THARIN R. HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harvey appeals his conviction and sentences after pleading no contest to three felonies, arguing that the trial court erred in denying his request for conflict-free counsel when he sought to withdraw his plea before sentencing. The court reversed, holding that when a defendant seeks to withdraw a plea based on dissatisfaction with counsel and counsel agrees it cannot effectively advise the defendant, conflict-free counsel must be appointed.
When a defendant seeks to withdraw his plea prior to sentencing based on dissatisfaction with counsel's representation, and counsel agrees that it cannot effectively advise the defendant, a conflict of interest exists and appointment of conflict-free counsel is necessary.
[1] When a defendant seeks to withdraw a plea prior to sentencing based on dissatisfaction with counsel's representation, and counsel agrees that they cannot effectively advi…
[2] A defendant's request to withdraw a plea prior to sentencing, coupled with counsel's acknowledgment of an inability to effectively advise on withdrawal options, creates a…
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Join FLexlaw to unlock all legal intelligence“when a defendant seeks to withdraw his plea prior to sentencing, based on dissatisfaction with counsel's representation, and counsel agrees that he cannot effectively advise the defendant, there is a conflict and appointment of conflict-free counsel is necessary”
States the legal rule that the court applied to overturn the trial court's denial of conflict-free counsel
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Join FLexlaw to unlock all legal intelligenceHarvey entered a plea of no contest pursuant to a plea agreement to violation of probation, felony driving while license suspended (habitual), and giv…
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Appellant, Tharin Harvey [“Harvey”], appeals the judgments and sentences imposed after he entered a plea of no contest to violation of probation, felony driving while license suspended (habitual) and giving a false name or identification, pursuant to a plea agreement.
Prior to the start of the sentencing hearing, Harvey’s counsel informed the court that Harvey wished to withdraw his plea and asked the court to appoint conflict-free counsel. The following exchange took *1267place between Harvey’s lawyer and the court:
Defense Counsel: [Harvey] contacted me and I spoke to him as of yesterday and he’s informed me that he’d like to pursue withdrawing his plea.
The Court: Okay.
Defense Counsel: He believes there’s certain issues that he’d like to pursue as far as withdrawing his plea and—
The Court: Okay.
Defense Counsel: — obviously, I’m not in a situation to pursue those issues. I informed [Harvey] that would just put him back to square one facing the charges.
The Court: Does he have any idea about what possible grounds he would have for withdrawing his plea?
Defense Counsel: Your Honor, I — I don’t know that there are any grounds. Obviously, the problem is I’m a bit limited in my ability to counsel — or, I’m not — I’m limited in my ability to counsel [Harvey] on that.
The Court: Well, I — I don’t know what you’re asking me to do.
Defense Counsel: Your Honor, I’m asking the Court to appoint the conflict free counsel so that [Harvey] can speak to them regarding his options regarding trying to withdraw his plea. I’ve informed [Harvey] of that—
The Court: That just doesn’t make any sense to me. That would mean that any time anybody wants to enter a plea and they come to sentencing and get cold feet, they just say: Well, I want the Government to pay — pay me — pay for another lawyer to give me legal advice so that I can file a Motion that probably has no merit; why would I do that?
Defense Counsel: Your Honor, I — I just — It’s my understanding that it’s [sic] current case law that when somebody has that issue that we — we need to get them counsel.
The trial court reiterated that Harvey had sworn at the plea hearing that he understood the plea agreement and that he wished to enter the plea. Accordingly, the trial court denied the request for conflict-free counsel and sentenced Harvey.
We understand the trial court’s frustration at the probable waste and futility that the appointment of conflict-free counsel entails in a case such as this. Nevertheless, when a defendant seeks to withdraw his plea prior to sentencing, based on dissatisfaction with counsel’s representation, and counsel agrees that he cannot effectively advise the defendant, there is a conflict and appointment of conflict-free counsel is necessary. See Rouse v. State, 990 So.2d 1197 (Fla. 5th DCA 2008).
REVERSED and REMANDED.
PALMER, C.J. and SAWAYA, J., concur.
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Citator
Cited By
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Lopez v. State, 192 So. 3d 708 (Fla. 5th DCA 2016)…o sentencing, Lopez filed a pro-se motion to withdraw his plea, alleging that his public defender had coerced him into entering the plea. Lopez was entitled to appointment of conflict-free counsel for the hearing on that motion. See Harvey v. State, 4 So. 3d 1266, 1267 (Fla. 5th DCA 2009). REVERSED and REMANDED for a new hearing on the motion to withdraw plea. COHEN, WALLIS and LAMBERT, JJ., concur.…
Authorities Cited
- Rouse v. State, 990 So. 2d 1197 (Fla. 5th DCA 2008)