Opinion
No. 3D07-115.
Opinion filed April 30, 2008.
An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge. Lower Tribunal Nos. 05-5864; 05-34636; 06-228.
Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
Jerry Camon seeks to reverse the trial court's summary denial of his motion to withdraw his plea and for appointment of conflict-free counsel. We reverse, as Camon was entitled to the appointment of conflict-free counsel.
After rejecting initial plea offers by the State, Camon participated in the plea colloquy and entered pleas in three cases. After sentencing, Camon filed a timely pro se motion to withdraw his pleas pursuant to Florida Rule of Criminal Procedure 3.170(l), alleging coercion by his attorney in the plea process. The court summarily denied that motion and Camon did not appeal. Camon later filed an "amended" rule 3.170(l) motion to withdraw his pleas, a motion to appoint counsel, and a motion for evidentiary hearing, for the same reasons as before and adding claims of vindictive sentencing. The trial court denied the motion to withdraw as insufficient, citing to the plea colloquy. The clerk then advised the judge that there was also a motion to appoint conflict-free counsel to advise Camon on the rule 3.170(l) motion. The court denied the motion and Camon appeals.
A post-sentence motion to withdraw a plea pursuant to rule 3.170(l) is a critical stage of criminal proceedings. The trial court is obligated to appoint conflict-free counsel if the defendant is, at the time of filing the rule 3.170(l) motion, represented by trial counsel and the motion is facially sufficient to show that a conflict between the defendant and trial counsel exists with regard to the plea. In the facts presented here, it is unknown whether Camon was represented by counsel at the time he filed his motion to withdraw the plea. Camon made claims that his trial counsel coerced him into taking the plea. At that point, the trial court was obligated to appoint conflict-free counsel to advise Camon further.
See Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008); accord Schriber v. State, 959 So. 2d 1254, 1256 (Fla. 4th DCA 2007).
Searcy v. State, 971 So. 2d 1008 (Fla. 3d DCA 2008).
See Schriber, 959 So. 2d at 1254; Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999);
We reverse and remand, directing the trial court to appoint conflict-free counsel for Camon to assist him in the preparation of a rule 3.170(l) motion to withdraw his plea. Then, if the motion to withdraw the plea raises legally sufficient allegations of coercion, the trial court should hold an evidentiary hearing. If the allegations are legally insufficient or conclusively refuted by the record, the trial court can deny the motion to withdraw as to the allegation of coercion without holding an evidentiary hearing.
Wallace v. State, 939 So. 2d 1123 (Fla. 3d DCA 2006); Padgett, 743 So. 2d at 70.
Reversed and remanded with directions.
Not final until disposition of timely filed motion for rehearing.