Searcy v. State

• Decision Date: 09 January 2008
• Docket Number: No. 3D06-277.,3D06-277.
• Citation: 971 So.2d 1008
• Parties: Ronald SEARCY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

971 So.2d 1008

Ronald SEARCY, Appellant, v. The STATE of Florida, Appellee.

No. 3D06-277.

District Court of Appeal of Florida, Third District.

January 9, 2008.

Bennett H. Brummer, Public Defender, and Howard L. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.

Before GREEN, RAMIREZ, and SUAREZ, JJ.

SUAREZ, J.

The defendant appeals from a final judgment of conviction and fifteen-year sentence that resulted from a plea agreement, as well as the trial court's orders denying his Motion to Withdraw Plea and his Motion to Correct an Illegal Sentence. He also appeals his conviction and six-month sentence for direct criminal contempt. We affirm in part and reverse in part.

On November 14, 2005, the defendant, represented by counsel, pursuant to a negotiated plea, entered a guilty plea to tampering with evidence, resisting an officer with violence, and fleeing or attempting to elude a police officer. The State offered 364 days in jail with the Treatment Alternatives to Street Crime (TASC), a drug treatment program. During plea negotiations, the defendant requested a thirty-day furlough from the court. The trial court granted the furlough, provided that the defendant plead to the maximum sentence of fifteen years in prison, to be mitigated to 364 days upon the defendant's surrender on December 14, 2005, and provided that the defendant met three conditions: surrender in court on time, give a clean drug urine test, and have no new arrests. The defendant agreed and was sentenced. While the defendant was on furlough, he filed a motion to extend his surrender date, which was summarily denied by the trial court. On December 8, 2005, the defendant also filed a pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l), claiming ineffective assistance of counsel.

The defendant timely surrendered in court following the furlough and had no new cases. At that appearance, he asked the judge to rule on his pending pro se motion to withdraw his plea. The trial court summarily denied the motion. The defendant then refused to submit to the urinalysis and engaged in a verbal argument with the trial judge that resulted in the court ordering him three times to show cause as to why he should not be held in contempt. The defendant failed to show cause and continued to engage in disrespectful and disruptive behavior. The court held him in direct criminal contempt and sentenced him to six months in prison, to run consecutive to the unmitigated fifteen-year sentence. The defendant filed a pro se notice of appeal with this Court, and subsequently, a pro se Motion to Correct an Illegal Sentence with the trial court, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court summarily denied the Motion to Correct an Illegal Sentence.

The first issue is whether the defendant was represented by counsel at the time he filed his pro se Motion to Withdraw Plea. The record indicates that he was not. Florida Rule of Criminal Procedure 3.111(e) obligates counsel to represent the defendant until after filing a notice of appeal, substitute counsel has been obtained or appointed, or the time has expired for filing of a notice of appeal and no notice has been filed. In this case, the defendant was represented by court-appointed counsel in the sentencing proceedings, but apparently not thereafter. The record shows that the defendant asked the court for a new attorney at the beginning of his sentencing hearing on November 14, 2005, and the court agreed to appoint one, but new counsel was not appointed then or thereafter. It appears from the record that the current appointed trial counsel believed that his services to the defendant terminated on November 15, 2005, the day following the defendant's plea and sentencing, as he filed his motion for attorney's fees and costs on that date. No counsel, appointed or otherwise, was present on December 14, 2005, when the defendant appeared in court for the purpose of surrendering following his furlough, which was the last day on which a notice of appeal could have been filed. No counsel was present to assist the defendant when he asked the trial court to grant his motion to withdraw his plea.

