Opinion
No. 3D04-1326.
Opinion filed April 16, 2008.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge, Lower Tribunal No. 98-26629.
Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender.
Bill McCollum, Attorney General, and Erin Kinney, Assistant Attorney General, for appellee.
Before GERSTEN, C.J., and COPE and GREEN, JJ.
This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse for an evidentiary hearing on grounds two and three and affirm the remainder of the trial court's order.
Defendant-appellant Hernando Garcia was charged with one count of armed robbery. He was alleged to be the driver of a car from which the passenger jumped and robbed the victim of a gold chain. The defendant was convicted and sentenced to life imprisonment.
Prior to trial, the State offered the defendant a plea agreement of five years as a habitual offender followed by five years of probation if he would give a statement and testify against the codefendant. In ground two of the sworn motion, the defendant alleges that his counsel told him he should turn down the plea offer because the defense was going to win the case. Attached to the sworn motion are affidavits from three of the defendant's relatives who say that they were present at these discussions with the defense lawyer and that this is what the defense lawyer said.
The defendant alleges that his trial counsel was ineffective for advising him to reject the plea offer, in view of the evidence against him. The trial transcript shows that just prior to trial, the trial court inquired about whether a plea offer had been conveyed. The court confirmed that the defendant understood he was exposed to receiving a life sentence, if convicted. The State construed the defendant's rule 3.850 motion as claiming that counsel failed to communicate the plea offer to the defendant. The State argued that since the defendant was aware of the plea offer and the maximum sentence, it follows that there can be no claim of ineffective assistance of trial counsel in advising the defendant to reject the plea. The trial court denied the rule 3.850 motion, and the defendant has appealed.
This court has held that where defense counsel is alleged to have rendered ineffective assistance in advising a defendant to reject a plea offer, the defendant is entitled to an evidentiary hearing unless the record conclusively refutes the claim — which it does not in this case. Our decision in Perez v. State, 893 So. 2d 629 (Fla. 3d DCA 2005), is on point. In Perez this court said:
The defendant's sworn motion states in substance that trial counsel advised him that he was likely to be acquitted of the charges of aggravated battery on a police officer and resisting arrest with violence. He asserts that in reliance on this advice he rejected the State's plea offer of a five-year mandatory minimum term of imprisonment. Upon conviction, the defendant was sentenced to ten years with a mandatory minimum of five years. The defendant alleges that counsel's advice to reject the plea was incompetent in view of the substantial evidence against him. The record does not conclusively refute that claim.
Id. at 629 (citations omitted).
Also on point is Gomez v. State, 832 So. 2d 793 (Fla. 3d DCA 2002). In that case the defendant alleged that his defense counsel advised him to reject a favorable plea offer, because defense counsel assured the defendant that a pending motion to suppress evidence would be successful. Id. at 794. The motion to suppress evidence was later denied, and the defendant subsequently accepted a plea agreement for a considerably longer sentence. Because the postconviction record did not conclusively refute the defendant's claim, this court reversed for further proceedings on the ineffective assistance claim. Id.; see Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999) (reversing for further proceedings on a claim that counsel was ineffective for improperly inducing the defendant to reject the State's plea offer); see also Sharpe v. State, 861 So. 2d 483 (Fla. 3d DCA 2003) (stating that Strickland v. Washington, 466 U.S. 668 (1984), supplies the framework for analyzing a claim of ineffective assistance of counsel in advising a defendant to reject a plea agreement).
The State's reliance on Cottle v. State, 733 So. 2d 963 (Fla. 1999), is misplaced. In Cottle the defendant alleged that his counsel had failed to advise him of a favorable plea offer from the State. The defendant stated that he never knew about the plea offer until the sentencing hearing after defendant had been convicted at trial. Id. Defense counsel disputed this, saying that he had properly advised the defendant of the existence of the offer. The Cottle court ruled that the defendant was entitled to a hearing, and outlined a three-part test to be applied where a defendant alleges that counsel was ineffective for failing to convey a plea. Id. at 966-69.
The present case involves a different issue than the one explored inCottle. In the present case, unlike Cottle, the defendant was told of the plea offer and, according to the sworn allegations, states that his counsel advised him to reject the offer. The defendant alleges that counsel was ineffective in rendering that advice. Because this is a cognizable claim under Perez and Gomez, we reverse for a hearing.
We also reverse for a hearing on ground three. The defendant alleges that he received affirmative misadvice that if he testified at trial, the jury would hear the exact crimes that the defendant had previously been convicted of and would also hear the fact that the defendant had recently been released from prison.
This court has held that such allegations are sufficient to call for an evidentiary hearing. Bell v. State, 901 So. 2d 180 (Fla. 3d DCA 2005). In Bell this court said:
Bell's sworn motion asserts affirmative misadvice of trial counsel that if he testified in his own defense, the prosecution would be able to place before the jury the exact nature of the offenses of which he had previously been convicted. As a general proposition, such advice (if given) would have been incorrect under the Evidence Code.
Id. (citations omitted).
