State v. Will
| Decision Date | 09 November 1994 |
| Docket Number | No. 93-2956,93-2956 |
| Citation | 645 So.2d 91 |
| Parties | 19 Fla. L. Weekly D2334 The STATE of Florida, Appellant, v. Larry WILL, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Mark Rosenblatt, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Ken Lange, Sp. Asst. Public Defender, for appellee.
Before HUBBART, COPE and GODERICH, JJ.
The State appeals the trial court's order granting postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse.
In 1991 Larry Will, defendant below, entered a negotiated plea of guilty to multiple criminal charges and was sentenced to a term of eighteen years as a habitual felony offender. 1 In 1992 defendant filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 seeking to set aside his plea. After an evidentiary hearing the trial court set aside the plea, convictions, and sentences. The State has appealed.
In the present case the defendant seeks to set aside a plea where the judgment and sentence have become final. In order to obtain postconviction relief, the defendant must satisfy a high burden.
Florida Rule of Criminal Procedure 3.172 governs the acceptance of guilty pleas. Rule 3.172(i) states, "Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice." Similarly, the Florida Supreme Court has held that after sentence is imposed, a plea is not to be vacated unless there is a showing of prejudice or manifest injustice. Williams v. State, 316 So.2d 267, 273-75 (Fla.1975); see also Freber v. State, 638 So.2d 140, 141 (Fla. 4th DCA 1994); Suarez v. State, 616 So.2d 1067, 1068 (Fla. 3d DCA 1993).
Defendant asserted, inter alia, that the plea should be set aside because there was no on-the-record waiver of the right to a habitual offender hearing under section 775.084, Florida Statutes (1989). 2 The trial court agreed. The court's written order states that the defendant "could not enter a plea and be sentenced as an Habitual Offender pursuant to Florida Statute 775.084 without a [habitual offender] hearing or without a specific waiver of hearing recorded in the plea colloquy...." We respectfully disagree.
The principal purpose of a hearing under the habitual offender statute is to make findings establishing that the defendant is a habitual offender. Sec. 775.084(3)(d), Fla.Stat. (1989). The Fourth District Court of Appeal has held that where a defendant expressly consents to a habitual offender sentence as part of a plea bargain, it is unnecessary for the trial court to make the statutory habitual offender findings. Spriggs v. State, 615 So.2d 828, 829 (Fla. 4th DCA 1993) (en banc); accord Bell v. State, 637 So.2d 941, 942 (Fla. 2d DCA 1994). That being so, no useful purpose would be served by holding the habitual offender hearing, or obtaining an on-the-record waiver of the habitual offender hearing. 3 See Greenlee v. State, 591 So.2d 310, 310-11 (Fla. 2d DCA 1991). But see Harper v. State, 605 So.2d 994, 995 (Fla. 5th DCA 1992). 4
Assuming arguendo that it was necessary to obtain an on-the-record waiver, or to conduct a habitual offender hearing, defendant would still be entitled to no relief. In order to obtain postconviction relief, defendant must show clear prejudice or manifest injustice. Where a defendant agrees to a specific sentence as a habitual offender, and that sentence is imposed, a deficiency in the plea colloquy, or an absence of a habitual offender finding, does not constitute prejudice or manifest injustice.
It would be a different matter entirely if defendant did not meet the statutory criteria for a habitual offender. He would of course be entitled to relief if he showed that he did not qualify as a habitual offender because such a showing would clearly meet the manifest injustice standard of Williams. See 316 So.2d at 274-75; Marshall v. State, 623 So.2d 1230 (Fla. 1st DCA), appeal dismissed, 626 So.2d 207 (Fla.1993); Watkins v. State, 622 So.2d 1148 (Fla. 1st DCA 1993); Brown v. State, 609 So.2d 730 (Fla. 1st DCA 1992), review denied, 618 So.2d 1369 (Fla.1993). Defendant made no such argument below, nor is such a contention advanced here. See Spriggs, 615 So.2d at 832. 5 Defendant is entitled to no relief on this theory.
Defendant argues alternatively that the plea colloquy is facially inadequate under Ashley v. State, 614 So.2d 486 (Fla.1993). Ashley states that in taking a habitual offender plea, "[t]he defendant should be told of ... the fact that habitualization may affect the possibility of early release through certain programs...." 614 So.2d at 490 n. 8. 6 Defendant argues that the trial court should have advised him that a habitual offender is ineligible for basic gain time.
