State v. Dickey

• Decision Date: 20 April 2006
• Docket Number: No. SC05-516.,SC05-516.
• Citation: 928 So.2d 1193
• Parties: STATE of Florida, Petitioner, v. Herbert DICKEY, Respondent.
• Court: Florida Supreme Court

928 So.2d 1193

STATE of Florida, Petitioner, v. Herbert DICKEY, Respondent.

No. SC05-516.

Supreme Court of Florida.

April 20, 2006.

Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, FL, for Petitioner.

Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.

PER CURIAM.

We review the First District Court of Appeal's decision in Dickey v. State, 30 Fla. L. Weekly D443 (Fla. 1st DCA Feb.15, 2005), which certified the following question to be of great public importance:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT'S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question in the negative. As explained below, we hold that such claims are insufficient to meet both prongs of the test for alleging the ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I. FACTS

In February 1996, Herbert Dickey pled no contest to charges of criminal mischief and failure to appear, both third-degree felonies with statutory, five-year maximum sentences. See §§ 806.13(1)(b)(3), 843.15, Fla. Stat. (1995). After determining that the plea was voluntarily entered, the court accepted it and, pursuant to a plea agreement on the criminal mischief charge, withheld adjudication and sentenced Dickey to two years' probation, which would terminate early upon Dickey's paying restitution.¹ On the failure-to-appear charge, the court also withheld adjudication and sentenced Dickey to a concurrent two-year probationary term.

In May 2001, Dickey, then a prisoner in Alabama, filed in a Florida circuit court a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised four grounds for relief, only one of which is pertinent here. Dickey alleged that his Alabama sentence was enhanced based on his prior Florida conviction. He claimed that his defense counsel in 1996 told him that his conviction "could not be used to enhance any future sentence" and that he "would not have pled guilty otherwise."²

The circuit court found Dickey's ineffective assistance claim was timely filed because Dickey based it on newly discovered evidence, i.e., Alabama's use of the Florida conviction to enhance his sentence. 30 Fla. L. Weekly at D443.³ The court summarily denied Dickey's motion, however, specifically finding that the misadvice claim regarding sentence-enhancement was not actionable. The court applied Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002), a decision we have since quashed on other grounds. See Bates v. State, 887 So.2d 1214, 1218 (Fla.2004). Below we first explain the conflict in the district courts over ineffective assistance claims such as Dickey's and then answer the certified question.

II. THE MISADVICE ISSUE IN THE DISTRICT COURTS

We have stated that defense counsel and the court have a duty to inform a defendant of the direct consequences of a plea. State v. Ginebra, 511 So.2d 960, 960-61 (Fla.1987), superseded by In re Amendments to Fla. Rules of Crim. Pro., 536 So.2d 992 (Fla.1988), as recognized in State v. DeAbreu, 613 So.2d 453 (Fla.1993). However, in Major v. State, 814 So.2d 424, 426-27 (Fla.2002), we reiterated that the law does not require a defendant to be informed of collateral consequences and determined that the potential for sentence enhancement for a future crime is just such a collateral consequence. Thus, we held, in answer to a certified question, that "neither the trial court nor counsel has a duty to advise a defendant that the defendant's plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future." Id. at 431.

With that question resolved, all five district courts of appeal began grappling with the question of whether a defense counsel's providing wrong advice about this collateral effect constitutes ineffective assistance of counsel. Three courts—the Second, Third, and Fifth—have held that defense counsel's providing erroneous advice about the potential for use of a conviction to enhance the sentence for a future crime does not constitute ineffective assistance of counsel or render a plea involuntary. See Stansel v. State, 825 So.2d 1007, 1009-10 (Fla. 2d DCA 2002) ("Even in cases where defense counsel mistakenly informs the defendant that his guilty plea cannot be used to enhance a subsequent sentence, we believe public policy demands that the defendant bear the consequences of his decision to commit future crimes."); Scott v. State, 813 So.2d 1025, 1026 (Fla. 3d DCA 2002) ("A defendant is not entitled to relief where he has been given affirmative misadvice regarding the possible sentence-enhancing consequences of a plea in the event that the defendant commits a new crime in the future."); McKowen v. State, 831 So.2d 794, 796 (Fla. 5th DCA 2002) (concluding "that a defendant is not entitled to receive postconviction relief based on a claim that he relied on the misadvice of counsel that his plea would have no adverse sentencing effect should he decide to commit future crimes"). The Fourth District Court of Appeal, however, has held that this affirmative misadvice claim is a valid ineffective assistance claim on which relief may be granted. See Smith v. State, 829 So.2d 940, 941 (Fla. 4th DCA 2002) (citing cases).

Finally, the First District originally aligned itself with the Second, Third, and Fifth Districts. See Bates, 818 So.2d at 630-631. In Bates, the district court also certified the question presented here. On review, we quashed the decision on other grounds, finding that Bates's petition for writ of error coram nobis was untimely and therefore procedurally barred. 887 So.2d at 1215.

In the case under review, the First District again considered the issue, and now reached the opposite conclusion. See Dickey, 30 Fla. L. Weekly at D444. The court held "that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant's plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim." Id. Thus, the First District agreed with the Fourth District, certified conflict with the other district courts, and also certified the question to this Court. Id. at D444, D446. We now answer the certified question.

III. STRICKLAND AND THE CERTIFIED QUESTION

In Strickland, the Supreme Court created a two-pronged test for determining whether defense counsel provided constitutionally deficient assistance to a defendant. 466 U.S. 687, 104 S.Ct. 2052. First, the defendant must establish specific acts or omissions of counsel that were "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must demonstrate prejudice—that is, the defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. 2052.

Subsequently, in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court applied the Strickland test to claims of ineffective assistance in pleading guilty to a crime. The Court modified the prejudice requirement, stating that in plea cases the issue is "whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366.

In his postconviction motion, Dickey alleged that his counsel in 1996 was constitutionally ineffective because he erroneously advised Dickey that the conviction resulting from his plea could not be used to enhance the sentence for any future crime. The conviction, however, was used to enhance his Alabama sentence on a crime he later committed. Dickey declared that his 1996 plea was thus involuntary because he would not have pled guilty had he been correctly apprised about this issue. When such allegations are not conclusively rebutted by the record, we must accept them as true. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000).

As noted above, we have previously held that counsel has no duty to advise a defendant of the potential sentence-enhancing effects a conviction may have on the sentence for a crime committed in the future. Major, 814 So.2d at 431. We reasoned that defendants are not entitled to advice about the collateral consequences of their pleas in a pending case. In this case, Dickey has alleged that counsel erroneously advised him regarding a collateral effect. Thus, we are squarely confronted with this question: whether a defendant's claim that counsel affirmatively misadvised him that his conviction could not be used to enhance the sentence for a future crime and that absent this erroneous advice he would not have pled guilty or nolo contendere but would have gone to trial facially meets the requirements of Strickland.⁴

Although we did not decide this question in Bates, 887 So.2d at 1215, several members of the Court addressed it in concurring opinions, analyzing the claim under Strickland. In an opinion in which...