Larson v. State, Case No. 2D17–336

CourtCourt of Appeal of Florida (US)
Writing for the CourtBLACK, Judge.
Citation247 So.3d 26
Parties Jay LARSON, Appellant, v. STATE of Florida, Appellee.
Decision Date20 April 2018
Docket NumberCase No. 2D17–336

247 So.3d 26

Jay LARSON, Appellant,
STATE of Florida, Appellee.

Case No. 2D17–336

District Court of Appeal of Florida, Second District.

Opinion filed April 20, 2018
Rehearing Denied June 4, 2018

Jay Larson, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Vickers Rook, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Jay Larson appeals from the order denying his motions for postconviction relief. We reverse the denial as to one issue, affirm as to the remaining issues, and remand with instructions to permit Larson to withdraw his plea.

Larson filed a timely motion for postconviction relief in three 2012 cases which were resolved via a negotiated plea agreement that required the sentences in those cases to be served concurrently. In the initial motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, Larson raised three claims of ineffective assistance of trial counsel. He filed two subsequent motions during the pendency of the first motion, supplementing the initial motion and raising claims related to those presented in the initial motion. See Fla. R. Crim. P. 3.850(e) ; Pritchett v. State, 884 So.2d 417, 418 (Fla. 2d DCA 2004). As relevant to our decision, the second subsequent motion raised the issue of counsel's failure to advise Larson that unless his 2012 sentences were ordered to be served concurrently with the sentences in his 2001 and 2003 cases—which Larson was serving on conditional release when he was arrested, charged, and convicted in the 2012 cases—the 2012 sentences would be served consecutively to the 2001 and 2003 sentences as required by section 921.16, Florida Statutes (2012). Larson argued that had he known his 2012 sentences would run consecutively to his sentences in the prior cases, he would not have entered the plea. He argued both that he was affirmatively misadvised that the sentences would be concurrent and that counsel failed to advise him of a direct consequence of his

247 So.3d 29

plea—that his new sentences would be served consecutively to his existing sentences on the prior cases unless otherwise ordered by the trial court.

At the postconviction hearing, Larson testified that on multiple occasions he advised counsel that he was serving his 2001 and 2003 sentences on conditional release. Further, Larson testified that because counsel knew that Larson was serving his existing sentences on conditional release, it was incumbent upon counsel to advise him of any direct consequences of his plea agreement in the 2012 cases. Larson contended that he was entitled to know prior to entering his plea if his sentences in the 2012 cases would be served consecutively to the sentences in his prior cases.

As to the affirmative misadvice claim, however, Larson testified that he could not say that he specifically confirmed with counsel that his sentences in the 2012 cases would run concurrently with his existing sentences but that because "concurrent means concurrent," he entered his plea believing that all of his sentences would be served concurrently.

Larson then explained that in 2013, about a year into his prison term, he received notice of a new release date. He then inquired with the Department of Corrections (DOC) as to why his release date had been pushed back, extending his time in prison. The DOC advised Larson that because the trial court had not specified that his 2012 sentences were to be served concurrently with his 2001 and 2003 sentences the sentences would be served consecutively, citing section 921.16.

Larson's trial counsel also testified at the hearing. Counsel denied being informed that Larson was serving his prior sentences on conditional release. He testified that if Larson had advised him that he was on conditional release, counsel would have included that information in his notes. Counsel testified that he was not specifically asked by Larson whether the sentences in his 2012 cases would run concurrently with the sentences on his prior cases. Counsel stated that they discussed only the 2012 cases at the plea hearing.1 Counsel also testified that at the time of Larson's plea counsel had not been aware that the sentencing court could have ordered that the 2012 sentences were to be served concurrently with the sentences which Larson had been serving on conditional release. Larson's conditional release status was not mentioned by counsel, the prosecutor, Larson, or the court on the record at the plea hearing.

As pertinent to our resolution of this appeal, in its order denying Larson's motions, the postconviction court found that Larson did not advise counsel that he was on conditional release at the time the 2012 cases were at issue and that counsel had advised Larson only that the 2012 sentences would run concurrently. The court therefore found that there was no misadvice and that counsel did not perform deficiently. These findings are supported by competent substantial evidence. See State v. Hatton, 143 So.3d 1006, 1007 (Fla. 2d DCA 2014).

However, Larson's second subsequent motion also raised the issue of counsel's failure to advise him of the direct consequences of his plea. Despite citing counsel's testimony that he had not known at the time of Larson's plea that there was a means by which the sentencing court could

247 So.3d 30

have imposed Larson's 2012 sentences to run concurrently with his 2001 and 2003 sentences—and therefore could not have advised Larson of the possibility—the postconviction court denied the motion. Implicitly then, because the court determined that counsel was not ineffective for advising Larson only as to the 2012 cases, the court found that the structuring of Larson's 2012 sentences with his existing sentences was a collateral rather than direct consequence of Larson's plea.

On appeal, Larson raises multiple issues but we need address only one: Larson's contention that the postconviction court erred in denying his second subsequent motion because the structuring of Larson's 2012 sentences with his existing sentences is a direct consequence of his plea, which he must be advised of in order for his plea to be voluntary. Larson argues, in part, that the application of the mandatory language of section 921.16(1), in the absence of a determination by the trial court, to establish the structure of his sentences—whether they are to be served concurrently or consecutively—has a definite and immediate effect on his plea in this case. Thus, in considering Larson's claim, we must determine whether the imposition of consecutive sentences for offenses not charged in the same information is—in the absence of a judicial determination and therefore based on statute—a direct consequence. We conclude that it is.

Preliminarily, we note that this issue is cognizable in a rule 3.850 motion. See, e.g., Platt v. State, 664 So.2d 307, 308 (Fla. 2d DCA 1995) (affirming denial of rule 3.800(a) motion without prejudice to the filing of a rule 3.850 motion raising the issue of consecutive sentencing to a control-release violation which resulted in a longer sentence than discussed at the probation violation plea hearing); Widemond v. State, 27 So.3d 162, 163 (Fla. 1st DCA 2010) (reversing summary denial of claim that "counsel was ineffective for failing to present to the court case law standing for the proposition that the trial court could impose his sentence concurrently" with an existing sentence); Wilson v. State, 873 So.2d 419, 420–21 (Fla. 3d DCA 2004) (remanding for clarification and stating that if the court ordered Wilson's 2001 sentence to run consecutively to his 1994 sentence, Wilson would be allowed the opportunity to withdraw his plea pursuant to rule 3.850 as involuntarily entered). And, as this court has stated, although the claim may be couched in terms of ineffective assistance of counsel, the issue is truly whether the plea was entered involuntarily. See Knight v. State, 611 So.2d 602, 602 (Fla. 2d DCA 1993).

Turning to the merits, the Florida Supreme Court has stated that "[t]he voluntariness of a plea depends on whether the defendant...

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