IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA SAUL CARMONA, a/k/a LOUIS FIGUEROA, Appellant/Petitioner, vs. DCA CASE NO. 5D STATE OF FLORIDA, S.CT. CASE NO. SC Appellee/Respondent. ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL AMENDED JURISDICTIONAL BRIEF OF APPELLANT/PETITIONER JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT LEONARD R. ROSS Assistant Public Defender Florida Bar No Orange Avenue, Suite A Daytona Beach, Florida Phone: ( COUNSEL FOR APPELLANT/ PETITIONER

2 TABLE OF CONTENTS PAGE NO. TABLE OF CONTENTS i TABLE OF CITATIONS ii STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 4 ARGUMENT THE DECISION IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF ANOTHER DISTRICT COURT OF APPEAL. 5 CONCLUSION 9 CERTIFICATE OF SERVICE 10 CERTIFICATE OF FONT i

3 TABLE OF CITATIONS CASES CITED: PAGE NO. Jones v. State 827 So. 2d 1086 (Fla. 1 st DCA , 5, 8 Karg v. State 706 So. 2d 124 (Fla. 1 st DCA , 7-8 State v. Smith 845 So. 2d 937 (Fla. 5 th DCA Zeiszler v. State 765 So. 2d 128 (Fla. 1 st DCA , 8 ii

4 STATEMENT OF THE CASE AND FACTS The defendant appeared for a sentencing proceedings on November 18, 2002, in the Circuit Court in Orange County, Florida, and, prior to sentencing, moved to withdraw his plea. (R2 Defense counsel announced: Okay. It s Mr. Carmona s position that he was not guilty of those offenses and he wishes the court to withdraw the plea to those offenses. It s against my advice to do so. (R3 The following transpired: The Court: What s the basis for withdrawing your plea in that case? * * * The Defendant: Um, I m not guilty of it, Sir. And I didn t do what they say in the statement. I would like to take it to trial, Your Honor. The Court: Why didn t you make that decision back when you entered the plea in October? The Defendant: At the time, Sir, I was a little confused. I was I me and my lawyer didn t understand what was going on. I didn t understand my lawyer about him talking to me and that s not what I wanted, Your Honor. I didn t want to sign fifteen years. I wanted to take it to trial. And I feel like I was forced to sign the fifteen year from my lawyer, Christopher Smith. It was not what I wanted. At first I told them I wanted to take it to trial and. I would like to take it to trial, Your Honor. 1

5 Mr. Smith: Just like to, while you re doing that, like to reiterate to Mr. Carmona if you allow him to withdraw the plea those counts are still going to get the fifteen years because you have more than jurisdiction to give him that sentence. It was the reason, as I recall, that he begged you to give him back the plea offer that you had taken away from him which is fifteen years as we were sitting there picking a jury in this case. * * * So, I ll deny his motion to withdraw his plea. He knew what he was doing the day he entered those pleas. (R3-4 * * * The Defendant: I know. But I told my lawyer I feel like I was forced to sign this plea. This is not what I wanted. This is what he wanted. This is what he wanted to go on with the next one. I told him from the beginning I wanted to take this case to trial, Your Honor. The Court: Well, I have ultimate confidence in Mr. Smith. He s represented people going to death row. I m not buying he s trying to get cases over with. * * * So I m not buying Mr. Smith is somehow incompetent or sold you out. He s not that kind of lawyer. So try again. The Defendant: Every time I talk to him he will walk away with an attitude. I try to explain myself to him. He didn t want to listen. Once he told me he was a fifty two year old that he doesn t care my way if I m going to sign 2

6 fifteen year or not. Once he told me I told him he told me I have a lot of record priors. I said I m not guilty of some of them. He say you re a thug. That s why you have to deal with it. The Court: Well, sometimes Mr. Smith has a latitude court s don t have, Mr. Carmona. (R8-11 The defendant filed a notice of appeal on all cases on December 16, (R The Fifth District Court of Appeal entered an opinion filed March 5, 2004, affirming the decision of the trial court. Judge Sharp entered a dissenting opinion. The Appellant filed a motion for rehearing and rehearing en banc and/or motion to certify. The District Court of Appeal denied Appellant s motion. 3

7 SUMMARY OF THE ARGUMENT In the instant case, Appellant/Petitioner, prior to sentencing, sought to withdraw his plea claiming that he was pressured into agreeing to the plea by his defense attorney, and that he had told his attorney that he wanted to proceed toward trial. Defense counsel took a position adverse to the defendant s and advised that he recommended against the defendant withdrawing his plea. The trial court stated: So I m not buying Mr. Smith (defense attorney is somehow incompetent or sold you out. He s not that kind of lawyer. So try again. (R8 The court denied the defendant s motion to withdraw his plea, but did not appoint conflict-free counsel to represent the defendant at said hearing. Judge Sharp, in her dissenting opinion filed in the instant case, opined that the court s decision was in conflict with the decisions rendered in Jones v. State, 827 So. 2d 1086 (Fla. 1 st DCA 2002 and Karg v. State, 706 So. 2d 124 (Fla. 1 st DCA

