State v. Dortch
| Decision Date | 20 May 2021 |
| Docket Number | No. SC18-681,SC18-681 |
| Citation | 317 So.3d 1074 |
| Court | Florida Supreme Court |
| Parties | STATE of Florida, Petitioner, v. Vernson Edward DORTCH, Respondent. |
Ashley Moody, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, Florida, for Petitioner
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Respondent
A Florida rule of appellate procedure requires a criminal defendant to file a motion to withdraw the plea in the trial court before appealing an involuntary plea. This case presents a certified conflict over whether there is a "fundamental error" exception to that rule. We hold that there is no such exception. A defendant who does not comply with the rule's preservation requirement must seek any available relief through collateral review.
On August 3, 2016, Vernson Dortch pleaded no contest to charges of possession of a firearm by a convicted felon, dealing in stolen property, aggravated assault by a detainee with a deadly weapon, and introducing contraband into a county detention facility. The plea, which resolved two cases then pending against Dortch, was against the advice of counsel.
Dortch gave appropriate answers to the trial court's questions at the plea hearing. The trial court stated on the record that he found the plea to be "freely and voluntarily given" and that Dortch "under[stood] the nature and consequences of it." Dortch's counsel signed the felony plea form, confirming that counsel "consider[ed] [Dortch] competent to understand the charges against [him] and the effect of the plea entered by this document."
About two weeks later, the trial court held a sentencing hearing. After hearing from Dortch and from one of the victims of Dortch's crimes, the court imposed a ten-year prison sentence, including a three-year mandatory minimum. The next day, Dortch's counsel filed a notice of appeal. Notwithstanding the preservation requirement of Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(c), which we discuss in detail below, Dortch did not first file a motion to withdraw his plea.
Dortch's appeal centered on events that happened months before the plea hearing, when the case was before a different judge and Dortch was represented by different counsel. On October 30, 2015, Dortch's then-counsel had filed a written "Motion for Examination of Defendant" under Rule of Criminal Procedure 3.210(b). The motion requested the appointment of an expert to examine Dortch "on the issue of competence to proceed." As required by rule 3.210(b)(1), the motion included a certification that Dortch's counsel had "reasonable grounds to believe that [Dortch] is incompetent to proceed."
We do not know the factual basis for defense counsel's belief. Rule 3.210(b)(1) says: "To the extent that it does not invade the lawyer-client privilege, the motion shall contain a recital of the specific observations of and conversations with the defendant that have formed the basis for the motion." As to this requirement, defense counsel's motion said: "[T]he undersigned cannot allege further as any recitation of specific observations of and conversations with the Defendant would invade the lawyer-client privilege."
All of that is unremarkable. The irregularity is that defense counsel's motion also said that "the defendant hereby waives the required 20 day hearing, pursuant to Fla. R. Crim. P. 3.210(b)." This was a reference to the rule's requirement that the court hold a competency hearing within 20 days if the court "has reasonable ground to believe that the defendant is not mentally competent to proceed."
The trial court (again, a different judge from the one who months later would take Dortch's plea) entered an order that granted defense counsel's motion and appointed a psychologist to examine Dortch. The court used a form order, with pre-printed information and blank spaces that could be marked. In pre-printed text, paragraph 5 of the form order gave notice of the 20-day hearing requirement of rule 3.210(b). But beneath that notice, the trial court added: "The Defendant hereby waives this provision and shall schedule a competency hearing pursuant to the Florida Rules of Criminal Procedure should it become necessary, with notice to the State and Court."
The order did not say that the court had reasonable ground to believe that Dortch was incompetent to proceed. Nor did the order recite any facts about Dortch's behavior or mental condition. Instead, the order simply checked the box indicating that the matter was before the court on motion by defense counsel.
The record does not indicate that the trial court ever held a hearing to determine Dortch's competence. Nor does the record indicate whether Dortch's examination took place or the results of any such examination.
