County Criminal Court: CRIMINAL PROCEDURE – Pleas- Trial Court properly denied defendant’s motion to withdraw plea. .  Defendant failed to show clear prejudice or manifest injustice as required by Florida Rule of Criminal Procedure 3.850.  Fennell v. State, No. 02-83 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).










vs.                                                                   CRC 01-19479CFANO






Opinion filed ________________________


Appeal from Order denying defendant’s Motion to Withdraw Plea

Pinellas County Court

County Judge Thomas B. Freeman


Maura J. Kiefer, Esq.

Attorney for Appellant


Robert Peterson, Esq.

Assistant State Attorney

Attorney for Appellee




            THIS MATTER is before the Court on the defendant’s appeal from the trial court’s Order denying the defendant’s Motion to Withdraw Plea.  After reviewing the briefs and record, this Court affirms the trial court’s decision.

            The defendant was charged by Information with Possession of Marijuana.  At his arraignment, the defendant entered a plea of no contest.  The defendant was not represented by counsel.  The defendant was adjudicated guilty, placed on one-year probation and his driving privileges were suspended for two years pursuant to Fla.Sta.§322.055.  The defendant, through counsel, filed a Motion to Withdraw Plea pursuant to Fla.R.Crim.Pro. 3.170.  The trial court denied the motion.  The defendant then filed a Motion to Withdraw Plea pursuant to Fla.R.Crim.Pro. 3.850.  Following an evidentiary hearing, the trial court denied the Motion to Withdraw Plea and entered a written order.

            In a motion to withdraw plea after sentencing, a showing of manifest injustice or prejudice results solely on the shoulders of the defendant.  Scott v. State, 629 So.2d 888 (Fla. 4th DCA 1993).  It is the affirmative obligation of the defendant to demonstrate that the acceptance of the plea resulted in a manifest injustice, it is not the obligation of the State or the Court to speculate upon whether injustice may have occurred by the acceptance of the plea.  Ruiz v. State, 454 So.2d 68 (Fla. 3rd DCA 1984). 

            The defendant raises four issues.  First, the defendant alleges that the trial court failed to determine that a factual basis existed for the court to accept the defendant’s plea of no contest as required by Fla.R.Crim.Pro. 3.170.  The transcript from the arraignment hearing shows that when the defendant’s name was called, the assistant state attorney present informed the Court: “Your honor, Mr. Fennel has been charged with one count of possession of marijuana.  The date of the offense was May 18, 2001.”  The purpose of the factual basis is to prevent a defendant from mistakenly pleading to the wrong offense.  Williams v. State, 316 So.2d 267 (Fla. 1975).  In Williams, the court stated, “the trial court deserves broad discretion and should be free to utilize any appropriate procedure that it deems best to determine that a factual basis exists.”  Fla.R.CrimPro. 3.172(i) provides that “failure to follow any of the procedures in this rule, shall not render a plea void absent a showing of prejudice.”  In Baker v. State, 344 So.2d 597 (Fla. 1st DCA 1977), the trial court failed to inform the defendant of the maximum sentence.  Baker, citing Williams, states: “The Williams case holds that the violation of a rule of procedure does not require a reversal of a conviction unless the record discloses that noncompliance resulted in prejudice.”  The burden is on the defendant to clearly prove prejudice.  Barlow v. State, 784 So.2d 482 (Fla. 4th DCA 2001).  In the case at bar, the defendant has not shown any prejudice by the trial court’s failure to obtain a factual basis.

The second issue raised by the defendant is that the plea was not voluntary because the defendant did not have legal counsel at the time of the plea and therefore was neither informed or nor did he understand any legal defenses that may have been available to him.  In arguing voluntariness of the plea, the defendant must allege specific facts for the court’s review.  The defendant fails to state what defense would have been presented and how that defense would have affected the outcome of the case.  Mere naked allegations contained in a motion to withdraw plea, unsupported by any proof, can never constitute a basis for granting a withdrawal of plea.  Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983).  The defendant has presented conclusary allegations.  The claim is facially insufficient.

The third issue the defendant argues is that the trial court did not inform the defendant of his right to an attorney, that the defendant was not offered the services of an attorney if he could not afford one nor was the defendant given a meaningful opportunity to consult with an attorney before entering his plea.  The record from the arraignment hearing shows that the trial court addressed all of the defendants before the court and in a general speech informed them of the maximum sentence, the presumption of innocence, the right to remain silent, the types of pleas available, the maximum fines that could be assessed and the right to appeal.  The trial court stated: “If you plead guilty, you’re saying that you did it.  You give up the right to a trial by jury; the right to have an attorney represent you at trial; the right to appeal the facts of the case; your presumption of innocence; right to have witnesses called to testify.”  The record before this Court does not support the defendant’s claim. 

The fourth and final issue raised by the defendant is that the defendant was not informed of the two-year license suspension until after he entered his plea.  This is simply incorrect.  The trial court informed the defendant in the “general speech” to all the defendants that an “adjudication of guilt on the charge of marijuana possession results in the loss of driving privileges for two years.”  This Court finds that the trial court’s order denying the defendant’s Amended Motion to Withdraw Plea should be affirmed.  The defendant has failed to demonstrate that he was prejudiced or suffered manifest injustice by the trial court’s failure to make a finding of a factual basis.  The defendant has also failed to show that the plea was involuntary or that he entered a plea to the wrong offense.  It is therefore,

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

DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida this _____ day of November, 2002.





Circuit Judge

Primary Appellate Judge







Circuit Judge






Circuit Judge


Copies furnished to:


Maura Keifer, Esq.

2143 Fifth Avenue North

St. Petersburg, FL 33713


Robert Peterson, Esq.

Assistant State Attorney