Dickey v. State, Case No. 1D03-2489 (FL 2/15/2005), Case No. 1D03-2489.

• Decision Date: 15 February 2005
• Docket Number: Case No. 1D03-2489.
• Parties: HERBERT DICKEY, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida Supreme Court

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HERBERT DICKEY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 1D03-2489.

District Court of Appeal of Florida, First District.

Opinion filed February 15, 2005.

An appeal from the Circuit Court for Leon County, Kathleen F. Dekker, Judge.

Appellant, pro se.

Charlie Crist, Attorney General, Tallahassee, for Appellee.

DAVIS, J.

In Dickey v. State, 28 Fla. L. Weekly D2108 (Fla. 1st DCA September 5, 2003), this Court per curiam affirmed the trial court's summary denial of appellant's postconviction claims of ineffective assistance of counsel with a citation to this Court's decision in Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002), review granted, 832 So. 2d 103 (Fla. 2002), quashed, 887 So. 2d 1214 (Fla. 2004). In Bates, we certified the question:

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?

818 So. 2d at 626.

Due to the Florida Supreme Court's quashal of our decision in Bates, see 887 So. 2d at 1214, and the continuing importance of the certified question, we sua sponte withdraw our pre-mandate opinion in Dickey, 28 Fla. L. Weekly at D2108, and grant rehearing. We affirm without comment the summary denial of appellant's remaining claims; however, upon further consideration of appellant's timely claim that he entered a plea in reliance on his counsel's mistaken advice that the plea could not be used to enhance a future sentence, we reverse the trial court's summary denial of that claim and remand for an evidentiary hearing.

In 1996, appellant was sentenced to two years' probation on a conviction obtained by the state when appellant pled nolo contendere to charges of criminal mischief and failure to appear. Some time after successfully completing his Florida probation, appellant was convicted of a crime in Alabama, and Alabama enhanced appellant's sentence based upon appellant's 1996 Florida conviction. On May 9, 2001, more than two years after appellant's Florida conviction became final for purposes of 3.850, appellant filed a motion for postconviction relief pursuant to that rule. Among other grounds, appellant alleged to have suffered ineffective assistance of counsel in that his counsel affirmatively misadvised him regarding the potential future sentence enhancement consequences of his plea, which misadvice only surfaced as newly discovered evidence when appellant learned that his Alabama sentence was to be enhanced based upon the Florida conviction. The trial court correctly accepted as timely his claim of newly discovered evidence (which was filed within two years of the discovery of enhancement), reviewed the merits, and then denied relief with a citation to this Court's decision in Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002), quashed, 887 So. 2d 1214 (Fla. 2004).

This Court had received numerous petitions for writs of error coram nobis and untimely 3.850 motions raising this exact claim and asserting timeliness pursuant to Wood v. State,750 So. 2d 592 (Fla. 1999)(providing 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). We therefore decided to per curiam affirm those claims with a citation to our decision in Bates, and we entered separate orders instructing those defendants that they would have until fifteen days after the Supreme Court answered the certified question in which to seek rehearing of this Court's affirmance of the summary denial of their claims. Appellant's claim was one of many to receive this treatment. The Supreme Court accepted review of our decision in Bates, but did not answer the certified question because it determined that our decision as to the timeliness of Bates' claim was incorrect; rather, the Supreme Court quashed this Court's decision and elected not to answer the procedurally barred question. Bates, 887 So. 2d at 1214.

