Roberts v. State, 94-1241

• Decision Date: 13 March 1996
• Docket Number: No. 94-1241,94-1241
• Citation: 670 So.2d 1042
• Parties: 21 Fla. L. Weekly D641 Brian Eric ROBERTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1042

670 So.2d 1042

21 Fla. L. Weekly D641

Brian Eric ROBERTS, Appellant, v. STATE of Florida, Appellee.

No. 94-1241.

District Court of Appeal of Florida,

Fourth District.

March 13, 1996.

Rehearing Denied April 23, 1996.

Appeal from the Circuit Court for St. Lucie County; Dwight L. Geiger, Judge. No. 92-1817-CF-A.

Richard L. Jorandby, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

PARIENTE, Judge.

This is an appeal from the denial of court-appointed counsel's motion to withdraw from representation and defendant's motion to withdraw his guilty plea before sentencing. Because the trial court should have granted defense counsel's motion to withdraw prior to ruling on defendant's motion to withdraw the guilty plea based on an actual conflict between defense counsel and his client, we reverse.

Defendant, a college senior, was charged with first-degree murder with a firearm, attempted first-degree murder with a firearm, armed robbery, armed kidnapping, armed burglary, arson and grand theft. After a jury was selected, defendant executed a petition to enter a plea of guilty on all charges except arson. The prosecution agreed to waive the death penalty and nol prossed the arson count.

Prior to sentencing, defendant's court-appointed defense counsel ¹ filed a written motion to withdraw on grounds that the attorney-client relationship was irretrievably broken. However, defense counsel did not request a hearing on the motion to withdraw prior to the date set for sentencing. At the time of sentencing, defense counsel advised the trial court that defendant wished to withdraw his guilty plea on the basis that he was misled or coerced by counsel into entering it. Because defense counsel would be in a position of arguing and testifying against his client, defense counsel requested that the trial court permit him to withdraw and appoint a special public defender for the purpose of arguing the motion to withdraw the plea.

Initially the trial court deferred ruling on the motion to withdraw as counsel, indicating it would sentence defendant and take up the "post conviction issue" later as defense counsel was "obviously not ready to go ahead with that motion to withdraw plea today." Defense counsel, concerned about waiver of his client's rights, moved orally to withdraw defendant's plea. However, he advised the trial court that he did not think it appropriate for him to make the motion due to the specific nature of defendant's allegations, which was why he had not previously filed a motion to withdraw the plea, despite his client's request to do so. Defense counsel again informed the trial court that he thought it best that he withdraw as counsel so that the trial court could appoint a special public defender to handle the motion to withdraw the plea. However, rather than grant this request, the trial court proceeded to conduct an inquiry of defendant as to his reasons for seeking to withdraw his plea.

Based on this inquiry and the prior plea colloquy, the trial court determined that no coercion had taken place and, therefore, no need for defense counsel to testify. Accordingly the trial court denied both defense counsel's motion to withdraw as counsel and defendant's motion to withdraw the plea. The trial court sentenced defendant to life in prison with a mandatory minimum 25-year term before eligibility for parole on the murder charge and a consecutive 25-year prison term on the remaining counts.

There is a spectrum of reasons for a public defender or court-appointed counsel to file a motion to withdraw, with differing responses required by the trial court. At one end of the spectrum, "the public defender certifies to the trial court that the interests of one client are so adverse or hostile to those of another client that the public defender cannot represent the two clients without a conflict of interest." Guzman v. State 644 So.2d 996, 999 (Fla.1994); Babb v. Edwards, 412 So.2d 859, 860 (Fla.1982); Hope v. State, 654 So.2d 639, 639 (Fla. 4th DCA 1995). In that situation pursuant to section 27.53(3), Florida Statutes (1993), "a trial court must grant separate representation." Guzman, 644 So.2d at 999. The trial court is not permitted to reweigh the facts in determining whether a conflict exists. Id. This court has also held that a trial court reversibly errs in refusing to allow a public defender to withdraw based on counsel's perceived conflict between his client's and his own interests. See Williams v. State, 622 So.2d 490 (Fla. 4th DCA 1993).

