Schriber v. StateSchriber v. State
Michael E. Schriber appeals the trial court‘s summary denial of his motion to withdraw his plea after sentencing. The issue presented in this appeal is whether the trial court erred in summarily denying Schriber‘s motion to withdraw the plea after sentencing without appointing conflict-free counsel after Schriber alleged that his prior counsel led him to enter a guilty plea involuntarily.
On July 6, 2004, Schriber pleaded guilty to grand theft and was sentenced to five years in state prison. On July 12, 2004, Schriber filed a handwritten pro se motion to withdraw his plea, alleging that his trial counsel provided misadvice and ineffective assistance in that his counsel failed to bring to the trial court‘s attention the fact that Schriber suffered from a mental disorder that required specialized treatment. The trial court treated Schriber‘s motion to withdraw his plea as a motion for post-conviction relief and ordered the state to respond. The state responded by urging the trial court to deny the motion because it was unsworn.1 The trial court subsequently
This court reversed the trial court‘s order denying Schriber‘s motion and remanded the case to the trial court to consider Schriber‘s motion as a motion to withdraw his plea in accordance with Florida Rule of Criminal Procedure 3.170(l) rather than a motion for post-conviction relief. See Schriber v. State, 924 So.2d 904 (Fla. 4th DCA 2006). Thereafter, upon remand, the trial court, without appointing conflict-free counsel, issued a summary order denying Schriber‘s motion to withdraw his plea which is now the subject of this appeal.
“The standard of review of a trial court‘s denial of a motion to withdraw plea is abuse of discretion.” Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006). “Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations.” Id.
Schriber argues that because a motion to withdraw is a critical stage of the proceedings, he was entitled to counsel to assist him in drafting his motion to withdraw. We agree.
In Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999), this court held:
A defendant‘s right to effective assistance of counsel in the appeal of the issues which were presented in, and preserved by, the filing of a rule 3.170(l) motion would be hollow indeed if the defendant were not allowed the guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.3 To hold to the contrary would be to carve out of a defendant‘s right to counsel that thirty-day window between the rendition of sentence and the taking of an appeal — the very period during which the defendant may raise issues under rule 3.170(l) which would be cognizable during the direct appeal. Thus, we conclude that a motion filed pursuant to rule 3.170(l) does not amount to a collateral attack upon the conviction, but rather is a critical stage in the direct criminal proceeding against the defendant at which the accused must be entitled to effective assistance of counsel.
FN3 This court has already found that a motion to withdraw a plea filed prior to sentencing under rule 3.170(f) to be a critical stage in the proceeding against the defendant at which effective assistance of counsel must be provided. See Roberts v. State, 670 So.2d 1042 (Fla. 4th DCA 1996).
Id. at 73 (footnote omitted).
In addition to this court‘s decision in Padgett, other district courts have specifically held that a defendant is entitled to court-appointed counsel to advise and assist him in preparing his
The state argues that the trial court did not need to appoint conflict-free counsel
As we noted in Padgett, the thirty-day window provided in
We therefore reverse and remand and direct the trial court to appoint conflict-free counsel to assist Schriber in drafting a motion to withdraw his plea under
Reversed and Remanded with Directions.
WARNER and KLEIN, JJ., concur.