The Fourth District ruled on Dortch's appeal in a unanimous en banc decision. Dortch v. State , 242 So. 3d 431, 433 (Fla. 4th DCA 2018). Citing rules 3.210(b) and 3.212(b), the district court first held that "[o]nce a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing and it must enter a written order on the issue." Id. The district court concluded that the trial court violated these rules here and that it had thereby committed "fundamental error." Id.
The Fourth District further held that, in these circumstances, "it is not necessary that a defendant first file a motion to withdraw plea." Id. The district court reasoned:
To require a criminal defendant, who may be incompetent, to file a motion to withdraw a plea before raising the issue on appeal is unwarranted. If a defendant is incompetent, confining him to postconviction relief, without the assistance of counsel, is not a remedy designed to do justice.
Id . As a remedy, the Fourth District remanded the case with instructions to determine Dortch's competence nunc pro tunc, if possible. If not, the judgment and sentence were to be vacated and the case set for trial. Id .
The Fourth District certified conflict with the decisions in Pressley v. State , 227 So. 3d 573 (Fla. 1st DCA 2017) ; Garcia-Manriquez v. State , 146 So. 3d 134 (Fla. 3d DCA 2014) ; and Hicks v. State , 915 So. 2d 740 (Fla. 5th DCA 2005). We accepted jurisdiction to resolve the conflict.
On the conflict issue, the State argues that the Fourth District erred by holding that Dortch could directly appeal his convictions without first filing a motion to withdraw his plea. We agree. There is no fundamental-error exception to the applicable preservation requirement.
This Court's leading decision on the right to appeal after pleading guilty or nolo contendere is Robinson v. State , 373 So. 2d 898 (Fla. 1979).1 We held in Robinson that "[t]here is an exclusive and limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal." Id . at 902. We characterized those issues as ones that stem from "conduct that would invalidate the plea itself." Id .
Robinson ’s list of appealable issues includes "only the following: (1) the subject matter jurisdiction, (2) the illegality of the sentence, (3) the failure of the government to abide by the plea agreement, and (4) the voluntary and intelligent character of the plea." Id . at 902.
Importantly for this case, we further held in Robinson that "an appeal from a guilty plea should never be a substitute for a motion to withdraw a plea." Id . (emphasis added). To illustrate the point, we said: "If the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented to the trial court in accordance with the law and standards pertaining to motions to withdraw a plea." Id . Our decision in Robinson thus determined that the state constitutional right to appeal does not include the right to appeal an involuntary plea without first filing a motion to withdraw plea.
Nearly two decades after we decided Robinson , the Legislature enacted the Criminal Appeal Reform Act of 1996. Among its provisions was the following:
If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.
Ch. 96-248, § 4, Laws of Fla.; § 924.051(4), Fla. Stat. (Supp. 1996). Despite the categorical language of the text, in Amendments to the Florida Rules of Appellate Procedure , 696 So. 2d 1103, 1105 (Fla. 1996) ( 1996 Amendments ), we held that "[a] defendant must have the right to appeal that limited class of issues described in Robinson ."
In response to the 1996 Act, this Court amended the Rules of Appellate Procedure to codify Robinson ’s limited list of appealable issues and its requirement that a defendant file a motion to withdraw plea before appealing an allegedly involuntary plea. Id . We also announced our adoption of Rule of Criminal Procedure 3.170(l ), "which authorizes the filing of a motion to withdraw the plea after sentencing within thirty days from the rendition of the sentence, but only upon the grounds recognized by Robinson or otherwise provided by law." Id . We said that we were adopting the new rule 3.170(l ) "[c]onsistent with the legislature's philosophy of attempting to resolve more issues at the trial court level." Id .
Dortch's appeal is governed by Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(c) —again, the rule through which we codified Robinson and responded to the 1996 Act. That rule allows a defendant to appeal "an involuntary plea, if preserved by a motion to withdraw plea." Accordingly, we begin by addressing...
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