Bates v. State

• Decision Date: 06 June 2002
• Docket Number: No. 1D01-1149.,1D01-1149.
• Citation: 818 So.2d 626
• Parties: Gerald Lynn BATES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

818 So.2d 626

Gerald Lynn BATES, Appellant, v. STATE of Florida, Appellee.

No. 1D01-1149.

District Court of Appeal of Florida, First District.

June 6, 2002.

Gerald Lynn Bates, pro se, for Appellant.

Robert A. Butterworth, Attorney General, and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Gerald Lynn Bates (Appellant) appeals the order summarily denying his motion for post-conviction relief filed pursuant to Wood v. State, 750 So.2d 592 (Fla.1999) (providing that all defendants previously adjudicated would have two years from issuance date of May 27, 1999, in which to file rule 3.850 motions raising claims traditionally cognizable under coram nobis). In his motion, Appellant alleged that he was entitled to withdraw his plea pursuant to Wood because his trial counsel affirmatively misinformed him of the future sentence-enhancing consequences of his plea and because his trial counsel was ineffective by failing to file a motion to suppress. We affirm on the motion to suppress claim. We also affirm on the affirmative misadvice claim but certify a question of great public importance.

On September 7, 1999, Appellant filed a Petition for Writ of Error Coram Nobis, seeking to have his 1990 conviction vacated. The trial court construed the petition as a Motion for Post-conviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant alleged that he entered a plea of guilty to one count of constructive possession of cocaine on January 23, 1990, and was sentenced to 69 days in jail, with credit for 69 days served, to be followed by 12 months' probation, with early termination upon payment of court costs. His probation was terminated on February 7, 1991. He was subsequently convicted of an undisclosed felony in 1994, and his 1990 conviction and sentence was used as a predicate offense to habitualize him. In his motion, Appellant alleged as his first ground for relief that his trial counsel misadvised him on the future sentencing-enhancing consequences of his plea. He contended that upon questioning his counsel about the ramifications of his plea, his counsel assured him that his offense could never be used against him and that convictions for possession of controlled substances were excluded from use as a prior offense in the habitual offender statutes. He further alleged that he would not have entered a plea but would have proceeded to trial had he been advised of the possible future sentence-enhancing consequences of his plea. As his second ground for relief, Appellant alleged that his trial counsel failed to file a motion to suppress as requested by Appellant. Appellant further alleged that had the motion to suppress been filed, he would have prevailed on the motion, and had he prevailed on the motion, he would have ultimately prevailed in the case.

The trial court found that the motion was untimely under Wood and summarily denied Appellant's motion. The trial court concluded that Appellant had failed to demonstrate that the facts upon which his motion was based were unknown to the trial court, counsel or himself or that these facts could not have been known by them through due diligence. The trial court further found that the failure of trial counsel to file a suppression motion was not a claim "traditionally cognizable in coram nobis" and that Appellant's claim of ineffective assistance of counsel for failure to file a motion to suppress was precluded based on Appellant's guilty plea.

We agree with the trial court that Appellant's claim of ineffective assistance of counsel for failing to file a motion to suppress was not a claim traditionally cognizable in coram nobis, and thus, Appellant is not entitled to the two-year window in Wood. As stated in Hallman v. State, 371 So.2d 482 (Fla.1979)¹, and reiterated in Wood:

The function of a writ of error coram nobis is to correct errors of fact, not errors of law. The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.

371 So.2d at 485 (citations omitted). The due diligence requirement associated with petitions for writ of error coram nobis applies in the context of rule 3.850 motions brought under Wood. See Wood, 750 So.2d at 595. Thus, a petition for writ of error coram nobis cannot involve facts which were or should have been known at the time of the error. In the case at bar, Appellant affirmatively stated in his petition for relief that he knew, at the time of his plea, of the facts which gave rise to filing a motion to suppress. Therefore, because Appellant knew at the time of his plea the facts giving rise to this claim, Appellant's claim is not cognizable in coram nobis. Accordingly, we affirm the trial court's denial of Appellant's claim relating to his counsel's failure to file a motion to suppress.

