CHRISTOPHER CUNNINGHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Cunningham appealed the denial of his motion to withdraw a guilty plea and the partial denial of a motion to correct a sentencing error. The court reversed the denial of the motion to withdraw the plea because Cunningham was denied his right to counsel at the hearing, despite having counsel represent him throughout the proceedings.
A motion to withdraw a plea is a critical stage of proceedings at which a defendant is entitled to counsel. Because Cunningham had counsel file the motion on his behalf and counsel had not been discharged from representation, Cunningham was entitled to counsel at the hearing. The trial court's order on the motion to correct a sentencing error was affirmed without prejudice to any right Cunningham may have to challenge the habitual offender enhancement in a timely filed rule 3.850 motion.
[1] A motion to withdraw a plea under Florida Rule of Criminal Procedure 3.170(i) is a critical stage of proceedings at which a defendant is entitled to counsel.
[2] A defendant is entitled to counsel at a hearing on a motion to withdraw a plea when counsel has not been discharged from representation.
Previewing 2 of 3 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“A motion to withdraw plea pursuant to rule 3.170(Z) is a critical stage of the proceedings at which a defendant is entitled to counsel.”
Establishes the legal standard that counsel is required at motion to withdraw plea hearings
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Join FLexlaw to unlock all legal intelligenceCunningham filed motions to withdraw his plea and to correct a sentencing error. Two identical motions titled 'DEFENDANT'S PRO SE MOTION TO WITHDRAW P…
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SILBERMAN, Judge.
Christopher Cunningham appeals the denial of his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(i) and the denial, in part, of his motion to correct a sentencing error filed pursuant to rule 3.800(b). Because Cunningham was entitled , to have counsel assist him at the hearing on the motion to withdraw plea, we reverse and remand for a new hearing on that motion. We affirm the trial court’s order on the motion to correct a sentencing error without prejudice to any right Cunningham may have to challenge the trial court’s imposition of a habitual offender enhancement in a timely filed rule 3.850 motion. See Williams v. State, 821 So. 2d 1267, 1268-69 (Fla. 2d DCA 2002).
A motion to withdraw plea pursuant to rule 3.170(Z) is a critical stage of the proceedings at which a defendant is entitled to counsel. Smith v. State, 849 So. 2d 485, 486 (Fla. 2d DCA 2003); Meeks v. State, 841 So. 2d 648, 648 (Fla. 2d DCA 2003). Cunningham was not represented by counsel at the hearing on his motion to withdraw plea, and the State acknowledged that it had not provided the public defender’s office with notice of the hearing because it believed Cunningham was not represented.
Nothing in the record reflects that Cunningham’s counsel had sought to withdraw from representation or that counsel had been discharged from representation. Although two identical motions titled “DEFENDANT’S PRO SE MOTION TO WITHDRAW PLEAS” were filed on Cunningham’s behalf, the first paragraph of each motion states that the motion is being filed by “[t]he Defendant, CHRISTOPHER CUNNINGHAM, by and through his undersigned counsel.” Also, Cunningham’s counsel, an assistant public defender, signed both motions.1 Because Cunningham’s counsel filed a timely motion to withdraw pleas on Cunningham’s behalf, and because counsel had not been discharged from representation as of the time of the hearing on the motion, we reverse and remand with directions that the trial court appoint counsel to represent Cunningham and conduct a new hearing on the motion to withdraw pleas.
Affirmed in part, reversed in part, and remanded with directions.
CASANUEVA and SALCINES, JJ„ Concur. . We note that Cunningham signed a handwritten document titled "Motion to Vacate Judgment and Sentence" that his counsel attached to the first motion to withdraw pleas. To the extent that document constitutes a pro se motion to withdraw plea, it would generally be treated as a nullity and stricken because it was filed when Cunningham was represented by counsel and did not contain an unequivocal request to discharge counsel. See Mourra v. State, 884 So. 2d 316, 321 (Fla. 2d DCA), review denied, 891 So. 2d 552 (Fla.2004).
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Applegate v. State, 23 So. 3d 211 (Fla. 2d DCA 2009)…whether it was filed pursuant to rule 3.170(Z) or rule 3.850, court erred in disposing of it under rule 3.850). A motion under rule 3.170(i) is “a critical stage of the proceedings at which a defendant is entitled to counsel.” Cunningham v. State, 937 So. 2d 1150, 1151 (Fla. 2d DCA 2006) (citing Smith v. State, 849 So. 2d 485, 486 (Fla. 2d DCA 2003); Meeks v. State, 841 So. 2d 648, 648 (Fla. 2d DCA 2003)). “ ‘[O]nce a defendant indicates his desire to avail himself of the rule 3.170(0 procedure, the trial co…
Authorities Cited
- Bennie Frank Smith v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)
- Kasim McDONALD v. State, 884 So. 2d 316 (Fla. 2d DCA 2004)
- Vermont Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003)
- Lovell Williams, Jr. v. State, 821 So. 2d 1267 (Fla. 2d DCA 2002)
- Meeks v. State, 841 So. 2d 648 (Fla. 2d DCA 2003)
- Cleveland v. Cleveland, 841 So. 2d 648 (Fla. 4th DCA 2003)