Gust v. StateGust v. State
Robert A. Butterworth, Atty. Gen., James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.
ON MOTION FOR REHEARING
WILLIS, BEN C. (Ret.), Associate Juge.
In considering the State‘s motion for rehearing, it appears that there is some language which may be misleading and confusing. Desiring to clarify that which was intended, the said motion is hereby granted and the opinion now appearing in Gust v. State, 14 F.L.W. 2768 (Fla. 1st DCA December 1, 1989) is hereby withdrawn. Substituted is the opinion herein which expresses the findings and rulings intended as follows:
Appellant appeals an order reaffirming and adhering to a prior order which denied his pro se Rule 3.850 motion for post conviction relief. We reverse and remand.
In 1985 appellant pled nolo contendere to armed robbery for which he received 15 years imprisonment. On June 5, 1986, appellant filed a
On June 10, 1986, the triаl court denied the motion without a hearing stating that the record revealed that the defendant entered a written plea of no contest, that he acknowledged the plea was in his best interest, and that he bargained for the 15-year sentence.
This order was reversed and remanded because the trial court did not attach the portions of the files and records conclusively showing the defendant was entitled to no relief. Gust v. State, 504 So.2d 61 (Fla. 1st DCA 1987).
The trial court then issued an order which reiterated the findings set out in its June 10, 1986 denial of appellant‘s motion, adding that appellant acknowledged that he was satisfied with the services and advice of his attorney. To this order the trial court attached the original transcript of the sentencing proceedings together with the plea waiver and consent form. Appellant did not appeal this order.
On August 5, 1987, appellant filed another
On January 23, 1989, the trial court issued an order with attachments of all the foregoing orders and attachments from the Gust cases. This order essentially reiterated the findings made in its previous orders addressing Gust‘s motions. However, before the January 23, 1989 order was rendered, appellant had filed a motion for rehearing in this court on December 27, 1988 which this court denied January 25, 1989. On February 8, 1989, appellant filed a motion to quash the trial court‘s January 23, 1989 order as premature, which this court granted March 1, 1989.
We cоnsider the merits of this appeal, despite the lack of attachments in support of the trial court‘s April 7, 1989 order, to avoid visiting on appellant delays that he is powerless to avoid. We do so only because the portions of the record that the trial court relied upon are available to this court by virtue of the trial court‘s attempted compliance with the mandate in Gust II. See Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980) (in which the court declined to reverse for failure to attach a supporting record or file on the basis that it was able to obtain the record from appellant‘s prior appeal).
Florida courts have utilized the statutory definition of “weapon” provided in section 790.001(13) to determine whether a particular object constitutes a “weapon” for purposes of section 812.13(2)(b). See, e.g., Depasquale v. State, 438 So.2d 159, 160 (Fla. 2d DCA 1983); Hartman v. State, 403 So.2d 1030, 1031 (Fla. 4th DCA 1981); McCray v. State, 358 So.2d 615, 617 (Fla. 1st DCA 1978). Under this approach, a device used in the course of a robbery qualifies as a “weapon” only if it is either one of the objects spеcifically delineated in the statute or a “deadly weapon.
Id. at 1082. Further, in Hartman, supra, the court stated that the
[l]anguage in the introductory paragraph of Subsection 790.001 indicates that the meanings thereafter established shall apply “for the purposes of this chapter;” however, we do not consider that language to limit use of the definitions exclusively to chapter 790, particulаrly where common sense dictates that a definition set forth there may have perfectly reasonable application elsewhere.
Hartman, 403 So.2d at 1031. Thus, either the
In light of the foregoing, even if appellant only had a key-chain knife, the fact that such is exсluded from “weapon” status
However, the factual allegations made in appellant‘s motion, on its face, raise questions concerning whether defense counsel effectively represented appellant by advising him to enter a рlea under circumstances which, if the allegations are true, there may have existed no factual basis for the plea entered. We acknowledge at the outset that appellant did not argue in his motion that there was no factual basis for his plea to armed robbery. Nevertheless we do not consider his failure to so specify nеcessitates that relief be denied. Although
[t]he judge is not required to limit his decision on the first motion to the grounds narrowly alleged, or to deny the motion out-of-hand because the allegations are vague, conclusional, or inartistically expressed. He is free to adopt any appropriatе means for inquiry into the legality of the prisoner‘s detention in order to ascertain all possible grounds upon which the prisoner might claim to be entitled to relief.
