Hernandez v. State
204 So. 3d 128
| Fla. Dist. Ct. App. | 2016Background
- In August 2015 Felix Hernandez, then 73 and in poor health, pleaded no contest to three counts of lewd or lascivious molestation under a plea agreement and was sentenced to ten years of sex offender probation with GPS monitoring.
- Within a month Hernandez moved to withdraw his plea, alleging his trial counsel affirmatively misadvised him about collateral consequences—specifically that he would be allowed to live at his daughter’s Miramar residence at a particular address.
- After sentencing Hernandez learned a Miramar ordinance barred sex offenders from residing within 2,500 feet of schools or places where children congregate, and the daughter’s address fell within that zone.
- Hernandez alleged that but for counsel’s affirmative misadvice about living at his daughter’s home (his primary caretaker), he would not have accepted the plea and would have proceeded to trial.
- The trial court summarily denied the motion without an evidentiary hearing; Hernandez appealed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s affirmative misadvice about a collateral consequence can render a plea involuntary | Hernandez: counsel told him he could live at his daughter’s specific residence; that misadvice was material to his decision to plead | State: summary denial suggested no hearing necessary (implicitly arguing motion insufficient or record refutes allegations) | Court: Affirmative misadvice about collateral consequences can render a plea involuntary; Hernandez’s facially sufficient allegations required an evidentiary hearing |
| Whether Hernandez was entitled to an evidentiary hearing on his motion to withdraw plea | Hernandez: alleged misadvice and materiality (would not have pled otherwise); age/health made living with daughter critical | State: (implicit) no hearing warranted because court denied motion summarily | Court: Motion’s allegations must be taken as true unless conclusively refuted by record; here record did not refute and remand for an evidentiary hearing is required |
Key Cases Cited
- State v. Partlow, 840 So.2d 1040 (Fla. 2003) (failure to advise about collateral consequences generally does not render plea involuntary; distinguishes affirmative misadvice)
- Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002) (affirmative misadvice about collateral consequences can justify withdrawal of a plea)
- Johnson v. State, 60 So.3d 1045 (Fla. 2011) (involuntariness claims require an evidentiary hearing; extra-record sources admissible)
- Panchu v. State, 1 So.3d 1243 (Fla. 4th DCA 2009) (post-sentencing movant bears burden to show manifest injustice; court must accept motion allegations as true unless record conclusively refutes them)
- Watrous v. State, 793 So.2d 6 (Fla. 2d DCA 2001) (recognizing affirmative misadvice as basis for plea withdrawal)
- Deck v. State, 985 So.2d 1234 (Fla. 2d DCA 2008) (affirmative misadvice can render plea involuntary)
- Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (same)
- Joyner v. State, 795 So.2d 267 (Fla. 1st DCA 2001) (same)
- Hall v. State, 51 So.3d 1283 (Fla. 4th DCA 2011) (remand for hearing where counsel possibly misrepresented collateral consequence)
- Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003) (hearing warranted where counsel possibly misadvised on sexual predator label)
- LaMonica v. State, 732 So.2d 1175 (Fla. 4th DCA 1999) (hearing warranted where counsel possibly misadvised on reporting requirements)
- Campbell v. State, 125 So.3d 733 (Fla. 2013) (uses terminology manifest injustice or prejudice when evaluating post-sentencing plea withdrawal)
Conclusion: The appellate court reversed the summary denial and remanded for an evidentiary hearing to determine whether counsel’s alleged affirmative misadvice about a collateral residence consequence rendered Hernandez’s plea involuntary.