State v. Partlow

• Decision Date: 20 February 2003
• Docket Number: No. SC02-713.,SC02-713.
• Citation: 840 So.2d 1040
• Parties: STATE of Florida, Petitioner, v. Edward Thomas PARTLOW, Respondent.
• Court: Florida Supreme Court

840 So.2d 1040

STATE of Florida, Petitioner, v. Edward Thomas PARTLOW, Respondent.

No. SC02-713.

Supreme Court of Florida.

February 20, 2003.

Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, FL, for Petitioner.

Kathleen Cooper Grilli, Hollywood, FL, for Respondent.

PER CURIAM.

We review Partlow v. State, 813 So.2d 999 (Fla. 4th DCA 2002), which certified conflict with Nelson v. State, 780 So.2d 294 (Fla. 1st DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue is whether, after being sentenced for a sexual offense pursuant to a plea of guilty or nolo contendere, a defendant may withdraw his plea as involuntary because he was not informed of the sexual offender registration requirement. The Fourth District Court of Appeal held below that the defendant's ignorance of this consequence rendered his plea involuntary, and therefore he must be allowed to withdraw his plea. 813 So.2d at 999-1000. For the reasons expressed below, we hold that the sexual offender registration requirement is a collateral consequence of the plea, and therefore failure to inform the defendant of that requirement before he entered the plea does not render his plea involuntary.

Partlow entered a "best interests" guilty plea to eight counts of the first-degree felony of sexual battery on a person within his familial or custodial authority (§ 794.011(8), Fla. Stat. (1997)) and one count of indecent assault (§ 800.04(1), Fla. Stat. (1997)). The court accepted the plea and sentenced Partlow as an habitual offender to concurrent terms of fifteen years in prison followed by ten years of sexual offender probation. About twenty days later, he filed a motion to withdraw his plea on the ground that it was involuntary because he was not properly advised of the consequences of entering a plea. At the hearing, Partlow testified that had he known he would have to register as a sex offender, see § 943.0435, Fla. Stat. (1997) (defining "sexual offender" and imposing sexual offender registration requirements), he would not have entered his plea. The trial court denied his motion. On appeal, the Fourth District reversed. Citing Florida Rule of Criminal Procedure 3.170(f), the court held that the trial court should have advised Partlow of the "known consequences" of his plea and directed the trial court to allow him to withdraw his plea. Partlow, 813 So.2d at 999-1000.

Florida Rule of Criminal Procedure 3.170 governs the circumstances under which a defendant may withdraw a plea. Subdivision (f) of that rule states that a "court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn." Fla. R.Crim. P. 3.170(f) (emphasis added). Under this provision, a trial court plainly has broad discretion in determining motions to withdraw a plea. See Graham v. State, 779 So.2d 604, 605 (Fla. 2d DCA 2001); Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983). Here, however, Partlow sought to withdraw his plea after his sentence. Therefore, rule 3.170(f) does not apply.

Rule 3.170(l) applies to motions to withdraw filed after sentencing. In contrast to subdivision (f), this provision allows withdrawal of a plea only on the limited grounds listed in Florida Rule of Appellate Procedure 9.140(b). Such grounds include lack of subject matter jurisdiction, violation of the plea agreement, and involuntariness of the plea.¹ Moreover, once sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction. See Lopez v. State, 536 So.2d 226, 229 (Fla.1988). Because Partlow filed his motion after sentencing, subdivision (l), not subdivision (f), of rule 3.170 applies. Therefore, to obtain permission to withdraw his plea, Partlow had to show that failure to inform him of the sexual offender registration requirement rendered his plea involuntary.

The Fourth District held that the sexual offender registration requirement is a "known consequence" of the defendant's plea, of which he had to be informed. That a consequence is "known," however, does not mean a defendant must be informed of it to render the plea voluntary. In State v. Ginebra, 511 So.2d 960, 961 (Fla.1987), we held that a trial court judge is under no duty to inform a defendant of the collateral consequences of his guilty plea. A defendant must only be made aware of the direct consequences of the plea—i.e., those having a "definite, immediate, and largely automatic effect on the range of the defendant's punishment." Major v. State, 814 So.2d 424, 428, 431 (Fla.2002) (differentiating between collateral and direct consequences). The voluntariness of a plea depends on whether the defendant is aware of the direct consequences of the plea and those consequences listed in Florida Rule of Criminal Procedure 3.172(c).²Id.; see Ginebra, 511 So.2d at 962 ("We note that there are numerous other collateral consequences of which a defendant does not have to be knowledgeable before his plea is considered knowing and voluntary."). The district courts of appeal, including the Fourth District in this case, agree that the statutory sexual offender and sexual predator reporting and registration requirements are collateral consequences of a plea. See Partlow, 813 So.2d at 1000; Nelson, 780 So.2d at 295 (stating this conclusion and listing cases from the other district courts); State v. Stapleton, 764 So.2d 886, 887 (Fla. 4th DCA 2000) (same), review denied, 804 So.2d 330 (Fla.2001).

