Opinion
Case No. 6D23-453
03-03-2023
Ionut RADUCAN, Appellant, v. STATE of Florida, Appellee.
Michael B. Cohen, of Law Office of Michael B. Cohen, Fort Lauderdale, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee.
Michael B. Cohen, of Law Office of Michael B. Cohen, Fort Lauderdale, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee.
MIZE, J.
Ionut Raducan ("Appellant") appeals his convictions resulting from a nolo contendere plea to multiple felonies on the basis that his attorney was ineffective for failing to properly advise him regarding the immigration consequences of his plea. We affirm.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
In the trial court, Appellant entered into a plea agreement by which he agreed to plead "no contest" to all of the charges against him. Appellant did not reserve any matters for appeal except the legality of his sentence and the jurisdiction of the court. After accepting his plea, the trial court adjudicated him guilty and sentenced him to the minimum guideline sentences, with all sentences to be served concurrently.
In this direct appeal, Appellant raises a single claim of ineffective assistance of trial counsel. Specifically, Appellant argues that his trial counsel was ineffective because his counsel failed to advise him that he would be deported as a result of his convictions. Appellant filed this direct appeal without filing a motion to withdraw his plea in the trial court.
Section 924.051(3), Florida Statutes, provides that "[a]n appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error." § 924.051(3), Fla. Stat. (2000). Applying this provision, the Florida Supreme Court has held that an unpreserved claim for ineffective assistance of counsel cannot be raised on direct appeal absent a showing of fundamental error. Steiger v. State , 328 So. 3d 926, 929 (Fla. 2021).
Additionally, Florida Rule of Appellate Procedure 9.140(b)(2)(A) sets forth the grounds upon which a defendant may appeal a conviction resulting from a nolo contendere plea. With certain exceptions, a defendant that pleads nolo contendere may not pursue a direct appeal of any issue except a prior dispositive order of the trial court for which the defendant expressly reserved the right to appeal. Fla. R. App. P. 9.140(b)(2)(A)(i) ; see also § 924.051(4), Fla. Stat. (2000) ("If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue...the defendant may not appeal the judgment or sentence."); § 924.06, Fla. Stat. (1998) ("A defendant...who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.").
One of the exceptions to this rule is "an involuntary plea, if preserved by a motion to withdraw plea." Fla. R. App. P. 9.140(b)(2)(A)(ii) ; see also State v. Dortch , 317 So. 3d 1074, 1078 (Fla. 2021) (stating that rule 9.140(b)(2)(A)(ii)(c) "allows a defendant to appeal an involuntary plea, if preserved by a motion to withdraw plea." (quoting Fla. R. App. P. 9.140(b)(2)(A)(ii) (internal quotations omitted)).
A plea entered into with ineffective assistance of counsel is an involuntary plea. See Hoskin v. State , 341 So. 3d 443, 444 (Fla. 3d DCA 2022) (treating a plea that allegedly resulted from ineffective assistance of counsel as an involuntary plea under rule 9.140(b)(2)(A)(ii)(c) ); Hobbs v. State , 790 So. 2d 1164, 1166 (Fla. 4th DCA 2001) (treating a plea that allegedly resulted from ineffective assistance of counsel as an involuntary plea).
In this case, Appellant's ineffective assistance of counsel claim was not preserved in the trial court and Appellant does not assert that the trial court committed fundamental error. Therefore, pursuant to section 924.051(3), Florida Statutes, Appellant cannot pursue a direct appeal. Steiger , 328 So. 3d at 929.
Moreover, even if the Appellant had asserted that the ineffective assistance of counsel rose to the level of fundamental error, Appellant must still have preserved the error by filing a motion to withdraw the plea in the trial court in accordance with rule 9.140(b)(2)(A)(ii)(c). Dortch , 317 So. 3d at 1084 (holding that there is no fundamental error exception to the requirement of rule 9.140(b)(2)(A)(ii)(c) that a defendant preserve a claim of involuntary plea by filing a motion to withdraw the plea). For these reasons, we affirm.
AFFIRMED.
SASSO, C.J., and COHEN, J., concur.