Opinion
No. 1D00-3945.
Opinion filed March 27, 2001.
An appeal from the Circuit Court for Duval County. Charles W. Arnold, Jr., Judge.
Affirmed in part, Reversed in part, and Remanded for further proceedings.
Forrest Bill Dooley, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
The order denying appellant's motion for postconviction relief is affirmed as to all claims except that alleging appellant's plea was involuntary, because he was coerced into entering the plea by threats of a life sentence. The trial court denied this claim, stating it was procedurally barred as an abuse of process because it could have been raised in the motion to withdraw plea that appellant timely filed pursuant to Florida Rule of Criminal Procedure 3.170(1). Additionally, the trial court, referencing a statement made by the prosecutor at the plea hearing, stated that appellant's crimes were punishable by life terms. The record fails to support either of these rulings; accordingly, we reverse and remand for further proceedings.
The record does not conclusively show that appellant's involuntary plea claim was procedurally barred. Rule 3.170(1) authorizes a defendant to file a motion to withdraw a plea based on involuntariness within 30 days of rendition of the sentence. The defendant may then directly appeal such issue if the motion to withdraw is denied. See Fla.R.App.P. 9.140(b)(2)(B)(ii). In the instant case, however, appellant did not file a direct appeal. Instead, he opted to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Involuntary plea claims are permitted under rule 3.850, although the rule does not authorize relief based on grounds which could have been raised on direct appeal. Because the motion to withdraw plea is not included in the record before this court it is impossible for us to ascertain if the involuntary plea claim appellant presented in his postconviction motion was originally raised in the motion to withdraw, which he would have been required to pursue on direct appeal, or if the postconviction claim is a new one that must be pursued pursuant to rule 3.850. The trial court's order suggests it was a new claim, because it states that the claim "could and should have been raised in Defendant's previous Motion to Withdraw Plea." Assuming the involuntariness claim is a new one properly raised under rule 3.850, it cannot be procedurally barred, and the trial court erred in denying the motion without considering it.
Additionally, the record before this court suggests that appellant's involuntariness claim has merit. He asserted that his plea was coerced by threats of a life sentence, thereby rendering his plea involuntary. The information in the record shows that appellant was charged with sexual battery in violation of section 794.011(8)(b), Florida Statutes (1997), which is a first-degree felony punishable by a term of 30 years. See § 775.082(3)(b), Fla. Stat. (1997). Nevertheless, it appears from the record that both the trial court, defense counsel, and the prosecutor believed appellant's crimes were punishable by a life term. It could be that one of the four charges which was dismissed was a life felony, but the record does not contain an amended information showing the eight charges that were ultimately filed against appellant so it is impossible to tell.
In conclusion, because the trial judge erred in finding that appellant's claim of involuntary plea was procedurally barred, and because the record does not refute that claim, the final order denying appellant's motion for postconviction is reversed only as to the involuntariness claim, and the case is remanded to the trial court for proceedings consistent with this opinion.
Ervin, Booth and Allen, JJ., Concur.