to withdraw plea was concerned; thus, the trial court erred in failing to appoint conflict-free counsel to represent Appellant. See Bullard v. State, — So. 2d -, 2003 WL 22002696 (Fla. 1st DCA Aug.26, 2003); Jones v. State, 827 So. 2d 1086 (Fla. 1st DCA 2002).
Accordingly, we REVERSE the sentence and the order denying the motion to withdraw the plea, and REMAND for re-sentencing. Should the state not agree to resentencing, Appellant may withdraw his plea and the matter, including all charges filed against Appellant, shall proceed to trial. Should the state agree to resentencing, Appellant may, after appointment of conflict-iree counsel, present his motion for withdrawal of plea for disposition. See Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000).
BENTON and PADOVANO, JJ., CONCUR.
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Citator
Cited By
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Sheppard v. State, 17 So. 3d 275 (Fla. 2009)…ate, 990 So. 2d 1197 (Fla. 5th DCA 2008) (holding that trial court erred in failing to appoint conflict-free counsel and summarily denying motion after defendant alleged, in part, that counsel pressured him into entering the plea); Scippio v. State, 855 So. 2d 202, 203 (Fla. 1st DCA 2003) (“[I]t is clear from the record that Appellant had a conflict with his counsel insofar as his motion to withdraw plea was concerned; thus, the trial court erred in failing to appoint conflict-free counsel to represent Appell…
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Williams v. State, 959 So. 2d 830 (Fla. 4th DCA 2007)…3 (Fla. 2d DCA 2005) (“A motion to withdraw plea filed pursuant to rule 3.170 is a critical stage of the proceedings in the trial court, and a defendant is entitled to be present at the hearing on his motion.”) (citations omitted); Scippio v. State, 855 So. 2d 202, 203 (Fla. 1st DCA 2003) (“A defendant has the right to conflict-free counsel to argue his motion to withdraw plea.”). We therefore reverse Williams’ convictions and remand for further proceedings in the trial court. Upon remand, conflict-free cou…
Authorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Wofford v. State, 819 So. 2d 891 (Fla. 1st DCA 2002)
- Elmario Clay v. State, 750 So. 2d 153 (Fla. 1st DCA 2000)
- Lester v. State, 820 So. 2d 1078 (Fla. 1st DCA 2002)
- Jones v. State, 827 So. 2d 1086 (Fla. 1st DCA 2002)
- Nakia Lee Baker v. State, 743 So. 2d 1134 (Fla. 4th DCA 1999)
- Zackery Shabazz Peterson v. State, 743 So. 2d 1134 (Fla. 1st DCA 1999)