Harrell v. State

• Decision Date: 10 February 2005
• Docket Number: No. SC02-2244.,SC02-2244.
• Parties: Dwayne Lamont HARRELL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

894 So.2d 935

Dwayne Lamont HARRELL, Petitioner, v. STATE of Florida, Respondent.

No. SC02-2244.

Supreme Court of Florida.

February 10, 2005.

James T. Miller, Special Assistant Public Defender, Jacksonville, FL, for Petitioner.

Charles J. Crist, Jr., Attorney General, James W. Rogers, Bureau Chief, Criminal Appeals, and Kenneth D. Pratt, Assistant Attorney General, Tallahassee, FL, for Respondent.

CANTERO, J.

We must decide whether a motion to withdraw a plea that fails to allege that the trial court did not formally accept the plea nevertheless preserves that issue for review. In the case under review, the First District Court of Appeal held that, to preserve the issue for review, a defendant must specify the trial court's failure formally to accept the plea in his motion. See Harrell v. State, 826 So.2d 1059, 1060 (Fla. 1st DCA 2002)

. The court certified conflict with Miller v. State, 775 So.2d 394 (Fla. 4th DCA 2000). We have discretionary jurisdiction and granted review to resolve the conflict. See art. V, § 3(b)(4), Fla. Const.; Harrell v. State, 837 So.2d 409 (Fla.2003) (order granting review). As explained below, we approve the decision in Harrell.

I. THE FACTS AND THE CONFLICT

Petitioner Harrell was indicted on charges of first-degree murder, armed robbery, and possession of a firearm by a convicted felon (PFCF). He signed a plea agreement in which he agreed to plead no contest to the PFCF charge, reserved the right to appeal the denial of his motion to suppress (which the parties agreed was dispositive of that charge), waived speedy trial, and accepted a sentence of fifteen years as a habitual offender. In exchange, the State agreed to dismiss the murder and robbery counts, but reserved the right to re-file them if Harrell prevailed in the appeal.

At the plea hearing, the trial court questioned Harrell at length about his plea. Among other things, Harrell admitted he was a habitual offender and, in response to the court's question, said that no one had intimidated or threatened him into making the plea. The trial court then set the case for sentencing. Apparently through inadvertence — but contrary to Florida Rule of Criminal Procedure 3.172(f)the court failed formally to accept the plea.

Several days later, Harrell filed a "Motion to Withdraw Plea of Guilty," which in its entirety stated:

Comes now the Defendant, by and through his undersigned attorney, and moves this Court to allow him to withdraw his plea of guilty in the above-styled case and would state as grounds therefore [sic], the following:

1. The Defendant believes he is not a habitual offender.

2. The Defendant was threatened by Assistant State Attorney Bernardo De La Rionda and thus, was intimidated into entering his plea.

Wherefore, the Defendant moves this court to withdraw his previously entered plea of guilty in the above-styled case.

The motion did not cite any rule of procedure, nor did it allege that the court had failed to accept the plea.

At the hearing on the motion, Harrell contended that his plea was involuntary because he was intimidated into agreeing to it. The court reviewed with Harrell the transcript of the plea colloquy question by question to determine what Harrell did not understand when he entered his plea. Harrell admitted he understood each and every question, except one. Harrell claimed that when the judge asked whether anyone had intimidated or coerced him into making the plea and he responded "no," he was confused because he feared the assistant state attorney and therefore believed entering the plea was the right thing to do. Later in the hearing, however, Harrell reversed himself, saying that the question did not confuse him. Again, Harrell did not argue that the trial court never formally accepted the plea. The court denied the motion to withdraw.