We agree with the district courts that the sexual offender registration requirement is a collateral consequence of the plea.³ A direct consequence must affect the range of punishment in a definite, immediate, and largely automatic way. The registration requirement has absolutely no effect on the "range of the defendant's punishment" for the crime to which Partlow entered a plea. Because the requirement to register is not punishment at all, and therefore cannot affect the range of the defendant's punishment, it is merely a collateral consequence of the plea. See § 943.0435(12), Fla. Stat. (2002) (stating that sexual offender designation "is not a sentence or a punishment but is simply the status of the offender"). Although a defendant's later failure to register as a sexual offender constitutes a third degree felony, see § 943.0435(9), Fla. Stat., such consequences flow from a violation of that statute, not the one for which he entered a plea. The fact remains that the defendant faces no further punishment for this crime simply because the law imposes other duties as a result.

Based on the collateral nature of the sexual offender registration requirement, the First District Court of Appeal correctly concluded in Nelson that the defendant failed to establish a manifest injustice requiring withdrawal of the plea. 780 So.2d at 295. In contrast, although the Fourth District acknowledged in this case that the sexual offender registration requirement is a collateral consequence, it nevertheless found that Partlow's ignorance of this collateral matter rendered his plea involuntary. Partlow, 813 So.2d at 1000. As we explained above, however, failure to inform a defendant about a collateral consequence—one that does not have a definite, immediate, and largely automatic effect on the range of the defendant's punishment—cannot render the plea involuntary. In Ginebra, for example, we addressed a claim that defense counsel failed to inform the defendant of the possibility of his deportation upon entry of his plea. 511 So.2d at 960. Although we recognized that deportation may be a severe consequence, we held that because the possibility of deportation was collateral, defense counsel was not ineffective for failing to advise his client about it. Id. at 961-62. Rule 3.172(c) was later amended to require that defendants be informed of such a consequence. See State v. DeAbreu, 613 So.2d 453 (Fla.1993) (dismissing review and noting that rule change superseded Ginebra). This rule amendment, however, did not invalidate the reasoning in Ginebra. See Major, 814 So.2d at 428 (noting amendment of rule 3.172(c), but expressly affirming that Ginebra correctly states the law regarding failure to advise of collateral consequences). See also Watrous v. State, 793 So.2d 6, 9-10 (Fla. 2d DCA 2001) (holding that the potential civil commitment as a sexually violent predator under the Jimmy Ryce Act, §§ 394.910.931, Florida Statutes (2000), is a collateral consequence, but urging that rule 3.172(c) be amended to require advising defendants of it). The Fourth District erred by equating the failure to inform a defendant of a collateral consequence, which does not affect the voluntariness of a plea, with the failure to inform a defendant of a direct consequence, which does.

In conclusion, to obtain relief through a motion to withdraw a plea after sentencing under rule 3.170(l), a defendant must demonstrate a manifest injustice, such as involuntariness of the plea. See Fla. R.Crim. P. 3.170(l); Fla. R.App. P. 9.140(b). A claim that a defendant was not informed of a collateral consequence, however, is insufficient to render a plea involuntary. Accordingly, we approve Nelson and quash the decision of the Fourth District in Partlow.

It is so ordered.

WELLS, LEWIS, QUINCE and CANTERO, JJ., concur.

CANTERO, J., concurs with an opinion.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, C.J., and SHAW, Senior Justice, concur.

CANTERO, J., concurring.

I fully concur in the majority opinion. I write only to address an inherent arbitrariness with the application of Florida Rule of Criminal Procedure 3.170, which governs the withdrawal of guilty pleas, as currently written. Under paragraph (f) of the rule, which applies to motions to withdraw pleas filed before sentencing, a "court may in its discretion, and shall on good cause, at any time before a sentence,...