White v. State

• Decision Date: 24 July 2009
• Docket Number: No. 2D08-4237.,2D08-4237.
• Citation: 15 So.3d 833
• Parties: Kevin Daniel WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

15 So.3d 833

Kevin Daniel WHITE, Appellant, v. STATE of Florida, Appellee.

No. 2D08-4237.

District Court of Appeal of Florida, Second District.

July 24, 2009.

John H. Trevena and Lauren N. Dabule, Largo, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Kevin Daniel White appeals the circuit court's denial of his pro se motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170(l). The circuit court denied the motion without conducting an evidentiary hearing. Because the allegations of the motion were legally sufficient and were not conclusively refuted by the record, we reverse the order denying the motion and remand for an evidentiary hearing.

The State charged Mr. White with murder in the first degree. On May 28, 2008, Mr. White filed a letter asking the circuit court to dismiss defense counsel based on seven complaints. Mr. White subsequently filed a written motion to dismiss counsel and filed two bar grievances against defense counsel. The circuit court never ruled on Mr. White's motions to dismiss. Mr. White entered a negotiated guilty plea on June 16, 2008, in exchange for the State's agreement to waive the death penalty.

At the beginning of the plea hearing, the State requested that Mr. White acknowledge that he was waiving his motions to dismiss defense counsel and state that he was "fine with his counsel." The following discussion ensued:

THE COURT: All right. I read—I read the letter into the record. Certainly, I—I gave copies to counsel, and I just want to make sure, Mr. White, that this is a decision that you want to—you know, you want to enter into.

The suggestion is right now that you are entering a plea of guilty to the charge contained in the indictment, murder in the first degree, in exchange for a life sentence.

[MR. WHITE]: At this time, it's about the only option, sir.

At that point, the circuit court began the plea colloquy. As part of the colloquy, the court asked Mr. White whether anyone was threatening or forcing him to enter the plea. He responded, "No, sir. I just feel that if I go to trial, I'm gonna lose with the defense I have." When asked whether he was satisfied with counsel's advice and representation, Mr. White stated, "Satisfied with counsel? I do believe there is a lack of medical experts and people who could have helped my case, consulted and ... a lack of investigation." After further inquiry by the court, Mr. White acknowledged that defense counsel had deposed two experts but that their opinions would not be favorable. The circuit court found that Mr. White's plea was freely and voluntarily made and that he was satisfied with counsel. The court then adjudicated him guilty and sentenced him to life imprisonment. Afterward, in response to a question from the circuit court about whether he had any questions, Mr. White asked: "I'd just like to know how much time I'm gonna have when I get up there to put in the proper motion to possibly fight this from up there?"

On July 3, 2008, Mr. White filed a pro se rule 3.170(l) motion to withdraw plea. Mr. White's motion incorporated by reference his previous requests to dismiss counsel.¹ Mr. White alleged that counsel had misled him into entering the plea. In particular, Mr. White stated that defense counsel had told him that his motions to dismiss counsel had been denied. The circuit court denied Mr. White's rule 3.170(l) motion without a hearing on the ground that the transcript of the plea hearing conclusively refuted his claim.

We review the denial of a motion to withdraw plea for abuse of discretion. Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004). If the motion to withdraw plea is facially sufficient, the circuit court must either grant "`an evidentiary hearing or accept the defendant's allegations ... as true [unless] they are conclusively refuted by the record.'" Bayer v. State, 902 So.2d 353, 354 (Fla. 2d DCA 2005) (quoting Boule, 884 So.2d at 1024); see also Townsend v. State, 927 So.2d 1064, 1065 (Fla. 4th DCA 2006).

Mr. White's motion was facially sufficient. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (holding that a rule 3.170(l) motion based on the allegation that counsel misled the defendant into entering the plea was facially sufficient because it challenged the voluntariness of the plea). A review of the plea colloquy reveals that Mr. White never responded to the State's request that he waive his prior motions to dismiss counsel. Mr. White's statements during the plea hearing do not reveal the nature of any communications between his defense counsel and him. In fact, nothing in the record refutes Mr. White's allegation that counsel...