Based on the following, we now answer the question certified affirmatively and hold that 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 certify conflict with the Second, Third, and Fifth Districts, each of which has held that this claim does not entitle a defendant to an evidentiary hearing. See Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002)(acknowledging that affirmative misadvice about collateral consequences can constitute basis for withdrawal of plea, but denying relief on the claim of affirmative misadvice on future sentence enhancement consequences because "unlike other collateral consequences, such as deportation or gain time eligibility, the future sentence-enhancing effects of a guilty plea only apply if the defendant commits a future criminal offense"); Scott v. State, 813 So. 2d 1025, 1026-27 (Fla. 3d DCA 2002)("[T]he defendant is under a legal duty to refrain from committing further crimes. It makes no difference whether the defendant is given correct, or incorrect, advice regarding the possibility of enhanced punishment."); McKowen v. State, 831 So. 2d 794 (Fla. 5th DCA 2002)(denying relief because "[t]o rule otherwise would be to encourage recidivism and frustrate the purpose of the statutory sentencing scheme which enhances sentences based on past criminal behavior"). We align ourselves with the Fourth District, which has held that "[w]hen a defendant enters a plea in reliance on affirmative misadvice and demonstrates that he was thereby prejudiced, the defendant may seek to withdraw the plea even if the misadvice concerns collateral consequences as to which the trial court was under no obligation to advise." Burns v. State, 826 So. 2d 1055, 1056-57 (Fla. 4th DCA 2002)(citing Ghanavati v. State, 820 So. 2d 989, 991 (Fla. 4th DCA 2002); Murphy v. State, 820 So. 2d 375 (Fla. 4th DCA 2002); Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001)).

Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a defendant alleging ineffective assistance of counsel must prove both deficient performance of counsel and prejudice to the defendant. We hold, as a matter of law, that counsel's misadvice regarding the collateral consequence of future sentence enhancement constitutes deficient performance. Deficiency having been established, relief must be afforded if prejudice is shown. Id. Thus, the only remaining question is whether the harm suffered by a defendant who relies on misadvice regarding future sentence enhancement consequences when entering a plea is sufficient to meet the prejudice prong of Strickland.

Future sentence enhancement has been categorized as a collateral consequence of a plea in Florida. See Major v. State, 790 So. 2d 550, 552 (Fla. 3d DCA 2001), aff'd, 814 So. 2d 424 (Fla. 2002). The collateral consequences rule originated in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970), wherein the Supreme Court ruled that a plea of guilty will not be found to be unknowing and involuntary in the absence of proof that the defendant was not advised of, or did not understand, the direct consequences of his plea. (Emphasis added). Accord State v. Leroux, 689 So. 2d 235, 238 (Fla. 1996)(holding that although a trial court's correct advice during the plea colloquy may refute a claim of reliance on counsel's misadvice regarding a direct consequence of a plea, "[i]t is only when the record `conclusively' establishes that the defendant did not rely on the advice of counsel that a summary adjudication will be proper"); State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987)(holding that an attorney is required to advise a defendant of the direct consequences of a plea and will not be found ineffective for failing to advise of collateral consequences of the plea), superseded by rule on other grounds, State v. De Abreu, 613 So. 2d 453 (Fla. 1993). A direct consequence is one which has a "definite, immediate, and largely automatic effect on the range of the defendant's punishment." State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003)(quoting Major, 814 So. 2d at 431). If the consequence does not affect the range of the defendant's punishment, "it is merely a collateral consequence of the plea." Id. at 1043. Included in the category of collateral consequences are such matters as damage to reputation, loss of professional licenses, and loss of certain civil rights, examples of which are the right to vote and the right to own a firearm. See §§ 944.292(1); 790.23; 97.041(2)(b), Fla. Stat. (2004).

Although the Florida Supreme Court initially held that a defendant did not have to be informed by court or counsel of any collateral consequences of a plea and only had to be informed of direct consequences in order for the plea to be considered knowing and voluntary, Ginebra, 511 So. 2d at 962, that holding was superseded by Rule 3.172(c), De Abreu, 613 So. 2d at 453 (Fla. 1993), which now requires that a defendant be informed by the trial court of the potential deportation consequences of his plea. See Partlow, 840 So. 2d at 1042-43. Also, the Florida Supreme Court mandated that a defendant who pleads guilty to a crime that subjects him to a potential habitual felony offender sentence must be told that habitualization could affect the possibility of early release. See State v. Wilson, 658 So. 2d 521 (Fla. 1995); Ashley v. State, 614 So. 2d 486, 490 n. 8 (Fla. 1993).

Nonetheless, despite the fact that failure to advise as to collateral consequences cannot constitute ineffective assistance of counsel, "[t]he law is well settled that if a defendant enters a plea in reasonable reliance on his attorney's advice, which...