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Date: 06-11-2019

Case Style:

RUSSELL M. CUCIAK vs STATE OF FLORIDA

Case Number: 18-0437

Judge: PER CURIAM.

Court: COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Plaintiff's Attorney: Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General

Defendant's Attorney: Tim Bower Rodriguez

Description:

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Appellant was charged in two separate cases with two counts of felony driving under the influence, possession of marijuana, and possession of paraphernalia. Appellant entered a negotiated plea and received five years of probation. Defense counsel moved to withdraw from the case and, within thirty days of sentencing, appellant filed a pro se motion to withdraw plea and appoint counsel. The trial court granted defense counsel’s motion to withdraw from representation. Subsequently, the trial court ordered the state to respond to the pro se motion to withdraw plea. After receiving the state’s response, and while appellant was unrepresented by counsel, the trial court summarily denied the motion to withdraw plea. This appeal ensues.

Appellant argues that the trial court erred in denying his motion to
2

withdraw plea without first appointing him conflict-free counsel. He asserts that a motion to withdraw plea proceeding is a critical stage at which criminal defendants enjoy the right to counsel.

“[M]ixed questions of law and fact that ultimately determine constitutional rights should be reviewed by appellate courts using a twostep approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Connor v. State, 803 So. 2d 598, 605 (Fla. 2001).

Florida Rule of Criminal Procedure 3.170(l) provides that a defendant may file a motion to withdraw plea within thirty days after sentencing on certain specified grounds. Florida law recognizes “the thirty-day window provided in rule 3.170(l) is a critical stage of the criminal proceedings” during which the defendant is entitled to the “guiding hand of counsel to assist in preparing the initial motion to withdraw the plea.” Shriber v. State, 959 So. 2d 1254, 1257 (Fla. 4th DCA 2007) (citing Padgett v. State, 743 So. 2d 70 (Fla. 4th DCA 1999)).

In Stephens v. State, 141 So. 3d 701 (Fla. 4th DCA 2014), the defendant filed a pro se motion to withdraw plea after sentencing. After counsel withdrew from representation, the trial court summarily denied the motion to withdraw plea. This court found that the trial court erred in considering the defendant’s motion without first appointing conflict-free counsel because “[a] motion to withdraw plea is considered a critical stage of a criminal proceeding, and thus a defendant is entitled to counsel.” Id. at 702. In a footnote, this court noted that “[h]ad [the defendant’s] counsel not withdrawn, our analysis would be different.” Id. at 702 n.1.

Outcome: Applying the law to the facts of this case, we conclude that the trial court erred in considering appellant’s motion to withdraw plea without first appointing conflict-free counsel. As such, we reverse and remand for “the trial court to appoint conflict-free counsel to assist [appellant] in drafting his motion. The trial court may then determine whether to summarily deny the motion or to hold an evidentiary hearing.” See id. at 702.1

Reversed and remanded.

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Defendant's Experts:

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