Brief 8

STATE OF FLORIDA,

Appellant,

vs. DCA Case No.: 1D14-XXXX

“JOHN DOE”,

Appellee.

____________________________/

This is a State appeal from a final order which, after an evidentiary hearing, grants a postconviction motion. Appellant (the State) raises a single issue, which is contested.

Appellant, the State of Florida, was the prosecution below; this brief will refer to Appellant as “the State.” Appellee, Larry Doe, was the defendant in all circuit court proceedings; this brief will refer to Appellee by name.

The abbreviation “IB” will designate the State’s Initial Brief, followed by any appropriate page number(s). For the sake of simplicity, this brief will use the record volume abbreviations which are used in the Initial Brief. (IB: 1). A supplemental volume of record was submitted following stipulation by the parties. This brief will cite the supplemental volume using the abbreviation “SUPP” followed by appropriate page number(s).

STATEMENT OF THE CASE AND OF THE FACTS

A. Statement of the Case and of the Facts

Doe accepts the Initial Brief’s statement of the case and facts as generally supported by the record, subject to the following supplementations and clarifications:

The events in the case took place in Gadsden County. (I: 3). At the time of his arrest, Doewas a 63-year-old Vietnam veteran with no prior criminal history. (I: 4; 54); (PH: 13); (SH: 8; 14); (EH: 35; 38). Doewas alone in his truck, driving the speed limit, when his truck collided with another vehicle that had pulled into crossing traffic. (SH: 18); (SUPP: 117). The wreck killed two occupants of the other vehicle. (I: 3-5). In the hours following the wreck, Doe realized that he personally knew the two deceased victims. (SH: 21; 24). In the weeks and months which followed, Doe exhibited extreme remorse and suffered from mental anguish which included, among other manifestations, suicidal thoughts. (SH: 23-25).

Doe was charged with two counts of DUI manslaughter for the two deaths which occurred. (I: 6). Doe was also charged with one count of DUI causing serious bodily injury to a third occupant of the other vehicle. (I: 6). This third charge had no basis in fact and appears to have arisen from the confusion following the wreck. The record is clear that the third occupant of the vehicle was unharmed in the wreck. The Traffic Homicide Investigation Report establishes that the third occupant, a child, was not injured and left the scene of the wreck with family members. (SUPP: 100). In the litigation that followed, the State confirmed that the child was not injured. (S: 38)(“It’s nothing short of amazing that the child did not sustain significant injuries…”).

Doe hired an attorney named John Musca, from Naples, to defend him in the State’s criminal prosecution. (I: 19; 20). Almost immediately, there was uncertainty about who was actually defending Doe’s case. (I: 23-24). As the case progressed, Musca’s firm assigned a specific, identifiable attorney to communicate with Doe and his family. (EH: 55-56).

The trial date was fast approaching. (EH: 51). Doe’s lawyer advised him that pleading open to the court – without any agreement with the State – would be in his best interest. (EH: 26-27; 34-35; 38-39). Doe’s lawyer specifically advised him that an open plea would allow for the possibility that Doe could receive a sentence that did not include DOC incarceration. (EH: 57-58). It is undisputed that this advice was legally incorrect. At the time of the plea, Doe was 64 years of age. (EH: 38). Doe and his family were cognizant of his background, his lack of criminal intent, and the facts surrounding the wreck. (EH: 13). They agreed that Doe should surrender his constitutional rights and enter an open plea. This decision was made specifically with the hopes that Doe would not receive a DOC sentence. This decision was made specifically in reliance on their lawyer’s misstatement of the law. (EH: 28; 40).

In reliance on the attorney’s misstatement of the law, Doe came to court and changed his “not guilty” plea to “guilty.” (PH: 6). Doe did so in hopes of receiving the non-DOC sentence he and his lawyer had discussed. (EH: 40). In doing so, Doe waived multiple important constitutional rights and voluntarily subjected himself to sentencing. (PH: 6-9). The trial court, in conducting the plea colloquy with Doe, failed to mention that there was an absolute statutory minimum mandatory sentence of four years’ incarceration. (PH: 1-18). Throughout the prosecution, the change of plea, and the sentencing; the State demanded a lengthy sentence of over 20 years’ incarceration. (PH: 3-4); (SH: 65); (EH: 45-55). The record does not contain any indication that the State waived, surrendered or otherwise abandoned any legal position in exchange for Doe’s open plea.

