MARTIN COLOMBO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martin Colombo appeals the trial court's summary denial of his postconviction motion alleging ineffective assistance of counsel. The appellate court reverses and remands, finding that Colombo stated a facially sufficient claim that his attorney provided affirmative misadvice regarding the Jimmy Ryce Act's applicability to his guilty plea.
The court held that affirmative misadvice of counsel regarding collateral consequences of a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea. Colombo stated a facially sufficient claim under the Strickland standard, and the trial court erred in summarily denying his motion without attaching portions of the record that conclusively refuted his claim.
[1] Affirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel.
[2] Civil commitment of sexual predators is considered a collateral consequence of entering a plea to a qualifying offense.
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Join FLexlaw to unlock all legal intelligence“To state a facially sufficient claim of ineffective assistance of counsel, appellant's burden was to demonstrate that his counsel's performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different.”
Establishes the Strickland standard applicable to ineffective assistance claims
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Join FLexlaw to unlock all legal intelligenceFollowing a guilty plea, Colombo was sentenced to 15 months in prison for lewd and lascivious molestation. Colombo alleged that his defense attorney a…
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PER CURIAM.
Appellant seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, and remand for further proceedings.
Following a guilty plea, appellant was sentenced to 15 months in prison for lewd and lascivious molestation. In his rule 3.850 motion, appellant alleged that he received ineffective assistance of counsel when his defense attorney advised him that his plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act.
To state a facially sufficient claim of ineffective assistance of counsel, appellant’s burden was to demonstrate that his counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So. 2d 52, 61 (Fla.2003); Cherry v. State, 659 So. 2d 1069, 1072 (Fla.1995); Betts v. State, 792 So. 2d 589, 589-90 (Fla. 1st DCA 2001). Appellant met his burden by stating that he was given affirmative misadvice that entering a plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act and that, but for this misadvice, he would not have entered his plea.
The trial court denied the motion, stating that appellant’s attorney was not required to inform appellant of the collateral consequences of the plea, including the application of the Jimmy Ryce Act. However, affirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea. See, e.g., State v. Sallato, 519 So. 2d 605 (Fla.1988) (remanding to the trial court to determine whether the appellant was given misadvice about the effect his guilty plea would have on becoming a United States citizen); Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001) (remanding to the trial court to determine whether the appellant was given affirmative misadvice that after his plea he would be released on time already served). Furthermore, civil commitment of sexual predators is considered a collateral consequence of entering a plea to a qualifying offense. See Watrous, 793 So. 2d at 8-10.
Because appellant stated a facially sufficient claim of ineffective assistance of counsel and the trial court denied the motion without attaching portions of the record that conclusively refuted the claim, we reverse the summary denial of appellant’s motion. On remand, should the trial court elect again summarily to deny appellant’s claim, it shall attach to its order those portions of the record that demonstrate conclusively that appellant’s claim is without merit; otherwise, it shall hold an evidentiary hearing.
REVERSED and REMANDED, with directions.
WEBSTER, BENTON, and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008)…tions regarding collateral matters, then it would be prudent to include some mention of the collateral issue in the plea agreement or discuss any understanding the defendant has regarding collateral issues on the record. See, e.g., Colombo v. State, 972 So. 2d 1101 (Fla. 1st DCA 2008) (remanding for further proceedings on a claim that counsel affirmatively misadvised the movant that a plea would not subject him to civil commitment under the Jimmy Ryce Act). The time limit for bringing a rule 3.850 motion cann…
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Luedtke v. State, 6 So. 3d 653 (Fla. 2d DCA 2009)…vise his or her client that the State “probably” would opt not to bring such proceedings against him after he completed his six-year term of imprisonment. The quick advice given to Mr. Luedtke at the plea hearing was misadvice. See Colombo v. State, 972 So. 2d 1101, 1102 (Fla. 1st DCA 2008) (holding defendant’s claim of affirmative misadvice regarding consequences under the Jimmy Ryce Act established facially sufficient claim of ineffective assistance of counsel). Moreover, the trial court erred in assuming t…
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Douglas v. State, 67 So. 3d 1119 (Fla. 1st DCA 2011)…under ‘medium risk’ classification.” He alleges that but for this misadviee, he would have rejected the plea and insisted on going to trial. This claim is facially sufficient and is properly raised in a post-conviction motion. See Colombo v. State, 972 So. 2d 1101, 1102 (Fla. 1st DCA 2008) (“[Ajffirmative misadviee of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea”). In ground two, Appellant asserts…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Cherry v. State, 659 So. 2d 1069 (Fla. 1995)
- Dusty Ray Spencer v. State, 842 So. 2d 52 (Fla. 2003)
- Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001)
- State v. Sallato, 519 So. 2d 605 (Fla. 1988)
- Betts v. State, 792 So. 2d 589 (Fla. 1st DCA 2001)