DARRYL SOLOMON HOPE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darryl Solomon Hope appealed the summary denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of counsel based on affirmative misadvice regarding collateral consequences of his plea. The court reversed and remanded because Hope's claim was not time-barred under the Bates analysis, as he alleged learning of the misadvice in October 2002.
The court held that affirmative misadvice regarding even collateral consequences of a plea may form the basis for withdrawing a plea. Hope's claim was not time-barred under the Bates analysis because he alleged learning of the misadvice in October 2002. The case was remanded for an evidentiary hearing on timeliness and the merits of the misadvice claim.
[1] Affirmative misadvice from counsel, even regarding collateral consequences of a plea, may provide a basis for withdrawing the plea.
[2] A claim of ineffective assistance of counsel based on affirmative misadvice regarding sentence-enhancing consequences of a plea may be cognizable.
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“This court has held that affirmative misadvice, regarding even collateral consequences of a plea, may form the basis for withdrawing the plea.”
Establishes the legal principle that counsel's misadvice on collateral consequences, not just direct consequences, can support plea withdrawal and ineffective assistance claims.
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Join FLexlaw to unlock all legal intelligenceHope sought post-conviction relief claiming his trial counsel provided affirmative misadvice regarding consequences of his plea. Hope alleged he did n…
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PER CURIAM.
Darryl Solomon Hope seeks review of the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.
This court has held that affirmative misadvice, regarding even collateral consequences of a plea, may form the basis for withdrawing the plea. Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 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 trial counsel on the sentence-enhancing consequences of a plea is a cognizable ineffective assistance of counsel claim. However, the Supreme Court did not pass on the question posed. Rather, it held that Bates’s claim was time barred. Bates v. State, 887 So. 2d 1214 (Fla.2004).
Hope’s claim is not disposed of by the Bates analysis as he alleged that he did not learn of the misadvice until October 2002. Accordingly, we reverse, in part, and remand for an evidentiary hearing during which time the trial court can address the timeliness issue as well as Hope’s specific claim of trial counsel’s affirmative misadvice. Dickey v. State, 30 Fla. L. Weekly D443, — So. 2d-, 2005 WL 350313 (Fla. 1st DCA Feb. 15, 2005). As to all other grounds raised by Hope, we affirm.
Reversed and Remanded.
GUNTHER, SHAHOOD and HAZOURI, JJ., concur.
PER CURIAM.
We deny appellee’s motion for rehearing, but grant its motion to certify conflict among the districts. 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). But see Dickey v. State, 30 Fla. L. Weekly D443, — So. 2d — (Fla. 1st DCA Feb.15, 2005). Accordingly, as this court did in Smith v. State, 829 So. 2d 940 (Fla. 4th DCA 2002), we certify the following question to be of great public importance:
WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT’S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
GUNTHER, SHAHOOD and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Hope, 957 So. 2d 557 (Fla. 2007)…PER CURIAM. We have for review Hope v. State, 908 So. 2d 507 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict among the district courts on the issue of whether affirmative misadvice by trial counsel on the sentence-enhancing consequences of a plea is a cognizable ineffectiv…
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Hope v. State, 961 So. 2d 994 (Fla. 4th DCA 2007)…PER CURIAM. We withdraw our opinion in Hope v. State, 908 So. 2d 507 (Fla. 4th DCA 2005) and substitute the following: AFFIRMED. State v. Dickey, 928 So. 2d 1193 (Fla.2006). See also Phillips v. State, 960 So. 2d 29 (Fla. 4th DCA 2007). SHAHOOD, C.J., GUNTHER and HAZOURI, JJ., concur.…
Authorities Cited
- Bates v. State, 887 So. 2d 1214 (Fla. 2004)
- Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)
- Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000)
- Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002)
- LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)
- Vrain Scott v. State, 813 So. 2d 1025 (Fla. 3d DCA 2002)
- Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)
- McKOWEN v. State, 831 So. 2d 794 (Fla. 5th DCA 2002)
- Smith v. State, 829 So. 2d 940 (Fla. 4th DCA 2002)