Sheppard v. State
| Decision Date | 27 August 2009 |
| Docket Number | No. SC08-1452.,SC08-1452. |
| Citation | 17 So.3d 275 |
| Parties | Anthony SHEPPARD, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
Bill McCollum, Attorney General, Robert J. Krauss, Bureau Chief, and Patricia A. McCarthy, Assistant Attorneys General, Tampa, FL, for Respondent.
Anthony Sheppard seeks review of the decision of the Second District Court of Appeal in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), in which the Second District certified express and direct conflict with the decisions from the Fourth District Court of Appeal in Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004), and Bermudez v. State, 901 So.2d 981 (Fla. 4th DCA 2005). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
The conflict issue in this case is whether a trial court must strike as a nullity a defendant's pro se motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l) where that defendant is represented by counsel and the motion does not include a clear request to discharge counsel, but contains allegations that give rise to an adversarial relationship, such as allegations that counsel misadvised the defendant, made affirmative misrepresentations regarding the terms of the plea, or coerced the defendant into taking the plea. In accordance with its precedent in Grainger v. State, 906 So.2d 380 (Fla. 2d DCA 2005), Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004), and King v. State, 939 So.2d 1196 (Fla. 2d DCA 2006), the Second District held in Sheppard that absent an unequivocal request to discharge counsel, the motion to withdraw the plea must be stricken as a nullity and should not be considered by the trial court. 988 So.2d at 79. Conversely, the Fourth District has held that a trial court should not strike as a nullity a pro se motion to withdraw a plea based on allegations that give rise to an adversarial relationship, such as allegations that counsel misadvised the defendant, made affirmative misrepresentations regarding the terms of the plea, or coerced the defendant into taking a plea. See, e.g., Bermudez, 901 So.2d at 984; Peterson, 881 So.2d at 1129.
We agree with the Fourth District that a limited exception to the rule of striking pro se pleadings as nullities exists where a defendant files a pro se motion to withdraw a plea pursuant to rule 3.170(l), which contains specific allegations that give rise to an adversarial relationship, such as misadvice, affirmative misrepresentations, or coercion that led to the entry of the plea. In these narrow circumstances, a defendant need not incant the phrase, "I request to discharge my counsel," to be entitled to a limited inquiry by the trial court into the allegations. Rather, the trial court is required in these circumstances to conduct a limited inquiry to determine whether an adversarial relationship exists such that defense counsel can no longer continue to represent his or her client at a hearing in which counsel will likely be an adverse witness.1 Accordingly, we quash the Second District's decision in Sheppard and approve the Fourth District's opinions in Bermudez and Peterson. We also disapprove of the Second District's opinions that have followed Sheppard to the extent that they conflict with this decision. See Sumbry v. State, 3 So.3d 1259 (Fla. 2d DCA 2009) (table); Christiansen v. State, 993 So.2d 173 (Fla. 2d DCA 2008); McClelland v. State, 995 So.2d 557 (Fla. 2d DCA 2008).
Sheppard pled guilty to violating his community control previously imposed for convictions of two counts of uttering a forged instrument—a third-degree felony. The State offered Sheppard "a year and a day followed by four years of sex offender probation."2 The offer was rejected. Defense counsel asked for a "straight time" sentence of eighteen to twenty-four months' imprisonment, with no probation. The trial court ultimately gave Sheppard a maximum sentence of ten years' imprisonment, consisting of two consecutive five-year prison terms. Sheppard, 988 So.2d at 75.
Within thirty days of sentencing, Sheppard filed a timely pro se motion to withdraw his guilty plea under rule 3.170(l) based on the alleged misadvice of counsel. He asserted that his plea was involuntary because counsel had "refused to allow him to accept the State's plea offer and misled him about the sentence he would receive." Id. Specifically he alleged:
Prior to the hearing on the violation, Defendant spoke with counsel who informed him of a 1 year and 1 day with 4 years probation plea/admission offer from the State. Defendant immediately responded that he would like to accept the State's offer, however, counsel refused to allow Defendant to accept the State's offer, and told him that he was sure he could get him 2 years probation if he would enter an open plea/admission of guilt to the court.