At a separate sentencing hearing, Doe’s attorney asked the trial court to impose a county jail sentence in addition to probation and possibly house arrest. Family members of the deceased victims addressed the trial court. (SH: 44). The victims’ family members requested the trial court sentence Doe to the maximum number of years in prison as allowed by Florida law. (SH: 51). The trial court, in accordance with the State’s wishes throughout, eventually imposed a sentence of more than 20 years DOC incarceration. (SH: 67-69).

Doe filed a postconviction motion attacking his plea. (I: 56-73). An extensive evidentiary hearing was conducted. (EH: 1-73). Doe’s trial attorneys acknowledged that Doe was provided with incorrect legal advice. (EH: 58). Doe and his family members testified as to how they would have refused to plea had they been properly informed. (EH: 27-28; 35; 39-41). The postconviction court issued an order allowing Doe to withdraw his plea. (I: 78-80). On the following day, the State filed a Notice of Appeal. (I: 83). This appeal follows.

The postconviction court’s order must be affirmed. Doe’s plea was entered in reliance on the direct legal misadvice of his attorney. In addition, the trial court had an obligation to advise Doe of the statutory minimum mandatory sentence and failed to do so. Doe was prejudiced in surrendering his constitutional rights and entering a plea based on an overt and express misstatement of law. Trial counsel’s performance was facially deficient and is not challenged by the State in this appeal. Prejudice is established in Doe’s unknowing entry of a guilty plea to very serious criminal charges. Doe was likewise prejudiced by the trial court’s failure to properly warn him of the required, minimum mandatory sentence.

Some issues raised in the Initial Brief were not preserved by the State and are therefore procedurally barred from serving a basis for relief. Assuming those issues were properly preserved, the State’s legal positions are generally unsupported by Florida law. Some of the State’s positions are additionally unsupported by the facts contained in the record. The State takes issue with the findings of the postconviction court. Despite the State’s disagreement as to the postconviction court’s findings – those findings are properly supported by the record which reflects competent substantial evidence.

Whether the postconviction court erred in granting Doe’s Rule 3.850 motion? (re-stated)

A) Standard of review:

Review of a final order addressing a Rule 3.850 motion presents a mixed question of law and fact. Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999). When the trial court’s factual findings are supported by competent substantial evidence, a reviewing court cannot substitute its judgment for that of the trial court. The same holds true for trial court findings as to the credibility of the witnesses and the weight to be given to certain evidence. Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997).

In reviewing a postconviction order, the reviewing court must afford deference to a trial court’s factual findings. Ponticelli v. State, 941 So. 2d 1073, 1095 (Fla. 2006) (quoting Arbelaez v. State, 898 So. 2d 25, 32 (Fla. 2005)). Competent substantial evidence will support a trial court’s factual findings. See Stephens, 748 So. 2d at 1034. In using the legal terms “competent” and “substantial”, the following analysis applies:

It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test… is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject “inherently incredible and improbable testimony or evidence,” it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.

Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976).

The competent substantial evidence standard is more restrictive than the “clearly erroneous” standard used in federal courts. Cf. U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)(“a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”).

“The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. “Substantial” requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element of the offense charged.”

Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1996).

When there is at least some admissible evidence on which the postconviction court can rely for a factual determination, that finding must be affirmed.

B) Preservation:

Many of the Initial Brief’s arguments are not preserved for appeal. Both Florida Statutes and Florida case law require an Appellant to preserve issues for review by raising them first in the trial court. Section 924.051, Florida Statutes, provides, in relevant part:

(3) An 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. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

§ 924.051(3), Fla. Stat.

Under the statute, “preserved” means an issue or legal argument timely raised and ruled on by the trial court, that is “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” Fla. Stat. § 924.051(1)(b). These statutory provisions are consistent with Florida Supreme Court holdings requiring preservation of error. As the Florida Supreme Court has explained, proper preservation entails three components. First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982); accord Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”), cert. denied, 510 U.S. 830 (1993). The purpose of this rule is to “place[] the trial judge on notice that error may have been committed, and provide[] him an opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

“It is axiomatic that it is the function of the appellate court to review errors allegedly committed by the trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court.” Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st DCA 1983).

C) Affirmative misadvice and guilty pleas:

Distinct from any Sixth Amendment claim, Doe is entitled to withdraw his plea based on Florida decisional authority.

Separate and apart from any Sixth Amendment considerations, the appellant’s claim is colorable under decisional law of this state relating to the requirement that pleas be voluntarily and knowingly entered. The law of Florida has long recognized that a plea of guilty or nolo contendere may be vacated when the defendant has entered his plea as a result of mistaken advice by defense counsel as to the consequences of a plea.

Brazeail v. State, 821 So. 2d 364, 366 (Fla. 1st DCA 2002).

Doe understandably relied on his trial attorney’s representations that pleading guilty he had an opportunity to receive a sentence which did not include prison. A “defendant invariably relies upon the expert advice of counsel concerning sentencing in agreeing to plead guilty.” State v. Leroux, 689 So. 2d 235 (Fla. 1996). Even where trial counsel’s advice was an honest mistake, if the defendant pled in reasonable reliance on that incorrect advice, he should be permitted to withdraw his plea. Costello v. State, 260 So. 2d 198 (Fla. 1972). The mistaken and incorrect advice that the sentencing judge could impose a sentence of county jail, house arrest and/or probation misled Doe in his effort to make an intelligent choice in entering a plea and served to induce his plea. Tal-Mason v. State, 700 So. 2d 453 (Fla. 4th DCA 1997).

“Affirmative mis-advice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.” Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001). Even more applicable here, where the misadvice of counsel constitutes a “clear misstatement of how the law affects a defendant’s sentence” the Defendant is entitled to withdraw his plea. Ray v. State, 480 So. 2d 228 (Fla. 2d DCA 1985). Where a defendant’s attorney affirmatively misadvised him of the law, the defendant is entitled to withdraw his plea. See Shorter v. State, 113 So. 3d 940 (Fla. 5th DCA 2013) citing Forbert v. State, 437 So. 2d 1079, 1081 (Fla. 1983) (“It is a well established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.”).

Identical misadvice as to the existence of a minimum mandatory sentence has led to the same result reached by the postconviction court below. A defendant who is steered into misunderstanding the minimum mandatory sentence which he or she could receive is entitled to withdraw his or her plea. This is so regardless of whether the judge or defense lawyer fails to inform the defendant. Puesan v. State, 539 So. 2d 508 (Fla. 4th DCA 1989).

Based on trial counsel’s misadvice as to the possible sentences which could be imposed, Doe was entitled to withdraw his plea. The postconviction court was therefore legally correct in entering an order allowing Doe to do so. (I: 79).

The record is clear, and the State does not challenge, the fact that Doe was materially misadvised by his attorney. (EH: 45; 58; 66). The record also contains multiple points of competent, substantial evidence which support the postconviction court’s finding that Doe’s plea was entered based on his good faith reliance on his attorney’s misadvice. (EH: 27-28; 35; 38-41).

Florida decisional authority recognizes that prejudice is established in a guilty plea context where a misadvised defendant is deprived of his constitutional right to a trial. Brazeail, 821 So. 2d at 367.

The postconviction court’s order is legally sound. The postconviction court’s factual findings are more than amply supported by competent, substantial evidence. The order must be affirmed.

D) Prejudice:

First it should be restated that prejudice is established where a misadvised defendant is deprived of his constitutional right to a trial. Brazeail v. State, 821 So. 2d 364, 367 (Fla. 1st DCA 2002)(relying on Peart v. State, 756 So. 2d 42 (Fla. 2000)).

However, in the context of a Sixth Amendment ineffective assistance of counsel claim submitted pursuant to Strickland v. Washington, 466 U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985), establishment of prejudice requires an additional finding.

In the guilty plea context, the Sixth Amendment prejudice requirement focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59.

Doe postconviction claim also survives scrutiny under the elevated Sixth Amendment analysis. At the hearing, Doe introduced competent substantial evidence that – but for his attorney’s mistaken advice – he would not have entered the guilty plea. (EH: 27-29; 39-40).

The postconviction court’s order clearly states that prejudice had been established in that Doe entered his plea based on the mistaken representation that he might receive a non-DOC sentence. (I: 79). Based on the charges brought by the State, Doe was at all times legally guaranteed to serve at least four years in prison.

Mr. Doe was induced to enter his plea by the false representation that he could receive a non-DOC sentence. Hoping for that ultimate outcome, Doe appeared in court and waived his vital constitutional protections in exchange for an impossible outcome. (PH: 5-10). Doe motion swore, and the testimony at hearing established, he would not have entered into his plea had he been properly informed that he was required to serve four years in prison. (I: 62); (EH: 27-29; 39-40). The trial court accepted this factual representation and it is supported by competent, substantial evidence. The trial court’s factual ruling in this regard cannot be overturned simply because the State disagrees.

Doe gambled the balance of his free life upon the hope that he might avoid prison. At all times Doe hope was merely imagined. Doe’s hopes had been falsely presented to him by his attorney who had made a legal oversight. Doe raised this claim in the appropriate motion and proceeded to an evidentiary hearing wherein he placed fact witnesses (including himself) on the witness stand. (I: 56); (EH: 27-29; 39-40). Doe’s factual support, as produced at hearing, bore out his initial, sworn claim. Prejudice has been established, even in the Sixth Amendment context, and the order must be affirmed.

E) State’s first claim – Mr. Wade would have expressly waived the minimum mandatory sentence had he known about it.

The Initial Brief claims that: had he been aware of the minimum mandatory sentence, the State’s trial prosecutor (Mr. Wade) would have waived it. (IB: 29). This claim is wholly without record support and no such claim is contained in the Initial Brief’s statement of the case and the facts. (IB: 16). To the contrary – the record is clear that Mr. Wade was, at all times, only willing to accept a prison sentence which exceeded 20 years. Mr. Wade never claimed he would have (nor did he ever) waive anything in this case.

Additionally, this argument is not preserved for review because it was not raised at the postconviction proceedings below. In arguments below, the State never even argued that the minimum mandatory would have been expressly waived. (EH: 66-70).

Mr. Wade was called as a witness in the evidentiary hearing conducted by the postconviction court. (EH: 45). Mr. Wade testified that the only plea offer available to Doe would be to a guidelines [1] sentence (a little over 20 years in prison). (EH: 46). Wade indicated he would be seeking a guideline sentence and he believed the guidelines required a sentence in excess of 20 years. (EH: 47). Wade testified that he took the position that a guidelines sentence was needed. (EH: 47). He was “fairly adamant” that he was seeking a sentence in excess of 20 years which is how he argued the case. (EH: 48). Wade was seeking a sentence in excess of 20 years, based on the guidelines. (EH: 50). Mr. Wade was not going to accept a plea to less than the guidelines. (EH: 52).

In almost every page of his testimony; Wade remained unwavering that he was seeking over 20 years’ incarceration. In fact he made it clear that he was “adamant” about his position. (EH: 48). Mr. Wade never once claimed that he would have waived the minimum mandatory in Mr. Doe’s case. (EH: 45-55). There’s simply nothing in the record which could support this factual claim.

F) State’s second claim – The prosecutor representing the State during the postconviction case acknowledged the State had waived the mandatory minimum sentence.

The Initial Brief claims that: Mr. Combs, the prosecutor representing the State during postconviction proceedings, acknowledged the State had waived the mandatory minimum. (IB: 29; 30). However, by operation of Florida law and the facts of this case – the State never waived anything during the course of Doe’ss prosecution.

Mr. Combs, in response to the circuit judge’s questioning, argued that the state had effectively waived the minimum mandatory sentence. (EH: 68-69). Combs’ argument is not evidence and cannot be used as a basis for any court to make a factual determination. Mr. Combs was the attorney who represented the State at the contested evidentiary hearing. (EH: 1). Mr. Combs’ arguments as an attorney representing a party below (and taking a partisan position) are not evidence and cannot be relied upon by this court as such.

[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.

Leon Shaffer Golnick Adver. Inc. v. Cedar, 423 So. 2d 1015, 1016-17 (Fla. 4th DCA 1982); see also State v. Silver, 723 So. 2d 381, 382-83 (Fla. 4th DCA 1998) and State v. Champion, 898 So. 2d 1111 (Fla. 2d DCA 2005) (unsworn statements of counsel cannot support trial court action).

Mr. Combs called a witness, Mr. Wade, who was the prosecutor during the trial portion of this case. Mr. Combs’ witness (Wade) never came anywhere close to claiming that he had waived the minimum mandatory sentence. (EH: 45-55). Mr. Combs was unable to establish any waiver through the testimony of his friendly, sworn, fact witness. Despite this lack of actual record proof, the Initial Brief attempts to rely on trial counsel’s subsequent argument, presented in response to court questioning, as a factual basis in the record.

G) State’s third claim – the State disclaims any right to appeal a sentence which fails to include the minimum mandatory provision.

The Initial Brief claims that the State would have no right to appeal a sentence imposed which failed to include the minimum mandatory provision. (IB: 29). This argument is legally incorrect.

District Courts have jurisdiction to hear an appeal by the State from an illegal sentence. See § 924.07(1)(e), Fla. Stat.; Fla. R. App.P. 9.140(c)(1)(M). A sentence that does not impose the minimum punishment required by law is regarded as an illegal sentence. State v. Fulton, 878 So. 2d 485 (Fla. 1st DCA 2004).

District Courts have specifically held that mandatory minimum sentencing enhancements are nondiscretionary and, therefore, trial courts lack the authority to refuse to apply them. Furthermore, when a sentence is illegal, specifically when it is shorter than the required mandatory minimum sentence, the error is fundamental. See State v. Kremer, 114 So. 3d 420, 421 (Fla. 5th DCA 2013)(relying on State v. Valera, 75 So. 3d 330, 332 (Fla. 4th DCA 2011) and State v. Strazdins, 890 So.2d 334, 335 (Fla. 2d DCA 2004)). If Doe had received any sentence which included less than four years of incarceration, such sentence would have been illegal and the error fundamental.

The Initial Brief’s hybrid claim that the State waived the minimum mandatory sentence is not only unsupported by the record but actually refuted by the record. The claim that there would be no right for the State to take an appeal from a sentence less than four years’ incarceration is also plainly legally incorrect.

H) State’s fourth claim – the Initial Brief claims this Court has made it clear the State is required to impose an objection to a sentence to preserve the issue for appeal.

The Initial Brief claims that the State, in order to prevail on an appeal from any below-minimum sentence, would have been required to preserve any such error by objection. (IB: 32). This argument is also legally incorrect.

Additionally, this argument is not preserved for review because it was not raised at the postconviction proceedings below. In arguments below, the State never claimed that an objection would have been required to take an appeal from any sentence of less than four years. (EH: 66-70). The State merely argued that it couldn’t appeal what it didn’t know. (EH: 68)[2].

Generally, the State is required to enter a contemporaneous objection in order to properly preserve sentencing error. State v. Garza, 118 So. 3d 856, 857 (Fla. 5th DCA 2013). However, the preservation requirement does not exist as to fundamental error. § 924.051(3), Fla. Stat. As any sentence shorter than the statutory minimum mandatory is an illegal sentence and failure to impose a minimum mandatory sentence constitutes fundamental error – no preservation is required. State v. Kremer, 114 So. 3d 420, 421 (Fla. 5th DCA 2013).

This Court has never said anything to the contrary. The cases cited by the Initial Brief do not address minimum mandatory sentencing, fundamental error or illegal sentences. The Initial Brief seems to acknowledge this when prefacing this argument by claiming “this Court has made it clear that the State has to preserve an objection to a sentence in order for an issue to be reviewed on appeal.” (IB: 32). What the Initial Brief cannot claim, is that ‘this Court has held that a contemporaneous objection is required in order to preserve fundamental error or the failure to impose a minimum mandatory sentence.’ Any such position is simply not the state of the law.

The opinion in State v. Currilly, 126 So. 3d 1244 (Fla. 1st DCA 2013) holds that the State is generally required to preserve sentencing error for review. As specifically discussed in Currilly, this Court held the failure to impose an adjudication is not fundamental error. The opinion in Collando-Pena v. State, 141 So. 3d 229 (Fla. 1st DCA 2014) simply addresses the appropriate timing of a Rule 3.800(b)(2) motion following a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967). The Collando-Pena opinion contains no discussion of mandatory sentencing, fundamental error or contemporaneous objection.

The strict preservation requirement for minimum mandatory sentencing appeals, as described in the Initial Brief, would have come as a welcome surprise to Appellees in cases like State v. Kremer, 114 So. 3d 420 (Fla. 5th DCA 2013); State v. Schumacher, 99 So. 3d 632 (Fla. 1st DCA 2012) and State v. Valera, 75 So. 3d 330 (Fla. 4th DCA 2011). Appellees in those cases, at the behest of the Office of the Attorney General, were remanded for the imposition of additional, mandatory incarceration.

