FRANK ORTIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2017-08-16
No. 3D17-0966
Before EMAS, FERNANDEZ and LUCK, JJ.
227 So. 3d 682 Florida District Court of Appeal, Third District (2017) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

Trial counsel is not constitutionally ineffective for failing to advise a defendant about collateral consequences of a plea, absent misinformation or misadvice.


Headnotes

[1] Defense counsel is not required to advise a defendant about potential post-sentencing reductions in prison time absent misadvice or misinformation.

[2] A defendant must allege prejudice flowing from counsel's failure to present mitigating evidence when the defendant was sentenced according to a bargained-for plea agreeme…

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

Facts & Procedural History

Appellant sought post-conviction relief, claiming his trial counsel was ineffective for not advising him about the gain time and conditional release c…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
LUCK, J.

LUCK, J.

In trial court case numbers 04-916 and 05-28921B, as a result of a February 2016 negotiated plea, appellant Frank Ortiz was sentenced to seventy-three months in state prison for violating his probation after testing positive for using a controlled substance.1 In his motion for post-conviction *684relief pursuant to Florida Rule of Criminal Procedure 3.850(a), Ortiz claimed his trial counsel was constitutionally ineffective because he: (1) did not advise Ortiz about the gain time and conditional release consequences of his plea; and (2) did not present mitigating evidence at the sentencing hearing. Ortiz appeals the trial court’s summary denial of his post-conviction motion. We affirm.

Ortiz, first, claims that his trial counsel was ineffective because he failed to advise that Ortiz would be subject to forfeiture of gain time and the conditional release program as a consequence of the negotiated plea. “Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea. ... [N]either the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.” State v. Rodriguez, 990 So.2d 600, 606-07 (Fla. 3d DCA 2008) (quotation omitted). As we have explained:

While there exists case law affording a defendant relief based on misinformation with respect to a plea, we have found no cases which require that defense counsel advise a defendant of all possible reductions in prison time for which he may be entitled and, furthermore, there is no requirement that a defendant be given a specifically quantified amount of time that he is expected to serve in prison.

Id. Post-conviction “relief is not warranted,” that is, “where counsel merely fails to inform a client about the various ramifications of gain time as opposed to volunteering incorrect information.” Henderson v. State, 626 So.2d 310, 311 (Fla. 3d DCA 1993). Here, Ortiz alleged only that his trial counsel failed to advise him of the gain time and conditional release consequences of his plea; he did not allege that trial counsel gave him incorrect advice. This makes all the difference because absent misadvise or misinformation trial counsel is not required to advise a defendant about potential post-sentencing reductions in his prison time. Ortiz’s trial counsel did not provide ineffective assistance in failing to advise Ortiz about the collateral gain time and conditional release consequences of the negotiated plea.

Ortiz, also, claims that his trial counsel was ineffective because he did not introduce mitigating evidence at his sentencing hearing about his education, drug treatment, employment, and mental illness. We considered a similar claim in Callaway v. State, 202 So.3d 901 (Fla. 3d DCA 2016). There, the defendant claimed his trial court was ineffective for waiving a presentence evaluation, which would have had information about the defendant’s background, without the defendant’s knowledge or consent. Id. at 902, 904-05. We affirmed the trial court’s denial of this claim because

Callaway has not alleged, and the record does not demonstrate, any prejudice flowing from the failure to request a presentence investigation where Calla-way was sentenced according to a plea agreement he bargained for, rather than as a result of a trial or an open plea to the court and a sentencing hearing where the trial court is asked to consider aggravating and mitigating circumstances when determining what sentence to impose after a finding of guilt.

Id. at 905. Here, too, Ortiz was sentenced as part of a negotiated plea rather than as part of an open plea or after a trial where the trial court would consider aggravating *685and mitigating circumstances. Ortiz was not prejudiced by the failure to investigate and introduce mitigating evidence because he was given exactly what he bargained for. Mitigating evidence introduced by his trial counsel, therefore, would not have affected the outcome.

The trial court properly denied Ortiz’s motion for post-conviction relief.

Affirmed.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Brown v. State, 268 So. 3d 177 (Fla. 4th DCA 2019)
  • Nikhil Sen Sharma v. State, 246 So. 3d 1271 (Fla. 5th DCA 2018)
    …PER CURIAM. AFFIRMED. See Ortiz v. State , 227 So. 3d 682, 684 (Fla. 3d DCA 2017) ; Callaway v. State , 202 So. 3d 901, 905 (Fla. 3d DCA 2016). PALMER, LAMBERT and EISNAUGLE, JJ., concur.…
  • Koppe v. State (Fla. 5th DCA 2023)
    …tate, 268 So. 3d 177, 179 (Fla. 4th DCA 2019) (“[F]orfeiture of gain time is a collateral consequence, and . . . neither the circuit court nor counsel was required to forewarn the defendant about that collateral consequence.” (citing Ortiz v. State, 227 So. 3d 682, 684 (Fla. 3d DCA 2017))); State v. Rodriguez, 990 So. 2d 600, 606–07 (Fla. 3d DCA 2008) (“[T]here is no requirement that a defendant be given a specifically quantified amount of time that he is expected to serve in prison.”). LAMBERT, C.J., MAKA…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw