Ey v. State

982 So. 2d 618, 2008 WL 516396
CourtSupreme Court of Florida
DecidedFebruary 28, 2008
DocketSC03-2161
StatusPublished
Cited by33 cases

This text of 982 So. 2d 618 (Ey v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ey v. State, 982 So. 2d 618, 2008 WL 516396 (Fla. 2008).

Opinion

982 So.2d 618 (2008)

Robert EY, Petitioner,
v.
STATE of Florida, Respondent.

No. SC03-2161.

Supreme Court of Florida.

February 28, 2008.
Rehearing Denied May 15, 2008.

*619 Hunter W. Carroll of Carlton and Carroll, P.A., Bradenton, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL; Robert J. Krauss, Assistant Attorney General, Bureau Chief, and Patricia A. McCarthy, Assistant Attorney General, Tampa, FL, for Respondent.

CANTERO, J.

In this case, we consider whether, when a defendant has committed two separate crimes and informs his attorney about both of them, the attorney's erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel. We hold that it does. We also hold, however, that such claims must be filed within the two-year deadline of Florida Rule of Criminal Procedure 3.850.

Below, we (I) detail the relevant facts and procedural history of the case; (II) explain why counsel's wrong advice about the effect of a plea to one crime on a sentence for another crime that already has been committed constitutes ineffective assistance of counsel, and establish the pleading requirements for such a claim; (III) address the deadlines for timely filing such claims; and (IV) apply our holding to the facts of this case and order that Petitioner be afforded an opportunity to amend his claim if he can do so in good faith.

*620 I. THE RELEVANT FACTS AND PROCEDURAL HISTORY

Petitioner was arrested for petit theft in case number 99-21195 (Case# 1). According to Petitioner's allegations (no evidentiary hearing has been held), he informed his counsel before the plea that he had committed another crime—dealing in stolen property. His counsel informed him that his plea in Case # 1 would not affect any subsequent sentence for his other crime. On April 10, 2000, he pled no contest in Case # 1 and was placed on probation. His conviction became final in May 2000. Soon after entering his plea, he was arrested and charged in case number 00-9494 (Case # 2) with three counts of dealing in stolen property. He was tried and found guilty. In November 2001, based in part on the felony conviction in Case #1, the trial court sentenced Petitioner in Case # 2 as a habitual offender to thirty years in prison.

In August 2002—more than two years after his conviction in Case # 1 became final—Petitioner filed a pro se motion for postconviction relief attacking his conviction in that case. He alleged that his counsel provided ineffective assistance when he wrongly advised Petitioner that the conviction in Case # 1 could not be used to enhance a sentence for dealing in stolen property (which later became Case # 2). He further claimed that, had he known the conviction could be used to enhance the sentence in Case # 2, he would not have pleaded guilty in Case # 1. Petitioner alleged that he discovered counsel's erroneous advice on August 30, 2000, when he received the State's notice of sentence enhancement in Case #2.

The circuit court found that the motion was untimely and dismissed it. Petitioner appealed, and the Second District Court of Appeal affirmed without elaboration. It also, however, certified the following question to be of great public importance:

Whether allegations of affirmative misadvice by trial counsel on the sentence enhancing consequences of a defendant's plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim.

Ey v. State, 870 So.2d 64, 65 (Fla. 2d DCA 2003). Petitioner's motion for rehearing argued that counsel gave the wrong advice in Case # 1 even though the Petitioner had told him about the crimes in Case #2. The district court denied the motion.

Petitioner timely petitioned for review in this Court. The case remained pending while we decided State v. Dickey, 928 So.2d 1193, 1194 (Fla.2006), which answered "no" to the same certified question. We then issued to Petitioner an order to show cause why Dickey did not apply to his case. In response, Petitioner argued that in Dickey, at the time the defendant pleaded guilty to the first crime he had not committed another crime, so the attorney's advice about the effect of the plea on the sentence for a future crime was merely hypothetical, while in this case Petitioner both committed and informed his counsel about the second crime before he pleaded guilty to the first one. Thus, he argued, his was a "real, immediate, and actual consequence faced at the time of the plea that counsel was fully aware of." We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., and granted review. Ey v. State, 954 So.2d 27 (Fla.2007). As we discuss below, we agree with Petitioner that this distinction makes a difference.

II. ERRONEOUS ADVICE ABOUT SENTENCING CONSEQUENCES

We were first presented with the question certified in this case in Bates v. State, 887 So.2d 1214, 1215 (Fla.2004). The *621 question was whether an attorney's erroneous advice that a plea to one crime would not affect the sentence for a future crime constitutes ineffective assistance of counsel. Although ultimately the Court decided the case on other grounds and did not answer the question, several concurring opinions addressed it. Then, in Dickey, a majority of the Court held that such conduct did not constitute ineffective assistance of counsel. Dickey, 928 So.2d at 1194. Petitioner's claim, however, is substantively different from the one we decided in Dickey. At least as alleged by Petitioner, the sentence in Case # 2 was not for a crime that occurred after the plea in Case # 1, but for one that occurred before it, and of which he informed his counsel. Thus, the question here is whether counsel's erroneous advice that a plea in one case could not be used to enhance a sentence for a crime already committed, and about which counsel was informed, constitutes ineffective assistance of counsel. To resolve that issue, we first review Dickey. We then explain the differences between the claims raised in that case and those raised here. Finally, we establish the pleading requirements for such a claim.

A. Dickey and Future Crimes

Like most cases alleging ineffective assistance of counsel, Dickey analyzed the claim using the now-familiar two-pronged test the United States Supreme Court established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that test, the defendant must first specify an act or omission of counsel "so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. With regard to guilty and nolo contendere pleas, prejudice is satisfied by demonstrating "a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Even before Dickey, we had applied Strickland

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Bluebook (online)
982 So. 2d 618, 2008 WL 516396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ey-v-state-fla-2008.