Brazeail v. State, 1D02-0763.

• Decision Date: 09 July 2002
• Docket Number: No. 1D02-0763.,1D02-0763.
• Citation: 821 So.2d 364
• Parties: Thomas E. BRAZEAIL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

821 So.2d 364

Thomas E. BRAZEAIL, Appellant, v. STATE of Florida, Appellee.

No. 1D02-0763.

District Court of Appeal of Florida, First District.

July 9, 2002.

Pro se, Appellant.

Robert A. Butterworth, Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.

ALLEN, C.J.

The appellant challenges the order by which the trial court summarily denied his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Concluding that the appellant's motion sets forth a colorable claim for relief on the theory that his trial attorney misadvised him as to the amount of time he would have to serve before becoming eligible for release, and concluding further that the attachments to the order do not conclusively refute this colorable claim, we reverse the trial court's summary denial of the claim. Because the appellant's remaining claims do not set forth a colorable basis for relief, we otherwise affirm the order under review.

The appellant entered a plea of guilty to various offenses and received a negotiated prison sentence of seven years. He thereafter filed a 3.850 motion in which he alleged that his plea had not been voluntarily, knowingly, and intelligently entered because his counsel had incorrectly advised him that he would be eligible for release after serving no more than four years of his sentence. He further alleged that he would not have entered the plea if he had known that under section 944.275(4), Florida Statutes, he would have to serve at least 85 percent of his seven-year sentence. Without conducting a hearing on the motion, the trial court denied the appellant's request that his plea, judgment, and sentence be vacated.

The threshold issue for our determination is whether the appellant alleged a colorable basis for relief. Some courts would take the view that the appellant's motion does not set forth a colorable claim because the appellant does not make further factual allegations that there is a reasonable probability that the ultimate outcome of the prosecution would have been more favorable for him had he not entered the plea. Apparently relying upon their understanding of the opinion in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), a decision involving the Sixth Amendment right to effective assistance of counsel, those courts would require the appellant to allege further facts indicating that, had the plea not been entered, there was a reasonable probability of acquittal, conviction of a lesser offense, or a more advantageous plea offer. For example, Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988), Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991), and Maples v. State, 804 So.2d 599 (Fla. 5th DCA 2002), appear to hold that, in order to state a facially sufficient claim in a case such as this, the defendant must allege that he had a "viable defense" in addition to an allegation that, but for the ineffective assistance of counsel, he would not have entered his plea of guilty or nolo contendere. Noting apparent conflict with these decisions, we conclude that such additional factual allegations are not required.

Separate and apart from any Sixth Amendment considerations, the appellant's claim is colorable under decisional law of this state relating to the requirement that pleas be voluntarily and knowingly entered. The law of Florida has long recognized that a plea of guilty or nolo contendere may be vacated when the defendant has entered his plea as a result of mistaken advice by defense counsel as to the consequences of a plea. See, e.g., Brown v. State, 92 Fla. 592, 109 So. 627 (1926); Crosby v. State, 97 So.2d 181 (Fla. 1957); Brown v. State, 245 So.2d 41 (Fla. 1971); Costello v. State, 260 So.2d 198 (Fla.1972); Thompson v. State, 351 So.2d 701 (Fla.1977); State v. Leroux, 689 So.2d 235 (Fla.1996); Banks v. State, 136 So.2d 25 (Fla. 1st DCA 1962); Eccleston v. State, 706 So.2d 368 (Fla. 1st DCA 1998). These decisions were not founded on a theory of ineffectiveness of counsel. Indeed, all but Leroux and Eccleston were decided before the decisions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the United States Supreme Court first articulated a comprehensive conception of the meaning of ineffective assistance of counsel. The issue under the Florida decisions is not whether the defense counsel has blundered in some manner. The issue is instead whether the plea was entered because of mistaken information given to the defendant regarding the consequences of his plea, regardless of the source of the misinformation. As compelling evidence of this, several of the Florida decisions rely upon cases in which the sources of the mistaken information were persons other than defense counsel, including judges, prosecutors, and law enforcement officers. As the court wrote in Costello

Guilty pleas are voided where judges or prosecutors actually promise defendants they will be given lesser sentences than they in fact receive. We do not believe the result should be different when a defendant has a reasonable basis for relying upon his attorney's mistaken advice that the judge will be lenient. The effect upon the defendant is the same; in each case he exchanges his constitutional right to a jury trial for a promise of leniency.

260 So.2d at 201 (citations omitted). And none of the Florida decisions suggests that a defendant must allege facts demonstrating a reasonable likelihood of success at trial in order to be relieved of an involuntary or uninformed plea of guilty or nolo contendere. As succinctly articulated in the above-quoted language from Costello, the Florida cases recognize prejudice in these circumstances simply because a defendant has been deprived of his constitutional right to a trial. Cf. State v. Seraphin, 818 So.2d 485 (Fla.2002); Peart v. State, 756 So.2d 42 (Fla.2000).

Because the appellant's allegations in the present case clearly state a colorable basis for relief under the theory recognized by the Florida cases cited above, we are not required to determine whether the appellant has also stated a basis for relief on a theory of ineffective assistance of counsel. Nevertheless, we conclude that he has.

In Strickland v. Washington the United States Supreme Court adopted a two-part standard for evaluating Sixth Amendment claims of ineffective assistance of counsel. The Court held that "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-688, 104 S.Ct. 2052. The Court also held, however, that "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

Hill v. Lockhart applied the Strickland, v. Washington test to a situation in which a convicted defendant sought to withdraw his plea of guilty as not having been voluntarily and knowingly entered because he had been erroneously advised by his counsel regarding when he would become eligible for parole under the negotiated sentence. The court summed up its holding as follows:

We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)], and McMann v. Richardson, supra [397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)]. The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

474 U.S. at 58-59, 106 S.Ct. 366. The Court concluded that Hill's allegations were insufficient to satisfy the Strickland v. Washington prejudice requirement because he "did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial." Id. at 60, 106 S.Ct. 366.

The appellant in the present case has sufficiently pled the performance prong of Strickland and Hill. If the appellant's allegations are true, his counsel made a two-year error in predicting the number of years the appellant would be required to serve before he would be eligible for release, an error that could have been avoided by a simple reading of the relevant gain-time statute. This reflects attorney performance falling measurably below an objective standard of reasonably effective assistance of counsel.

The appellant has also sufficiently pled the prejudice prong of Strickland and Hill. Unlike the petitioner in Hill, the appellant in the present case specifically swore that if he had been accurately advised as to how long he would be in prison before he would be eligible for release, he would not have entered his plea of guilty. This is a sufficient allegation of prejudice, and, together with the allegations of deficient performance, satisfies the Hill requirements for alleging a colorable claim for relief.

As the Court explained in Hill, the "prejudice" requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." 474 U.S. at 59, 106 S.Ct. 366 (emphasis added). And the Court further elaborated that, in order to show prejudice, "the defendant must show that there is...