At the evidentiary hearing defendant testified that he did not know about a habitual offender's ineligibility for basic gain time, and therefore that he was prejudiced by the absence of that information. Defendant's original trial counsel 7 testified that he specifically advised defendant regarding the gain-time consequences of the habitual offender plea. 8 The trial court's remarks at the conclusion of the hearing strongly suggest that the court believed former defense counsel and did not believe defendant. However, because the plea was set aside on other grounds there was no specific finding announced on whether defendant knew the gain time consequences of habitualization.
As a preliminary matter, we are in doubt about the correctness of defendant's reading of Ashley. Ashley requires advice in the plea colloquy that "habitualization may affect the possibility of early release through certain programs...." 614 So.2d at 490 n. 8. It is not clear that basic gain time is an early release program as contrasted with the conditional release and control release programs. See Secs. 947.1405, 947.146, Fla.Stat. (1993). We need not now decide whether Ashley 's "certain programs" includes basic gain time, since we conclude that defendant may not rely on Ashley in any event.
Defendant was sentenced in 1991. Ashley was announced in 1993. 9 The threshold question is whether the quoted portion of Ashley (the new requirement to advise of "the fact that habitualization may affect the possibility of release through certain programs") applies retroactively to convictions that have become final. We conclude that this portion of Ashley is not retroactive.
At the time of defendant's plea in 1991 the settled law was set forth in State v. Ginebra, 511 So.2d 960 (Fla.1987):
It is clear under both state and federal decisions that the trial court judge is under no duty to inform a defendant of the collateral consequences of his guilty plea. Florida Rule of Criminal Procedure 3.172(c), and its counterpart Federal Rule of Criminal Procedure 11(c), set forth those areas which the trial court judge must inquire of the defendant before accepting a guilty plea. The trial judge's obligation to ensure that the defendant understands the direct consequences of his plea has been consistently interpreted to encompass only those consequences of the sentence which the trial court can impose. See, e.g., Michel v. United States, 507 F.2d 461, 465 (2d Cir.1974).
511 So.2d at 960-61 (footnotes omitted; emphasis added). 10
Ginebra states that Rule 3.172(c) sets forth the required areas of inquiry when the trial court accepts a plea. The Rule does not enumerate the collateral consequence of loss of eligibility for early release programs as an area to be covered when accepting habitual offender pleas.
Ginebra also indicates that the judge's obligation is to ensure that the defendant understands the direct consequences of the plea. Ginebra states that a direct consequence of a plea encompasses "only those consequences ... which the trial court can impose." 511 So.2d at 961. Loss of basic gain time is not a consequence which the trial court imposes. Accordingly, loss of eligibility for basic gain time is a collateral consequence of a plea. See id.; Simmons v. State, 611 So.2d 1250, 1252-53 (Fla. 2d DCA 1992); Levens v. State, 598 So.2d 120, 121 (Fla. 1st DCA 1992); Wright v. State, 583 So.2d 399, 400 (Fla. 1st DCA 1991); see also Blackshear v. State, 455 So.2d 555, 556 (Fla. 1st DCA 1984) (). But see Wilcox v. State, 638 So.2d 527 (Fla. 5th DCA 1994) (); Setzer v. State, 575 So.2d 747 (Fla. 5th DCA 1991) (pre-Ashley decision; same). See generally Polk v. State, 405 So.2d 758, 761-62 (Fla. 3d DCA 1981) ().
Ashley changed the law relating to pleas by adding a requirement for the trial court to advise the defendant of "the fact that habitualization may affect the possibility of early release through certain programs...." 614 So.2d at 490 n. 8. 11 In order to determine if this change operates retroactively to convictions that have become final, we must examine the standards set forth in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); see Williams v. State, 421 So.2d 512 (Fla.1982) ().
Under Witt, a Florida Supreme Court decision will be retroactive only if the change in law "is constitutional in nature, and ... constitutes a development of fundamental significance." 387 So.2d at 931. Ashley is not a constitutional change in law, nor is it fundamental in the Witt sense. Ashley instead represents an evolutionary refinement in the law relating to plea colloquies, a development which does not satisfy the Witt standards for retroactive treatment. 12 See Witt v. State, 387 So.2d at 926, 929-31; Williams v. State, 421 So.2d at 514-15. We conclude, therefore, that the defendant is...
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