KEVIN JON APPLEGATE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Jon Applegate appealed the summary denial of his motions to withdraw his guilty plea, filed twelve days after sentencing. The trial court erroneously treated the motions as postconviction claims under Rule 3.850 and failed to appoint conflict-free counsel, requiring reversal and remand.
The trial court erred by treating the motions as Rule 3.850 claims when they should have been addressed under Rule 3.170(i), and erred by failing to appoint conflict-free counsel. A defendant is entitled to conflict-free counsel at the critical stage of proceedings involving a motion to withdraw plea under Rule 3.170(i).
[1] A motion to withdraw a plea filed within thirty days of sentencing, alleging trial counsel coercion or ineffectiveness, should be addressed under Florida Rule of Criminal…
[2] A defendant is entitled to conflict-free counsel at the critical stage of proceedings when filing a motion to withdraw a plea.
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“A motion under rule 3.170(i) is "a critical stage of the proceedings at which a defendant is entitled to counsel."”
Establishes that motions to withdraw plea under Rule 3.170(i) are critical stages requiring appointment of counsel.
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Join FLexlaw to unlock all legal intelligenceApplegate entered a plea to various offenses and was sentenced to seven years in prison. Twelve days later, he filed pro se motions to withdraw his pl…
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Kevin Jon Applegate appeals the summary denial of his timely motions to withdraw plea. The trial court erred in treating the motions as ones under Florida Rule of Criminal Procedure 8.850 and in failing to appoint conflict-free counsel to Mr. Applegate. Consequently, we reverse.
Mr. Applegate entered a plea to various offenses. The trial court sentenced him to seven years in prison. Twelve days later, Mr. Applegate filed pro se motions to withdraw his plea. Allegedly, his trial counsel coerced him into taking the plea, his counsel was ineffective, and the relationship with counsel was adversarial.1 He asked for conflict-free counsel and an evidentiary hearing. Because Mr. Applegate alleged deficient performance by his counsel, the trial court treated Mr. Applegate’s motions as postconviction claims under rule 3.850 and summarily denied relief on the merits.
The trial court should have addressed Mr. Applegate’s motions under Florida Rule of Criminal Procedure 3.170(O.2 See Cella v. State, 831 So.2d 716, 717 (Fla. 5th DCA 2002) (holding that rule 3.170(i) was proper vehicle to challenge plea where defendant filed motion claiming defendant did not understand consequences of plea within thirty days of sentence); cf. Murray v. State, 909 So.2d 998, 999 (Fla. 2d DCA 2005) (holding that where motion to withdraw plea filed within thirty days of sentence did not state 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 court must appoint conflict-free counsel to advise and assist the defendant in this regard.’ ” White v. State, 15 So.3d 833, 835 (Fla. 2d DCA 2009) (quoting Smith, 849 So.2d at 485-86). Mr. Applegate was entitled to conflict-free counsel to represent him and to adopt or revise his motions to withdraw. See Council v. State, 9 So.3d 721, 722-23 (Fla. 2d DCA 2009); Newsome v. State, 877 So.2d 938, 939-40 (Fla. 2d DCA 2004) (holding motion to withdraw plea claiming trial 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 *213deny 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 and remand for the trial court to appoint conflict-free counsel and to reconsider the merits of his claims.
Reversed and remanded.
SILBERMAN and CRENSHAW, JJ., Concur.
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Cited By
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Chadwick Kegler v. State, 46 So. 3d 1061 (Fla. 2d DCA 2010)…arial relationship with respect to the defendant’s entry of his plea, the defendant is entitled to the appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea. See also Applegate v. State, 23 So. 3d 211, 212 (Fla. 2d DCA 2009) (noting same); Golden v. State, 987 So. 2d 1279, 1280 (Fla. 2d DCA 2008) (noting same). Here, it became clear that Mr. Kegler and his counsel were in an adversarial relationship when Mr. Kegler made claims about his counsel’…
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Strong v. State, 254 So. 3d 428 (Fla. 4th DCA 2018)
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Jamael Deron Luckett v. State, 56 So. 3d 914 (Fla. 2d DCA 2011)…In this instance, the trial court had jurisdiction to rule on Luckett’s motion, and Luckett raised cognizable claims under Florida Rule of Criminal Procedure 3.170(£). See Kegler v. State, 46 So. 3d 1061, 1062 (Fla. 2d DCA 2010); Applegate v. State, 23 So. 3d 211, 212 (Fla. 2d DCA 2009). And despite being represented by counsel at the time Luckett filed his motion, his pro se pleading could not be stricken as a nullity. See Sheppard v. State, 17 So. 3d 275, 277 (Fla.2009). Likewise, any notice of appeal file…
Authorities Cited
- Vermont Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003)
- Cella v. State, 831 So. 2d 716 (Fla. 5th DCA 2002)
- White v. State, 15 So. 3d 833 (Fla. 2d DCA 2009)
- Meeks v. State, 841 So. 2d 648 (Fla. 2d DCA 2003)
- Cleveland v. Cleveland, 841 So. 2d 648 (Fla. 4th DCA 2003)
- Newsome v. State, 877 So. 2d 938 (Fla. 2d DCA 2004)
- Murray v. State, 909 So. 2d 998 (Fla. 2d DCA 2005)
- Tuhey v. State, 972 So. 2d 1029 (Fla. 4th DCA 2008)
- Dewey M. Council v. State, 9 So. 3d 721 (Fla. 2d DCA 2009)
- Cunningham v. State, 937 So. 2d 1150 (Fla. 2d DCA 2006)