17 Fla. L. Weekly Supp. 820a
Online Reference: FLWSUPP 1709IMLE
Criminal law — Post conviction relief — Ineffective assistance of counsel — Where defense counsel did not discuss allegations in police report with defendant or elicit defendant’s recitation of facts and circumstances surrounding arrest, and but for these failures of counsel defendant would not have entered plea of nolo contendere to DUI charge, motion to withdraw plea and/or for post conviction relief is granted
STATE OF FLORIDA v. ANDREW B. IMLER DL#: [Editor’s note: OMITTED] , Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2010-CT-000172-AXXX. Citation No. 0791XEI. Division: O. March 24, 2010. Ronald P. Higbee, Judge. Counsel: Benderia Moore, for Plaintiff. Becky Barlow, Stone & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING MOTION TO WITHDRAW PLEA AND/OR FOR POST-CONVICTION RELIEF
This cause having come to be heard upon Defendant’s Motion to Withdraw Plea and/or for Post Conviction Relief, the Court having reviewed the pleadings, having held an evidentiary hearing, having heard argument of respective counsel, the Court having jurisdiction, and being otherwise fully advised in the premises, hereby grants the motion.
FINDINGS
The Court finds the unrebutted evidence to be as follows:
1. Defendant was arrested on January 10, 2010 for the offense of DUI and taken to first appearance on January 10, 2010. At first appearance, Defendant entered a plea of nolo contendere to the charge of DUI, and was immediately adjudicated and sentenced.
2. Defendant was provisionally appointed counsel with the Office of the Public Defender to represent him in this matter. Defendant’s contact with an attorney from the Office of the Public Defender occurred during his January 10, 2010 court appearance.
3. Defendant’s contact with the Public Defender lasted only a minute or two although it appeared there was additional time available for consultation.
4. Defendant’s communication with counsel consisted of the attorney’s advice that Defendant had no option but to plead no contest to the charge and an inquiry as to whether Defendant understood the plea form.
5. Counsel did not review with Defendant any facts alleged by the arresting officer, nor did counsel seek Defendant’s knowledge as to what occurred during the investigation to determine if any possible defenses existed regarding the seizure, detention, arrest or breath testing procedure.
6. Relying upon the advice of counsel, Defendant entered his plea of no contest to the charge of DUI.
7. Upon review of the police reports created as a result of Defendant’s arrest, expert witness, Lee Lockett, opined that possible defenses to the seizure and arrest of Defendant existed. This expert witness further opined that an attorney consultation that did not include a discussion with Defendant about the allegations contained within the police reports and Defendant’s own recitation of the facts and circumstances surrounding the arrest, would amount to ineffective assistance of counsel.
LAW
1. A defendant is entitled to the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 159 (1932).
2. This entitlement also applies to allegations of ineffective assistance of counsel arising out of the plea process. Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2626b]. “However, in such cases, the “prejudice prong” of the Strickland test is satisfied by an allegation ‘that there is a reasonable probability that, but for counsels errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Id. at 1260 (Citing Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985)).
3. A defendant does not have to demonstrate a viable defense when seeking to withdraw a plea based upon ineffective assistance of counsel in failing to advise of a possible defense. Grosvenor v. State, 874 So.2d 1176 (Fla. 2004) [29 Fla. L. Weekly S125a]. “Counsel’s effectiveness is determined according to the totality of the circumstances.” Id at 1181.
4. Although the Defendant was represented by counsel, counsel did not adequately represent Defendant as set out above. But for the above failure of counsel, Defendant would not have entered a plea of no contest.
5. Defendant’s counsel did not function as the “counsel” guaranteed by the Sixth Amendment and this deficiency served to deprive Defendant of his right to due process, rendering his plea of no contest involuntary.
Accordingly it is ORDERED AND ADJUDGED:
1. That Defendant’s Motion to Withdraw Plea and/or for Post Conviction Relief in the above referenced case is GRANTED.
2. That the adjudication of guilt based upon Defendant’s plea of nolo contendere entered on January 10, 2010, and the resulting judgment and sentence are hereby vacated and set aside.
3. That this Court further orders, as a special condition of his release pending disposition of this matter, that Defendant not operate any type of motor vehicle after consuming any alcoholic beverage.
