Jaworski v. State

828 So. 2d 1046 (2002)

Theodore JAWORSKI, Appellant,
v.
STATE of Florida, Appellee.

No. 4D02-1840.

District Court of Appeal of Florida, Fourth District.

October 9, 2002.

Theodore Jaworski, Bushnell, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Theodore Jaworski (Appellant) seeks review of the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Appellant alleged that his attorney misadvised him that his plea would not be considered a conviction or used for enhancement purposes and that he would not have entered his plea had he not been given this misadvice. This court has held that affirmative misadvice, regarding even collateral consequences of a plea, may form the basis for withdrawing the plea. See Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000).

We acknowledge a conflict exists among the district courts on whether allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant's plea for future criminal behavior are cognizable as an ineffective assistance of counsel claim and that the First, Second, and Third Districts have certified conflict with our decision in Smith. See Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002); Stansel v. State, 825 So. 2d 1007 (Fla. 2d DCA 2002); Wallace v. State, 27 Fla. L. Weekly D1840, ___ So.2d ___, 2002 WL 1842697 (Fla. 3d DCA Aug.14, 2002). We certify conflict with Bates, Stansel, and Wallace.

We reverse for further consideration of the ground that Appellant's plea was involuntary based on counsel's affirmative misadvice that his plea would not be used against him in any subsequent proceedings, and remand for further proceedings with respect to that ground, in the course of which the State may attempt to demonstrate laches. See Love, 814 So.2d at 476.

We affirm the summary denial as to all other grounds of Appellant's motion.

FARMER, STEVENSON and SHAHOOD, JJ., concur.