FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1287
_____________________________
ALLAN MICHAEL HAMILTON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.
November 1, 2019
PER CURIAM.
We reject Appellant’s claim that he is entitled to a new
hearing on his motion to withdraw his open plea to aggravated
battery with actual possession and discharge of a firearm under
10-20-Life. He represented himself at trial, and decided to plead
guilty before the State completed its case in chief. The trial court
appointed counsel for plea proceedings, and conducted an
exceedingly thorough colloquy, informing Appellant multiple times
that he was subject to a mandatory-minimum sentence of 25 years,
and up to life in prison. Appellant signed a plea form again
acknowledging that no one, including his lawyer, had promised
him any specific sentence; and that he entered the plea willingly
and without the influence of any physical, mental, emotional, or
medication-related barriers to a full understanding of the plea
agreement.
After being sentenced to the 25-year minimum-mandatory
term, Appellant moved to withdraw his plea for several reasons
including misinformation from the attorney representing him for
the plea. His attorney refused to adopt the motion to withdraw
plea, so Appellant asked to discharge counsel. The trial court
conducted a Nelson hearing and a Faretta inquiry, at which
Appellant’s attorney refused to contradict Appellant and
reiterated that Appellant had entered the plea against advice of
counsel. The trial court found Appellant competent to represent
himself on the motion to withdraw plea. At that hearing, the State
demonstrated that Appellant’s claims were refuted by the plea
colloquy and plea agreement; and introduced jail calls in which
Appellant indicated he was moving to withdraw his plea to game
the system. Appellant’s plea counsel did not testify. The court
denied the motion to withdraw the plea.
On these facts, the trial court did not err in failing to appoint
new counsel for Appellant’s motion to withdraw plea. Each of
Appellant’s allegations of ineffective counsel or involuntariness of
plea was conclusively refuted by the record. See, e.g., Flemming v.
State,
204 So. 3d 950, 952 (Fla. 1st DCA 2016) (holding that failure
to hold a conflict hearing is harmless where the record conclusively
refutes defendant’s allegations); Davis v. State,
938 So. 2d 555, 557
(Fla. 1st DCA 2006) (“An appellant is not entitled to go behind
sworn representations made to the court.”). Appointed counsel’s
refusal to adopt Appellant’s meritless motion was proper, did not
lead to entry of the plea, and was not grounds for a new hearing.
Flemming, 204 So. 3d at 952; cf. Sheppard v. State,
17 So. 3d 275,
287 (Fla. 2009) (holding conflict hearing is required when
defendant’s allegations are not conclusively refuted by the record
and the allegations led to entry of the plea).
AFFIRMED.
WOLF, KELSEY, and WINOKUR, JJ., concur.
2
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Susanne K. Sichta, Rick A. Sichta, and Joseph Hamrick, of the
Sichta Firm, LLC, Jacksonville, for Appellant.
Ashley Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.
3
