Bates v. State

• Decision Date: 21 October 2004
• Docket Number: No. SC02-1481.,SC02-1481.
• Citation: 887 So.2d 1214
• Parties: Gerald Lynn BATES, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

887 So.2d 1214

Gerald Lynn BATES, Petitioner, v. STATE of Florida, Respondent.

No. SC02-1481.

Supreme Court of Florida.

October 21, 2004.

Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief Criminal Appeals, Trisha E. Meggs, Assistant Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, FL, for Respondent.

PER CURIAM.

We review Bates v. State, 818 So.2d 626, 631 (Fla. 1st DCA 2002), which certified the following question to be of great public importance:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT'S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. However, we do not answer the certified question because we find that Bates' petition for writ of error coram nobis was untimely and is procedurally barred.

The district court's opinion sets forth the following material facts:

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.

Bates, 818 So.2d at 627-28. The district court held, based upon Wood v. State, 750 So.2d 592 (Fla.1999), that the trial court erred in finding that Bates' claim of affirmative misadvice was untimely. The district court held:

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.

Bates, 818 So.2d at 628-29. We do not agree. The district court's decision conflicts with this Court's decision in Lawson v. State, 231 So.2d 205, 206 (Fla.1970), and errs in holding that this Court's decision in Wood applies to Bates' petition for a writ of error coram nobis.

The district court's specific error was in construing the "in custody" provision in Florida Rule of Criminal Procedure 3.850 to mean Bates being "in custody on the conviction he now challenges." The provision in rule 3.850 prior to the amendment to the rule in Wood was a "prisoner in custody under sentence of a court established by the laws of Florida." Fla. R.Crim. P. 3.850(a) (1993). This was the rule which was in effect in 1994, when Bates was taken into custody, convicted of a felony, and sentenced to prison as a habitual offender. Bates remained in custody under the habitual offender sentence from 1994 through the date he filed his petition for a writ of error coram nobis in 1999.

We construed the "in custody" requirement of rule 3.850¹ in Lawson, where the issue was whether a person "in custody" for a subsequent crime could attack a conviction for which the person had been paroled. We held that "[a] prisoner serving consecutive sentences is `in custody' under any one of [the sentences] for purposes of Rule 1.850, Florida Rules of Criminal Procedure." Id. at 207. In so holding we receded from Fretwell v. Wainwright, 185 So.2d 701 (Fla.1966), in which the Court had held that a defendant in custody for one crime could not attack a conviction for which he was not presently in custody.

Subsequent to Lawson, the "in custody" requirement of the rule was held by the district courts to cover a prisoner's postconviction attack of a conviction for which the prisoner was not at that time in custody when the person was at the time "in custody" for a sentence by a Florida court that was enhanced by the prior conviction. In Weir v. State, 319 So.2d 80, 81 (Fla. 2d DCA 1975), the court held:

The customary vehicle for post-conviction relief is Rule 3.850, [Fla. R.Crim. P.]. By its terms, this rule is applicable only to persons in custody. The custody required by the rule need not be under the sentence being attacked where the movant contends the sentence he is serving was enhanced by the conviction he seeks to have set aside.

Similar holdings by the district courts are in Howarth v. State, 673 So.2d 580 (Fla. 5th DCA 1996); McArthur v. State, 597 So.2d 406 (Fla. 1st DCA 1992); and Lawrence v. State, 404 So.2d 1129 (Fla. 3d DCA 1981).

Howarth presented a factual situation similar to Bates. In 1987, Howarth had entered pleas of guilty to felony charges. When Howarth later was convicted of another felony, the 1987 convictions were used to qualify him as a habitual offender. After Howarth was sentenced as a habitual offender, he filed a petition for a writ of error coram nobis, contending that his 1987 conviction should be vacated. The trial court treated the petition as a motion for postconviction relief under rule 3.850 and denied the motion as time-barred. The district court affirmed, stating:

We note initially that the trial court's decision to treat Mr. Howarth's petition as a motion for post-conviction relief under rule 3.850 was correct. Rule 3.850 has, to a large extent, supplanted the writ of error coram nobis remedy. Error coram nobis is now available only to defendants challenging the validity of sentences for which they are no longer in custody. See Richardson v. State, 546 So.2d 1037 (Fla.1989)

. But if a defendant's prior conviction is used to enhance a current sentence, the defendant is considered to be in custody for purposes of post-conviction relief. See Bannister v. State, 606 So.2d 1247 (Fla. 5th DCA 1992). See also Duenas v. State, 636 So.2d 549 (Fla. 2d DCA 1994); McArthur v. State, 597 So.2d 406 (Fla. 1st DCA 1992). Since Mr. Howarth is challenging the validity of his 1987 convictions in an effort to avoid enhancement of his current sentence, he is in custody for purposes of post-conviction review. Thus, his petition was properly considered under rule 3.850.

673 So.2d at 582. This holding is consistent with our decision in Lawson.

The "in custody" requirement under rule 3.850 was not the issue we considered in our Wood decision. Rather, in Wood, we expressly noted what we had held in Richardson v. State, 546 So.2d 1037, 1039 (Fla.1989): "We believe the only currently viable use for the writ of error coram nobis is where the defendant is no longer in custody...." Richardson was consistent with our earlier decision in Lawson and with the district courts' decisions in Weir, McArthur, and Lawrence. At the time of his petition, Richardson was "in custody," serving a life sentence without the possibility of parole. We denied Richardson leave to file a petition for writ of error coram nobis, stating that Richardson's newly discovered evidence claims had to be brought in accord with rule 3.850.

In Richardson, we did recognize that there was a continued limited use for the writ of error coram nobis for prisoners "no longer in custody." The conflict that we considered in Wood was a conflict between the Third District Court of Appeal and the First District Court of Appeal as to whether there was a two-year limitation for the bringing of a petition for writ of error coram nobis which had the limited use we had recognized in Richardson. The First District in Wood v. State, 698 So.2d 293, 294 (Fla. 1st DCA 1997),quashed,750 So.2d 592 (Fla.1999), held that the same two-year limitation which applied to a rule 3.850 motion applied to a petition for writ of error coram nobis.² The First District certified conflict with Malcolm v. State, 605 So.2d 945 (Fla. 3d DCA 1992), in which the Third District held that a petition for writ of error coram nobis is not subject to the two-year limitation.³

In Wood, we accepted that Wood was "no longer in custody" so that Wood, unlike Richardson, could file a petition for writ of error coram nobis. We then held that for such petitions there was not a two-year limitation, as there was for motions filed pursuant to rule 3.850. We further held that this type of remaining petition for writ of error coram nobis, which had been recognized in Richardson, should be brought within the two-year limitation that rule 3.850 required. We amended rule 3.850 to include these petitions and provided a two-year window for defe...