Galarza v. State , 2014 Fla. App. LEXIS 18560 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SCOTT ALLEN GALARZA, )
)
Appellant, )
)
v. ) Case No. 2D13-3516
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed November 14, 2014.
Appeal from the Circuit Court for
Hillsborough County; Chet A. Tharpe,
Judge.
Howard L. Dimmig, II, Public Defender,
and Maggie Jo Hilliard, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa,
for Appellee.
KELLY, Judge.
Scott Galarza appeals from the trial court's summary denial of his motion
to withdraw plea. He argues that the court erred in ruling on the motion in his absence
and without appointing conflict-free counsel to represent him during a full evidentiary
hearing. We reverse and remand for further proceedings.
After Galarza admitted violating one of the conditions of his community
control, the trial court accepted Galarza's admission, revoked his community control,
and sentenced him to five years in prison. Galarza filed a pro se motion to withdraw his
plea and for new counsel claiming that his trial counsel misled him to believe that he
would receive only county jail time if he entered an open admission to violating his
community control. The trial court denied the motion in Galarza's absence without a
hearing.
Galarza filed his motion to withdraw plea under Florida Rule of Criminal
Procedure 3.170(l), which allows a defendant who has admitted a violation of
community control to withdraw his admission on certain specified grounds. See
Sheppard v. State, 17 So. 3d 275 (Fla. 2009) (applying rule 3.170(l) to a motion to
withdraw the defendant's admission to violating his community control). Allegations of
mistaken advice by counsel concerning the length of a defendant's sentence may be a
basis for allowing the defendant to withdraw his plea. Iaconetti v. State, 869 So. 2d
695, 699 (Fla. 2d DCA 2004). Once a defendant files a facially sufficient motion
alleging an adversarial relationship, the trial court must appoint conflict-free counsel,
unless the record conclusively refutes the defendant's allegations. Sheppard, 17 So. 3d
at 287. Further, "[a] motion to withdraw plea is a critical stage of the proceedings at
which a defendant is entitled to be present and to have counsel represent him."
Krautheim v. State, 38 So. 3d 802, 804 (Fla. 2d DCA 2010) (citing Garcia v. State, 846
So. 2d 660, 661 (Fla. 2d DCA 2003)).
Galarza's allegation that he was led by defense counsel to believe he
would receive only jail time by pleading open to the court must be taken as true since
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the allegation is not refuted by the record. See id. at 805. The fact that Galarza was
advised in his original plea colloquy of the maximum and minimum penalties he faced
was not determinative of his understanding of his possible sentence upon violation of
his community control. See id. (noting that, although the record showed the defendant
was advised during the plea colloquy of the maximum possible penalties he could
receive if he violated his probation, the record did not show what discussions defense
counsel had with the defendant before the defendant entered his admission to violating
his probation).
Accordingly, we reverse the order denying Galarza's motion to withdraw
plea and we remand for an evidentiary hearing on the motion at which Galarza shall be
entitled to be present and represented by conflict-free counsel.
Reversed.
SILBERMAN and BLACK, JJ., Concur.
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