GLENN TUHEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to appointed counsel to assist in filing a motion to withdraw a plea within the 30-day window, even if the initial motion is facially insufficient.
Defendant pleaded no contest to several charges and later moved pro se to withdraw his plea, requesting appointed counsel. The trial court found the m…
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FARMER, J.
Tuhey entered a plea of no contest to battery on a detainee, trafficking in cocaine and violating probation. He was represented by counsel at the plea. But soon after entering his plea, he moved pro se to withdraw the plea, saying that it was “by far” not in his best interests. Critical to our purposes, he requested that counsel be appointed for the matter. The trial court found the motion facially insufficient because it lacked any factual allegations or reasons for withdrawing a plea. At the same time, the court denied an appointment of counsel. He appeals. We reverse.
Rule 3.170(i) allows a defendant to withdraw a plea on specified grounds if motion is made, as here, within 30 days of entering the plea. Tuhey concedes that his motion is facially insufficient but argues that it was the very reason he sought the appointment of counsel to aid him in the effort so his motion would be sufficient. In Schriber v. State, 959 So. 2d 1254 (Fla. 4th DCA 2007), we said:
“the thirty-day window provided in Rule 3.170(Z) is a critical stage of the criminal proceedings and it would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.”
959 So. 2d at 1257. Our opinion in Schriber did not restrict appointment of counsel only to situations where defendant alleges that a plea was instigated through misrepresentation, coercion or duress by defense counsel, as the State here argues. Nor did the court do so in Holifield v. State, 717 So. 2d 69 (Fla. 1st DCA 1998). It was error for the court to deny appointment of counsel to assist defendant in the critical stage of seeking to withdraw a plea timely under rule 3.170(£). On remand, the court can sort out whether defendant qualifies for representation by the Public Defender. Reversed.
KLEIN and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Applegate v. State, 23 So. 3d 211 (Fla. 2d DCA 2009)…ial counsel coercion and deficient performance alleged permissible rule 3.170(i) ground to withdraw plea and was facially sufficient to warrant a hearing with defendant present and counsel to represent him); Smith, 849 So. 2d at 486; Tuhey v. State, 972 So. 2d 1029, 1030 (Fla. 4th DCA 2008) (holding it was error for court to [*213] deny appointment of counsel to assist in preparation of facially sufficient motion to withdraw plea). We reverse the order summarily denying Mr. Applegate’s rule 3.170(7) motions a…
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Dewey M. Council v. State, 9 So. 3d 721 (Fla. 2d DCA 2009)…1 (Fla. 2d DCA 2003). Accordingly, the trial court should have appointed conflict-free counsel to represent Mr. Council and to adopt or revise [*723] the motion, which was drafted by a lawyer with whom Mr. Council had a conflict. See Tuhey v. State, 972 So. 2d 1029, 1030 (Fla. 4th DCA 2008) (holding defendant entitled to appointment of conflict-free counsel to assist with preparation of facially sufficient motion to withdraw plea). The trial court also observed that the plea form and the plea colloquy refuted…
Authorities Cited
- Schriber v. State, 959 So. 2d 1254 (Fla. 4th DCA 2007)
- Wadie Michael Holifield v. State, 717 So. 2d 69 (Fla. 1st DCA 1998)