County Criminal Court: CRIMINAL PROCEDURE – Post conviction Relief –where the appellant/defendant had asserted an ineffective assistance of counsel, and specifically alleges that he was misled, the trial court should conduct a Nelson inquiry to determine if there exists a basis for appellant/defendant’s ineffective assistance of counsel claim.  Order denying defendant’s motion to withdraw plea reversed. Figueroa v. State,  No. CRC 07-06350CFAES ( Fla. 6th Cir. App. Ct. December 4, 2008).













                        Appellant                                Appeal Case No. 07-06350CFAES

vs                                                                     UCN:  512007CF006350A000ES







Opinion filed ___________________


Appeal From Order


Kevin Paul, Esq., Assistant State Attorney

Bernie McCabe, State Attorney

Sixth Judicial Circuit

Attorney for Appellee


Peter A. Sartes, Esq.

Attorney for Appellant






            THIS MATTER is before the Court on the Appellant/Defendant, Milton Javier Figueroa’s, appeal of the trial court's rulings below remands this matter to the trial court for further proceedings consistent with the opinion herein. 



            On June 26, 2007, the appellant herein was arrested for aggravated assault and resisting a law enforcement officer without violence.  The appellant was appointed a public defender to represent him on or about June 28, 2007.  On July 12, 2007, the State of Florida filed a misdemeanor information against the appellant charging him with resisting arrest without violence.  On October 1, 2007, the appellant pled no contest to the charge of resisting a law enforcement officer without violence.  The appellant signed a written no contest plea form which was also signed by his public defender.  The trial court signed the plea form finding that the defendant’s plea was given knowingly and voluntarily with an understanding of the consequences of said plea.  In addition, the trial court conducted an oral plea colloquy, and accepted the defendant’s no contest plea and adjudicated him guilty and sentenced him to time served in the county jail plus an imposition of court costs and public defender fees.  On October 3, 2007, two days after the defendant had entered his plea of no contest and was sentenced, the defendant, by and through his public defender filed a motion to withdraw his plea.  Although the motion stated that the plea was pursuant to Florida rules of criminal procedure 3.170(f), the defendant’s sole asserted grounds was “the defendant requests a jury trial in this matter”.  The trial court conducted a hearing on October 23, 2007, on the defendant’s motion to withdraw his plea.  The following exchange took place at the motion to withdraw plea hearing (see record page 24 lines 17 through 25). 

“Ms. Ong (public defender):  Well, Judge, after Mr. Figueroa’s plea on October 1st, he indicated to me he wanted a jury trial in this matter, and requested that I file a notice to appeal a motion to withdraw his plea. 

The Court: What’s the basis to withdraw the plea, other than he wants a jury trial?

Ms. Ong (public defender):  That was the only basis he had indicated to me, your Honor.

The Court:  That’s not a legal basis to withdraw a plea. 

The defendant (appellant herein):  Could I talk?”

            After some discussion, the Court inquired of the defendant/appellant (the record page 25, line 21)

            “The Court:  Mr. Figueroa, there has to be a legal basis for me to withdraw a plea.  What is your legal basis?

            The defendant:  Ineffective assistance of counsel.  I got mislead.  I got a witness. Ok.  I got mislead.  I got a witness.  I got a witness with four phone calls that morning to bring underwear--that I was going to get that year.  I got the same witness--on Friday as far as considering my waiving my right to a jury trial, right, that it was a legal matter.  That it was going to be taken care of in front of the judge.  That it was a legal matter.  That we got to Monday, for 2 o’clock --

            The Court:  Mr. Figueroa, let me interrupt you, sir, so that you don’t delay anything here this morning.”

            Although there was further discussion between the Court and the appellant/defendant, the appellant/defendant was not allowed to elaborate on his assertion of ineffectiveness of counsel, and the Court made no ruling on that assertion. 