On appeal, Harrell claimed for the first time that the trial court erred in denying his motion to withdraw because at the time he filed the motion, the trial court had not formally accepted his plea, as Florida Rule of Criminal Procedure 3.172(f) requires. The First District affirmed the denial of the motion, holding that Harrell failed to preserve the issue, and certified conflict with Miller. Harrell, 826 So.2d at 1060

.¹

In Miller, the defendant entered into a substantial assistance agreement and entered a guilty plea. The court deferred sentencing in accordance with the agreement. 775 So.2d at 394. Subsequently, Miller was charged with another crime, and the State refused to certify Miller's substantial assistance. Miller moved to withdraw his plea (for reasons not revealed in the opinion), and the trial court denied the motion. Id. at 395. The district court concluded that "[w]hile the issue on appeal was not raised below, ... the issue has been sufficiently preserved under Florida Rule of Criminal Procedure 3.172(f)." Id. at 395 n. 1 (emphasis added). The Fourth District Court of Appeal presumably found that filing the motion to withdraw sufficiently preserved the trial court's failure to accept the plea. The court reversed the judgment and sentence to permit Miller to withdraw his plea. Id. Thus, Harrell and Miller conflict about whether the filing of a motion to withdraw that does not state as grounds the trial court's failure formally to accept the plea nevertheless preserves that ground for review. As we explain below, we agree with Harrell.

II. DISCUSSION OF LAW

The conflict between Harrell and Miller concerns whether a defendant may argue on appeal that his motion to withdraw should have been granted because the trial court failed formally to accept the plea even though the motion did not allege that ground. Therefore, we need not decide whether the trial court in this case did formally accept the plea, or examine the circumstances that constitute a formal acceptance. In the following sections, we (A) examine the rules governing the withdrawal of guilty pleas; (B) analyze the statutes and case law requiring preservation of issues for review; (C) determine whether Harrell sufficiently preserved the argument that the trial court failed formally to accept the plea; and finally, (D) consider whether the fundamental error doctrine applies.

A. Rules Governing the Withdrawal of a Plea

To analyze whether Harrell's motion to withdraw preserved his argument that the trial court failed formally to accept his plea, we must first examine the relevant rules governing the withdrawal of pleas and which rule, if any, Harrell's motion invoked. Two rules of procedure address that subject: Florida Rules of Criminal Procedure 3.172(f) and 3.170(f). We discuss each in turn.

Rule 3.172 governs the acceptance of pleas. It provides in pertinent part as follows:

(f) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

(Emphasis added.) This rule permits a defendant to withdraw a plea at any time before the court formally accepts it. A trial court's failure to grant a motion to withdraw raising this claim constitutes reversible error. See Bass v. State, 541 So.2d 1336 (Fla. 4th DCA 1989)

. As the court in Bass noted:

It is not easy for us to conclude that the trial court did not formally accept the plea herein because we feel confident the trial judge intended to, and probably felt he had. This formal omission is easily understood considering the volume of cases proceeding through the court and the absence of any ostensible contest over the proceeding. Nevertheless, when push comes to shove, we are obliged to follow the rule as written and construed by the cases. No formal acceptance by the court, no bar to withdrawal by any of the triumvirate — state, defendant or the court.

Id. at 1338; accord Turner v. State, 616 So.2d 194, 194 (Fla. 3d DCA 1993)

(holding that "[u]nder these circumstances, the defendant had an absolute right to withdraw his plea prior to sentencing `without any necessary justification'").

Florida Rule of Criminal Procedure 3.170 also governs pleas. It provides a defendant an opportunity to withdraw a previously entered plea:

(f) Withdrawal of a Plea of Guilty. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn the plea may not be used against the defendant in a trial of that cause.

Rule 3.170(f) limits the opportunity for withdrawing a plea to the period before sentencing.² Rule 3.172(f) contains no such limitation. In Demartine v. State, 647 So.2d 900, 900 (Fla. 4th DCA 1994), however, the Fourth District concluded, based on the history of rules 3.172 and 3.170, that rule 3.172 "simply codified in greater detail the requirements for acceptance of a plea" in rule 3.170 and that the two rules must be read in pari materia. 647 So.2d at 902. Accordingly, the court held that both of these rule provisions apply only before sentencing. We agree. The criminal rules establish sentencing as a critical juncture in a defendant's ability to withdraw a plea. See generally State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003)

(explaining the different standards applicable to pre- and post-sentencing motions to withdraw pleas).

Under the criminal rules, therefore, a defendant's pre-sentencing motion to withdraw may take two distinct tracks. Rule 3.172(f) applies when a plea has not been formally accepted. Rule 3.170(f) allows a defendant to seek...