However, the trial court erred in finding that Appellant's claim of affirmative misadvice was untimely under Wood. Wood provided that all defendants previously adjudicated would have two years from May 27, 1999, in which to file rule 3.850 motions raising claims traditionally cognizable under coram nobis. Here, Appellant was not in custody on the conviction he now challenges when he learned that counsel misadvised him, and so relief was unavailable to him under rule 3.850 as it contained a requirement, until Wood, that the movant be in custody. In fact, Appellant was never in custody for two years under his initial conviction and his motion filed on September 7, 1999, was filed within the two-year filing window under Wood. More importantly, the facts giving rise to Appellant's misadvice claim were unknown at the time he entered his plea. Therefore, Appellant's claim was timely under Wood.² Thus, we disagree with the trial court's rationale in summarily denying Appellant's claim of misadvise.

Although we disagree with the trial court's rationale in summarily denying Appellant's claim of misadvice, we affirm the trial court's ultimate decision to deny relief on Appellant's claim of misadvice on the future sentence-enhancing consequences of his plea. We note that this Court has long held that neither the trial court nor trial counsel must advise a defendant of possible subsequent enhancement for a plea to be valid. See Rosemond v. State, 433 So.2d 635 (Fla. 1st DCA 1983). Moreover, trial counsel need only advise Appellant of the direct consequences of his plea. See Fla. R.Crim. P. 3.172.³ In affirming on this issue, we follow the Third District Court of Appeal's reasoning in Rhodes v. State, 701 So.2d 388 (Fla. 3d DCA 1997), which contains facts similar to the instant case. In Rhodes, the appellant claimed that he entered a guilty plea based on his counsel's misadvice that his drug possession conviction could not be used to enhance any future federal or state sentence. Id. at 388. The Third District held that Rhodes was not entitled to an evidentiary hearing on his affirmative misadvice claim because to do so would encourage recidivism. Id. at 389.⁴

Future possible sentence-enhancement is a collateral consequence, not a direct consequence. As stated in Rhodes, warning of future possible sentence enhancement is too attenuated at the time of the initial sentencing. To allow a defendant to withdraw his plea under such circumstances could also be viewed as inviting a defendant's recidivism: "don't plead guilty, if you're planning on committing future crimes, because your conviction of this offense might be used to increase your punishment for future offenses." Lewis v. United States, 902 F.2d 576, 577 (7th Cir. 1990). Such a warning would be premature as the defendant may or may not commit any future offenses, and counsel can not accurately predict a defendant's criminal proclivities and warn them of each possible future consequence of a plea. Furthermore, the purpose of enhancement statutes is to punish and deter recidivism. See United States v. Mejias, 47 F.3d 401, 404 (11th Cir.1995). To allow Bates to withdraw his plea based on affirmative misadvice of counsel concerning future sentence-enhancing consequences of his plea would frustrate this purpose.

The dissent relies on State v. Leroux, 689 So.2d 235 (Fla.1996), and the line of cases following it, to suggest that Appellant should be entitled to an evidentiary hearing on his claim to withdraw his plea. However, the present case can be distinguished from Leroux. In Leroux, the defendant filed a rule 3.850 motion alleging that his trial counsel's advice as to the estimated time of his release based on entitlement to gain time credits constituted ineffective assistance of counsel. The supreme court reiterated that the courts have long held that "a defendant may be entitled to withdraw a plea entered in reliance upon his attorney's mistaken advice about sentencing." Id. at 237. Thus, the supreme court held that Leroux was entitled to an evidentiary hearing unless the record conclusively refuted the defendant's allegations. Id.

Leroux focused on misadvice by counsel concerning the original sentencing. That is, the consequences of the plea complained of in Leroux were known quantities (or could have been discovered) at the time of the sentencing. Here, Bates' future criminal activity was unknown (or could not have been known with absolute certainty). Enhancement depended on whether Bates decided to commit another crime in the future; it is a contingency that may or may not occur. Leroux and the line of cases following Leroux deal with effects of the plea that are certain at the time of sentencing. Therefore, these cases are distinguishable from the instant case.

We conclude that the Appellant was not entitled to an evidentiary hearing on the voluntariness of his plea where his plea was entered on the alleged misadvice of his defense counsel as to the potential for...