            The defendant’s written motion to withdraw his plea filed October 1, 2007, failed to state any legal grounds recognized by Florida Rule of Criminal Procedure 3.170.  However, when the Court conducted its hearing on the motion to withdraw on October 23, 2007, the Court specifically inquired of the appellant/defendant if he, in fact, had a legal ground and the appellant/defendant responded affirmatively asserting “ineffectiveness of counsel”.  Florida Rules of Criminal Procedure 3.170(l) states as follows:

            “A defendant who pleads guilty or no contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw within 30 days after rendition of the sentence, but only upon the grounds specified in the Florida rules of Appellate procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law. Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(c) states that one permitted appellate ground is “an involuntary plea, if preserved by a Motion to Withdraw Plea”.  In Iaconetti v. State of Florida 869 S02d695 (Second DCA 2004), the appellant/defendant alleged that she had been misled by her attorney specifically asserting that her attorney had misinformed her about the potential length of a sentence when the defendant entered an open guilty plea before the Court.  The Second DCA held that misrepresentation or mistaken advice by counsel concerning length of the defendant’s sentence may constitute a basis for allowing the defendant to withdraw his or her plea. 

            In William v State of Florida 793So2d 1112 (4th DCA 2001), the appellant/defendant therein entered into a plea agreement on a violation of his community control and was sentenced to thirty months in prison.  Defense counsel filed a Motion to Withdraw the plea pursuant to Florida Rule of Criminal Procedure 3.170(l) alleging ineffective assistance of counsel and therefore that the appellant/defendant’s admission of guilt was “not voluntary and knowingly entered into”.  The trial court summarily denied the Motion to Withdraw the plea by entering a detailed order denying the appellant/defendant’s motion to Withdraw plea and holding that the appellant’s plea colloquy demonstrated that he knowingly, intelligently and voluntarily waived his rights prior to entering his guilty plea.  In Reversing and Remanding, the Fourth DCA relied upon its own prior decision in Cunningham v State 677 So2d 929 (4th DCA 1996).  In Cunningham, the defendant filed an unsworn, conclusionary motion, where he sought to withdraw his plea and to have new counsel appointed, claiming ineffective assistance of counsel.  The trial court conducted a Nelson inquiry to determine if there was any basis for the claim of ineffective assistance of counsel.  In Cunningham, after the trial conducted the Nelson inquiry, it found no basis to Cunningham’s ineffective assistance counsel claim and therefore there was no reason to appoint new counsel and Cunningham’s Motion to Withdraw his plea was denied.  The Fourth DCA held that Cunningham’s right to effective representation at a critical stage in the proceeding was not implicated and thus he was not entitled as a matter of right to new court-appointed counsel before the Court could proceed to determine the merits of the Motion to Withdraw. 

            In the case at bar, the appellant/defendant asserted that his counsel was ineffective and stated “I got mislead”.  The appellant/defendant’s assertion, in response to the Court’s inquiry for a legal basis was effectively an assertion of an involuntary plea.  The trial court stopped the appellant/defendant from further explanation and did not conduct any further inquiry into the appellant/defendant’s assertion of ineffective assistance of counsel. 

            We find the trial court’s lack of further inquiry to be error.  In this case where the appellant/defendant had asserted an ineffective assistance of counsel, and specifically alleges that he was misled, the trial court should conduct a Nelson inquiry to determine if there exists a basis for appellant/defendant’s ineffective assistance of counsel claim.  If the trial court finds no basis, then the appellant/defendant is not entitled to a new lawyer and there is no reason to vacate the appellant/defendant’s plea herein.  If the trial court after conducting inquiry finds that in fact there is a basis for appellant/defendant’s ineffective assistance of counsel claim, then a conflict free counsel should be appointed and the trial court should conduct an evidentiary hearing on appellant/defendant’s motion to withdraw his plea. See Padgett v State of Florida 743 So2d 70 (Florida 4th DCA 1999) and Brown v State of Florida 835 So2d 402 (Florida Second DCA 2003).  It is therefore Ordered and adjudged that the trial court’s denial of appellant/defendant’s Motion to Withdraw Plea is hereby vacated and this matter is remanded for further hearing on
appellant/defendant’s Motion to Withdraw Plea consistent with this order.


            DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, this _____ day of November, 2008.



                                                                        W. Lowell Bray, Jr.

                                                                        Primary Appellate Judge





                                                            Daniel D. Diskey

                                                            Circuit Court Judge





                                                                        Stanley R. Mills

                                                                        Circuit Court Judge





Cc: Kevin Paul, Esq.

      Peter A. Sartes, Esq.