The Initial Brief argues that no appeal could have been taken because of the lack of a contemporaneous objection. Any such argument fails to stand up to serious legal scrutiny.

I) State’s fifth claim – the State made an agreement and the agreement operated as a waiver of the minimum mandatory sentence.

The Initial Brief claims that the State entered into an agreement with Doe ahead of his plea and that this agreement operated as a waiver of the minimum mandatory sentence. (IB: 32). This claim is refuted by the record and is unsupported by Florida law.

As to an agreement – the record is clear that there was no agreement and that instead Doe was throwing himself on the mercy of the court through the process of an open plea. (I: 44); (PH: 3-4); (EH: 47). Doe, like any other criminal defendant, was permitted to enter an open plea by operation of Rule 3.170(a). No agreement with the State was ever required. The State also argued below that the defendant was “allowed to argue for a downward departure sentence” however – Doe was allowed to so argue with or without any agreement from the prosecution. A downward departure can be sought by a defendant following even a contested trial. Argument for a downward departure is available to a defendant at any Criminal Punishment Code sentencing and no agreement is needed in order to seek one. § 921.0026, Fla. Stat. It should be noted that there was no physical injury to the third individual involved in the auto wreck. (SUPP: 100). The State therefore waived nothing in agreeing to abandon a third charge of DUI causing serious bodily injury – that charge was not supported by the facts. Additionally, it should be noted that the State only abandoned the prosecution in count three after receiving the sentence it requested as to the other two counts. (SH: 68-69). Doe was actually sentenced as to the “abandoned” count prior to the State formally recognizing it was required to abandon that criminal count. (SH: 69).

There are some mechanisms through which the State can waive a minimum mandatory sentence. Such mechanisms generally require express waiver by the State and/or a record of understanding by all parties at sentencing. See State v. Kelly, 138 So. 3d 1169 (Fla. 3d DCA 2014) and § 27.366, Fla. Stat. None of these mechanisms apply to the specific statutory minimum mandatory sentence at issue in Mr. Doe’s case.

Waiver of a minimum mandatory sentence generally requires a negotiated plea bargain, if not a negotiated charge bargain. This fact was recognized in Mr. Wade’s testimony (EH: 53) and by the postconviction court. (EH: 67-68). Because there was no negotiated agreement in this case, there was no waiver of the minimum mandatory sentence. The State refused to waive a Criminal Punishment Code minimum of over 20 years. The State now cannot seriously argue that it was willing to waive a statutory minimum mandatory of four years. In the face of the clear record that the State refused to agree to anything during Doe’s prosecution – this argument necessarily fails.

J) State’s sixth claim – Postconviction court incorrectly based the outcome of the proceeding on what would have happened on appeal.

For the first time in this appeal, the State claims that the postconviction court erred in determining the issue based on what would have happened on appeal. (IB: 33-34). What would have happened on appeal was not the basis for the postconviction court’s order. The basis of the State’s argument in this vein is legally distinguishable on its face. The argument is not properly preserved and any error is harmless.

This argument is not preserved for review because it was not raised during the postconviction proceedings below. In arguments below, the State never argued that the trial court could not base its order on what would have happened on appeal. (EH: 66-70). The State merely argued that the State couldn’t appeal what it didn’t know. (EH: 68).

Even if this issue were properly preserved, it is wholly without merit. The trial court’s order recognized the prejudice associated with Doe entering his plea in hopes of a sentence he could never legally achieve. (I: 79)(“…Florida case law recognizes that prejudice is established in a guilty plea context where a misadvised defendant is deprived of his constitutional right to trial.”). The postconviction court’s order does not make any holding that is based on what would happen on appeal. To the contrary – the postconviction order simply states that – if the trial court had imposed an illegal sentence – the postconviction court is convinced that the error would have been recognized and the State would have taken an appeal. The State’s taking an appeal is not a basis for the postconviction court’s finding of prejudice. Instead; the State’s taking an appeal is a counter to the State’s postconviction argument that no prejudice existed.

Any error complained of is harmless as the postconviction court found prejudice initially in trial counsel’s misadvice prior to any discussion of any appellate action. The postconviction court found that Doe was deprived of his constitutional right to a trial by his trial attorney’s misadvice. Therefore, the ultimate focus of inquiry was on the fundamental fairness of the proceeding whose result is being challenged (the trial proceedings in this case). Carratelli v. State, 961 So. 2d 312, 322 (Fla. 2007).