At the other end of the spectrum, a "[g]eneral loss of confidence or trust standing alone will not support withdrawal of counsel." Johnston v. State, 497 So.2d 863, 868 (Fla.1986). In cases where dissatisfaction is based on allegations of incompetency, a trial court is obligated to examine the defendant's reasons in support of his motion to discharge counsel and the grounds behind counsel's motion to withdraw. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988); Johnston; Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

In this case, we are presented with more than just defendant's dissatisfaction with counsel's handling of his trial. See Weems v. State, 645 So.2d 1098 (Fla. 4th DCA 1994), review denied, 654 So.2d 920 (Fla.1995). While rejecting the notion that trial counsel should be permitted to withdraw merely because a client failed to follow counsel's advice, our supreme court in Johnston observed that:

Significantly, neither appellant nor counsel alleged any conflict of interest and an open line of communication existed throughout the trial.

497 So.2d at 867-68. Although a trial court may not be compelled to grant a defense counsel's motion to withdraw simply because "irreconcilable differences" are alleged, here defendant based the request to withdraw his guilty plea on the assertion that it had been coerced by counsel. This placed trial counsel in an actual conflict of interest with his client on a pending matter.

In addition, one of the reasons advanced by defendant for withdrawal of his plea was his claim that he had been told that two defense witnesses could not be found to testify at trial. Defendant claimed it was not until after his plea that he learned that these witnesses were in fact available. Whether or not this claim would support withdrawal of his plea, the allegation further placed defendant in a direct adversarial relationship with his attorney. See Kirkland v. State, 617 So.2d 781 (Fla. 4th DCA 1993).

Rule 4-1.7(b) of the Rules Regulating the Florida Bar states in part:

A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest ....

(Emphasis supplied).

The comment to Rule 4-1.7 states in part:

Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate cause of action for the client because of the lawyer's other responsibilities or interest.

We have been unable to find a case where there has been a similar denial of a properly-filed motion to withdraw based on an actual conflict of interest. However, we find Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983), to be instructive on this issue. In Yesnes, the defendant moved to withdraw his plea on several grounds, including the claim that he had agreed to the plea bargain so that his appointed counsel "would not yell at me." His public defender then moved to withdraw as counsel on the ground that the defendant claimed his plea had been coerced. In Yesnes, the public defender was allowed to withdraw and new counsel appointed. However, the newly-appointed counsel was not prepared to argue at the hearing on the motion to withdraw plea.

The Yesnes court observed that the defendant was "compelled to proceed [at the hearing] without effective assistance of counsel and was in no position to appreciate his legal burden to obtain the requested relief." Id. at 635. The first district thus reversed the denial of the defendant's motion to withdraw his plea to afford the defendant an opportunity for a full hearing where he could be effectively represented by counsel.

It is difficult to discern how defense counsel could have effectively represented defendant at the motion to withdraw his plea when the very basis for the motion was allegations concerning defense counsel's own misconduct and coercive behavior. Rather than allowing withdrawal of counsel based on an actual conflict of interest, the trial court predicated its decision on the merits of defendant's motion to withdraw his plea even while earlier acknowledging that defense counsel was not prepared to argue the motion to withdraw the plea.

As a result of the trial court's denial of defense counsel's motion to withdraw as counsel, defendant did not have a conflict-free attorney advocating for withdrawal of his guilty plea. By not being allowed to withdraw from representation, defense counsel was placed in the impossible position of attempting to argue the motion to withdraw the plea:

Your Honor, at this time, Brian Roberts would move to withdraw his plea based upon the grounds that he [defendant] has stated to the Court ... [I] adopt the statements of my client, and move to withdraw the plea based on grounds which he has stated.

(Emphasis supplied). When the trial court asked if there were additional grounds, defense counse...