We agree with the defendant that he should have been entitled to conflict-free representation on his pro se Motion to Withdraw Plea filed pursuant to Florida Rule of Criminal Procedure 3.170(l). Many courts have held, and we agree, that an indigent defendant has the right to court-appointed counsel to assist in filing a Rule 3.170(l) motion. See Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999) (rejecting the State's classification of the 3.170(l) motion as a collateral or post-conviction motion, and finding the thirty-day window between sentencing and time for filing an appeal to be a critical stage of criminal proceedings); see also Schriber v State, 959 So.2d 1254 (Fla. 4th DCA 2007) (holding that the 30-day window provided by Rule 3.170(l) is a critical stage requiring counsel to assist in preparing the initial motion to withdraw plea); Mosley v. State, 932 So.2d 1239 (Fla. 1st DCA 2006) (providing that once a defendant indicates his desire to avail himself of Rule 3.170(l), the trial court must appoint conflict-free counsel to advise and assist); Norman v. State, 897 So.2d 553 (Fla. 1st DCA 2005) (same); Smith v. State, 849 So.2d 485 (Fla. 2d DCA 2003) (same); Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002) (same); Lester v. State, 820 So.2d 1078 (Fla. 1st DCA 2002) (same); Williams v. State, 793 So.2d 1112 (Fla. 4th DCA 2001) (same). Here, the defendant indirectly alleges in his motion to withdraw his plea that his plea was involuntary because it was based in part on counsel's representation that he would be able to get him a longer furlough if he took the plea.¹ With this in mind, we reverse the trial court's summary denial of the defendant's motion to withdraw his plea and remand for the court to appoint conflict-free counsel for the purpose of assisting the defendant in the preparation and presentation of this motion, as well as to schedule a new hearing on the merits of the defendant's motion to withdraw his plea.

Next, we consider whether the defendant was entitled to representation by counsel at his court appearance on December 14, 2006, when, in accordance with the plea agreement, he reported to court solely for the purpose of surrendering and commencing his sentence after furlough. The defendant argues that his December 14, 2006, court appearance constituted a sentencing hearing and, thus, a critical stage of the criminal proceedings. Although we acknowledge that criminal defendants facing incarceration have a right to counsel at critical stages of their proceedings, including sentencing, we disagree that the defendant's appearance to turn himself in on December 14, 2006, was a sentencing hearing. The defendant had been properly sentenced one month earlier, on November 14, 2006. At that time the defendant, represented by counsel, entered his plea pursuant to a proper plea colloquy, the court pronounced sentence, and gave the defendant a one-month conditional furlough. The purpose of the defendant's appearance in court at the end of his furlough was merely to report to the Department of Corrections to begin his sentence, and it was not a critical stage of his criminal proceedings requiring representation of counsel.

Finally, we find that the trial court did not abuse its discretion in retaining the negotiated fifteen-year sentence in light of the defendant's refusal to submit to the urinalysis test, one of the conditions of receiving the mitigated sentence. This Court and others have reversed sentences imposed in lieu of mitigated sentences only where the defendants' violations of their furlough terms were de minimis or involuntary. See Navedo v. State, 847 So.2d 585 (Fla. 3d DCA 2003) (finding violation de minimis where the defendant overslept and appeared six hours late); Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001) (finding violation de minimis and involuntary where defendant was fifteen minutes late); Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995) (finding delay de minimis where defendant reported six-and-one-half hours late due to child's hospitalization); Johnson v. State, 501 So.2d 158 (Fla. 3d DCA 1987) (finding defendant's non-appearance involuntary where he had been arrested); Lee v. State, 471 So.2d 195 (Fla. 4th DCA 1985) (finding defendant's delay involuntary where his car broke down on the way to court). The record in this case indicates that the defendant's conduct was neither involuntary nor de minimis. The defendant agreed in his plea, taken one month earlier, that his sentence of fifteen years could be mitigated if he met certain conditions. The defendant had been advised on at least three occasions that a condition of his mitigation was a clean urinalysis. In open court on the day of his surrender, however, he refused to submit to the urinalysis test despite the court's warning that he risked forfeiting the mitigation of sentence. When the defendant did not meet his plea condition and became belligerent, the trial court was within its discretion to refuse to mitigate the sentence that had been imposed one month earlier. See Gaston v. State, 613 So.2d 496, 497 (Fla. 2d DCA 1993) ("Mitigation of a lawful sentence is largely discretionary with the trial court.").

The defendant also filed a Motion to Correct Illegal Sentence pursuant to Florida Rule of Criminal Procedure 3.800(b) while this appeal was pending. The motion is in the nature of a motion to withdraw an involuntary plea pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court's denial of the 3.800(b) motion without prejudice to the defendant to re-file his motion after jurisdiction again vests in the trial court. Tompkins v. State, 894 So.2d...