LOUIS JEFFERY HOGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis Jeffrey Hoggs appealed the denial of his Rule 3.850 ineffective assistance of counsel motion, claiming his trial counsel misadvised him about sentencing. The Fifth District Court of Appeal affirmed the trial court's summary denial, holding that Hoggs's motion was legally insufficient because he failed to allege he would have gone to trial as an alternative and failed to allege a viable defense.
The court affirmed the summary denial of Hoggs's Rule 3.850 motion because it was legally insufficient. Hoggs failed to allege that but for counsel's advice he would have gone to trial (the only viable alternative to pleading guilty), and he failed to allege a viable defense. The expired plea offer was not available to him and could not form the basis for ineffective assistance of counsel.
[1] A defendant claiming ineffective assistance of counsel based on counsel's advice regarding a plea must allege that but for the advice, the defendant would have gone to tr…
[2] A defendant seeking to withdraw a guilty plea due to ineffective assistance of counsel must allege that he had a viable defense.
Previewing 2 of 4 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“At no point has he indicated that he would have gone to trial as the alternative to entry of a no contest plea.”
Establishes that Hoggs failed to meet the Hill v. Lockhart requirement of alleging he would have gone to trial but for counsel's advice
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Join FLexlaw to unlock all legal intelligenceHoggs was charged with two counts of sale of cocaine and had previously been offered a plea bargain of nine years in exchange for guilty pleas to both…
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MONACO, J.
Louis Jeffrey Hoggs appeals the summary denial by the trial court of his Rule 3.850 motion. Mr. Hoggs asserts that his trial counsel was ineffective for failing to properly advise him regarding the length of the sentence to which he was subject. We affirm because his motion is legally insufficient.
Mr. Hoggs was charged with two counts of sale of cocaine. He had been offered a plea bargain amounting to nine years of imprisonment in exchange for guilty pleas to both, but the offer had long expired by the time the alleged ineffective actions of counsel occurred. He originally intended to plead guilty to one of the counts and to go to trial on the other. He asserts, however, that his attorney advised him to enter a “straight up” plea to the count to be tried, suggesting that it was in his best interest to do so, rather than to plead to one count and go to trial with respect to the second count. The maximum sentence faced by the appellant was 30 years imprisonment. Mr. Hoggs alleges that his attorney told him shortly before trial that if he pled to both counts, he would likely only receive nine years, as had previously been offered by the state. He then pled to both counts, but was sentenced to eighteen years incarceration.
Mr. Hoggs claims that his plea was involuntary as it was induced by the misad-vice of counsel. There are two things wrong with his position. First, he does not allege, as he must, that but for his counsel’s advice, he would have gone to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Harris v. State, 801 So. 2d 973 (Fla. 2d DCA 2001). Instead, he suggests that but for his counsel’s advice, he would have accepted the state’s plea offer of nine years. The plea offer, however, had expired six months before he received the advice he now questions, and was not available to him. In fact, the plea offer expired before conflict counsel whose advice he questions was even appointed. At no point has he indicated that he would have gone to trial as the alternative to entry of a no contest plea.
Secondly, Mr. Hoggs failed to allege that he had á viable defense. We have held on a number of occasions that such an allegation is a prerequisite to seeking withdrawal of a guilty plea or a plea of no contest due to ineffective assistance of counsel. See Grosvenor v. State, 816 So. 2d 822 (Fla. 5th DCA), review granted, 826 So. 2d 992 (Fla.2002)(certifying conflict with Cousino v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000), and Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999); see also Gould v. State, 826 So. 2d 1101 (Fla. 5th DCA 2002); Maples v. State, 804 So. 2d 599 (Fla. 5th DCA 2002).
AFFIRMED.
SHARP, W. and TORPY, JJ., concur.
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Cited By
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Lucious Stringer v. State, 876 So. 2d 1263 (Fla. 4th DCA 2004)…without prejudice to appellant’s right to file a timely and verified motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging involuntary plea and/or ineffective assistance of trial counsel. See Hoggs v. State, 857 So. 2d 358 (Fla. 5th DCA 2003); Harris v. State, 801 So. 2d 973 (Fla. 2d DCA 2001). STONE, POLEN and KLEIN, JJ., concur.…
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Alexander v. State, 895 So. 2d 1148 (Fla. 5th DCA 2005)…-year sentence because of gain time eligibility, and if trial counsel had not failed to advise him that he would incur a mandatory ten-year term for armed robbery. The trial court found Alexander’s motion legally insufficient under Hoggs v. State, 857 So. 2d 358 (Fla. 5th DCA 2003). In Hoggs, this court denied post-conviction relief based on a claim of ineffective assistance of counsel because the defendant failed to allege that, “but for counsel’s advice, he would have proceeded to trial.” In the instant c…
Authorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)
- Delawrence Newberry v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000)
- Cousino v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000)
- Grosvenor v. State, 816 So. 2d 822 (Fla. 5th DCA 2002)
- Harris v. State, 801 So. 2d 973 (Fla. 2d DCA 2001)
- Izeal Acker v. State, 804 So. 2d 599 (Fla. 1st DCA 2002)
- Maples v. State, 804 So. 2d 599 (Fla. 5th DCA 2002)
- Gould v. State, 826 So. 2d 1101 (Fla. 5th DCA 2002)
- Brown v. State, 826 So. 2d 1101 (Fla. 5th DCA 2002)