Costello v. State

• Decision Date: 01 March 1972
• Docket Number: No. 39995,39995
• Citation: 260 So.2d 198
• Parties: Michael Vincent COSTELLO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 198

260 So.2d 198

Michael Vincent COSTELLO, Appellant, v. STATE of Florida, Appellee.

No. 39995.

Supreme Court of Florida.

March 1, 1972.

Rehearing Denied April 27, 1972.

Tobias Simon, Miami, for appellant.

Robert L. Shevin, Attorney General, and Ronald W. Sabo, Asst. Atty. Gen., for appellee.

ERVIN, Justice.

This is an appeal from a death sentence imposed by a circuit court judge after the defendant, Costello, entered a plea of guilty generally to murder. He was represented by two court-appointed attorneys during the proceedings before the judge, and they initiated this appeal. Costello subsequently filed a motion to dismiss these lawyers; it was granted by this Court. He later requested that he be represented by the counsel above named, which was granted, who presented arguments and briefs in his behalf.

Costello was charged with first degree murder; he voluntarily made two statements in which he admitted the killing. The day of his scheduled jury trial, he appeared in court with counsel and requested permission to change his plea of 'not guilty' to one of 'guilty generally.' Following extensive questioning of the defendant ¹ the judge agreed to let him enter the plea. The judge then heard testimony and examined evidence to determine the degree of murder of which Costello was guilty. Two days later the judge adjudicated him guilty of murder in the first degree. Following a pre-sentence investigation, the judge imposed the death sentence.

At a post-conviction hearing, and on appeal here, Costello contended, among other things, that the guilty plea was made only because the night before the trial one of his attorneys told him the judge would not impose the death sentence if he entered such a plea. ² The attorney filed an affidavit with the trial court at the post-conviction hearing in which he admitted so advising the defendant. ³

At the hearing, the Judge stated, 'I have never said I do not believe in capital punishment. Nor would I expressly say 'if the State would not recommend it. '' The State Attorney said that he told the defense lawyer 'that I would not recommend mercy if the defendant pled guilty to first degree murder or any other crime, and on the other hand, I would not recommend the death sentence if he pled guilty. In other words, it was my position that my office would stand mute before the court with reference to any recommendation concerning the defendant.' The judge denied all motions.

Costello raises seven points on appeal. The one concerning the guilty plea is the only issue which must be discussed in this opinion.

Costello contends the trial judge erred in denying his post-conviction motion for leave to withdraw the guilty plea and motion to allow an immediate trial because he was under a misapprehension at the time he entered the plea. While trial judges have the discretion to deny such motions, appellate courts may order a jury trial if they feel such discretion has been abused. (Artigas v. State, 1939, 140 Fla. 671, 192 So. 795.)

Guilty pleas are permitted under the Florida Rules of Criminal Procedure (Rule 3.170 F.R.C.P., 33 F.S.A.). Courts may not, however, 'accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.' (Rule 3.170(a) F.R.C.P.) This Court has held that to be voluntary, a plea must be made 'by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance.' (Pope v. State, 1908, 56 Fla. 81, 47 So. 487, 488.) Voluntariness has traditionally been determined by judicial questioning of the defendant.

The trial judge in this case carefully questioned Costello prior to accepting the guilty plea, and the record shows a sincere attempt on his part to determine whether it was being entered into freely and voluntarily. Costello stated unequivocally that it was. The trial judge was so convinced. Without the attorney's affidavit, we would share that conviction.

The affidavit, however, shows that the night before the plea was made, Costello's court-appointed attorney indicated the judge would not impose the death sentence. The answers Costello gave the next day seem to be perfunctory responses by a boy who knew he would not be electrocuted.

Guilty pleas are voided where judges or prosecutors actually promise defendants they will be given lesser sentences than they in fact receive. (Reddick v. State, Fla.App.1966, 190 So.2d 340, cert. denied, Fla.1967, 199 So.2d 99.) 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. (See particularly, Brown v. State, Fla.1971, 245 So.2d 41.) 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. We agree with the United States District Court for the Southern District of New York, which said:

'A clearcut statement by defense counsel that the District Attorney has made a promise, or an ambiguous remark to which the defendant gives the same meaning, has much the same psychological effect on the defendant as a promise by the District Attorney. The effect may be greater since the defendant is likely to place more trust in his own attorney than in a member of the prosecutor's staff.' (United States ex rel. Thurmond v. Mancusi, 1967, 275 F.Supp. 508, 517.)

And when the attorney has been appointed by the court, the defendant is especially justified in believing his promises of judicial leniency; such a lawyer is unquestionably a vital arm of the court, and a defendant has every right to believe him when he says he is speaking for the judge.

We conclude that under the particular facts in this case the defendant did not freely enter the guilty plea. It was entered because he placed his trust in a courtappointed attorney who apparently led him to believe the trial judge would not impose a death sentence if he pleaded guilty.

We warn other disgruntled defendants, however, that ordinarily we will not void a guilty plea entered into by one who swears it is voluntarily made. Defendants who plead guilty and are given a stiffer sentence than they anticipated cannot automatically expect to receive another try at a lighter sentence. It is not enough for a defendant to argue that he was under an impression that a promise of a lesser penalty had been made by the judge or prosecutor. A reasonable basis for such an impression must be shown. One was shown here by court-appointed counsel's affidavit.

Had the trial judge in this case questioned the defense lawyer, the misunderstanding about the death penalty could have come to light before the plea was accepted. We quote with approval Pleas of Guilty Standard 1.5, The American Bar Association Standards for the Administration of Criminal Justice, and express our hope that the trial judges of this State will consider utilizing it:

'The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether any other promises or threats were used to obtain the plea.' (Emphasis supplied.)

And, finally, we remind the defense bar of the tremendous burden placed upon it; defense attorneys must be careful when advising their clients to plead guilty. The problems confronting such lawyers were discussed recently by the Supreme Court of Minnesota, which said:

'In a criminal case, one decision which must ultimately belong to a client, with certain prominent exceptions, is what plea to enter. A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Tentative Draft 1970) § 5.2(a). In making this decision the accused should have the carefully informed advice of his lawyer. The advice rendered to the client in the plea-making decision must reflect a professionally considered assessment of the client's predicament. However, in advising his client under such circumstances, the lawyer must be careful not to misstate or misrepresent the facts in a manner which could unfairly persuade one to enter a plea of guilty. The general rule governing a lawyer's conduct as it relates to the accused's decision with respect to his plea is set forth in A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Tentative Draft 1970) § 5.1(b), as follows:

"(b) It is unprofessional conduct for a lawyer intentionally to understate of overstate the risks, hazards or prospects of the case to exert undue influence on the accused's decision as to his plea." (Olness v. State, 1971, 290 Minn. 198, 186 N.W.2d 706, 709.)

Ordinarily under circumstances such as these, as we have reiterated hereinbefore, a plea of guilty is allowed to be withdrawn and a new trial ordered. However, it is our alternative view that in this particular case because of the nature of Appellant's attack on his death sentence and his admissions in connection therewith the trial court may in lieu of a new trial accept the plea of guilty in the context it was submitted and sentence Appellant to life imprisonment. In other words, a new trial may be ordered or a sentence of life imprisonment may be entered as the trial judge deems appropriate.

We reverse and remand to the trial court for disposition not inconsistent with this opinion.

It is so ordered.

CARLTON, McCAIN and DEKLE, JJ.,...