Cordes v. State, 2D01-3369.

• Decision Date: 22 January 2003
• Docket Number: No. 2D01-3369.,2D01-3369.
• Citation: 842 So.2d 874
• Parties: Michael A. CORDES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

842 So.2d 874

Michael A. CORDES, Appellant, v. STATE of Florida, Appellee.

No. 2D01-3369.

District Court of Appeal of Florida, Second District.

January 22, 2003.

James Marion Moorman, Public Defender, and Raymond Dix, Assistant Public Defender, Bartow, for Appellant.

Charlie Crist, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Michael Cordes appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which was entered after an evidentiary hearing. The motion alleged that counsel was ineffective in advising Mr. Cordes to enter a plea of no contest to five felony charges.¹ We conclude that the appeal is timely and that we have jurisdiction. We reverse because Mr. Cordes established that his counsel was ineffective in advising him to enter the plea and this advice prejudiced Mr. Cordes.

Mr. Cordes was charged by an information filed on February 13, 1998, with six offenses. The counts alleged the following crimes occurred on the specified dates: count 1, driving while license suspended on October 24, 1997; count 2, felony unauthorized possession of a driver's license on October 24, 1997; count 3, forgery of a driver's license form on July 7, 1992; count 4, forgery of a driver's license form on April 24, 1990; count 5, false statement in application for a driver's license on July 7, 1992; and count 6, false statement in application for a driver's license on April 24, 1990. Although the first count was a misdemeanor, counts 2 through 6 were charged as felony offenses. On June 3, 1998, relying on his counsel's advice, Mr. Cordes entered an open plea of no contest to all of the charges.

Thereafter, Mr. Cordes filed a timely motion for postconviction relief, alleging that his counsel was ineffective for failing to investigate and advise him of the defense of statute of limitations for four of the felony charges. At an evidentiary hearing on this claim, it was undisputed that the statute of limitations would have barred Mr. Cordes' convictions for counts 4 and 6. See § 775.15(2)(b), Fla. Stat. (1989) (requiring prosecution for second— and third-degree felonies to commence within three years). As to counts 3 and 5, there was dispute as to whether the statute of limitations may have been extended by section 775.15(3)(a), Florida Statutes (1989), which allows the statute of limitations to be extended to as much as six years when fraud is a material element of the offense. However, section 775.15(3)(a) only permits the limitations period to extend to one year after the discovery of the offense by the "aggrieved party," and it was unclear when these offenses were "discovered."

In addition, during this hearing the State discovered that count 2, which had been charged as a felony, was properly a misdemeanor charge given the type of violation that had occurred. On its own initiative, the State agreed to have the court vacate the conviction on count 2, and the State then dismissed this charge. Therefore, this count is no longer at issue and Mr. Cordes faces only the four potential felony convictions at issue in his motion for postconviction relief.

At the conclusion of the evidentiary hearing, the trial court denied Mr. Cordes' motion for postconviction relief. The trial court held that the issues were waived when Mr. Cordes entered his plea.

Mr. Cordes did not waive his claim for ineffective assistance of counsel when he entered his plea. See Jenrette v. State, 761 So.2d 414 (Fla. 2d DCA 2000) (citing Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998)). Moreover, Mr. Cordes established his counsel was ineffective for failing to investigate or pursue a defense of statute of limitations prior to advising Mr. Cordes to enter a plea of no contest to these four charges.

To prove a claim for ineffective assistance of counsel, a defendant must establish both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test established by Strickland applies to requests to withdraw pleas based upon allegations of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). However, in such cases, the "prejudice prong" of Strickland...