Sheppard v. State

988 So. 2d 74, 2008 WL 2744496
District Court of Appeal of Florida·Decided July 16, 2008·No. 2D06-4557·Published·Cited by 12 cases

Opinion

988 So.2d 74 (2008)

Anthony SHEPPARD, Appellant,
v.
STATE of Florida, Appellee.

No. 2D06-4557.

District Court of Appeal of Florida, Second District.

July 16, 2008.
Rehearing Denied August 21, 2008.

*75 James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Anthony Sheppard challenges the trial court's denial of his pro se motion to withdraw his guilty plea. We conclude that the trial court should have struck the motion as an unauthorized pro se pleading instead of conducting an evidentiary hearing. Accordingly, we reverse the denial of the motion to withdraw plea and remand with directions to strike the motion as a nullity.

The Facts and Procedural Background

On August 9, 2005, Mr. Sheppard pleaded guilty to violating his community control previously imposed for convictions of two counts of uttering a forged instrument — a third-degree felony. § 831.02, Fla. Stat. (2001). An Assistant Public Defender (the APD) represented Mr. Sheppard at the community control revocation hearing. The APD told the trial court that the State had offered "a year and a day followed by four years of sex offender probation."[1] The APD candidly advised the trial court that he and Mr. Sheppard agreed that Mr. Sheppard was unlikely to successfully complete the probationary portion of such a split sentence.[2] The APD also informed the trial court that Mr. Sheppard's scoresheet under the Criminal Punishment Code reflected a minimum sentence of a nonstate prison sanction, and he asked the trial court for a "straight time" sentence of eighteen to twenty-four months' imprisonment with no probation to follow. After a lengthy discussion of Mr. Sheppard's admitted inability to comply with the reporting and housing requirements of community control, the trial court sentenced him to two consecutive five-year prison terms — ten years total — the maximum for the two third-degree felonies of uttering a forged instrument. § 775.082(3)(d), Fla. Stat. (2001).

After sentencing, Mr. Sheppard timely filed a pro se motion to withdraw his guilty plea under Florida Rule of Criminal Procedure 3.170(l) based on the alleged misadvice of counsel. He asserted that his plea was involuntarily made because the APD improperly refused to allow him to accept the State's plea offer and misled him about the sentence that he would receive.

On May 9, 2006, the trial court held an evidentiary hearing on the motion. The State called the APD as its only witness. The APD identified himself as an employee of the public defender's office assigned to the sexual offender division. Midway through the APD's testimony, the trial court interrupted the proceedings to ask, "Who represents Mr. Sheppard?" The APD replied, "This is a pro se motion." Unaccountably, the trial court then resumed the hearing. Mr. Sheppard did not *76 take advantage of the opportunity to cross-examine "his lawyer." The unsworn statement that Mr. Sheppard offered in support of his motion is only three lines long in the transcript of the proceedings. Mr. Sheppard did not call any witnesses at the hearing.

Discussion

When Mr. Sheppard filed his pro se motion to withdraw his plea, he was represented by court-appointed counsel. Thus the motion should have been stricken because "[a] rule 3.170(l) motion to withdraw plea filed by a criminal defendant who is represented by counsel is a nullity, unless the defendant makes an unequivocal request to discharge counsel." King v. State, 939 So.2d 1196, 1196 (Fla. 2d DCA 2006) (citing Johnson v. State, 932 So.2d 1169, 1170 (Fla. 2d DCA 2006), Grainger v. State, 906 So.2d 380, 382 (Fla. 2d DCA 2005), and Mourra v. State, 884 So.2d 316, 321 (Fla. 2d DCA 2004)). Alternatively, court-appointed counsel could have adopted the pro se motion and then proceeded to represent Mr. Sheppard at the motion hearing. Grainger, 906 So.2d at 382. The record in this case does not indicate that Mr. Sheppard made a request to discharge counsel, nor does it reflect that defense counsel adopted the pro se motion. Instead, the trial court held an evidentiary hearing at which Mr. Sheppard was left to represent himself while the trial court considered the merits of his motion and his defense counsel testified against him.

This case bears a striking resemblance to the proceedings described in Grainger where the trial court likewise failed to strike a defendant's pro se motion to withdraw his guilty plea, which the defendant filed while he was represented by court-appointed counsel. Id. at 381-82. In Grainger, we noted first that "[b]ecause [defense counsel] did not file the motion to withdraw plea on behalf of [the defendant], the trial court was required to strike the motion as an unauthorized pro se pleading." Id. at 382 (emphasis added). We identified a second misstep — this one committed by defense counsel "who, inexplicably, not only failed to act in a representative capacity for [the defendant] but became an adverse witness against his client." Id. And finally, we identified a third error committed by the trial court when it considered the pro se motion on the merits without providing conflict-free counsel to the defendant:

Consideration of a motion to withdraw plea after sentencing, which is filed pursuant to Florida Rule of Criminal Procedure 3.170(l), is a critical stage in the proceeding, and an indigent criminal defendant has a right to the appointment of conflict-free counsel to assist in the filing of the motion.

Id. (emphasis added).

Despite this court's attempt in Grainger to provide guidance to prevent the repetition of these errors, the trial court and the APD replicated them in Mr. Sheppard's case. The evidentiary hearing should have never taken place because Mr. Sheppard's pro se motion should have been struck as a nullity. King, 939 So.2d at 1196. The APD not only failed to act in a representative capacity for his client, he also became an adverse witness against Mr. Sheppard at the hearing while he was still Mr. Sheppard's attorney of record.[3]Grainger, 906 So.2d at 382. And finally, the trial court failed to recognize that Mr. Sheppard had a right to conflict-free counsel *77 who could assist him in his attempt to withdraw his guilty plea. See Mourra, 884 So.2d at 319 ("One of the benefits of rule 3.170(l) is that it provides the defendant with the right to seek to withdraw a plea at a time when the defendant is still represented by counsel.").

Consequently, the order denying Mr. Sheppard's motion to withdraw his plea must be reversed. As Mr. Sheppard acknowledges, this court's precedent as established in Mourra, Grainger, King, and similar cases requires that on remand his motion must be struck as a nullity. However, Mr. Sheppard asks us instead to remand for an evidentiary hearing at which — absent a knowing and intelligent waiver of his right to counsel — he must be provided with conflict-free counsel. Mr. Sheppard argues that the allegations of counsel's misadvice in his pro se motion were sufficient to show that "an adversarial relationship" existed between him and his court-appointed counsel. According to Mr. Sheppard, this adversarial relationship with counsel negated the prohibition a

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Sheppard v. State, 988 So. 2d 74, 2008 WL 2744496 (Fla. Ct. App. 2008).

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