Collins v. State , 2010 Fla. App. LEXIS 1445 ( 2010 )

68 So. 3d 251 (2010)

Queen Elizabeth COLLINS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D08-3691.

District Court of Appeal of Florida, Second District.

February 12, 2010.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

ON REMAND FROM THE SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

In Collins v. State, 26 So. 3d 1287 (Fla. 2009), the Supreme Court of Florida quashed this court's decision in Collins v. State, 12 So. 3d 227 (Fla. 2d DCA 2009), and directed this court on remand to reconsider the matter in light of the supreme court's decision in Sheppard v. State, 17 So. 3d 275 (Fla.2009). This court had relied upon its opinion in Sheppard v. State, 988 So. 2d 74 (Fla. 2d DCA 2008), quashed, 17 So. 3d 275 (Fla.2009), when it affirmed Collins' judgment and sentence and the denial of her pro se motion to withdraw plea which was made pursuant to Florida Rule of Criminal Procedure 3.170(l).

In her pro se motion Collins argued that she had not been properly represented. Collins also asserted that counsel had told her she could change her mind up until the very last minute and that she was exercising her right to do so. The court denied the motion without exploring Collins' claims that she had been misrepresented. However, pursuant to the supreme court's opinion in Sheppard, the court should not have denied Collins' motion in this manner. See Sheppard, 17 So.3d at 286. In this situation, the supreme court explained that the trial court should proceed as follows:

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant's allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 287 (footnote omitted).

Therefore, we affirm the judgment and sentence, but we reverse the denial of the motion to withdraw plea and remand for the trial court to follow the procedures in the supreme court's Sheppard opinion.

Affirmed in part, reversed in part, and remanded.

DAVIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.