The opinion in Carratelli addresses a defendant who claimed that he suffered prejudice based on the failure of his trial attorney to preserve an issue for appeal. Carratelli v. State, 961 So. 2d 312, 322-23 (Fla. 2007). This is easily distinguishable from the case at bar where Doe was affirmatively misadvised in the context of entering a guilty plea. Prejudice was established based on what Doe was led to believe he might receive when he surrendered his constitutional rights. The discussion of a State appeal only arises as a counter to the State’s argument that any error was harmless. The same distinction differentiates the case at bar from Pervis v. Crosby, 451 F. 3d 734 (11th Cir. 2006).

K) State’s seventh claim – Vanderhoff is distinguishable.

The State claims that the opinion in State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009) is materially distinguishable from the facts and issues argued herein. (IB: 34-36). It should be noted that the Vanderhoff opinion is relied upon by the postconviction court only in addressing Doe’s claim that the plea colloquy was insufficient. (IB: 79). Additionally, the Vanderhoff opinion was cited in Doe’s motion. (I: 68). The State never argued as to the inapplicability of the Vanderhoff opinion below and therefore the Initial Brief’s argument is unpreserved. Doe submits that the analysis in Vanderhoff is persuasive and compelling:

Florida Rule of Criminal Procedure 3.172(c)(1) requires the trial judge to determine that a defendant understands the reasonable consequences of the plea, including “the maximum possible penalty, and any mandatory minimum penalty provided by law….” See Ashley v. State, 614 So.2d 486, 488 (Fla.1993). The trial court clearly misinformed Vanderhoff, in part due to the State’s and defense counsel’s advice, that it could depart from the 10/20/Life statute and sentence him from “probation to community control up to life imprisonment.” Consequently, Vanderhoff should be allowed to withdraw his plea. See, e.g., Boles v. State, 827 So.2d 1073, 1074 (Fla. 5th DCA 2002) (observing that generally, when defendant is incorrectly advised of maximum sentence, he should be allowed to withdraw plea); Mantle v. State, 592 So.2d 1190, 1193 (Fla. 5th DCA 1992) (explaining that if record reveals reasonable basis to conclude defendant was misled by statement at plea hearing made by judge or by one or both attorneys, he should be permitted to withdraw plea); see also Fernandez v. State, 782 So.2d 944 (Fla. 4th DCA 2001) (vacating defendant’s convictions and sentences where record revealed defendant was misled by judge that he was facing 40 years as habitual offender when actually facing no more than 30 years when he pled no contest).

State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009).

In previous proceedings, the prosecutor representing the State argued in accordance with Vanderhoff’s holding. (2011; MH; 57)(“Unquestionably if a lawyer misrepresents the potential exposure and says you can’t get any more than 15 years when in fact they can get 30, that misrepresentation may occasion a basis for withdrawal of a plea.”).

L) State’s eighth claim – remedy must neutralize the taint of a constitutional violation.

The State claims, for the first time on appeal, that the postconviction court’s remedy is overly broad and provides a windfall to Doe. The State claims that the remedy afforded by the postconviction court is not tailored to the injury suffered from the constitutional violation. (IB: 36-38).

This argument is not preserved for review because it was not raised at the postconviction proceedings below. In arguments below, the State never claimed that Doe’s specific requested remedy was not tailored to the constitutional harm suffered. The State instead argued that Doe had failed to establish prejudice. (EH: 66-70).

Additionally, it bears repeating that the trial court’s order is primarily based on Florida decisional authority and not the constitutional analysis at issue in the cases relied upon by the Initial Brief. Compare (IB: 36-38) and (I: 79).

Even if this argument had been preserved, and even if the postconviction order was based upon a ‘stand-alone’ Sixth Amendment claim, the State’s argument is misplaced. The proceedings below make it clear that Doe suffered “injury” by being mislead into entering his plea. The postconviction court allowed Doe to withdraw his plea. (I: 80). Therefore, the postconviction court tailored remedy to the specific decision which was tainted by the affirmative misadvice of his attorney. Id.

