Simmons v. State, 91-03172

• Decision Date: 10 July 1992
• Docket Number: No. 91-03172,91-03172
• Citation: 611 So.2d 1250
• Parties: 17 Fla. L. Weekly D1681 Curtis Jerome SIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1250

611 So.2d 1250

17 Fla. L. Weekly D1681

Curtis Jerome SIMMONS, Appellant, v. STATE of Florida, Appellee.

No. 91-03172.

District Court of Appeal of Florida,

Second District.

July 10, 1992.

Curtis Jerome Simmons, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

MOTION FOR REHEARING

PER CURIAM.

Curtis Simmons appeals the summary denial of his motion for postconviction relief. This panel previously affirmed the trial court without opinion. However, in view of Simmons's motion for rehearing, we deem it appropriate to discuss in some detail Simmons's claim and the reasons why we believe it is insufficient to warrant relief.

The sole issue raised in the motion is whether Simmons, who entered a plea of nolo contendere to several felony offenses, received ineffective assistance from his trial attorney. Specifically, Simmons alleges that counsel failed to warn him that he would be ineligible for basic gain time because he was being sentenced as a habitual felony offender. See Sec. 775.084(4)(e), Fla.Stat. (1991).

We have previously held that a defendant may be entitled to withdraw his plea if he establishes that he was misled about the possible effect of gain time. See, e.g., Tarpley v. State, 566 So.2d 914 (Fla. 2d DCA 1990); Ray v. State, 480 So.2d 228 (Fla. 2d DCA 1985). Tarpley involved a sex offender who asserted that she was promised both administrative gain time and work release. The attorney in Ray was alleged to have incorrectly assured the defendant he would receive incentive gain time although serving a minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (1983).

Simmons makes no such claim. However, his motion for rehearing, which cites Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987), implies that this may not be necessary. Netherly involved an escapee whose conviction required the forfeiture of accrued gain time. See Sec. 944.28(1), Fla.Stat. (1991). Although Netherly did assert he was "not informed ... of that consequence," there was also evidence Netherly's public defender had "misinformed him about the amount of gain-time his conviction would cause him to lose." Accordingly, there is no inconsistency between Netherly and our prior holdings in Tarpley and Ray. It now falls to us to decide whether relief is warranted when counsel merely fails to educate a client about the various ramifications of gain time, as opposed to volunteering demonstrably incorrect predictions about its effect on the overall length of sentence.

At first blush the decision of our sister court in Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991), which relied in part upon Netherly, appears to support Simmons's position. Setzer moved before sentencing to withdraw his negotiated plea, stating that counsel had failed to inform him that section 775.084(4)(e) precluded the award of basic gain time in his case. Unlike Netherly, there is no suggestion that Setzer received incorrect information about gain time, only that he received no information at all.

In addition to Netherly, Setzer cited the opinion of the First District Court of Appeal in Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990). Like Netherly, Rackley speaks of defense counsel's "fail[ure] to inform." 571 So.2d at 535. However, also like Netherly, it is evident from the recitation of facts that Rackley claimed he was misled by counsel. The First District has since made clear that this fact, and not the mere failure to discuss implications of gain time, was the dispositive consideration in its decision to reverse. Levens v. State, 598 So.2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399 (Fla. 1st DCA 1991). ¹

In Levens the court distinguished Setzer as involving rule 3.170(f) rather than 3.850. In concluding that Setzer was entitled to an evidentiary hearing on his motion, a majority of that panel had found within rule 3.171(c)(2)(ii) the obligation of defense counsel "to advise the defendant of all pertinent matters bearing on the choice of which plea to enter, the particulars attendant upon each plea, and the likely result thereof." ² Moreover, rule 3.170(f) obligates the trial court to permit withdrawal of a plea before sentencing "upon good cause shown." We believe Levens represents the better view, and we decline to extend the holding in Setzer to proceedings under rule 3.850, which imposes a greater burden on the defendant seeking relief.

A trial court, when accepting a plea, is obligated to insure that the accused is aware of both "the maximum possible penalty provided by law" and "the mandatory minimum penalty ... if any." Fla.R.Crim.P. 3.172(c)(i). The state is also required to notify a defendant in advance if it seeks an enhanced sentence under the habitual offender statute, and relief may be available where a defendant demonstrates he did not receive such notice. See, e.g., McCray v. State, 578 So.2d 875 (Fla. 2d DCA 1991). ³ It is one thing, however, to insist that a defendant be warned his sentence may be extended, and another to require an additional warning that a determinate sentence will not later be shortened.

Neither the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges. Blackshear v. State, 455 So.2d 555 (Fla. 1st DCA 1984). The effect of a conviction on accumulation or loss of "good time" has been deemed a collateral consequence. Ladner v. Henderson, 438 F.2d 638 (5th Cir.1971). ⁴ Similarly, when most felony prisoners were eligible for release on parole, there was no requirement that a defendant be warned about parole eligibility, because parole was viewed as a matter of legislative and executive grace rather than a direct consequence of a plea. Trujillo v. United States, 377 F.2d 266 (5th Cir.1967), cert denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967). Early cases decided under Florida's current system of "truth in sentencing," in which there is no parole, found no duty to warn a defendant that opting for a guideline sentence foreclosed parole eligibility. Glover v. State, 474 So.2d 886 (Fla. 1st DCA 1985). To fashion a new rule requiring warnings about habitual offenders' ineligibility for certain types of gain time would be inconsistent with the tenor of these holdings.

This is not to suggest that gain time will be, or should be, ignored at the trial level. Anyone contemplating a plea to serious criminal charges naturally will be expected to inquire about the extent of possible punishment. Unless a specific plea offer is made, a defendant relies upon counsel to estimate the length of sentence. Although the advent of sentencing guidelines has infused this exercise with some measure of certainty, counsel's predictions can be no more than an "educated guess" since the guideline recommendation is not absolutely binding on the court. ⁵ With or without a specific plea agreement, it can be expected that the "flat-time"...