Carmona v. State, 5D03-229.

• Decision Date: 05 March 2004
• Docket Number: No. 5D03-229.,5D03-229.
• Parties: Saul CARMONA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

873 So.2d 348

Saul CARMONA, Appellant, v. STATE of Florida, Appellee.

No. 5D03-229.

District Court of Appeal of Florida, Fifth District.

March 5, 2004.

James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.

TORPY, J.

Appellant challenges the lower court's order that denied his motion to withdraw his pleas to three of the ten counts to which he had entered pleas. Appellant contends that the trial court erred by not appointing conflict-free counsel to represent him during the hearing on his motion. The State confesses error based on our recent decision in Smith v. State, 845 So.2d 937 (Fla. 5th DCA 2003). Notwithstanding the State's confession, because we believe the parties misapprehend our decision in Smith, we affirm.

Immediately prior to the commencement of his trial, Appellant requested a continuance. Following the denial of this last-minute request, Appellant pled guilty in four separate cases to a total of ten separate counts, with the understanding that he would receive concurrent fifteen-year sentences on all cases. He signed written plea forms which provided, among other things, that he was not pressured or forced to enter the pleas. Additionally, the trial judge conducted an extensive colloquy with Appellant during which Appellant, under oath, stated that he was not under the influence of drugs or alcohol, that he fully understood the proceedings, and that he had not been pressured, forced or threatened by anyone prior to entering the pleas. Sentencing was deferred while a pre-sentence investigation was conducted.

When Appellant appeared for sentencing, his attorney advised the court that Appellant wished to withdraw his plea on three of the ten counts. Appellant's attorney stated that Appellant's decision was contrary to his advice because the court would still sentence him to fifteen years on the other seven counts whether or not the court granted Appellant's motion. The court inquired of Appellant who confirmed that this was his wish.

Thereafter, the court placed Appellant under oath and asked him to provide the basis for his request. Appellant's only stated basis was that he desired to go to trial because he was innocent of the three offenses, that he was confused when he entered his pleas, and that he "fe[lt]" his counsel had forced him to plea. No other facts were proffered in support of the motion. During the proceeding, Appellant did not request that his counsel be discharged, nor did counsel suggest the existence of a conflict requiring that he be permitted to withdraw. The trial judge denied Appellant's motion to withdraw his plea.

Appellant argues one point on appeal, that the court erred in not appointing conflict-free counsel. In support of his argument, Appellant relies on our recent decision in Smith. We disagree that Smith compels reversal.¹

In Smith, we held that when a patent conflict of interest arises between counsel and client in a motion to withdraw proceeding, the court has a duty to offer the client conflict-free counsel. In Smith, during a hearing on a motion to withdraw the defendant's plea, counsel interrupted his client for the purpose of controverting his client's rendition of the relevant facts and interjecting his own version of the facts. We held that, under those circumstances, because the conflict between counsel and client was patent, the court had a duty to intercede and offer the defendant the opportunity to seek conflict-free counsel.

In the instant case, there was no patent conflict between counsel and client. Counsel simply told the court that his client wished to withdraw his plea against the advice of counsel. The ensuing brief discourse related only to the wisdom of withdrawing the plea. Counsel never disputed any factual account by Appellant. He merely made clear that, in counsel's opinion, Appellant was acting imprudently because Appellant still would receive fifteen years on the other seven counts, plus would face additional exposure on the three counts that he wished to take to trial. Counsel was not taking a conflicting position with his client. Indeed, he was doing what ethical counsel is supposed to do under these circumstances: giving competent advice.

As to Appellant's statement that he felt forced by his lawyer to enter the plea, again no patent conflict existed. His counsel said nothing to contradict Appellant on this point, perhaps because he knew that no facts existed to support his client's conclusion, or perhaps because he knew the allegations were refuted by the record created when Appellant entered his initial plea. In any event, even assuming that a conflict did in fact exist, which seems unlikely on this record, the conflict was latent, not patent.

After hearing Appellant's stated grounds, the trial court summarily denied the request. The summary denial was correct because, first, Appellant's statement that he "felt" forced was not a sufficient allegation to support a finding of threat or coercion. Second, even if deemed sufficient, Appellant's stated ground was contrary to the facts actually witnessed by the trial judge during the plea proceeding and ensuing plea colloquy. Finally, because the plea to the three offenses was entered at the same time as the other seven to which Appellant did not take issue, Appellant's claim of coercion was inherently disingenuous.

Because the parties were apparently confused by our decision in Smith, we take this opportunity to clarify its holding. Even after Smith, the primary responsibility for alerting the court to potential conflict in situations such as this lies with counsel. It is counsel who knows, through confidential communications, the precise factual basis for a client's request to withdraw a plea. When counsel recognizes that a client's request is not based on legally sufficient evidence, counsel obviously has no duty to withdraw. When counsel becomes aware that his client's version of the facts is legally sufficient to support his client's request for relief, but that counsel's testimony would contradict his client on relevant facts, then counsel is duty-bound to ask for permission to withdraw.

Our opinion should not be read to prohibit a trial judge, when confronted with a situation where conflict might exist, albeit not patent, from inquiring generally of counsel as to whether conflict exists. It is only when conflict becomes obvious, as it did in Smith, however, that the trial judge is obligated to intervene into the attorney-client relationship to offer conflict counsel. Such was clearly not the case here.

AFFIRMED.

GRIFFIN, J., concurs.

SHARP, W., J., dissents with opinion.

SHARP, W., J., dissenting.

I respectfully dissent. I do not think that the State, in conceding error here, "misapprehended" this court's opinion in Smith v. State, 845 So.2d 937 (Fla. 5th DCA 2003), and I submit that the majority opinion narrows and limits the holding of Smith in a confusing way. The majority says Smith requires that there be a "patent" rather than a "latent" conflict of interest between counsel and a defendant, or that the conflict somehow becomes "obvious" before appointment of separate counsel is required. The determination of what is "latent" and what is "patent" has created conflicting decisions and fine distinctions in the civil law area² to such an extent it sometimes no longer makes good sense. Its introduction into the substantive law of a defendant's constitutional right to counsel is unwise.

Carmona stated that he had been forced by his lawyer to enter into the guilty pleas, that he was innocent of three of the charges, and that he wanted to go to trial on those counts. Carmona's attorney said: "It's...