JOSEPH H. VARS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that trial counsel has a duty to advise a defendant about habitual felony offender sentencing enhancement eligibility even before the State files a notice of intent to seek it.
Appellant sought post-conviction relief, alleging ineffective assistance of counsel for failing to advise him of habitual felony offender (HFO) senten…
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Appellant, Joseph Vars, challenges a trial court order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. In his rule 3.850 motion, Vars alleged, inter alia, ineffective assistance of trial counsel for failing to advise him that he qualified for habitual felony offender (HFO) sentencing enhancement, and for failing to advise him what the enhancement would be when he was entertaining the first of two plea offers from the State.1 At that time, the State had not yet filed a notice of intent to seek the HFO sentence enhancement. Vars rejected the original plea offer of five years in prison, electing to proceed to trial. Sometime thereafter, the State filed a notice of intent to seek an HFO sentence, which prompted Vars to accept a plea offer of seven years in prison.
Against this factual backdrop, the trial court conducted an evidentiary hearing on Vars’ claim. Ultimately, the trial court denied the claim, concluding that counsel had no duty to ascertain whether Vars qualified for HFO sentencing enhancement before the State had filed its notice of intent to seek it. This was error. See Lester v. State, 15 So.3d 728, 731 (Fla. 4th DCA 2009).
We therefore reverse the trial court’s order denying Vars’ motion for post-conviction relief, and remand for the trial court to reconvene the evidentiary hearing on the motion from the point prior to entry of the order on appeal. Nothing in this opinion shall be construed to prohibit the defendant and the State from engaging in further plea negotiations.
Reversed and Remanded for Further Proceedings.
WARNER, POLEN and DAMOORGIAN, JJ., concur.
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KEY v. State (Fla. 4th DCA 2023)…the potential range of penalties he will face at trial, including his exposure based on lesser-included offenses, when he is weighing whether to accept a plea offer. Louima v. State, 247 So. 3d 564, 566 (Fla. 4th DCA 2018); see also Vars v. State, 50 So. 3d 1202, 1203 (Fla. 4th DCA 2010) (counsel has a duty to determine whether the defendant qualifies for enhanced sentencing even if the state has not yet filed a notice of intent to seek enhanced sentencing). Here, it is undisputed that counsel told Key he…
Authorities Cited
- Ward v. State, 19 So. 3d 1060 (Fla. 5th DCA 2009)
- Lester v. State, 15 So. 3d 728 (Fla. 4th DCA 2009)