The trial court held an evidentiary hearing on the motion at which the State called Sheppard's defense counsel, an assistant public defender (APD), as its only witness. As explained by the Second District:
The APD identified himself as an employee of the public defender's office assigned to the sexual offender division. Midway through the APD's testimony, the trial court interrupted the proceedings to ask, "Who represents Mr. Sheppard?" The APD replied, "This is a pro se motion." Unaccountably, the trial court then resumed the hearing. Mr. Sheppard did not take advantage of the opportunity to cross-examine "his lawyer." The unsworn statement that Mr. Sheppard offered in support of his motion is only three lines long in the transcript of the proceedings. Mr. Sheppard did not call any witnesses at the hearing.
Id. at 75-76. At the conclusion of the hearing, the trial court denied Sheppard's motion to withdraw his plea. Id. at 75. Sheppard appealed to the Second District. After considering the facts, the Second District observed:
This case bears a striking resemblance to the proceedings described in Grainger where the trial court likewise failed to strike a defendant's pro se motion to withdraw his guilty plea, which the defendant filed while he was represented by court-appointed counsel. In Grainger, we noted first that "[b]ecause [defense counsel] did not file the motion to withdraw plea on behalf of [the defendant], the trial court was required to strike the motion as an unauthorized pro se pleading." We identified a second misstep—this one committed by defense counsel "who, inexplicably, not only failed to act in a representative capacity for [the defendant] but became an adverse witness against his client." And finally, we identified a third error committed by the trial court when it considered the pro se motion on the merits without providing conflict-free counsel to the defendant:
Consideration of a motion to withdraw plea after sentencing, which is filed pursuant to Florida Rule of Criminal Procedure 3.170(l), is a critical stage in the proceeding, and an indigent criminal defendant has a right to the appointment of conflict-free counsel to assist in the filing of the motion.
Id. at 76 (citations omitted) (alterations in original) (quoting Grainger, 906 So.2d at 382). The Second District expressed its frustration that
[d]espite this court's attempt in Grainger to provide guidance to prevent the repetition of these errors, the trial court and the APD replicated them in Mr. Sheppard's case. The evidentiary hearing should have never taken place because Mr. Sheppard's pro se motion should have been struck as a nullity. The APD not only failed to act in a representative capacity for his client, he also became an adverse witness against Mr. Sheppard at the hearing while he was still Mr. Sheppard's attorney of record. And finally, the trial court failed to recognize that Mr. Sheppard had a right to conflict-free counsel who could assist him in his attempt to withdraw his guilty plea.
Id. at 76-77 (citations and footnote omitted). The Second District, while noting the errors of the defense lawyer and the trial court, reversed the order denying Shepherd's motion to withdraw this plea and in accordance with its precedent, "require[d] that on remand his motion must be struck as a nullity." Id. at 77. Moreover, the Second District rejected Sheppard's request
to remand for an evidentiary hearing at which—absent a knowing and intelligent waiver of his right to counsel—he must be provided with conflict-free counsel. Mr. Sheppard argues that the allegations of counsel's misadvice in his pro se motion were sufficient to show that "an adversarial relationship" existed between him and his court-appointed counsel. According to Mr. Sheppard, this adversarial relationship with counsel negated the prohibition against the filing of pro se pleadings by defendants with counsel and precluded the striking of his pro se motion as a nullity even though the motion did not contain an unequivocal request to discharge counsel.
Id. The Second District also acknowledged that its decision was in express and direct conflict with Peterson and Bermudez and certified conflict with those two decisions. Id. at 79.
We begin with an overview of the law regarding pro se pleadings filed by defendants who are represented by lawyers. Simply stated, a defendant has a Sixth Amendment right to counsel and a Sixth Amendment right to represent himself subject to the limitations of Faretta v. State, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and the more recent case of Indiana v. Edwards, ___ U.S. ___, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). However, a defendant has no Sixth Amendment right to simultaneously proceed pro se and with legal representation.
As this Court held almost three decades ago in State v. Tait, 387 So.2d 338, 339-40 (Fla. 1980), the Sixth...
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