County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – Ineffective Assistance of Counsel – Ineffective assistance of counsel not shown where defendant failed to show that counsel’s performance was so deficient as to deprive the defendant of counsel and that the deficiencies prejudiced the defense. Order affirmed. Barrows v. State, No. 01-94 (Fla. 6^th Cir App. Ct. Dec. 26, 2002).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

MARK RICHARD BARROWS,

Appellant,

vs. CRC01-15858CFANO

STATE OF FLORIDA,

Appellee.

______________________________________/

Opinion filed ___________________________

Appeal from Order Denying Motion for Post-Conviction Relief

Pinellas County Court

County Judge Thomas B. Freeman

Martin G. McCarthy, Esq.

Attorney for Appellant

Vera Arapi, Esq.

Assistant State Attorney

Attorney for Appellee

ORDER AND OPINION

THIS MATTER is before the Court on the defendant’s appeal from an Order Denying Defendant’s Motion to Set Aside Plea. The defendant’s motion was filed pursuant to Woods v. State, 750 So.2d 592 (Fla. 1999) and Fla. R. Crim. Pro. 3.850. The defendant alleges his prior counsel was ineffective for failing to ascertain if he was represented by counsel on his prior DUI and for failing to attempt to set aside the prior uncounseled conviction. After reviewing the briefs and record, this Court affirms the trial court’s decision.

In 1983, the defendant entered pleas of nolo contendere to three separate DUI’s. The defendant had one prior uncounseled conviction for DUI in 1981. In CTC 83-44255KYASP the defendant’s driving privileges were suspended for five (5) years, in CTC 83-66513LDASP the defendant’s driving privileges were suspended for ten (10) years and in CTC 83-986810KBACL the defendant’s driving privileges were revoked for life. The defendant was notified December 23, 1998, by the Florida Department of Highway Safety and Motor Vehicles that he was no longer eligible for the limited restoration of his driving privileges due to a statutory amendment of Fla. Stat. §322.271, which became effective July 1, 1998. The defendant claims his trial counsel was ineffective for failing to investigate whether his prior DUI was uncounseled and as a result of the failure to move to strike the uncounseled plea, the defendant was subject to enhanced penalties and a lifetime driver’s revocation.

The trial court held a hearing on the defendant’s Motion to Set Aside Plea. At that hearing, the defendant argued that his attorney in 1983 never attempted to ascertain whether his prior case was valid for the purposes of enhancement. The trial court denied the motion, stating: “Based upon what I heard here today, the defendant did not provide to the court credible testimony to indicate that he was misled by any counsel. He wasn’t even sure who his counsel was, male or female. Also the court finds that he was licensed in Massachusetts and that the State’s statute had changed from the time that he was sentenced until today’s date in regard to relicensing in the State of Florida. Motion will be denied.”

In Valle v. State, 778 So.2d 960 (Fla. 2001), the court stated: “In analyzing a claim for ineffective assistance of counsel, this court must afford deference to the trial court’s factual findings, using a ‘competent substantial evidence’ standard. However, because ineffective assistance of counsel claims are mixed questions of fact and law, while affording deference to the trial court’s factual finding this court must perform an independent review of both the deficiency and prejudice prongs under Strickland.” To show that counsel’s performance was deficient requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Williams v. Taylor, 529 So.2d 362, 120 S.Ct.1495, 146 L.Ed.2d 389 (2000). This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial.

In the case at bar, the defendant does not meet either prong of the Strickland test based on the record before this Court. There is no testimony that the defendant’s counsel was so deficient so as to deprive the defendant of counsel. The evidence before the trial court is that the defendant did not recall discussing the 1981 DUI with his counsel. As to the second, prong, the defendant has failed to present competent substantial evidence that counsel’s performance prejudiced him. The defendant was given a correct statement of law by his counsel. In 1983 when the defendant entered his plea, the statute did allow for a limited restoration of driving privileges on a lifetime DUI revocation. The defendant has not presented any evidence that he would not have entered the pleas to the three pending DUI’s or that the results of the proceedings would have been any different. It is therefore,

ORDERED AND ADJUDGED that the trial court’s Order denying the defendant’s Motion to Withdraw Plea is affirmed.

DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _______ day of December, 2002.

___________________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

____________________________________

W. DOUGLAS BAIRD

Circuit Judge

____________________________________

R. TIMOTHY PETERS

Circuit Judge

Copies furnished to:

The Honorable Thomas B. Freeman

Martine G. McCarthy

Attorney for Appellant

Veri Arapi

Assistant State Attorney

Attorney for Appellee