None of the authority relied upon by the State in its argument addresses a scenario where a defendant waived any rights in relation to the error. The opinion in Lafler addressed a case in which there was a “full and fair trial.” Lafler v. Cooper, 132 S. Ct. 1376, 1383 (2012). In Morrison, the defendant plead while reserving for appeal the decision on a pre-trial motion to dismiss, which claimed egregious conduct on the part of government agents had deprived her of her pretrial right to assistance of counsel – the same counsel with which she entered the plea. U. S. v. Morrison, 449 U.S. 361, 363 (1981). In Mechanik, the defendant went to trial and appealed a motion to dismiss based on alleged government misconduct. United States v. Mechanik, 475 U.S. 66, 68 (1986).

The harm to Doe took place in his entry of the plea; the remedy is directed at that same plea. As noted in Lafler, “[I]n the 30 years that courts have recognized such claims, there has been no indication that the system is overwhelmed or that defendants are receiving windfalls as a result of strategically timed Strickland claims.” Lafler v. Cooper, 132 S. Ct. 1376, 1382 (2012).

M) State’s ninth claim – insufficient plea colloquy.

The State takes issue with the postconviction court’s finding of prejudice as to the (admittedly) insufficient plea colloquy. (IB: 39-41). The issue of the plea colloquy was argued below as a separate and distinct basis for relief. The issue was argued apart from the misadvice of counsel claim. (I: 56-69). The postconviction court recognized the independent bases for relief in issuing its challenged order. (I: 79-80).

In addressing a separate, independent basis for relief, the presumption of correctness warrants discussion. “Judgments are presumed correct, and Appellant carries the burden to demonstrate that prejudicial error occurred and that the error was preserved in the trial court.” Cox v. State, 975 So. 2d 1163, 1166 (Fla. 1st DCA 2008). It is the trial court’s decision and not its reasoning that is presumed correct. Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). When faced with any theory or principle of law which would support the trial court’s finding, an appellate court must affirm. In re Adoption of Baby E.A.W., 658 So. 2d 961, 966–67 (Fla. 1995). “[E]ven if some of the court’s stated reasons are insufficient, only one valid reason is necessary to sustain a departure.” State v. Randall, 746 So. 2d 550, 552 (Fla. 5th DCA 1999).

Once again, Doe would direct this court to the un-refuted evidence at the hearing which indicated that: had he been informed about the requirement of at least four years’ prison – he would not have entered his plea. (EH: 27-29; 39-40). The State takes issue with the postconviction court’s findings. However these findings were borne out at the contested hearing and are more than supported by competent substantial evidence. Accordingly, the order must be affirmed – even if solely on the issue of the insufficient colloquy.

This court must affirm the postconviction court’s final.

Respectfully submitted,

/s/ Luke Newman

______________________

Luke Newman

Luke Newman, P.A.
308 McDaniel Street
Tallahassee, Florida 32303
850.224.4444
850.224.9335 (fax)
luke@lukenewmanlaw.com
Fla. Bar ID 0859281

Attorney for Appellee

I hereby certify that a copy of foregoing has been provided to:

Office of the Attorney General

(sent via email to: criminalappealsintake@myfloridalegal.com)

…on this fourteenth (14th) day of August, 2014.

/s/ Luke Newman

_____________________________

Luke Newman
Fla. Bar No.: 0859281

Counsel for the Appellee hereby certifies that the font type used in this brief is Times New Roman 14 point proportionally spaced font.

/s/ Luke Newman

_____________________________

Luke Newman

Fla. Bar No.: 0859281

[1] Doe’ offense occurred after October of 1998 and was therefore subject to sentencing pursuant to the Criminal Punishment Code. See § 921.002, Fla. Stat. “Guidelines” is a term that comes from the earlier Sentencing Guidelines which were in effect between 1983 and 1998. See Fla. R. Crim. P. 3.701; 3.702 and 3.703. The term “guidelines” has remained in common usage among practitioners even following the 1998 implementation of the Criminal Punishment Code.

[2] The State’s argument below presents a notable contrast to its later actions. At the evidentiary hearing, the State argued that it couldn’t appeal what it didn’t know. (EH: 68). Later, when the postconviction court’s order allowed Doe to withdraw his plea, the State filed a Notice of Appeal the following day. The State then proceeded to make multiple, unpreserved appellate arguments. (I: 78-83); (IB: 16; 32; 33-34; 35-36; 36-38).

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