Abbate v. State
2011 Fla. App. LEXIS 9617
| Fla. Dist. Ct. App. | 2011Background
- Defendant appeals circuit court’s denial of motion to withdraw plea after new counsel advised that convictions for second-degree arson and arson resulting in injury violated double jeopardy.
- State charged defendant with second-degree arson (806.01(2)) and arson resulting in injury to another (806.031(2)); also charged with two other offenses.
- Defendant entered an open plea to all four offenses; plea colloquy did not discuss double jeopardy.
- Sentenced to 30 months in prison on each offense concurrently, followed by five years of probation; probation violations could yield up to 15 years per offense.
- Post-sentencing, defendant moved to withdraw plea; prior counsel testified they concluded, based on statute 806.081(3), convictions could be separately sentenced and did not violate double jeopardy.
- Circuit court held without error; appellate court reversed, applying Novaton v. State to find involuntary plea and manifest injustice, and remanded to vacate convictions and permit withdrawal on all four offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does double jeopardy bar concurrent convictions for arson and arson resulting in injury? | Novaton exception applies; separate sentencing intended; no waiver. | Convictions for lesser offense subsumed by greater offense violate double jeopardy. | Yes; convictions violate double jeopardy under Novaton exception. |
| Did prior counsel’s misadvice render the plea involuntary? | Counsel advised no double jeopardy issue; defendant relied on advice. | Advice was ineffective for failing to warn of duress/double jeopardy concerns. | Yes; ineffective assistance and misadvice contributed to involuntary plea. |
| Should the plea be withdrawn and convictions vacated to remedy manifest injustice? | Withdrawal appropriate to correct manifest injustice under Novaton and related authorities. | Withdrawal necessary to avoid double jeopardy violation and erroneous convictions. | Yes; reverse and remand to vacate all four convictions and permit withdrawal. |
Key Cases Cited
- Novaton v. State, 634 So.2d 607 (Fla.1994) (establishes exception to general double jeopardy rule for involuntary pleas)
- Nelfrard v. State, 34 So.3d 221 (Fla.4th DCA 2010) (manifest injustice standard after post-sentencing plea withdrawal)
- Keller v. State, 846 So.2d 631 (Fla.4th DCA 2003) (ineffective assistance for failing to raise double jeopardy issue)
- Haliburton v. State, 7 So.3d 601 (Fla.4th DCA 2009) (lesser included offenses determined by elements, not penalties)
- Thompson v. State, 50 So.3d 1208 (Fla.4th DCA 2010) (abuse of discretion standard for withdrawal of plea)