Sanders v. United States, 373 U.S. 1, 22-24, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (1963). In Josey v. State, 301 So.2d 489 (Fla. 2d DCA 1974), the pro se 3.850 appellant alleged denial of compulsory process for witnesses and denial of a jury instruction on a lesser included offense. His motion was summarily denied. The district сourt reversed and remanded for an evidentiary hearing because “appellant may have been attempting to allege incompetence of counsel.” Id. In Evans v. State, 539 So.2d 33 (Fla. 1st DCA 1989), we held that “[t]hough appellant‘s motion is arguably conclusory [sic] and borders on unintelligible, according the motion a liberal interpretation, we discern a marginally sufficient facial allegation — that appellant was mentally incompetent at the time of his plea and therefore his plea was involuntary.” Similarly, we consider appellant‘s factual allegations here and, mindful of his lack of legal training, view them with an eye for the natural legal ramifications that stem therefrom.
If, as appellant cоntends, he informed his defense counsel that all he had used was a key-chain knife during the commission of the robbery, then an effective defense counsel would in our judgment have explored the matter further. In asserting ineffective assistance of counsel, appellant must show a specific omission or overt act which demonstrates prejudiсe “to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Knight v. State, 394 So.2d 997, 1001 (Fla. 1981). More particularly, “[t]o prevail and set aside a nolo contendere or guilty plea alleging ineffectiveness of original trial counsel, a defendant must show that he, in fact, had a `viable’ defense.” Diaz v. State, 534 So.2d 817 (Fla. 3d DCA 1988). If appellant‘s assertion in the case at bar is true, his attorney‘s failure to act on that information, i.e., ascertain the veracity of the assertion and its relevance, may have affected the outcome of the plea and sentence entered, by, among other things, precluding appellant‘s plea to a lesser offense. Ignoring the nature of the “arm” in recommending a nolo contendere plea to armed robbery would be markedly deficient conduct which, we consider, goes to the very heart of whether appellant‘s plea was made knowingly, intelligently and voluntarily. See generally Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). And, if appellant‘s assertion is true, he may have established a viable defense to аrmed robbery — that the object he carried could not have been used to cause death or serious bodily harm.
Therefore, because the record, as we have divined it, does not conclusively refute the allegations contained in appellant‘s motion, e.g., Pate v. State, 547 So.2d 316 (Fla. 4th DCA 1989), we reverse and remand its summary denial and direct that further proceedings be conducted in accordance with
ERVIN, J., concurs.
NIMMONS, J., dissents, with opinion.
First of all, the majority candidly admits that defendant‘s motion makes no contention that the trial court failed to elicit a factual basis for his plea. I strongly disagree that we should construct such a claim for him.
But even assuming thаt the defendant had made such an averment, the basis therefor would be the defendant‘s spurious contention that the alleged weapon was only a “key chain knife” which, according to the defendant, cannot be a weapon because it is equivalent to a “common pocket knife” and, as such, is excepted from the definition of “weapon” under
Obviously, the legislature, by excepting common pocket knives from the category of weapons, the carrying of which would be a crime, did so in order that the carrying of a common pocket knifе by a citizen should not constitute a crime, in view of the general custom of people to carry such knives for convenience and useful purposes unrelated to any criminal intent or activity.
But that does not mean that a pocket knife cannot be a deadly weapon.
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It is common knowledge that in certain circles pocket knives are used by assailants with deadly weapon effect as frequently, if not more frequently than are firearms.
In order to challenge a guilty or nolo contendere plea on the ground that the trial court failed to make a factual basis determination, a defendant must show “prejudice or manifest injustice.” Williams v. State, 316 So.2d 267, 275 (Fla. 1975); State v. Kendrick, 336 So.2d 353, 355 (Fla. 1976); Fitzpatrick v. State, 414 So.2d 1121 (Fla. 1st DCA 1982). In this, the defendant has obviously failed. Unlike Kendrick, the defendant has never deniеd that he was in possession of the knife. The defendant‘s contention that the knife was the equivalent of an exempt
Further, I believe the majority‘s opinion is in error in holding that the defendant received ineffective assistance of counsel by reason of counsel‘s allowing the defendant to plead guilty or nolo contendere to armed robbery by use of a common pocket knife or key chain knife without “explor[ing] the matter further.” In the first place, the motion fails to demonstrate that the knife was not a weapon. If we assume that the knife alleged in the information was a key chain knife or a commоn pocket knife as contended by the defendant and that the defendant informed his attorney that the knife was such, I say, “So what!” The fact that it may have been such a knife does not absolve the defendant of armed robbery. The burden of a defendant claiming the extraordinary right to relief based upon incompetent counsel must, of necessity, be a heavy one; else the remedy may be subjected to even greater abuse than it already is. The defendant‘s motion fails to allege an act or omission by counsel which could be regarded as a substantial and serious deficiency in the attorney‘s representation of the defendant. Likewise, the motion fails to demonstrate that the dеfendant was prejudiced. See Knight v. State, 394 So.2d 997 (Fla. 1981); Atkins v. Dugger, 541 So.2d 1165 (Fla. 1989); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
I fear that the majority‘s opinion will encourage even more meritless ineffective assistance of counsel claims in a system already overburdened with such claims.
I would affirm.