County Criminal Court: CRIMINAL PROCEDURE – Pleas- Motion to withdraw plea was properly denied where trial court did not have any evidence on which to base a withdrawal. Even if appellant had presented evidence in support of the motion to withdraw, she failed to demonstrate a manifest injustice requiring correction-the possibility of a felony violation of probation based on a plea in a misdemeanor case is a collateral consequence of that plea.  Order of the trial court affirmed. Light v. State No. CRC 08-1636CFAES  (Fla. 6th Cir. App. Ct. April 22, 2009).

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

 

GLENDA KAY LIGHT,

 

        Appellant,

 

v.                                     Circuit Appeal No.CRC-08-1636CFAES 

                                        UCN:  512008CF001636A000ES

                                        County Misd. No.07-9143MMAES

 

STATE OF FLORIDA,

        Appellee.

_________________________________/

 

Opinion filed ___________

 

Appeal from Order Denying Defendant’s Motion to Withdraw Plea entered by Pasco County Judge William G. Sestak

 

Peter A. Sartes, Esq.

        Attorney for Appellant

 

Office of the State Attorney

        Attorney for the Appellee

 

 

ORDER AND OPINION

 

        This is an appeal from the County Court’s Order Denying Defendant’s Motion to Withdraw Plea, dated and rendered March 13, 2008.  The Appellee having failed to file a brief, this matter has been considered by the appellate panel upon the appellate record and the Appellant’s Initial Brief.  Upon consideration, the Court finds as follows:

 

        1.     The record reveals that the Appellant presented absolutely no evidence to the lower court to support the Motion to Withdraw Plea.  Argument was presented by Appellant’s attorney, but, despite the presence of the Appellant (R-22), no testimony or other evidence was presented.  In short, the learned County Court judge had no evidence upon which to base a ruling in the Appellant’s favor.

 

        2.     Furthermore, even if the Appellant had presented evidence in the lower court, Rule 3.170(l), Fla. R. Crim. P. requires that a Motion to Withdraw Plea filed after sentencing (as in the instant case) may only be based “…upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) except as provided by law”.  “Rule 3.170(l) applies to motions to withdraw filed after sentencing.  In contrast to subdivision (f), this provision allows withdrawal of a plea only on the limited grounds listed in Florida Rule of Appellate Procedure 9.140(b).  Such grounds include lack of subject matter jurisdiction, violation of the plea agreement, and involuntariness of the plea.  Moreover, once sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction”.  State v. Partlow, 840 So.2d 1040, 1042 (Fla.,2003).  The Appellant’s Motion to Withdraw Plea does not appear to be squarely based on any of the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) or on any other provision of law.  Likewise, the Appellant has “failed to demonstrate a manifest injustice requiring correction”.  As stated by our Supreme Court in State v. Partlow, 840 So.2d 1040, 1042 -1043 (Fla. 2003), “[i]n State v. Ginebra, 511 So.2d 960, 961 (Fla.1987), we held that a trial court judge is under no duty to inform a defendant of the collateral consequences of his guilty plea. A defendant must only be made aware of the direct consequences of the plea- i.e., those having a “definite, immediate, and largely automatic effect on the range of the defendant's punishment.” Major v. State, 814 So.2d 424, 428, 431 (Fla. 2002) (differentiating between collateral and direct consequences). Assuming that the voluntariness of the plea is the point of the appeal, the voluntariness of a plea depends on whether the defendant is aware of the direct consequences of the plea and those consequences listed in Florida Rule of Criminal Procedure 3.172(c).  “Neither the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges”.  Simmons v. State, 611 So.2d 1250, 1252 (Fla. 2nd DCA 1992).  The question is whether the felony violation of probation that might result from a misdemeanor plea in the County Court is a direct consequence of the plea or a collateral consequence of the plea.  While we have found no Florida decision directly on point, we think the matter can be analogized to the situation faced in those cases in which a defendant’s plea may result in the extremely harsh sanction of deportation.  While the rules have now been amended to require that defendants entering pleas of guilty or nolo contendere be advised of the possibility of deportation [State v. De Abreu, 613 So.2d 453 (Fla. 1993)], it is clear that the Supreme Court of Florida has viewed deportation as a collateral consequence of a plea, not a direct consequence.  State v. Ginebra, 511 So.2d 960 (Fla. 1987) (superseded by rule). Therefore, we hold that the possibility of a felony violation of probation based on a plea in a misdemeanor case is a collateral consequence of that plea.  Our decision is reinforced by the fact that the defendant in the instant case entered a plea of nolo contendere, a plea which does not constitute an in-court admission of guilt that could be used against the defendant in a felony violation of probation proceeding.  Further, based on the reasoning in Mongo v. State, 846 So.2d 613 (Fla. 1st DCA 2003), we find that the Appellant’s unwarranted assumptions about the continuation of her felony probation after her misdemeanor plea cannot form an adequate basis for the withdrawal of her pleas to the misdemeanor charges.  Assuming that the Appellant would have testified as argued by her attorney, the Appellant’s blithe assumption “…that she would go straight back on felony probation” (R-22), particularly when she fails to blame anyone other than herself for the assumption that her plea to the misdemeanor charges would have no effect on her pending felony probation, would fail to provide adequate grounds for a withdrawal of her plea in the County Court.  There are no allegations, let alone proof, that any assumptions on the Appellants part were either court-induced or lawyer-induced.

 

        3.     For the reasons set forth herein, the County Court’s Order Denying Motion to Withdraw Plea is hereby AFFIRMED.

 

        DONE AND ORDERED in chambers in New Port Richey, Pasco County, Florida this ____ day of March, 2009.

 

                                                                __________________

                                                                Stanley R. Mills

Primary Appellate Judge

 

                                                                __________________

                                                                        W. Lowell Bray, Jr.

                                                                Appellate Judge

 

                                                                __________________

                                                                Daniel Diskey

                                                                Appellate Judge

                                                               

 

 

Copies furnished to:

Peter A. Sartes, Esq.

Office of the State Attorney