State v. Brown, 87-563
| Decision Date | 06 May 1988 |
| Docket Number | No. 87-563,87-563 |
| Citation | 525 So.2d 454,13 Fla. L. Weekly 1080 |
| Parties | 13 Fla. L. Weekly 1080 STATE of Florida, Appellant, v. Charlie BROWN, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and William A. Hatch, Asst. Atty. Gen., Tallahassee, for appellant.
Neal L. Betancourt, Jacksonville, for appellee.
Below, Charlie Brown filed a pro se "Motion To Withdraw Guilty Plea" alleging ineffective assistance of counsel on the ground that he was not advised that he was entitled to be sentenced under the sentencing guidelines and to make an affirmative election to that extent when he entered his guilty pleas. Following a response to the motion by the State and a reply to the response by Brown, a hearing was held on the motion during which Brown and his trial counsel testified. In its "Order Granting Motion to Withdraw Guilty Plea," the trial court, treating the motion as one seeking post-conviction relief, found that Brown had not been apprised by his counsel of his right to elect guidelines sentencing. Although recognizing the standard generally to be applied in judging the effectiveness of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court nonetheless concluded "that failure of the defense counsel to advise defendant of his right to be sentenced under the guidelines constitutes ineffective counsel per se and it is not necessary for defendant to prove the criteria of Strickland and Knight." Accordingly, the trial court ordered that appellant's judgments and sentences be set aside. We affirm.
The record supports the trial court's finding that Brown was not informed by his counsel of the right to elect a guidelines sentence. As the record shows that Brown was never apprised of this option by his attorney or anyone else and therefore could not have knowingly and voluntarily entered his pleas, we conclude that this constitutes per se ineffective assistance of counsel and that the Strickland analysis is unnecessary. 1 As the sentences were predicated upon the judgments, which were in turn predicated upon the pleas in conformance with the plea bargain, we affirm the trial court's vacating the judgment and sentence and remand this cause for further proceedings whereby Brown may withdraw his guilty pleas.
1 Compare Lucas v. State, 461 So.2d 260 (Fla. 1st DCA 1984), wherein this...
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Brown v. State
...he had a right to be sentenced under the guidelines, the court vacated the convictions and set aside the guilty pleas. State v. Brown, 525 So.2d 454 (Fla. 1st DCA 1988). Upon setting aside the convictions and pleas, the trial court set bail at $25,000, the same amount which had been set bef......
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Brown v. State
...was not informed of his right to be sentenced under the guidelines. This court affirmed the grant of collateral relief. State v. Brown, 525 So.2d 454 (Fla. 1st DCA 1988). Appellant was released on July 7, 1987, on bail set at $25,000.00. On September 25, 1987, appellant was arrested and was......
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Lines v. State, 91-867
...defendant mistakenly enters a plea of guilty or nolo based upon the erroneous legal advice of his attorney. See, e.g., State v. Brown, 525 So.2d 454 (Fla. 1st DCA 1988) (withdrawal of guilty plea justified when counsel failed to advise defendant of certain options, i.e., his right to elect ......
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Shaw v. State , 5D11–430.
...constitutes ineffective counsel per se and it is not necessary for defendant to prove the criteria of Strickland.” State v. Brown, 525 So.2d 454, 454 (Fla. 1st DCA 1988); see also McLeod v. State, 523 So.2d 603 (Fla. 1st DCA 1987) (finding claim that counsel failed to advise defendant that ......
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Misdemeanor defense
..., 656 U.S. 649 (1984 (counsel’s performance was so deficient that defendant essentially was unrepresented at trial); State v. Brown , 525 So. 2d 454, 455 (Fla. 1st DCA 1988) (defense counsel’s failure to inform defendant of right to be sentenced under sentencing guidelines constituted per s......