The Florida Supreme Court's opinion in Jacobs v. State, 880 So. 2d 548 (Fla. 2004), is instructive. The defendant in Jacobs alleged that his counsel was ineffective for failing to call two alibi witnesses and for misadvising the defendant that if he testified, the details of his prior record could be placed before the jury. Id. at 554. The Court concluded that an evidentiary hearing was called for. Id.; see also Tyler v. State, 793 So. 2d 137, 141 (Fla. 2d DCA 2001) (remanding for an evidentiary hearing where defendant alleged that trial counsel misinformed him that the jury would hear specific nature of prior convictions as impeachment, and did not testify); Everhart v. State, 773 So. 2d 78, 79-80 (Fla. 2d DCA 2000) (same). We remand for an evidentiary hearing on ground three as well.
We affirm the denial of relief on the remaining issues.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
GREEN, J., concurs.
Not final until disposition of timely filed motion for rehearing.
I respectfully dissent. My dissent is based on my experience as a trial judge, having seen "lock winner" cases lose and "lock loser" cases win. This pragmatic observation only proves that going to trial is always a gamble. On the other hand, taking a plea is a sure bet.
The majority opinion posits that if an attorney gives a client the benefit of his experienced advice on the likelihood of prevailing at trial, and he or she is wrong, then the wrong advice constitutes ineffective assistance of counsel. Nothing could be further from the essence of Florida Rule of Criminal Procedure 3.171(c).
Rule 3.171(c) pertinently states:
(c) Responsibilities of Defense Counsel.
. . . .
(2) Defense counsel shall advise defendant of:
(A) all plea offers; and
(B) all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.
The rule was modeled after the ABA Standards for Criminal Justice Pleas of Guilty 14-3.2. This standard specifically addresses the responsibilities of defense counsel in plea situations. The commentary to the standard reads:
Although counsel must avoid overconfident assurances to clients, "[t]here is nothing wrong . . . with a lawyer's giving his client the benefit of his judgment as to what the court is likely to do, always making it clear that he is giving advice, not making a promise." Although it is inevitable that not all of defense counsel's predictions will come to pass, defendants generally are aided by such advice. Pleas entered upon opinions and not promises are not subject to attack."
Standards for Criminal Justice Pleas of Guilty 14-3.2 cmt. at 122 (3d ed. 1999) (citations omitted).
Here, the defendant's motion alleges ineffective assistance of counsel stating:
Counsel advised the Defendant that he should not take the plea, because state did not have a case and the case would not go to the jury. On the 1st day of trial, counsel told the Defendant's [niece, mother, and girlfriend] that he would have the Defendant home tonight. . . .
Counsel told the Defendant not to take the deal, because he had never lost a case in Peter Lopez's Courtroom. "I am three and one, the one lost is for a guy who took a deal." Had counsel not told the Defendant he could beat this prosecutor and that he had beat him so many times before, the defendant would have taken the deal offered by the State, instead of going to trial.
As such, defense counsel did not misadvise his client on the law. Defense counsel did not make any promises. At best, and assuming defendant's allegations are true, defense counsel overestimated his ability, underestimated the State's case, and/or the prosecutor's ability.
Boiled down to its essence, the majority's position is that if a defendant alleges that his attorney advised that he should win, and does not, then a defendant has a legitimate claim for ineffective assistance of counsel. If the majority is correct, then all defendants will allege that their attorneys advised that they should win their case. This would open the door to rampant rule 3.850 motions, which, according to the majority, will necessitate evidentiary hearings. The practical effect is that already overburdened trial courts will be even more overburdened using valuable court time to hear spurious post-trial motions.
Turning to the majority's acceptance of the defendant's claim of misadvice regarding the consequences of testifying at trial, defendant's own allegations show that not testifying was part of the defense strategy. In his motion, the defendant states that defense counsel told defendant:
[The jury] will know that you have been in trouble before. This is not going to look good, because we are trying to make them understand you were not part of this crime. We want them to realize that you were just in the wrong place at the wrong time and that you did not know what was going to happen.
On this issue, and of significant import, the trial court also questioned the defendant on his decision not to testify, at which time the following exchange occurred:
THE COURT: You have the absolute right not to become a witness, you understand?
THE DEFENDANT: Yes.
. . . .
THE COURT: You had an opportunity to discuss this issue with your attorney?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with his advice and counsel on this issue?
THE DEFENDANT: Yes.
THE COURT: Regardless of his advice it's your decision and your decision alone not to testify, is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: After all, it is your case, is that correct?
THE DEFENDANT: Yes, sir.
(Emphasis added.)
This exchange demonstrates that defendant was satisfied with his defense counsel's strategy. A trial counsel's reasonable strategic decisions should not be second-guessed, particularly when the client agrees to the strategy. See Jones v. State, 845 So. 2d 55, 64 (Fla. 2003). Thus, I cannot agree with the majority that the defendant is entitled to an evidentiary hearing on his decision not to testify.
Therefore, because neither counsel's boastfulness nor an agreed-upon trial strategy should constitute ineffective assistance of counsel, I respectfully dissent. I would affirm the summary denial of the defendant's rule 3.850 motion.