Flores-Vega v. State
| Decision Date | 13 November 2009 |
| Docket Number | No. 2D08-3529.,2D08-3529. |
| Parties | Samuel FLORES-VEGA, a/k/a Samuel F. Vega, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Samuel Flores-Vega, pro se.
Samuel Flores-Vega appeals the summary denial of all four grounds contained in his motion for postconviction relief filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without discussion the postconviction court's denial of claim three, but we reverse as to all other grounds and remand for further proceedings.
Mr. Flores-Vega had five separate cases pending before the circuit court. In accordance with a plea agreement, he entered admissions to violating his probation in two of these cases and nolo contendere pleas in the remaining three cases. The current appeal concerns only the three cases in which Mr. Flores-Vega pleaded nolo contendere.
In case number CF06-009006-XX, Mr. Flores-Vega was charged with burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, four counts of robbery with a firearm, and three counts of attempted armed robbery. Mr. Flores-Vega entered a nolo contendere plea to the three counts of attempted armed robbery in exchange for the State's agreement to nolle pros the remaining charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to three concurrent terms of fifteen years' imprisonment.
In case number CF06-009040-XX, Mr. Flores-Vega was charged with burglary of a dwelling and third-degree grand theft. Mr. Flores-Vega entered a nolo contendere plea to all charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to concurrent terms of fifteen years' imprisonment for the burglary and five years' imprisonment for the grand theft.
In case number CF06-009097-XX, Mr. Flores-Vega was charged with burglary of a conveyance and third-degree grand theft. Mr. Flores-Vega entered a nolo contendere plea to all charges. He was adjudicated guilty and was sentenced as a prison releasee reoffender to two concurrent terms of five years' imprisonment.
The judgments and sentences for these three cases were rendered on April 16, 2007. The charging documents are not part of the record. Mr. Flores-Vega stipulated to the factual basis, and no description of the facts is detailed in the transcript of the change of plea hearing. The sentences in all five cases were designated to run concurrently with each other.
Mr. Flores-Vega did not appeal his judgments and sentences. On April 7, 2008, Mr. Flores-Vega filed a motion for postconviction relief raising four grounds. The postconviction court summarily denied the motion. We will consider grounds one, two, and four separately below.
In ground one of his motion, Mr. Flores-Vega alleged that his trial counsel was ineffective for failing to inform him about available defenses to the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, robbery with a firearm, attempted armed robbery, and burglary of a dwelling.
Mr. Flores-Vega claimed that his counsel failed to tell him that he could defend against the charges of burglary of a dwelling with an assault or battery while armed with a firearm, attempted felony murder, and robbery with a firearm. The allegations in Mr. Flores-Vega's motion indicate that the State might not have been able to prove these charges. The postconviction court denied ground one with regard to these charges because the charges were nolle prossed and Mr. Flores-Vega was not convicted of them. For this reason, the postconviction court concluded that he could not show prejudice. We disagree. The plea form indicates that Mr. Flores-Vega was facing a life sentence on each of these charges. If the State could not present sufficient evidence to support convictions for these charges, the maximum penalty he faced was fifteen years' imprisonment instead of life imprisonment. Under these circumstances, it is likely that Mr. Flores-Vegas would have rejected a plea agreement where he would be sentenced to fifteen years' imprisonment in exchange for his plea.
Mr. Flores-Vega also claims that counsel did not tell him that he could defend the charges of attempted armed robbery on the ground that the victims could not identify what he had attempted to take.1 With regard to the charge of burglary of a dwelling, Mr. Flores-Vega contends that counsel did not tell him he could argue that he did not enter the dwelling with the intent to commit an offense.
The postconviction court summarily denied ground one with regard to the charges of attempted armed robbery and burglary of a dwelling because it was "simply a creative attempt at arguing the sufficiency of the evidence inappropriately couched in terms of ineffective assistance of counsel." However, this court reversed the summary denial of a similar claim where the defendant alleged that counsel was ineffective for failing to inform him that the State could not prove that he possessed child pornography because he lacked the requisite mens rea. Rodriguez v. State, 932 So.2d 1287, 1290 (Fla. 2d DCA 2006). We held that "[c]ounsel's misadvice concerning available defenses during the plea process can give rise to ineffective assistance of counsel claims." Id. Thus we reverse the summary denial of the motion's ground one and remand for further proceedings.
In ground two of his motion, Mr. Flores-Vega claimed that trial counsel was ineffective for failing to advise him that he could not be convicted of the multiple charges of robbery with a firearm and the multiple charges of attempted armed robbery because the information alleged a single taking during a single criminal episode. Mr. Flores-Vega stated that but for counsel's ineffectiveness, he would not have entered the plea and would have proceeded to trial. Thus Mr. Flores-Vega raised a facially sufficient claim. See Weitz v. State, 795 So.2d 1021, 1022-23 (Fla. 2d DCA 2001).
The postconviction court summarily denied this claim because it was "refuted by the case law." The postconviction court cited Palmer v. State, 438 So.2d 1 (Fla.1983), superseded by statute/rule as stated in Suarez v. State, 464 So.2d 259 (Fla. 2d DCA 1985), approved, 485 So.2d 1283 (Fla.1986), to support this proposition. However, Palmer did not involve a single taking and did not address a double...
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