8 ARGUMENT THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT OR ANY OTHER COURT. The Fifth District Court of Appeal entered an opinion filed March 5, 2004, in the above-referenced case. The Appellant argued on appeal that the trial court erred by not appointing conflict-free counsel to represent him during a motion to withdraw his pleas. The State confessed error in their brief. The Fifth District Court of Appeal held that, notwithstanding the State s confession, the parties misapprehended the decision ordered by this Court in State v. Smith, 845 So. 2d 937 (Fla. 5 th DCA 2003, and held that a conflict between counsel and client must be patent for the trial court to have a duty to intercede and offer the defendant the opportunity to seek conflict-free counsel. In a dissenting opinion, Judge Sharp submitted that the majority opinion was illogical in light of the two District Court of Appeal cases relied upon by the Court in State v. Smith, supra: Jones v. State, 827 So. 2d 1086 (Fla. 1 st DCA 2002 and Karg v. State, 706 So. 2d 124 (Fla. 1 st DCA As Judge Sharpe articulately pointed out, the Jones scenario is indistinguishable from the instant case. In Jones v. State, supra, a defendant filed a motion to withdraw alleging he was misled and alleged that 5

9 he did not understand the consequences of his plea. In the instant case, the defendant alleged that he did not understand what his lawyer had told him and he alleged that his lawyer forced him into a plea agreement. (T3-4 In the majority opinion, the Fifth District Court of Appeal ruled: In the instant case, there was no patent conflict between counsel and client. Appellant/Petitioner submits that the Fifth District Court of Appeal overlooked the obvious conflict raised by the defendant. The defendant specifically stated: (T3-4 I wanted to take it to trial. And I feel like I was forced to sign the fifteen year for my lawyer, Christopher Smith. To further aggravate the obvious conflict, defense counsel argued against the defendant s position and stated: (T4 It was the reason, as I recall, that he begged you to give him back the plea offer that you had taken away from him which is fifteen years as we were sitting there picking a jury in this case. Counsel s statement clearly indicates that he took a position adverse to the Appellant s/petitioner s. 6

10 In a case strikingly similar to the instant case, Zeiszler v. State, 765 So. 2d 128 (Fla. 1 st DCA 2000, Appellant moved to withdraw his plea stating that he was under a great deal of emotional stress at the time of the plea and that his counsel coerced him to enter into the plea agreement. In the instant case, the defendant stated he was confused at the time of his plea and that his attorney forced him into the plea agreement. (T3-4 In Zeiszler v. State, supra, the First District Court of Appeal referenced a case relied upon by Judge Shaw in her dissenting opinion in the instant case, Karg v. State, 706 So. 2d 124 (Fla. 1 st DCA The Zeiszler v. State, supra, court stated: Zeiszler v. State at 129. In Karg v. State, Appellant sought to withdraw his plea alleging defense counsel had coerced him to accept the plea. This court Stated: Because of conflict between Appellant and his trial counsel appears in the record, the trial court must appoint conflict-free counsel to represent Appellant with regard to his motion to withdraw his plea. 706 So. 2d at 125. The denial of Appellant s motion to withdraw his plea is set aside and the matter is remanded with directions to appoint conflict-free counsel to represent Appellant in further proceedings concerning the motion. As stated above, a conflict between Appellant/Petitioner and his trial counsel appears in the record in the instant case. Appellant/Petitioner expressly alleged that his 7

11 attorney forced him into a plea agreement. Appellant/Petitioner submits that the holding of the Fifth District Court of Appeal conflicts with the decisions set forth in Zeiszler v. State, supra, Jones v. State, supra and Karg v. State, supra, on the same question of law. 8

12 CONCLUSION BASED UPON the argument and authorities contained herein, Appellant/Petitioner respectfully requests that this Honorable Court grant jurisdiction in this case. Respectfully submitted, JAMES B. GIBSON PUBLIC DEFENDER SEVENTH JUDICIAL CIRCUIT LEONARD R. ROSS Assistant Public Defender Florida Bar No Orange Avenue, Suite A Daytona Beach, Florida Phone: ( COUNSEL FOR APPELLANT/ PETITIONER 9

13 CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing has been served upon the Honorable Charles J. Crist, Jr., Attorney General, 444 Seabreeze Boulevard, Fifth Floor, Daytona Beach, Florida 32118, in his basket at the Fifth District Court of Appeal, and mailed to Saul Carmona, Inmate No. X-32667, Dorm H-101-B, Bay Correctional Institution, 5400 Bayline Drive, Panama City, Florida 32404, on this day of August, LEONARD R. ROSS Assistant Public Defender 10

14 IN THE SUPREME COURT OF FLORIDA SAUL CARMONA, a/k/a LOUIS FIGUEROA, Petitioner/Appellant, vs. S.CT. CASE NO. SC STATE OF FLORIDA, DCA CASE NO. 5D Respondent/Appellee. A P P E N D I X

15 IN THE SUPREME COURT OF FLORIDA SAUL CARMONA, a/k/a LOUIS FIGUEROA, Petitioner/Appellant, vs. S.CT. CASE NO. SC STATE OF FLORIDA, DCA CASE NO. 5D Respondent/Appellee. CERTIFICATE OF FONT I CERTIFY that the size and style of font used in the foregoing brief of Respondent is 14-point Times New Roman, a proportionately spaced font. LEONARD R. ROSS Assistant Public Defender